Public liability

[monchopper]

I was chatting to the manager of a large high country station today about getting access to ride a couple of tracks on the property.

He said the new owners of the station wouldn't give permission to anyone they didn't know or hadn't met because if one of us was to injure ourselves on their property we could sue them. I've agreed to investigate with a lawyer the possibility of having some kind of liability waiver drawn up that the riders could sign.
(Or is this a polite way of telling me to piss off??)

I've spoken to 100's of farmers regarding access before and this is the first time it's popped up.

Has anyone encountered this before? If so is there a standard 'sign ya life away' legal agreement thats I can download?

Thoughts please.

[FJRider]

Under the "no fault" policy of 99.9 % of the New zealand population ... it can't be their fault if they have an "off" ... therefore it MUST be the land-owner's fault for not warning them of ALL dangers on the property ... thus ... causing them to "off" ...

O.S.H seems to support this opinion ... MANY events have been cancelled due to this thinking ...

Liability waivers are a waste of paper in the opinion of "most" legal authorities ...

GOOD LUCK ...

[dino3310]

I work for a Regional Council and
A lot of farmers are up to date with H&S, signs scattered around boundrys etc, more and more are wanting me to notify them when im on there properties and on routine inspectoins and stuff i might be on 20 farms a day so notification gets f@$kin time consuming.
FJriders is right - Liability waivers are not worth the paper there written on....
i would approach that farmer again and see if it was possible to do an safety induction and a hazard register sign off as a group before a ride. they will have a Hazard register and a H&S policy..

We have to do a Hazard ID/induction with volunteers on public plant days etc.

Its a big can of worms your looking into, most people will have there own interpretations on farm access, riders rights, paper roads, H&S.

[That looks like fun]

Just to throw an egg into your basket of apples perhaps it would be wise to look at if a transaction is involved. If not then :innocent:

[monchopper]

This is sounding like a bit of a nightmare really. What is the world coming to, not really the kiwi way now is it? To sue someone for your errors of judgement.

A H&S induction is out of the question. Apart from the fact I live in London we are going through 30 odd farms imagine if we had to do that for all of them.

Luckerly this is the only one so far who has brought this up.
I think it's going to be easier to draft another route that doesn't go through this station.

I'm no lawyer but surely a legal doc stating because of the nature of purposed activity and the countryside/alpine environment that conditions are constantly changing, rockfalls, floods....., slips and land slides. The landowner has made every effort to identify and we the undersigned understand the risks....... would cover their arses..no?

[slofox]

Oh FFS...this is all the nanny state stuff run amok. What the FLICK ever happened to personal responsibility...:facepalm:

My goddam risk if I want to take it...

[FJRider]

....... would cover their arses..no?

in plain english ... no

[TimeOut]

The land owner needs to be careful with friends as well as it won't be the friend suing /prosecuteing it'll be OSH (with or without their permission)

[FJRider]

Oh FFS...this is all the nanny state stuff run amok. What the FLICK ever happened to personal responsibility...:facepalm:

My goddam risk if I want to take it...

Ask the parents of the kid that wrapped himself around a power pole what happened to it ... :facepalm:

[monchopper]

The land owner needs to be careful with friends as well as it won't be the friend suing /prosecuteing it'll be OSH (with or without their permission)

What happens to the angler who is using an 'Anglers Access' route over private land who slips over on xxxx and ends up with a broken leg and fish hooks as ear rings??

Whats the difference?

[warewolf]

AFAIK OSH only applies to literally "occupational" use. Recreational use is not covered.

Have been through this with caving. No need for induction or any such thing, nor any other OSH compliance, because we are not working - and if no koha to the landowner then neither are they wrt to us. Hence with your angler monchopper, OSH has no business with him.

[dino3310]

A H&S induction is out of the question. Apart from the fact I live in London we are going through 30 odd farms imagine if we had to do that for all of them.
Luckerly this is the only one so far who has brought this up.
I think it's going to be easier to draft another route that doesn't go through this station.

theres still a few good ole kiwi cockys that will let you on, i wonder how britton adventure tours does it they cover farms all over the country


Oh FFS...this is all the nanny state stuff run amok. What the FLICK ever happened to personal responsibility...:facepalm:
My goddam risk if I want to take it...
nanny state, welfare state, bull shit state... what ever happened to personal responsibility?.... ask Labour
The land owner needs to be careful with friends as well as it won't be the friend suing /prosecuteing it'll be OSH (with or without their permission)
i got friends with farms who wont let me or the kids ride on it cause of that... osh bloody osh, some H&S just gets carried away, the practibilty and common sense have gone from H&S

What happens to the angler who is using an 'Anglers Access' route over private land who slips over on xxxx and ends up with a broken leg and fish hooks as ear rings??

Whats the difference?

Depends, sometimes the access is a paper road, some times its looked after buy fish & game or Doc....
Good question, Lion rock not far south from Raglan has claimed fishos lives and thats accessed through land with open access to public(gate with honesty box) i dont know how they get away with that.

[pete376403]

AFAIK OSH only applies to literally "occupational" use. Recreational use is not covered.

Have been through this with caving. No need for induction or any such thing, nor any other OSH compliance, because we are not working - and if no koha to the landowner then neither are they wrt to us. Hence with your angler monchopper, OSH has no business with him.

So it may be that the landowner is using the "OSH thing" as a means of keeping rec. users out, even if it (OSH) doesn't apply.

[warewolf]

So it may be that the landowner is using the "OSH thing" as a means of keeping rec. users out, even if it (OSH) doesn't apply.It might be simply that most "strange" visitors are occupational so the landowners haven't considered that recreational use is different.

Basically if visiting family & friends don't need OSH induction or whatever, then other recreational visitors don't either.

