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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22322
Experience:  37 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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We are a charity, Riding for the disabled Dunedin. We own

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Hello,
We are a charity, Riding for the disabled Dunedin. We own our own grounds and riding arena where our activities are held. Most recently we have been receiving e mails from a small group who have a license to use our facilities once per week for a few hours, raising their concerns and opinions over Health and Safety "issues" of our riding arena.
We do not share the said groups safety concerns as we have our own self audit and check lists that we adhere to in accordance with the rules of our national body and our safety record is clean.
We have written to the group and suggested that they can take their own measures that they require to satisfy their own organisations health and safety rules i.e fencing off any obstacles etc however they seem adamant that we should have to comply with their opinions and remove items and structures from the riding arena.
My question is are we under any legal obligation to comply with their opinions that differ from ours or does the old adage "ride at your own risk" still apply?

The test for liability for occupational safety and health issues, is whether you took reasonable steps to prevent the possible injuries. If you have your own audit and checklists, and a clean record that indicates that you have your part of the protection well under control. If this other group uses the premises, I would have thought that they must take their own steps to ensure that the arena is safe for their purposes. This means if they want to fence off portions of the arena, then they have to do so themselves. If the arena is safe for your purposes, but they have perhaps unrealistic standards, then as I see it, it is up to them to make any modifications

Customer: replied 1 month ago.
Hello again Chris,
Our license with the people in question clearly states that we accept no liability or responsibility for their activities on our property (clause 5) The other group are now trying to claim that we have a " duty of care" to them as a pcbu and they are implying that we should remedy any potential hazards that in their opinion need remedy for them.
Perhaps we could suggest that their altered or new stance contravenes the said clause 5 of the license and gives us grounds to terminate their license as clearly that was something we never agreed to ?

I think they must be over thinking the potential issues. Your suggestion may justify saying, that even though your licence restricts liability, they want something more, and therefore since you dont want to be at risk, you will cancel their licence, as they want to make you liable even though the licence says otherwise. This may make them be more sensible

Customer: replied 1 month ago.
that will be our response.
Your previous advise ( about 1 month ago) about our right not to renew the license in 2018 has been accepted by them. Best value for legal $ ever. Thank you.
They clearly are not thinking this through, but glad to help
Customer: replied 1 month ago.
Hi Chris,
Just following on from our theme, are you aware of any changes to OHS that would make us liable for their use of our property, if so and we cannot escape it, then I think we would have grounds to cancel the license ?
If not then we will respond as previously suggested.

There were changes last year, which did increase the burden on you

This could be a reason to cancel, and I quote from the site

PCBU and the primary duty of care

Under HSWA, a business or undertaking (PCBU) must look after the health and safety of its workers and any other workers it influences or directs. The business or undertaking is also responsible for the health and safety of other people at risk from its work including customers, visitors, or the general public. This is called the 'primary duty of care'.

Who or what is a PCBU?

A PCBU is a person conducting a business or undertaking. It's a a broad concept used throughout HSWA to describe all types of modern working arrangements which we commonly refer to as businesses.

Read more…

What is the primary duty of care?

A business or undertaking must ensure, so far as is reasonably practicable, the health and safety of its workers and any other workers who are influenced or directed by the business. This is called the primary duty of care.

Read more…

Duties for specific businesses

There are responsibilities that apply some to business under certain situations. They expand on and are in addition to the primary responsibilities.

Customer: replied 1 month ago.
Im now thinking that our response should be worded something like
Changes in Law now make clause 5 of the license redundant, in that our organisation can now be held liable for their mishaps which is expressly NOT what was agreed to Ithe license
Therefore unless they can indemnify our organisation for any incidence as per clause 5 of the license ( via a letter from their solicitor and accepted by our solicitor) then they can no longer enter our property.

That may stop them in their tracks and perhaps get them talking sense (possibly!)

Customer: replied 1 month ago.
Is really possible that they could indemnify us from the legislation changes?

If you take reasonable steps, but also require them to take their own measures for protection, and if they did not take appropriate steps they are still liable. It would be hard to make you liable where you made it clear the burden was on them to protect their users.

