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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22152
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

Customer Question

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?
Submitted: 5 days ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 5 days ago.

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 2 day 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 ?
Expert:  Chris The Lawyer replied 2 day ago.

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 2 day 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.
Expert:  Chris The Lawyer replied 2 day ago.
They clearly are not thinking this through, but glad to help
Customer: replied 1 day 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.
Expert:  Chris The Lawyer replied 1 day ago.

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 23 hours 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.
Expert:  Chris The Lawyer replied 22 hours ago.

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

Customer: replied 21 hours ago.
Is really possible that they could indemnify us from the legislation changes?
Expert:  Chris The Lawyer replied 21 hours ago.

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.

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