This page created 8 November 2000 / last modified 26 May 2002
Since the passage of the Health and Safety in Employment Act 1992, rural landowners have expressed concerns that they had become legally liable for visitors injuring themselves on their properties.
The original section 16 of the Health and Safety in Employment Act 1992 imposed a duty on every "...owner, lessee, sublessee and person in possession of a place of work.. to take all practicable steps to ensure that people in the place of work, and people in the vicinity of the place of work, are not harmed by any hazard that is or arises in the place of work."
The farming lobby was concerned about their liability under section 16 for visitors, including recreational visitors such as hunters, trampers and picnickers. As a result, some farmers started to restrict access to their land. Some recreational groups then lobbied the Government seeking a change in the law (PANZ did not, because we saw no legal problem requiring a 'fix').
A "lessee, sublessee and person in possession of a place of work" is an 'occupier'. The owner may be the occupier as well, provided he/she has not passed 'possession' to some other party, such an a lessee.
In legal terms, "occupier'' means-
"in relation to any place or land, means any person in lawful occupation of that place or land; and includes any employee or other person acting under the authority of any person in lawful occupation of that place or land" (s2 Trespass Act 1980).
An occupier can be a freehold owner, a lessee with "possession" rights, or the holder of some form of licence granting "occupation". 'Occupied' lands are therefore private lands irrespective of underlying land ownership, private or Crown.
This is reinforced by the definition of "private land'' under the Trespass Act-
"any land alienated from the Crown in fee simple or for any lesser estate or interest and any land whether alienated from the Crown or not, of which any person is in actual occupation or in receipt of the rent or profits".
Occupation Safety and Health
(OSH), a division of the Department of Labour, made extensive
efforts to explain that farmers would not actually be held liable
for non-work related injuries to recreational users. This was
not sufficient assurance for the farming lobby. PANZ suspects
that much of the concern was politically motivated and the possibility
of liability, despite official assurances that none existed, became
a convenient ploy for denying public access. Most farmers however
did not, however for those with an axe to grind, or private property
rights agendas to promote, OSH and their Act became a convenient
rallying point.
To appease farming and recreational interests, the Government
decided to amend section 16 to clarify the duties that a person
who controls a place of work has to other persons. In particular,
the Government wanted to make it clear for farmers that they do
not have duties to persons using their land for recreational or
leisure purposes unless they have given express consent to those
persons to be on their land.
PANZ believes that this issue highlights the critical importance of having a generous, secure provision of public lands available for recreational use, without the inevitable restrictions and prohibitions attached to private places.
The principles behind the amendment are:
* Duties of the occupier to visitors are determined by the activity or purpose for which the visitor is present.
* Duties are owed to people visiting for reasons related to the occupier's work, those who pay to be there and those who are present for the financial benefit of the occupier.
* Occupiers owe a duty to warn all persons who are authorised to be in the place of work of known, significant, out-of-the-ordinary hazards arising from work in the place.
The amended section 16 makes it clear that a person who controls a place of work must take all practicable steps to ensure that the following people are not harmed by hazards in the place of work:
* People in the vicinity of a place of work (subsection 16 (1) (a)).
* People who are working in the place, for the person who controls the place (subsection 16 (1) (b)).
* People with consent to be in the place and who have paid to be there or who are customers (subsection 16 (2).
Other people must be warned of out-of-the-ordinary, significant, work-related, hazards if they:
* Have given express authorisation by the occupier of the place to be in the place (subsection 16 (3) (c) (i)).
* Have given the occupier of the place oral advice that they will be working in the place under statutory authority (subsection 16(3)(c)(ii)).
People visiting a place of work
under any other circumstances are owed no duty by the occupier.
Subsection 16 (4) makes it clear that, unless covered by one of
the above, there is no duty to people in a place of work solely
for the purpose of recreation or leisure. While not spelt out
explicitly in the amendment, if a person is trespasser or otherwise
has no authority to be in a place of work, they are owed no duty
by the occupier under the amended section 16.
People who are working in the place of work but not as employees
or contractors of the occupier are owed only the warning
duty under subsection 16 (3) and then only if they have express
or statutory authority to be there.
Further information about this issue is available from the OSH website.
APPROVAL TO CROSS PRIVATE PROPERTY
Some farmers have historically asked for a written indemnity before giving approval for visitors to enter or cross their property.
An Amendment to the Health and Safety Employment Act in 1998 clarified farmers liability and removed the need of an indemnity. Subsequently Occupational Safety and Health Service, Department of Labour - OSH, issued a Farming Bulletin OSH 3710.10. This bulletin answers all questions farmers or trampers may have about the change to the law.