Customer: replied 1 month ago.
Hello Chris,
I have drafted a short reply ( not yet sent) to our licencees stating that their altered views are a breach of clause 5 ( clause 5 is a significant cornerstone of granting the liscense). I have gone on to say that we are suspending their license and locking them out until the matter is remedied to our satisfaction.
BUT.
Just a further thought.
This is the second very significant breach of the liscense inside 12 months ( the first one was they invaded a riders with disabilities session and caused stress to our client) do you think that while they are in our gun sights, so to speak , that we could go for the kill shot and terminate their license. Bearing in mind that they have instigated the change of views, not us?

You may want to mention that, but you have possibly left it too late to use that as a primary breach. perhaps something to mention that the relationship has been affected by this, so the current issue about health and safety has meant that trust has gone, so the new issue means you now want to cancel altogether

Customer: replied 1 month ago.
Hi Chris can you please check my draft and feel free to alter.Dear SVPC
Your letter is most disturbing to us.
Approximately 12 months ago your club committed a serious breach of the license with sufficient grounds for us to terminate the arrangement. Instead, RDA extended,as a magnanimous gesture another opportunity for your club to continue on our land.Now, SVPC have an altered view that RDA have a duty of care towards your club, a liability if you will and as such we could be held liable for any SVPC Incidents, accidents or injuries on our grounds.
Your altered view is a significant breach of the spirit of the license ( for a second time) and in particular clause 5.Clause 5 is a fundamental corner stone in RDA granting the license and without complete indemnity extended to RDA under clause 5 we will not allow you onto our property.RDA will not be put at risk of any action against our charity for SVPC activities, whether by your altered views or legislative changes, therefore your license is hereby terminated immediately.
Do not enter our property, you are locked out.We will let you know what arrangements are acceptable to us for you to remove your buildings as soon as practicable.

That explains your position, although i guess this may end up in an argument, possibly in court if they dont accept what you say

Customer: replied 1 month ago.
possibly, although their club is on the rocks, down to 5 riding members and by Christmas they will only have 1 season of pony club left and quite possibly even less members.
My view is they might seek legal advise ( if they haven't all ready)and try get back in before going to court, but unless they can indemnify us as per clause 5 we will hold firm. Does seem reasonable to you?

That does seem reasonable. Perhaps its not surprising their numbers are down

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Customer: replied 1 month ago.
Hi Chris we have terminated the license so we'll wait and see what happens.
What is the usual or acceptable amount of time to give the licensee to vacate?
They have 3 movable buildings.

It shouldnt take more than a few weeks to do this. I would suggest a month would be reasonable

Customer: replied 1 month ago.
Their exit works will be a major disruption to us as their buildings are alongside the main arena and two of the buildings are on piles. No doubt there may be heavy trucks or demolition equipment required which can cause damage to our property.
We do not want to be left with a post demolition/ removal mess I.e having to remove piles or concrete or rubbish, would we be justified in demanding a works bond of say $500 preferably a $1000 to be safe and a proposed works/ removal schedule.
Also if said works/ removal remains incomplete by a generous date say 45 days after we email them what rights do we have to either seize or demolish and deduct costs?
I think you should negotiate this with them. I didn't realise they had a substantial investment in the licence, and I expect they are unlikely to just accept the cancellation and remove the buildings. Does the licence have anyvterms about removal at the end?
Customer: replied 1 month ago.
They have been there 20 yrs however their license expires in just over a years time.
My thoughts were that if we haven't received a defense letter from them within a week they've probably accepted their fate.
Customer: replied 1 month ago.
I also meant to add that their buildings are small worthless shit boxes.
I'll be in contact in the near future if they decide to lodge a formal challenge.
thanks again
Gary

Great!

Customer: replied 1 month ago.
Hello Chris,
Further to my last email I have received a wad of legal papers (evidence from the pony club).
Essentially they have made an application to the court for an injunction of having their license terminated. I have a minute from Justice Mander refusing the injunction until she hears from us today. The Barrister for the pony club claims that serving notice on a pickwick basis will not allow the case to be heard until the new year and that is why the temporary injunction is sort, without notice to us.
Would it be easier to phone you to talk through the options to us?
That may help so let me know when this would suit

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