[dino3310]

but as the farm is the farmers place of work dosent that make it a "work site

[monchopper]

So it may be that the landowner is using the "OSH thing" as a means of keeping rec. users out, even if it (OSH) doesn't apply.

Could be.

By the varied responses here it seems to be not very well understood as far as recreational use goes.

I'm pretty keen to get to the bottom of it and get a definitive answer (as I'm sure alot of you are)
I've email a lawyer friend to get a legal opinion and will keep ya posted.

[monchopper]

It might be simply that most "strange" visitors are occupational so the landowners haven't considered that recreational use is different.

Basically if visiting family & friends don't need OSH induction or whatever, then other recreational visitors don't either.

I would like to think that right WW. If you look at the DOC website for hunting in conversation areas, many of areas are accessed over private land and freely give the farmers contact details. In fact a few I know of can only be accessed via private land.

[dino3310]

Could be.

By the varied responses here it seems to be not very well understood as far as recreational use goes.

I'm pretty keen to get to the bottom of it and get a definitive answer (as I'm sure alot of you are)
I've email a lawyer friend to get a legal opinion and will keep ya posted.

cool, look forward to what he finds out

[warewolf]

but as the farm is the farmers place of work dosent that make it a "work siteIt might do, but we aren't discussing work. And that is the crux of the matter.

Caving has been going through all this shite for the last 15 years or so (at least; that's only since it's really impacted me). About 10 years ago, recreational cavers were all but stopped from entering most properties in Waitomo for a while, due to OSH reacting to some incidents and some panicked farmers scaremongering. Then a very firm legal opinion (decision?) came down that OSH had no business interfering because we weren't working. So then the floodgates opened and it was pretty much open slather again; in fact some farmers who were previously a bit leery gave us the green light after a few years of virtually nil access for fear of OSH repercussions.

[MikeJ]

The original HASE act of 1992 was virtually unworkable as far as recreational activities on private land was concerned and the act was modified in 2002. As a motorcyclist riding across a farmers land you are treated just the same as if you were the relative of the farmer visiting the farm for the day.
Under the amendment the farmer only has to tell all visitors to the farm what dangers are present that they wouldnt normally be expected to find...these include any heavy earth works, blasting, logging, particularly wild bulls etc. He doesnt have to tell you about logs buried in the grass or tomos or steep drop offs, cliffs, swamps etc..etc. Thats all there is to it.
Waivers are useless.....dont bother with them. A land owner will still be prosecuted if they neglect to inform visitors of the unexpected dangers even if a waiver is signed.
I`ve been working with Mike Britton for 11 years helping to obtain permission for land access and we still occasionally come across a farmer who doesnt know how the Act applies. On those occasions we hand out the pamphlets that OSH put out that explain land access rules. You could obtain them or you could print out this and give it to the landowner.... www.osh.govt.nz/publications/factsheets/farm-visitors.html
If you pay to be on the farm thats a different story...the duty of care on the farmer is much greater.

[monchopper]

The original HASE act of 1992 was virtually unworkable as far as recreational activities on private land was concerned and the act was modified in 2002. As a motorcyclist riding across a farmers land you are treated just the same as if you were the relative of the farmer visiting the farm for the day.
Under the amendment the farmer only has to tell all visitors to the farm what dangers are present that they wouldnt normally be expected to find...these include any heavy earth works, blasting, logging, particularly wild bulls etc. He doesnt have to tell you about logs buried in the grass or tomos or steep drop offs, cliffs, swamps etc..etc. Thats all there is to it.
Waivers are useless.....dont bother with them. A land owner will still be prosecuted if they neglect to inform visitors of the unexpected dangers even if a waiver is signed.
I`ve been working with Mike Britton for 11 years helping to obtain permission for land access and we still occasionally come across a farmer who doesnt know how the Act applies. On those occasions we hand out the pamphlets that OSH put out that explain land access rules. You could obtain them or you could print out this and give it to the landowner.... www.osh.govt.nz/publications/factsheets/farm-visitors.html
If you pay to be on the farm thats a different story...the duty of care on the farmer is much greater.

This is perfect thanks MikeJ. I will read the docs and send them to the farmer as I think this should be sufficient to change his mind. I think this is the silver bullet:woohoo:

My next move was to ask if even tho he didn't give permission, would he ring the police if he saw 11 bikes trespassing on the discussed route on xx day? If not then no difference really. (unless he double crossed me....) , but it doesn't look like that option will be needed!!

I wonder how this applies to situations like Blackforest Rd, where you pay a gate fee.
Could that gate fee be construed as land access payment?

[Padmei]

Good stuff Mike J.

[BiK3RChiK]

Having grown up on a farm, I wouldn´t enter a farm property without permission. I think that would be a certain invitation to have a bullet whizzing over ones head...

My guess is that this farmer doesn´t want anyone on his farm property. If, after attempting to clear up any misunderstandings, his reply is still no, I definitely would not enter his property.

JMHO

[Woodman]

Interesting stuff. I think the farmer is just unsure of the rules / liability etc so is just using osh as a scapegoat. A bit of education is probarbly all he needs.

[dino3310]

It might do, but we aren't discussing work. And that is the crux of the matter.
.
cheers Colin, that made a lotta sence. all my dealings with farmers are through work so thats another ballpark.


Under the amendment the farmer only has to tell all visitors to the farm what dangers are present that they wouldnt normally be expected to find.
Thats a hazard induction. Thanks for your input Mike, i wonderd how the Britton rides coverd so many farms.


Having grown up on a farm, I wouldn´t enter a farm property without permission. I think that would be a certain invitation to have a bullet whizzing over ones head...
JMHO
unless its a KLR then they might aim a little lower


Interesting stuff. I think the farmer is just unsure of the rules / liability etc so is just using osh as a scapegoat. A bit of education is probarbly all he needs.
Good luck trying to educate them

Good thread monchooper:yes:

[wysper]

cheers Colin, that made a lotta sence. all my dealings with farmers are through work so thats another ballpark.


