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Farm Visitors and Health & Safety

01 December 2016

The Health and Safety Act 2015 has created a lot of debate, but it is not always clear how it applies to farmers. In particular, how does the Act apply when a member of the public asks for access to your farm?

The first thing to know is that a farm owner is a Person in Charge of a Business or Undertaking (PCBU). If there is a separate farm management company, it is also a PCBU.

The PCBUs need to ensure that the health and safety of the visitor is not put at risk by any work being carried out on the farm. For example, if there is going to be heavy machinery operating on a part of the farm, the visitor should be warned to stay clear of this area.

Secondly, the PCBUs needs to ensure, so far as reasonably practicable, that nothing arising from the farm creates a health and safety risk to the visitor. However, this obligation only applies in relation to the farm buildings and their immediate surroundings, and to parts of the farm where work is actually being done at the time. Also, the PCBUs do not owe this duty to anyone who is on the property illegally.

These limitations were included in the Act specifically to address the concerns of farmers that they could be liable for the health and safety of anyone wandering around on the farm.

To see how the Act works in practice, consider the situation where someone asks to come onto your farm to collect firewood.

What if the person is collecting firewood for personal use?

If the visitor will not be collecting wood from around the farm buildings or areas where work is taking place then health and safety obligations do not apply. However, if the visitor will be in these areas you will need to ensure, so far as reasonably practicable, that the farm and the work being done does not create risks to the visitor’s health and safety. If there are particular hazards which may not be obvious to a visitor, the visitor should be warned about them.

If the visitor is not an employee, then he or she is largely responsible for the risks caused by his or her own activities. For example if the visitor is using a chainsaw to cut firewood, he or she is responsible for ensuring he or she knows how to use a chainsaw.

If the visitor is going to be doing things which could harm other people on the farm, such as tree felling, you must ensure that you put safeguards in place, such as telling farmworkers to stay away from the area.

What if the person is collecting firewood for a business?

The situation is different if the visitor intends to sell the firewood for a profit. In this case the visitor becomes a PCBU themselves, as he or she is running a “business or undertaking”. This triggers an obligation on you to consult and cooperate with the visitor in relation to health and safety. You then need to have a more in-depth conversation with the visitor, and may need to look into what health and safety measures the visitor is taking.

It is important to keep in mind that context matters. What is “reasonably practicable” will depend on what a visitor wants to do. If the visitor is proposing a major operation on the farm, you will obviously need to ask more questions and take more precautions than if the visitor is just collecting some logs for his or her own use.

If you have concerns about health and safety issues on your farm, I recommend you obtain advice from a lawyer who specialises in this area.

 

Please email me at barbara.mcdermott@nwm.co.nz with your ideas for future articles. Keep an eye out for next month's column, where I will discuss another relevant rural legal issue.


Barbara McDermott is a partner of Norris Ward McKinnon, specialising in commercial and rural law. With offices in Hamilton and Huntly, we have friendly, expert legal advisors ready to help you with your business and personal legal matters.

 

Barbara McDermott