In summary a farmer "has a duty to verbally warn authorised visitors of work related, out-of-the-ordinary hazards. This is a hazard that wouldn't normally be expected by a visitor and could cause a person serious harm. Examples might be; trees being felled, blasting, earthmoving machinery operating, where pest control operators are working."
"Natural hazards are excluded.. Farmers are not liable for warning trampers or visitors of natural hazards on their farm such as; bluffs, tomos, landslides, rivers, swamps, wasp nests and so on."
"If people pay to use farm land for any purpose, the relationship changes and a farmer has a duty to take "all practicable steps" to ensure that they are not harmed by any hazard arising on a farm."
David Burson
ARTICLE FOR THE TARARUA TRAMPER
22 April 2002
The former section 16 was repealed (1998) and the following substituted:
16. Duties of persons who control places of work-.
(1) A person who controls a place of work (other than a home occupied
by the person) must take all practicable steps to ensure that
no hazard that is or arises in the place harms-
(a) People in the vicinity of the place (including people in the vicinity of the place solely for the purpose of recreation or leisure):
(b) People who are lawfully at work in the place-(i) As employees of the person; or
(ii) As contractors engaged by the person; or
(iii) As subcontractors to a contractor engaged by the person; or
(iv) As employees of a contractor or subcontractor to whom subparagraph (ii) or subparagraph (iii) applies.
(2) A person who controls a place of work (other than a home occupied by the person) must take all practicable steps to ensure that no hazard that is or arises in the place harms people-
(a) Who are in the place with the express or implied consent of the person; and
(b) Who-(i) Have paid the person (directly or indirectly) to be there or to undertake an activity there; or
(ii) Are there to undertake activities that include buying or inspecting goods from whose sale the person derives or would derive (directly or indirectly) any gain or reward.
(3) A person who-
(a) Controls a place of work (other than a home occupied by the person); and
(b) Knows of any significant hazard that-(i) Is in, or is likely to arise in, the place of work; and
(ii) Arises from work that is being carried on, or has been carried on, for gain or reward in the place of work; and
(iii) Would not, in the ordinary course of events, be reasonably expected to be in, or to be likely to arise in, a place of work of that type; and(c) Either-
(i) Expressly authorises any other person to be in the place of work; or
(ii) Has personally received oral advice that any other person will, under the authority of any enactment, be working in the place of work; and
(d) Is not obliged, in relation to that other person, to comply with subsection (1) or subsection (2)-
must take all practicable steps to warn that other person of the significant hazard.
(4) Except in the case of the practicable steps required by this
section to be taken in relation to any person described in subsection
(2) or subsection (3) (c) (i), this section does not impose on
any person who controls a place of work any duty in respect of
any person who is in the place of work solely for the purpose
of recreation or leisure.
(5) The warning required to be given to a person to whom subsection (3) (c) (i) applies-
(a) Must be given to that person at the time at which the express authority to be in the place of work is given to that person; but
(b) If the express authority is given in respect of a group of persons or a body of persons, whether corporate or unincorporated, it is sufficient if the warning is given at that time to a representative or member of that group or body of persons.
(6) The oral advice required
by subsection (3) (c) (ii) must be given by the person who will
be working in the place of work or by that person's employer.
Amendment to offence provisions
The penalties for failing to comply with section remain the same
as previously, except for section 16 (3).
(1) Section 50 (a) of the principal Act is amended by inserting,
after the expression "section 14", the words or "section
16 (3)".
(2) Section 50 of the principal Act is amended by adding, as subsection
(2), the following subsection:
"(2) Every person who fails to comply with section 16 (3) commits an offence, and is liable on summary conviction to a fine not exceeding $10,000."
Occasionally DoC officials make passing reference to a liability for the Department arising from recreational use of "the DoC estate". That liability is implied to arise from the Health and Safety in Employment Act 1992 and/or the Occupiers' Liability Act 1962. This implied liability (DoC hasn't attempted to spell out any detail) has been used from time to time to sanction prohibitions on public access to parts of national parks that are not 'Special Areas'.
PANZ believes this to be humbug, dangerous humbug.
For either of these two Acts to provide such powers first requires consideration of what DoC is - a land owner, an occupier, or merely an administering department of state?
As the Director-General of Conservation, Hugh Logan, stated in the DOC Gazette, May 24, 1999-
"As I travel around the country I hear a wide variety of terms used within and outside the Department (of Conservation) to describe the land we administer...