Thats a hazard induction. Thanks for your input Mike, i wonderd how the Britton rides coverd so many farms.


unless its a KLR then they might aim a little lower


Good luck trying to educate them

Good thread monchooper:yes:

enough with the damn yellow Dino!!

[dino3310]

enough with the damn yellow Dino!!

a multi quote habit of mine

[That looks like fun]

Putting all tho OSH stuff to one side for a moment :yes: A lot of Farmers don't want a bunch of bikes ripping around on their front lawn (regardless of how big that lawn is) and use the OSH thing as an easy out :yes:
Its really a responsibility of the us bikers to ensure that when granted permission we act responsibly so that the next guy that asks also gets a yes :woohoo:

[dino3310]

Putting all tho OSH stuff to one side for a moment :yes: A lot of Farmers don't want a bunch of bikes ripping around on their front lawn (regardless of how big that lawn is) and use the OSH thing as an easy out :yes:
Its really a responsibility of the us bikers to ensure that when granted permission we act responsibly so that the next guy that asks also gets a yes :woohoo:

here here:clap:

[warewolf]

Awesome stuff, MikeJ, top marks for clarification :woohoo: It's always good have a documented source for such things.

[XF650]

What I find helps is explaining the difference between adv riders & trail riders.
Also a verbal comittment to sticking to formed tracks where possible, leaving gates as we find them, not annoying stock etc all helps too. Just basic respect really.

[cooneyr]

Thanks for that info Mike J. I'm glad that is where things sit cause it is bloody ridiculous for a farmer to be liable for natural hazards. Last comment about paying is interesting. I don't mind paying the small fees that people ask but it is probably in the farmers best interests not to ask for cash. Places like black forest where cash is asked for but no induction given are taking a real punt then it seems! Rainbow make you sign one of their waivers but again probably not worth the paper it is on. Also no induction given.

I agree with others post - explaining ADV riders vs trail riders makes a difference as does telling them that your all a bunch of old nana's that will do best endeavours to stick to tracks, minimise damage, not annoy stock etc etc.

Cheers R

[monchopper]

Thanks for that info Mike J. I'm glad that is where things sit cause it is bloody ridiculous for a farmer to be liable for natural hazards. Last comment about paying is interesting. I don't mind paying the small fees that people ask but it is probably in the farmers best interests not to ask for cash. Places like black forest where cash is asked for but no induction given are taking a real punt then it seems! Rainbow make you sign one of their waivers but again probably not worth the paper it is on. Also no induction given.

I agree with others post - explaining ADV riders vs trail riders makes a difference as does telling them that your all a bunch of old nana's that will do best endeavours to stick to tracks, minimise damage, not annoy stock etc etc.

Cheers R

I agree, but maybe ADV riders v motorcross riders as my lot (the 4 day high country trip I'm organising that originated this thread) are basically road legal trail riders (or is that ADV lite riders).
FE570's, 530excs, 450exc, DRZ400 etc.
I find explaining that the lads are all middle aged and if you didn't hear us you wouldn't know we were there.
What I also have up my sleeve which works really well and I've had to use a few times is a reference from the owner of a well known high country station.
That way any farmers humming and harring about not knowing us etc can give the referree a call.

UPDATE: I've spoken to the farmer again today and he's cool with the public liability thing but is calling my referee just to double check our credentials so hopefully we're all go!! This farm is a critical link in the route so fingers crossed.

Interesting during my land access enquiries this weekend one farmer has (the first of 20 odd farmers on this trip) asked for a $20 land access fee.
I'm in 2 minds as to whether to
a) Except it and use the land
b) Send them a copy of the document Mike pointed us to.

To educate and risk the access or to leave them in the dark and carry all that risk they're are most likely oblivious to????

[dino3310]

nice one mate looks like things could pan out nicely apart from the chap wanting $$, if he did take money wouldnt it just be him in the poo(osh wise) if something went wrong.

[cooneyr]

.....Interesting during my land access enquiries this weekend one farmer has (the first of 20 odd farmers on this trip) asked for a $20 land access fee.
I'm in 2 minds as to whether to
a) Except it and use the land
b) Send them a copy of the document Mike pointed us to.

To educate and risk the access or to leave them in the dark and carry all that risk they're are most likely oblivious to????

The silly thing with this is that what rider in the right mind after being given permission to go onto somebody else's land would then turn around and sue (or whatever) for some issue. Most likely we did something stupid anyway.

Pay the dosh, keep the guy happy and don't do anything stupid :innocent:

Cheers R

P.s. Also mentioning that you grew up on a farm is a good icebreaker - especially when they know of your old man or cousins.

[dino3310]

yeh yeh just tell him your related to the Smiths :laugh:

[monchopper]

nice one mate looks like things could pan out nicely apart from the chap wanting $$, if he did take money wouldnt it just be him in the poo(osh wise) if something went wrong.

Not the same farmer (one of neighbours actually).

Funny thing the land he wants to charge us to cross isn't that critical to the trip and I can easierly re-route to avoid this with little hassle.

Over the 4 day trip we will pass through approx 35 farms, if we were to pay 20 everytime it would make it an prohibitively expensive exercise.

Fortunately over the last few trips I've organised like this I've contacted around 100 different farmers.

2 have denied access
2 have looked to charge us.
The rest have all been very agreeable, help with route suggestions, give contact details of their neighbours.

All and all the typical NZ farmer is usually happy to accommodate once your intent is established.

Thanks for everyones input, especially yours Mike. It's apparent from some of the early post this is not very well understood by both farmers and us potential users.

