Outdoor Walking Access Report to the Minister for Rural Affairs

14 Landholder liability

14.1 Background

Consultation on access matters in 2003 highlighted landholder concerns about the health and safety implications of public access. The Panel received similar expressions of concern during its consultation. This is despite increased amounts of information on the topic.

The Panel is concerned that there remains a degree of confusion about liability regarding people on land for recreation. The Panel firmly believes that education is needed to change incorrect perceptions of the current law about landholder liability to visitors, rather than any wholesale change to the law.

A large number of landholders felt that public access poses safety risks to the public and those living or working on rural properties. Many submitters mentioned the dangers associated with livestock such as bulls or deer, heavy equipment, activities such as tree felling or the use of chemicals, as well as natural hazards such as bluffs and rivers. It was felt that these dangers are not well understood by many urban people.

Many landholders felt that their liability for injuries to others on their land needs to be clarified. They are concerned about duties under the Health and Safety in Employment Act 1992, with a few also mentioning the Occupiers’ Liability Act 1962. These concerns lead some landholders to restrict access. Some argue that they should have no liability at all for members of the public on their land.

14.2 Accident compensation

Since no-fault accident compensation was introduced to New Zealand in 1972, there has been no right to sue for compensation for injury, except for punitive damages. The current law is provided by the Injury Prevention, Rehabilitation and Accident Compensation Act 2001 (ACC legislation).

The Panel is concerned that few people distinguish between the remedies provided for injuries arising from accidents under the ACC legislation and the possible criminal liability of employers under the Health and Safety in Employment Act 1992. The Panel considers that it is important that landholders acknowledge that, except in exceptional circumstances, they cannot be sued for compensation should someone be injured on their property.

14.3 Liability under the Health and Safety in Employment Act 1992 (HSEA)

As noted above, many landholders misunderstand their obligations under the HSEA regarding persons on or adjacent to their land for the purposes of recreation. This is in spite of the publication of a Farm Bulletin by the Department of Labour in 1999 (the contents of which had been agreed with Federated Farmers) explaining the limited liability of landholders to persons on their land for the purposes of recreation. Some landholders feel that there is still too much uncertainty about their possible liability, especially that arising under section 16(1) concerning hazards to persons in the vicinity of a place of work.

Part of this concern seems to have arisen from the publicity of one or two cases that are not directly relevant. One is the Berryman case, but this did not involve recreational access to land. Rather it concerned the death of a beekeeper as the result of the collapse of a bridge used to access Berryman’s farm. The bridge was ruled not to be a place of work, and the case brought by the Department of Labour against Berryman was dismissed. Nevertheless, the case gave rise to concerns by farmers as to their liability to visitors. In 1998, the Act was amended to clarify the duty of landholders to visitors.

The Panel invited, and appreciates, the helpful briefing it received from the Department of Labour on the liability of landholders under the HSEA. The Panel has identified four practical situations with an access dimension.

  1. Landholders have no duty to any visitors who do not have explicit permission to be on the land.
  2. Landholders have a duty to warn visitors who are on their land with explicit permission of any out-of-the-ordinary hazards likely to arise while they are in a place of work.
  3. Landholders have a duty to take all practical steps to ensure that no hazard that is or arises in the place of work harms visitors who have paid to be in a place of work or to undertake an activity there.
  4. Landholders have a duty to take all practical steps to ensure that no hazard that is or arises in a place of work harms people in the vicinity of the place, including people who are in the vicinity of the place solely for the purpose of recreation or leisure.

The Panel observes that, in this context, the definition of “a place of work” does not necessarily equate to the whole property. Rather, it covers areas where work is actually being carried out, or is customarily carried out. It also includes a public place where work is being carried out (for example, moving stock along or across a public road).

The Panel considers situation 1 to be straightforward and requiring no further comment.

Landholders have raised some concerns about situation 2. However, the Department of Labour advised the Panel that no warning need be given about hazards that would normally be expected to be encountered on a farm, such as livestock or farm machinery, or about natural hazards such as cliffs or tomos, so there seems to be little justification for such concerns. The Department of Labour comments that, in any case, the duty to warn would in practice be very difficult to enforce. It is unlikely that the Department has ever investigated a possible breach of this duty, and has certainly never contemplated a prosecution. However, such warnings would be good practice by landholders. This could be included as a recommended practice in the code of responsible conduct.

