High Court’s Whakaari decision confirms landowners not liable for access

“I’ve blocked an unformed legal road across my land so I won’t be done by WorkSafe if a walker or hunter gets hurt – I mean, look at Whakaari/White Island.”

This type of mistaken concern is often heard in outdoor-access circles around the motu. This is despite clear advice from Herenga ā Nuku, the Outdoor Access Commission that landowners are not liable for the health and safety of recreational visitors on their land; nor, usually, on public access land adjoining or intersecting private land, such as marginal strips, esplanade reserves or strips, unformed legal roads, and gazetted walkways

Since the introduction of 2015’s Health and Safety at Work Act, some landowners have misunderstood how the Act assigns liability for recreation-related accidents on their land. As a result, some have illegally blocked public access.

This tendency appeared to have worsened after WorkSafe prosecuted a landowner, Whakaari Management Ltd (WML), over recreational activities (walking tours) on Whakaari/White Island following the tragic eruption in 2019, and WML’s subsequent conviction in the District Court.

Recently, Aotearoa Climbing Access Trust successfully applied for leave to intervene in the Whakaari Management Ltd v WorkSafe appeal, making submissions to the Court on behalf of the outdoor community.

The judge agreed with ACAT on every key point, in a decision that provides certainty about this issue:

“The High Court’s decision in Whakaari Management Ltd (WML) v WorkSafe relieves landowners of liability concerns around recreational activities and natural hazards. This is a significant win for recreational access,” ACAT says.

In summary:

• Merely providing access to their land does not make landowners responsible for managing the risks associated with recreational activities or make them liable for any accidents.
• This holds true whether the activities are personal or commercial, and even if the landowner charges an access fee or sets reasonable access conditions.

Full analysis of the Whakaari decision’s implications for recreational access (ACAT). 

Subsequently, in April, the government announced it would reform the Health and Safety at Work Act to resolve recreational access issues.

“Landowners will not be responsible if someone is injured on their land while doing recreational activities. Health and safety responsibilities will lie squarely on the organisation running the activities,” said Workplace Relations and Safety Minister Brooke van Velden in the press release announcing the reform.

ACAT General Manager Edwin Sheppard hailed the news, saying it could be seen as a response to efforts by a group of advocates led by his trust.

“In short, our coalition’s advocacy effort was 100% successful.”

We also acknowledge the grief and pain suffered by those who lost loved ones on Whakaari, and all those impacted by the tragedy.