I hope we're all much more aware of the legal position of landowners in relation to us recreation riders have and we have link and easierly downloadable attachment for show any hesitant landowners.
The good think about the document is that it is in plain english and not laced with off putting legal jargon.

Cheers

[p.dath]

The silly thing with this is that what rider in the right mind after being given permission to go onto somebody else's land would then turn around and sue (or whatever) for some issue. Most likely we did something stupid anyway.

It's not the rider suing that is the problem, its the fines that OSH can charge if there is an accident.

[NordieBoy]

It's not the rider suing that is the problem, its the fines that OSH can charge if there is an accident.

Have you been reading the thread at all?

[p.dath]

Have you been reading the thread at all?

Yep, and I understand that OSH is unlikely to be involved because it is not a work place.

However, the ACT does have some provision for the protection of "volunteers". I think it is unlikely to be applied in this case - just have to be careful with any "helpers". Note that this could be equally applied to the person running the ride, as opposed to just the landowner.
http://www.legislation.govt.nz/act/public/1992/0096/latest/DLM279195.html?search=ts_act_Health+Safety_resel&p=1#DLM279195


Protections for other volunteers
(1) This section applies in respect of all volunteers doing any voluntary work activity in respect of whom section 3C does not apply.
(2) The person for whom such a volunteer does the work activity should take all practicable steps to ensure the health and safety of the volunteer while he or she is doing the work activity, in particular by taking hazards into account when planning the work activity.
(3) If an inspector becomes aware of a significant hazard relating to the work activity, the inspector must, as soon as practicable, contact the person for whom the volunteer is doing the work activity (or the person's representative) to discuss means of eliminating, isolating, or minimising the hazard.
(4) If this section applies, sections 39, 41, and 49 do not apply.
Section 3D: inserted, on 5 May 2003, by section 6 of the Health and Safety in Employment Amendment Act 2002 (2002 No 86).

[FJRider]

Yep, and I understand that OSH is unlikely to be involved because it is not a work place.


But it IS the farmers workplace ... and as such, he has a "duty of care" to warn visitors to his "workplace" of any and all dangers they could reasonably expect to find ...

Sounds easy enough you might say ... but seldom do you see the same hazards on each and every farm, on each and every day. On some back-blocks of some areas ... the landowner may not even be aware of (new) hazards ... ie: washed out track, slips etc in less visited areas of the property.

Farm operations and their timing vary, so unless you are familiar with that area ... and often that farm in particular ... it is a lucky-dip as to what you may encounter ...

Farms seem to have big heavy things ... with sharp and pointy things on them, that you do not want to hit.

Most farms do have some form of public liability insurance ... but they wont want the premiems increase, if a visitor hurts themselves on their property .... with or without their permission to be there. Or not being "warned" of the dangers ...

Landowners may not be willing to take the risk of allowing visitors (motorcyclists or 4WD'rs)

THEIR property ... THEIR choice !!!

[p.dath]

But it IS the farmers workplace ... and as such, he has a "duty of care" to warn visitors to his "workplace" of any and all dangers they could reasonably expect to find ...

The duty of care extends beyond that of simply warning them ...

http://www.legislation.govt.nz/act/public/1992/0096/latest/whole.html?search=ts_act_Health+Safety_resel&p=1#DLM279232

Duties of employers to people who are not employees
Every employer shall take all practicable steps to ensure that no action or inaction of any employee while at work harms any other person.

So failing to "act" to protect visitors is enough to get prosecuted ...

[oneofsix]

But it IS the farmers workplace ... and as such, he has a "duty of care" to warn visitors to his "workplace" of any and all dangers they could reasonably expect to find ...

so by that logic the roads are the cop on traffic duties work place so he has a duty to stop every person using the road and warn them of the hazards, after all no two roads are the same. The roads are also the work place of every courier driver, taxi driver, bus driver ... nah that's silly.

[p.dath]

so by that logic the roads are the cop on traffic duties work place so he has a duty to stop every person using the road and warn them of the hazards, after all no two roads are the same. The roads are also the work place of every courier driver, taxi driver, bus driver ... nah that's silly.

The Government owns the road, not the cops.

[FJRider]

The duty of care extends beyond that of simply warning them ...




So failing to "act" to protect visitors is enough to get prosecuted ...

HENCE ... refusal of entry ... and LOCKED gates. Signs warning of prosecution for tresspass is not enough. Cutting locks is breaking and entering ... and the tresspass.
Some judges take a dim view of that ...

[oneofsix]

The Government owns the road, not the cops.

work place vs ownership

[FJRider]

so by that logic the roads are the cop on traffic duties work place so he has a duty to stop every person using the road and warn them of the hazards, after all no two roads are the same. The roads are also the work place of every courier driver, taxi driver, bus driver ... nah that's silly.

Close ... their EMPLOYERS have a "duty of care" to ensure their safety on the job. Hence dayglow gear/flashing lights on etc ...

SILLY ???? truth is stranger than fiction ....

[That looks like fun]

There are Cops and Government owned roads on the Adventure rides across farms :gob:
When did this happen and why wasnt I told :facepalm:

[dino3310]

There are Cops and Government owned roads on the Adventure rides across farms :gob:
When did this happen and why wasnt I told :facepalm:

could be a paper road:blink:

[warewolf]

Cutting locks is breaking and entering ... and the tresspass.
Some judges take a dim view of that ...Not when it is re-opening an illegal gate on a public thoroughfare, whether some farmer likes people using it or not.

But we digress. The original question has been clearly answered.

[That looks like fun]

could be a paper road:blink:


OH Those roads :innocent:

Must admit I do like WW summing up of this topic :yes:

[FJRider]

Not when it is re-opening an illegal gate on a public thoroughfare, whether some farmer likes people using it or not.

But we digress. The original question has been clearly answered.