Some of those phrases are of real concern to me, in particular "DOC land" and "DOC estate". They convey a sense of ownership which is misleading and I know can be off-putting to people outside the Department.
I'd like to start hearing (and seeing) 'public conservation land' and 'public conservation areas'. These are a short and accurate way to describe the land and areas (like marine reserves) which we administer and most importantly, spell out that the land belongs to the public".
Despite Logan's directive to staff, the prevailing ethos projected is that the true owners are merely visitors at the pleasure of the Department - having privileges rather than rights.
However the scheme of the Acts administered by DoC supports the Logan view. The land is 'owned' by the Crown. DoC is charged with "administering" the Conservation, Reserves, National Parks Acts etc., and subject to those Acts to "manage land for conservation purposes" (s 6 (a) Conservation Act 1987).
"Conservation" means the preservation and protection of natural and historic resources for the purposes of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options for future generations" (s 2 Conservation Act 1987).
None of these Acts provide the kind of sweeping discretionary powers to constrain public recreational activity that might arise from the Health and Safety in Employment or Occupiers' Liability Acts. This is probably why the latter are from time to time raised by DoC to justify some otherwise questionable administrative action.
Application of the Health and Safety in Employment Act to DoC?
How can DoC qualify under the Health and Safety in Employment Act as "a lessee, sublessee and person in possession of a place of work" ? To be in "possession" one also needs to be an "occupier", with trespass rights.
For DoC employees, conservation areas, etc., are "places of work", but they are certainly not also occupiers, lessees, or persons in possession of such places.
Application of the Occupiers' Liability Act to DoC?
The Occupiers' Liability Act 1962 relates to the liability of occupiers for injury or damage resulting to persons or goods lawfully on any land or other property from dangers due to the state of the property or to things done or omitted to be done there.
Rules enacted under the Act regulate the duty which an occupier of premises owes to his visitors in his capacity as an occupier in respect of dangers due to the state of the premises or to things done or omitted to be done on them ("premises'' includes land).
An occupier of premises owes the same duty to all his visitors, except so far as he is free to and does extend, restrict, modify, or exclude his duty to any visitor or visitors by agreement or otherwise (s 4)
The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (s 7).
As discussed above, DoC is not
an 'occupier', and has no statutory powers to 'invite' visitors,
with concomitant powers to not invite or restrict visitors or
classes of visitors as a private discretion. That is hardly in
the nature of public land.
APPENDIX
While the Conservation Act reserves to the DG (s 13 (c)) powers "for reasons of public safety or emergency [to] close any conservation area to public entry"..."and during the closure no person not authorised ... by the DG shall remain on or enter the area", this is the only such general provision DoC has outside of special areas in national parks and specially classified reserves.
National parks
The principles to be applied to National Parks are that "parks to be maintained in natural state, and public to have right of entry"---s 4 National Parks Act 1980.
Subsection (e) Subject to the provisions of this Act and to the imposition of such conditions and restrictions as may be necessary for the preservation of the native plants and animals or for the welfare in general of the parks, the public shall have freedom of entry and access to the parks, so that they may receive in full measure the inspiration, enjoyment, recreation, and other benefits that may be derived from mountains, forests, sounds, seacoasts, lakes, rivers, and other natural features.
The only areas in national parks requiring permits for access are specially protected areas. In these instances no permit issued shall be inconsistent with the management plan for the park.
For overall administration of national parks the Department "shall subject to this Act, and in accordance with general policy and any conservation management strategy for the time being in force and any management plan in force "administer and manage all national parks in such a manner as to secure to the public the fullest proper use and enjoyment of the parks consistent with the preservation of their natural and historic features and the protection and well-being of their native plants and animals" (s 43).
The Minister may make bylaws (s 56) that are not inconsistent with the management plan for any park for -
(b) The safety and protection of the public using any parks:
(c) Excluding the public from any specified part or parts of any park:
(d) Prescribing the conditions on which persons shall have access to or be excluded from any park or any part of any park,
So there are powers to restrict public entry and use but their exercise must be consistent with operative management plans, which are developed through public process. Restrictive powers and management plans must be consistent with the principles to be applied to national parks. Abuse of such powers can be subjected to judicial review. Consequently strong tests would be applied to the justification for such restrictions relative to the prevailing purposes of national parks. PANZ believes that this is sufficient deterrent to DoC that the Department is conjuring up other unspecified powers to empower administrative conveniences not sanctioned by their Acts.
Reserves
The Reserves Act 1977 provides a wide range of reserve classifications, each with different scope for public use. Again, there are statutory tests that must be satisfied for powers of restriction or prohibition of use to withstand legal challenge.