Public Access and the standard of care for landowners and occupiers

By Guy Mickleson


Both the Taranaki and Manawatu regions are fortunate to be abundant in acreage of preserved bush. Various areas boast game of trout, waterfowl, pigs, goats, deer as well as captivating views and isolation to satisfy even the most experienced of trampers. These remote parts of the region attract countless visitors and with passing game seasons such as the roar and opening weekend, we have begun to see a massive influx of people venturing in and out of the bush. With this influx, a common dilemma resurfaces for landowners who give public access over their property to reach these blocks. While the possibility of litter and disturbance of livestock are one thing, the main risk for these proprietors is the liability they may face following an injury (or worse still, death) on their property.


So, what obligations do these proprietors owe to keen members of the public crossing over their land?


For a start, the Health and Safety Work Act 2015 accommodates for agreements between landowners and the public to enter over land despite it being a workplace. The most common example of this would be allowing access to DOC land through a farm. The key element here is that consent is given by the landowner. An example of openly giving consent could be a sign inviting public access, which would also outline the hazards to any would-be visitors. In contrast, consent might be requested more privately by ringing the landowner a couple of days prior to the visit.


When visitors enter a farm, it is then the landowner and manager’s duty to ensure the safety of those people from work related hazards. This is done by making the risk of such hazards known to visitors before they enter the property. These are primarily the hazards that a person would not expect to encounter. But with the aim being not just to avoid liability but also the harm altogether, it is best to give an extensive run down of all the common risks. This can be done either verbally, or by erecting signs next to gateways or other designated points of public entry.


However, the hazards should only relate to the parts of the land that visitors will be entering over. For example, the slippery track over the property to the boundary of the DOC land, or the poison filled bait stations placed along it, are worth noting. The chemicals in the implement shed on the opposite side of the farm from the area access is granted over, are not.


Despite the fact that the burden on landowners can seem hefty, common sense still plays a role. For instance, if the track is known to be slippery, then the farmer should warn all visitors of this hazard. But if a visitor were to trip over a stone or a tree root, then the farmer cannot be held responsible for that person’s carelessness in where they have placed their feet. What’s more, if the landowner or occupier could not have been expected to know of a hazard, then they are not responsible to any harm caused to a visitor arising out of that hazard. Much the same, if consent over land is neither granted nor offered, then a landowner cannot be held liable for harm incurred by a trespasser.


In summary, if you are a landowner or occupier, do your best to adhere to any regulations and make the hazards known to your guests. If you are a visitor, make an effort to get in touch with the landowner, learn the potential hazards and apply common sense. Access over private land is a privilege and continues only by good people keeping up their end of the bargain.


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