Actually they can ... if it is claimed (even better if its proven) that the locks are there in the interest of public safety.

In which case you may find yourselves deeper in the poo ...

[cooneyr]

You's all need to stop bleating and read the post of MikeJ's (http://www.kiwibiker.co.nz/forums/showthread.php/133026-Public-liability?p=1129951103#post1129951103) including the link to the Department of Labour website.


Yep, and I understand that OSH is unlikely to be involved because it is not a work place.....However, the ACT does have some provision for the protection of "volunteers". ....

Who's volunteering for anything?


But it IS the farmers workplace ... and as such, he has a "duty of care" to warn visitors to his "workplace" of any and all dangers they could reasonably expect to find ... the landowner may not even be aware of (new) hazards ... ie: washed out track, slips etc in less visited areas of the property....

Again read the DoL website. Natural hazards are excluded, only need to warn of out of the ordinary hazards.

[cooneyr]

Actually they can ... if it is claimed (even better if its proven) that the locks are there in the interest of public safety.

In which case you may find yourselves deeper in the poo ...

Please explain why a private person would be able to put a lock would be on a public road in the interest of public safety. Hope they have the written approval of the RCA and have published the road closure for the necessary time in advance.

[dino3310]

You's all need to stop bleating and read the post of MikeJ's (http://www.kiwibiker.co.nz/forums/showthread.php/133026-Public-liability?p=1129951103#post1129951103) including the link to the Department of Labour website.


like i said in my original post, "openend a big can of worms", the original issue/question has been settled and now its expanding into uuuuuuummmm dunno really some kind of debate/discussion, but im injoying the read :laugh:

got the web sites on my favourite tab ready for the next one to post up a simular question:D

[monchopper]

Actually they can ... if it is claimed (even better if its proven) that the locks are there in the interest of public safety.

In which case you may find yourselves deeper in the poo ...

Given your posts at the start of this thread were way off the mark, I'll treat this comment accordingly.

Summary from the link MikeJ sent.

Fact Sheet - If Visitors to my Farm are Injured, Am I Liable?
Under section 16 of the Health and Safety in Employment Act 1992, people who control workplaces, including farmers, have a simple duty to warn visitors who have permission to be on their properties of any work-related, out-of-the-ordinary hazards that they know about that may cause serious harm.

[FJRider]

Given your posts at the start of this thread were way off the mark, I'll treat this comment accordingly.

Summary from the link MikeJ sent.

Fact Sheet - If Visitors to my Farm are Injured, Am I Liable?
Under section 16 of the Health and Safety in Employment Act 1992, people who control workplaces, including farmers, have a simple duty to warn visitors who have permission to be on their properties of any work-related, out-of-the-ordinary hazards that they know about that may cause serious harm.

Treat my comments any way you like ... apparently it's a free country ...

However ... I have highlighted a few words of your quoted statement ... The very crux of land access ... permission of the landowner (or his representitive)

Without it ... :doh:

[monchopper]

Treat my comments any way you like ... apparently it's a free country ...

However ... I have highlighted a few words of your quoted statement ... The very crux of land access ... permission of the landowner (or his representitive)

Without it ... :doh:

Have you been talking about trespass all this time when the rest of us have been discussing liability?:sleep:

[FJRider]

Please explain why a private person would be able to put a lock would be on a public road in the interest of public safety. Hope they have the written approval of the RCA and have published the road closure for the necessary time in advance.

Depending on the circumstances of the particular road. And untill you find out if permission to close the road was given ... and/or why/ the reasons for such ... removing locks for your entry may not be the wisest move.

There are a number of roads (public and paper roads) that are regulary closed to public use for weather or farming reasons(lambing, hay-making etc).

The Danseys pass road and the Dunstan trail, also the Roxburgh-Waikaia road ... the Nevis valley road ... all roads where motorcyclists is the past have ignored signs/locks and attempted to use them, and sometimes needed assistance to get out.

If a "public road" in your area is locked ... and you cannot see a reason/get a reason for it to be closed ... lay a complaint (or at least ask polite questions) with the local Police. If anybody needs to know why a public road should be/is closed ... it would be them.

[FJRider]

Have you been talking about trespass all this time when the rest of us have been discussing liability?:sleep:

No need to discuss liability ... if permission is not granted.

The landowner does not need to explain why access was refused. (usually because he was let down by previous motorcycle/4WD groups that were given access ... I personally know several landowners in this situation)

[FJRider]

.... Natural hazards are excluded, only need to warn of out of the ordinary hazards.

So ... the two bulls in the back paddock are a "natural" hazard ... or an "ordinary" hazzard ... ??? :lol:

[monchopper]

Depending on the circumstances of the particular road. And untill you find out if permission to close the road was given ... and/or why/ the reasons for such ... removing locks for your entry may not be the wisest move.

There are a number of roads (public and paper roads) that are regulary closed to public use for weather or farming reasons(lambing, hay-making etc).

The Danseys pass road and the Dunstan trail, also the Roxburgh-Waikaia road ... the Nevis valley road ... all roads where motorcyclists is the past have ignored signs/locks and attempted to use them, and sometimes needed assistance to get out.

If a "public road" in your area is locked ... and you cannot see a reason/get a reason for it to be closed ... lay a complaint (or at least ask polite questions) with the local Police. If anybody needs to know why a public road should be/is closed ... it would be them.

Paper and public roads are the same thing.
I've never heard of a public road reserve being closed for farming reasons.
Link to back that up?

If a the gate on a public road is locked and there is no notice from the local authority as to why it's locked then you're within you legal rights to use the minimum amount of force to gain passage, which is in most cases cutting the lock.

[FJRider]

Paper and public roads are the same thing.
I've never heard of a public road reserve being closed for farming reasons.
Link to back that up?

