In the last few years kayakers around the country have occasionally been denied access via rural land to rivers, due to liability concerns. NZRCA have spent some time corresponding with Department of Labour over the issue of potential liability caused by access across rural lands, and have found that there is no legislation or legal precedent with should concern landowners. Note: Health and safety services formerly referred to as OSH (Occupational Safety and Health) are now referred to as the Department of Labour.
Health and Safety in Employment Act
The law in NZ in regards to landowner's liability for recreational visitors is as follows:
- The statute relevant to recreational access to, or via, rural land is the Health and Safety in Employment Act (HSE) 1992. It was implemented to regulate the health and safety of employees and other people in workplaces, and is enforced by the Department of Labour. It was never intended to regulate liability for recreational visitors, however the wording of the Act was not obvious on this point.
- To clarify this point, the relevant section, HSE Act 1992 Section 16 was amended in March 1998. The Department of Labour released issue 10 of the Health and Safety Farming Bulletin to publicise the amendment. The Act now states that a landowner has a duty to warn recreational (i.e. non-paying) visitors only of work-related, out-of-the-ordinary hazards which would not be reasonably expected to be in a place of work of that type. There is no duty to warn of natural hazards such as bluffs, tomos, landslides, rivers, swamps, wasp nests, and so on.
- NZRCA asked the Department of Labour for some history of how the Act has been interpreted. We obtained a statement from Rex Moir, Senior Policy Advisor at Department of Labour that makes clear that the Act has been interpreted as described in the above-mentioned issue of the Farming bulletin. This is evidenced by the fact that in the 13 years of the HSE Act's existence, the Department of Labour has never prosecuted, let alone convicted, a landowner in respect of a recreational visitor.
Statement from the Department of Labour
The following is from Rex Moir, Senior Policy Advisor, Department of Labour:
"Overall, the Department of Labour initiates between 100 and 150 prosecutions per year. The great majority of these are prosecutions of employers in relation to the safety and health of their employees. Section 16(2) of the HSE Act is the one that places duties on a landowner in relation to the safety and health of people who pay the landowner for recreational use of their property. There have been only 14 convictions under that section since it was inserted into the HSE Act in March 1998. In all of the cases, the convicted defendant was in the business of providing services directly to the injured person. There have never been any prosecutions by Department of Labour (successful or otherwise) taken against a landowner in respect of a non-paying visitor."
"I am attaching a copy of a summary of Department of Labour's enforcement policy. This is extracted from a guide to the HSE Act which is available on our website. In particular the policy includes the statement "Only those who had the ability to change the situation in question are charged." In other words, the landowner would only be charged by Department of Labour if all of the criteria in our enforcement policy were met, including evidence that the landowner could have changed the situation in a way that would have directly prevented any injury from occurring."
The following related documents are relevant: