New Zealanders have grown up with an expectation that they are able to access and use most outdoor areas for recreation. However, many landowners, particularly farmers, are concerned about the implications of the Health and Safety at Work Act 2015 (HSWA), and whether they will be responsible for anything that happens to someone while they are on their land. WorkSafe has now released a policy clarification, setting out their position about recreational access.
What is recreational access?
Recreational access is the use of the land and its features for outdoor activities. It encompasses people using the land for walking, cycling, kayaking, sailing, hunting, fishing, rock climbing and swimming.
The land that people use may be public or Crown-owned land, or it may be private land. In many cases the land will be a workplace, usually a farm, and the landowner will therefore have duties as a person conducting a business or undertaking (PCBU) to ensure the health and safety of every person in that workplace.
What effect does the HSWA have?
WorkSafe has made it clear that the HSWA does not cover any injuries that happen as a result of doing a recreational activity.
The HSWA only applies to recreational access when the land is affected by a PCBU's work activities or is part of a workplace.
This means a PCBU whose land is being accessed for recreation is:
- responsible for risks arising from the work or workplace, but
- is not responsible for the risks associated with the recreational activities.
By way of example, there would usually be no liability under the HSWA if a hiker fell and injured him or herself while walking on the land. The position may be different if the hiker had fallen into an unfilled hole left behind when the farmer was re-fencing a paddock, because that risk arose from the work.
A landowner's duties to recreational visitors can usually be met in simple ways, either through advance notice to known users, such as an email telling them of current work hazards, or on-site notice such as signs and verbal warnings.
It is also important to note that a recreational visitor has their own responsibilities, and must follow any reasonable instructions that they are given. If the hiker had ignored a sign warning that re-fencing was taking place and that there were unguarded holes, then the landowner will be able to argue that they should not be responsible for any resulting injury.
What if the recreational activity was a commercial venture?
Many recreational activities, such as river rafting, quad bike tours, and horse-trekking are commercial ventures that are paid for by the participants. For the landowner, the rights and obligations remain the same, regardless of whether the activity is commercial, unless they are part of the entity running the commercial activity. The PCBU which runs the commercial venture, will, of course, have full HSWA duties, as it will be their workplace.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.