If a the gate on a public road is locked and there is no notice from the local authority as to why it's locked then you're within you legal rights to use the minimum amount of force to gain passage, which is in most cases cutting the lock.

An interesting link ...

http://www.lifestyleblock.co.nz/the-good-oil/article/324-the-good-oil-paper-roads-.html

Another link ...

http://www.walkingaccess.govt.nz/store/doc/WAC_0024_FAQ4_UnformedLegalRoad_AW.pdf

[timmehpwr]

very interesting reading about locked gates on paper roads... we ran into a problem recently with the lake station farmer at Lake Sumner, sounds like his padlocks attached to the DOC gate are indeed illegal, which is the oposite of what he told us...

[cooneyr]

.....The Danseys pass road and the Dunstan trail, also the Roxburgh-Waikaia road ... the Nevis valley road ... all roads where motorcyclists is the past have ignored signs/locks and attempted to use them, and sometimes needed assistance to get out.

If a "public road" in your area is locked ... and you cannot see a reason/get a reason for it to be closed ... lay a complaint (or at least ask polite questions) with the local Police. If anybody needs to know why a public road should be/is closed ... it would be them.

The roads you mention above are all managed by the Road Controling Authority (normally the council) and are all closed by them. The RCA has the authority to do this - a private person most certainly does not. While the local police may deal with law infringments they also do not have the powers to close a legal road except in emergency or preplaned situations (read events). A pissed off farmer has absolutly no right to impeed public from using an legal rd - formed or unformed. I'm all for asking nicely first then cutting locks on paper rds where forestry guys or farmers have blocked access.


So ... the two bulls in the back paddock are a "natural" hazard ... or an "ordinary" hazzard ... ??? :lol:

Well I grew up on a farm so a bull is an ordinary hazard. Look at the DoL webiste again, "out-of-the-ordinary hazard" is the term. The examples include activities that a dangerous and don't occur very often. A tractor or truck being driven along a track, a paddock being worked, silage being made etc are not metioned, nor are animals cause guess what they are all normal farm activites.


An interesting link ...

http://www.lifestyleblock.co.nz/the-good-oil/article/324-the-good-oil-paper-roads-.html

Another link ...

http://www.walkingaccess.govt.nz/store/doc/WAC_0024_FAQ4_UnformedLegalRoad_AW.pdf

This is actually good stuff cause it clearly states that there is no legal difference between unformed legal roads (known as paper rds) and formed roads. It also clearly states that the public have the right to use paper roads. Your second link has the following as the first Para on its second page.

"Farmers may put gates or cattle stops
across roads that are not fenced for
livestock control purposes. Gates may
only be placed with the permission of
the relevant territorial authority, may
not be locked and must have a sign
indicating that they are on a public road."

Our biggest problem is identifying where the paper rds are and then staying on them when we use them. Once we have identified their location it is still the best idea to talk to the farmer about its use because we can't guarantee that we are staying on them and keeping on the good side of the farmer by staying away during lambing etc is the polite thing to do.

[dino3310]

bloody good thread this bugga:niceone:

[That looks like fun]

Im with ya Dino, its an interesting read :niceone:
This guy is so far off the mark, its got to be a piss take or a windup :bleh:
It is however amusing watching him go down in flames and still keep shooting :weird:
And now we wait Doug :wait:

[FJRider]

This is actually good stuff cause it clearly states that there is no legal difference between unformed legal roads (known as paper rds) and formed roads. It also clearly states that the public have the right to use paper roads. Your second link has the following as the first Para on its second page.

"Farmers may put gates or cattle stops
across roads that are not fenced for
livestock control purposes. Gates may
only be placed with the permission of
the relevant territorial authority, may
not be locked and must have a sign
indicating that they are on a public road."

Our biggest problem is identifying where the paper rds are and then staying on them when we use them. Once we have identified their location it is still the best idea to talk to the farmer about its use because we can't guarantee that we are staying on them and keeping on the good side of the farmer by staying away during lambing etc is the polite thing to do.

I was being a smarty-pants about the bull ... although you may know (through experience) some bulls ARE "special" hazards to avoid at all costs ... often grazed in the front paddock for this reason ...

I have lived and worked on farms throughout the south island, and am familiar with paper roads and their identification/location issues. A track in the area may not actually be the "road" in question. As you well know. Tracks were often put (and changed to suit conditions at the time) in the easiest place ... not always where the surveyers marked the map as a road (was to go).

After spending an afternoon trawlling the internet on paper roads ... I found it is not an issue for any one district ... nor is it an easy problem to sort out to the satisfaction of all parties. Some disputes on this subject, in various areas, have required court action to resolve .... in some form ... often even then, with no cut and dried result.

Police seem to be not wanting to get involved in "Civil issues" ... but only acting on complaints from either party, and acting on (or not) instruction from their own legal advisors.

Discussions with the land (the paper road is on) "occupier" and the relevent local councils, seems to be the advised action.

Be careful of following the (motor ???) cycling stalwarts policy, of only quoting the laws that suit you ... at the time ....

[warewolf]

No need to discuss liability ... if permission is not granted.Permission not required... for a public road, paper or otherwise.

[warewolf]

A track in the area may not actually be the "road" in question. As you well know. Tracks were often put (and changed to suit conditions at the time) in the easiest place ... not always where the surveyers marked the map as a road (was to go).True. And further if a farmer decides to move the track, usually for his own convenience, he cannot [edit: or more correctly perhaps, should not] block the surveyed road with locked gates, fences etc, and then turn around and deny usage of "his" track because it's not the paper road.

His choices become a) let the public traverse his new track, or b) public removes illegal gates/fences along surveyed route to effect passage. His call.

[monchopper]

True. And further if a farmer decides to move the track, usually for his own convenience, he cannot block the surveyed road with locked gates, fences etc, and then turn around and deny usage of "his" track because it's not the paper road.