Regarding situation 3, the focus of the Panel’s work has been on access provided free of charge, but it can also see that in some circumstances landholders might want to recover costs that they have incurred in facilitating access. The Panel considers that there may be a case for amending the duty to exclude from the “all practical steps” category circumstances where there is charge to recover such costs, but not extending to a charge for gain or reward.

The Panel has some concerns about situation 4. Much of the Panel’s work has focused on the better definition of existing lawful rights of access and how the use of these existing rights could be better managed. These existing legal rights of access include various forms of water margin reservation, including unformed legal roads. Unformed legal roads can also provide non water margin access. A number of submitters were concerned about their duty in respect of persons on legal access adjoining their land. For example, unformed legal roads are generally not fenced off from the adjoining land, and persons using such roads are therefore not physically separated from any livestock in the vicinity. Some livestock can be dangerous (bulls, cows with young calves, stags during the “rut”). There may also be other potential hazards in the vicinity of these areas of legal access. The concern also applies to persons on private land with the landholder’s consent.

These areas of public (and permitted) access could also, in some circumstances, be places of work (a place of work can include places occupied or under the control of an employer, permanently or temporarily), in which case the exemption in respect of recreation or leisure would apply. Where they are not a place of work but are in the vicinity of a place of work, the duty to take all practical steps would seem to apply. In these circumstances, however, the land surrounding the unformed legal road will also usually not be a place of work so that it is unlikely that persons on the road or area of permitted access will be exposed to hazards from a place of work. The Panel considers that, while the risk to landholders from this provision is minimal, there is a need to explain its application so that it is better understood by landholders.

The Panel notes that, despite the above analysis, there remains a concern that, within a rural property, there are three different situations concerning the duties of the landholder (assumed here to be an employer for the purposes of the HSEA) to persons on their land for recreation or leisure with the landholder’s permission. These depend on where the person is at any particular time in relation to that part of the property that is at that time a place of work. The three locations and their consequences are:

  1. in a place of work – there is a duty to warn of any extraordinary hazards;
  2. adjacent to a place of work (this may include public land such as an unformed legal road that is occupied by the landholder) – there is a duty to take all practical steps;
  3. not in or adjacent to a place of work – there is no duty.

The problem for the landholder is that a warning will not be sufficient to cover the possibility of liability in respect of the second location. The Department of Labour has indicated that it would oppose changing the definition of a place of work to reduce the uncertainty in the area, but will consider whether some assurance can be provided in terms of the Department’s compliance policy as it applies to persons on rural land for recreation or leisure.

The Panel notes that some landholders seek complete indemnity from any possible liability to persons accessing their land for recreational purposes. The Panel does not support this because it would imply an indemnity from the consequences of negligent or reckless behaviour by the landholder. Although some recreational users are willing to enter private land at their own risk, the Panel would be surprised if this included an acceptance that there was no remedy at all for negligent or reckless behaviour by landholders.

14.4 Other liability

The Panel notes that there may also be landholder liability under the Occupiers’ Liability Act 1962. The extent of liability under this Act is unclear, but the Panel notes that there is a partial exemption in the Walkways Act in respect of the possible liability of landholders to walkers on gazetted walkways. The Panel agrees that an exemption of this kind should be considered for persons on rural land for recreation or leisure with the permission of the landholder.

Recommendations on landholder liability

The Panel recommends that:

  1. consideration be given to amending the Health and Safety in Employment Act 1992 to exclude from the “all practicable steps” category circumstances where there is a charge to recover costs incurred in facilitating access, but not extending to a charge for gain or reward;
  2. the Department of Labour reviews the bulletin If Visitors to My Farm are Injured, Am I Liable? in consultation with landholders, recreation organisations and Te Ara o Papatuanuku to further clarify landholder liability and to explain the Department’s relevant compliance policies;
  3. an exemption to the Occupiers’ Liability Act 1962 similar to the Walkways Act be considered for persons on rural land for recreation or leisure with the permission of the landholder.