Pretoria - A stuntman who was injured during a stunt in an ice cream van during the filming of a commercial, has lost his legal bid to claim R20 million in damages from the Road Accident Fund (RAF).
Etiene du Toit turned to the Western Cape High Court where he claimed damages against Farm Film Productions after he had signed a contract with the company to do a television commercial.
The agreement required Du Toit to “jump or ramp” a vehicle modified to resemble an ice cream truck over Long and Leeuwen streets in Cape Town.
In terms of the agreement, Du Toit would be comprehensively insured for any loss, damage or injury sustained in connection with rendering the services contracted for.
He was given the assurance that the filming location of the commercial would be safe and all persons on the set would be sufficiently trained in the handling of the relevant equipment that Du Toit would encounter.
It was further agreed as per the contract that Du Toit would be made aware of all hazards on the set that may affect him and there would be sufficient risk control measures in place to protect him during the performance of his duties.
Subsequently he drove the modified ice cream truck over a ramp at the designated film location, at a speed and trajectory determined by the production company.
Du Toit alleged he was injured when the vehicle’s chassis and/or steering column and/or suspension and/ or driver’s seat collapsed upon landing or impact. He said he sustained spinal and head injuries.
Du Toit blamed Farm Film Productions for the incident, saying the company had failed to ensure the vehicle was suitably modified for the stunt.
The set-up of the ramp was incorrectly determined, he said, and the trajectory and speed of the vehicle were incorrectly calculated.
After issuing of summons against the production company for R20m, the company filed a special plea alleging that Du Toit’s claim stood to be directed at the RAF, rather than Farm Film Productions. Following this, Du Toit sued the RAF in his action for damages. The fund, however, noted an exception to the claim.
The grounds that underpin the exception are that Du Toit’s amended particulars of claim lack averments necessary to sustain a cause of action under the RAF Act.
The fund argued that Du Toit did not claim that he was driving a vehicle for the purposes of the act, on a road contemplated by the act, and in a motor vehicle for the purposes of the act. Instead, he drove a specially modified vehicle for a television commercial.
Counsel for the RAF argued that a permit was obtained by Farm Film Productions from the City of Cape Town, granted in terms of the City’s Filming By-Law, to execute the stunt. Thus, the road was closed off at the time to normal traffic.
The court was told Du Toit was not driving a vehicle as contemplated by the act, as the vehicle was specially modified for purposes of performing an inherently dangerous activity.
Counsel for Du Toit, on the other hand, argued that it cannot be contested that Long and Leeuwen streets in Cape Town are roads and they do not cease to be such just because they are closed to all but certain vehicles during the film shoot.
Acting Judge NE Ralarala said that the ice cream truck was clearly a stunt vehicle designed for ramping and jumping. Du Toit was a stunt driver, in an enclosed film set or location. It cannot, therefore, be argued that at the time he was driving a motor vehicle for the purposes of the act.
The judge found that the claim lacked averments necessary to sustain a cause of action against the RAF.
Pretoria News