His choices become a) let the public traverse his new track, or b) public removes illegal gates/fences along surveyed route to effect passage. His call.

Correct.
I've often wondered about taking the following action for some paper/unformed road that could be really usefull for recreation purposes, but the where the formed track differs from the legal line.

1. Get hold of some industrial strenght GPS equipment
2. Get some road cones or the like and mark out the route
3. Get as many 4wd and motorcycles as possible to drive up and down the route until a track has been formed

[warewolf]

I've often wondered about taking the following action That has been proposed in previous discussions. Indeed from reading of legal battles over paper roads, regular usage is one of the biggest barriers to having its status changed to remove access.

[monchopper]

Our biggest problem is identifying where the paper rds are and then staying on them when we use them. Once we have identified their location it is still the best idea to talk to the farmer about its use because we can't guarantee that we are staying on them and keeping on the good side of the farmer by staying away during lambing etc is the polite thing to do.

I had an interesting discuss with a lawyer about this and trepassing.
It appears (if I understood him correctly) if a formed track broadly follows the legel line then it is reasonable for the user to assume that the formed track is the legal line even in places where you are not.

[cooneyr]

That has been proposed in previous discussions. Indeed from reading of legal battles over paper roads, regular usage is one of the biggest barriers to having its status changed to remove access.

One of the arguments I've seen used plenty when a RCA wants to close a road is that "no body uses it so no consequence in closing". Problem is that most common reason for not using is people don't know that its there - kinda self fulfilling.


I had an interesting discuss with a lawyer about this and trepassing.
It appears (if I understood him correctly) if a formed track broadly follows the legel line then it is reasonable for the user to assume that the formed track is the legal line even in places where you are not.

Not sure about the legal aspects of this but from a practical perspective its got to be the best outcome. Better that than "I'll just cut these trees down so I can stay "on line" rather than use the open track 50m to my right". In saying this the key bit I didn't quote from the walking access commission fact sheet is that your not allowed to damage private property in reopening the route i.e. cutting locks or smashing up gates isn't actually playing the game. It suggest talk to landowner, then council to resolve.

This has been entertaining for a first day back at work.

[FJRider]

Permission not required... for a public road, paper or otherwise.

Nothing mentioned about paper or public roads in the first post of this thread, which I referred to in the post of mine you just quoted .... access was asked for and was refused. ... end of story ....

[warewolf]

your not allowed to damage private property in reopening the route i.e. cutting locks or smashing up gates isn't actually playing the game.I wonder if that has changed in recent years. Or whether lifting a gate off its hinges doesn't count as damage, merely relocation?

[FJRider]

True. And further if a farmer decides to move the track, usually for his own convenience, he cannot [edit: or more correctly perhaps, should not] block the surveyed road with locked gates, fences etc, and then turn around and deny usage of "his" track because it's not the paper road.

His choices become a) let the public traverse his new track, or b) public removes illegal gates/fences along surveyed route to effect passage. His call.

The usual process is for land occupiers of paper roads, to make them unaccessable ... or at least unattractive/difficult to traverse, then apply to get the paper road stopped.

[warewolf]

The usual process is for land occupiers of paper roads, to make them unaccessable ... or at least unattractive/difficult to traverse, then apply to get the paper road stopped.All the more reason to get out there and call their bluff.

[monchopper]

In saying this the key bit I didn't quote from the walking access commission fact sheet is that your not allowed to damage private property in reopening the route i.e. cutting locks or smashing up gates isn't actually playing the game. It suggest talk to landowner, then council to resolve.

This has been entertaining for a first day back at work.

It looks like cutting a lock is wilful damage, which is against the law!
We need to remember that we are constantly knowingly breaking the law but we seldom get caught and when we do we are happy to take responsibiltiy for our actions.

Eg. Driving your car at 55kph, we know it's against the law but we ALSO know that the chances of getting caught are slim and if we DO get caught we know we'll probably get a warning and if we get a ticket then oh well most of us can live with that.


This is (in italics) from a lawyer in relation to locked gates. This isn't direct legal advice and shouldn't taken as such, but an informal email discussion advising ME on the possible consequences of getting the gas axe out!

I imagine getting your bike over the fence may be a problem. Nothing a pair of bolt cutters wouldn't fix! Even if you did that I doubt there is anything they could do. It's nominally an offence of wilful damage but if you are lawfully justified in damaging the property that amounts to a defence. Here you would say their actions are unlawful in blocking you access.

It looks like a case of 2 wrongs making a right.

If you're going to prosecute me for cutting your lock I'm going to prosecute you for making me :bleh:

[monchopper]

We have gone off topic in this thread but it's all good stuff and obviously is keeping some of us who would be otherwise bored at work entertained!!!

[superman]

OSH are my heroes.

During primary school, they told us we couldn't run cross country barefeet without a signed note from your parents. So of course I turned up to school on cross country day with no shoes on :niceone:

Thanks OSH. No matter how ridiculous people say you are, you still stopped me having to run.

[That looks like fun]

FJRider
Nothing mentioned about paper or public roads in the first post of this thread, which I referred to in the post of mine you just quoted .... access was asked for and was refused. ... end of story ....

so by that logic the roads are the cop on traffic duties work place so he has a duty to stop every person using the road and warn them of the hazards, after all no two roads are the same. The roads are also the work place of every courier driver, taxi driver, bus driver ... nah that's silly.

Debate was about access (by permission) and implications of OSH etc. Had nothing to do with paper roads or gates :weird: However a couple of guys (who have road bikes listed in their signatures) Jumped in and then it began :psst:
I find the issue of public roads interesting :niceone: and can see it causing a lot of grief for Farmers in the future. For me I thank the guy who pasted the link to the OSH site that clarified the first issue :niceone:
Only sensible reply I have noticed from an ex farmer was that the Farmer doesn't have to give permission.
How I behave when permission is given is what is important

[Waxxa]

I had somthing similar when rock-climbing several years ago where most of the rock-climbing in the north island is on private land.

The main thing is to respect the landowners wishes and ask for their permission to enter their property.

if a charge was imposed by the landowner, then they have a lot of OSH obligations to comply with. No charge imposed, then it is personal responsibility of the individual doing the said activity.

It sounds to me that the landowner just doesn't want a continuous stream of people going over his land (which is his right to say 'no') and is using the H&R as an excuse so he doesn't look like a prude.

[monchopper]

Maybe the OP wasn't that clear. The farmer didn't flat out say no, he had concerns about letting folks unknown onto the property because of his understanding of the liability thing.

I've now cleared up the OSH/liability thing with the help of the link Mike posted and he's happy with that.

He's not happy about letting people unknown on the property but he knows the farmer that I use as a referee from a previous ride and is contacting him to check our credentials as a group. So hopefully after much effort we will be rewarded with permission and some great tracks and stunning scenery!!

I'll keep ya posted

[mazz1972]

For what it's worth, this is the disclaimer found on the Motorcycling NZ website

DISCLAIMER OF LIABILITY: To ___________Motorcycle Club, and Motorcycling New Zealand Inc.

1. I have read the Supplementary Regulations for this Competition and agree to be bound by them and the Manual of Motorcycle Sport, the MNZ Constitution, and the MNZ Code of Conduct.
2. I am aware that the sport of Motorcycle Competition might a) cause me injury; serious or otherwise b) damage my property.
3. I wish to take part in the _______________________ despite the above risks.
4. Neither I, or anyone associated or connected with me will make any claim against you or your officers, employees or agents in respect of: a) any injury suffered by me; or b) any damage to any of my property regardless of how the injury or damage occurs.
5. I will indemnify you against all claims, damages or losses (including costs) which you incur as the direct or indirect result of any injury to me or damage to my property.
6. I am physically fit and there is no health or other reason why I should not participate in the sport of Motorcycle Competition.
7. I am aware that this disclaimer will not affect any legal obligations you have to me which you cannot contract out of under NZ Law.
8. I agree that in this disclaimer “my property” includes any property owned by me or in my possession or under my control.
9. I agree that this disclaimer will be binding on my family, my heirs, my legal assigns and my administrators and executors.
10. I accept that stripping and re-assembly for Technical Checks are at my cost.
11. I consent to the details contained in this form being held by the __________________ Motorcycle Club for the purpose of the promotion and the benefit of the race meeting concerned, and Motorcycling in general. I acknowledge my right to access and correction of this information. The consent is given in accordance with the Privacy Act 1993.
12. MNZ supports the FIM/IOC Charter on drugs in Sport. MNZ uses the services of Drug Free Sport NZ to professionally carry out the testing. I acknowledge by signing this form I maybe subjected to a drug/alcohol test at any time. I agree to such testing. I further agree that my name can be published by MNZ as having taken part in a drug/alcohol test together with the results of that testing.
13. I confirm that my machine complies with any technical rule(s) set out in the Manual of Motorcycle Sport and/or the Supplementary Regulations and that, to the best of my knowledge and belief, it is in safe working order and fit for competition.


Date………………………………………….

Signature of Rider:……....................…………………………………………………

Parent/Legal Guardian (who is to be present on race day if rider is under 16 years of age) ...........................................…

[monchopper]

UPDATE:

A C C E S S G R A N T E D :niceone:

You beauty as this was a vital component to the third day of the ride and would required a total re-route.

[dino3310]

Sweet mate, nice one...

So when you organizing a KB ride

[FJRider]

For what it's worth, this is the disclaimer found on the Motorcycling NZ website




And if an oficer, employee, or agent of this group was found negelgent in their duties ... and you were hurt ... You could still sue them.

in fact ... even if they weren't ... you could still sue ...

[monchopper]

Sweet mate, nice one...

So when you organizing a KB ride

I'd love to once I move from London back to NZ in a couple of years.

The problem is that it's easier to get a farmer to agree to 12 riders that you can vouch for than 50 riders who you can't for obvious reasons.

I suspect that's why the Dusty Butt is conducted on mostly public roads.

Where as the trips I organise are high country trips that are mostly on private roads with 'lite' adventure bikes/Road legal enduro bikes. A KLX650/DR650 with a Joe average rider would struggle in alot of the terrain.
(not a slight on any bikes and or riders here!)

[monchopper]

And if an oficer, employee, or agent of this group was found negelgent in their duties ... and you were hurt ... You could still sue them.

in fact ... even if they weren't ... you could still sue ...

I didn't you could sue as such in NZ for physical injury because we have ACC
(At least thats what my lawyer told me, maybe I took it out of context?)

[That looks like fun]

UPDATE:

A C C E S S G R A N T E D :niceone:

You beauty as this was a vital component to the third day of the ride and would required a total re-route.

Well done that man :niceone:
A few facts and a good attitude have gotten you what you wanted :woohoo:

Now don't go breaking any gates intentionally or sueing anyone or following any off the other pseudo legal advice :Police:

Oh yeah, and if its at all possible :wait::wait:


Have fun:wings:
Ride Report :corn:

[NordieBoy]

I suspect that's why the Dusty Butt is conducted on mostly public roads.

The first 3 DB's were completely on public roads.

Make it easier if your only issues are if the petrol stations are going to be open.

[FJRider]

I didn't you could sue as such in NZ for physical injury because we have ACC
(At least thats what my lawyer told me, maybe I took it out of context?)

Not for injuries recieved ... but damages, loss of earnings ...and other stuff ACC doesn't cover ...