Skip to Content »

Exclusion clause to allow Pike River entry

  • December 14th, 2016

My first draft of amending provisions to repair the grave damage to personal freedoms and rational decision-making in last year’s Health and Safety response to Pike River.

Exclusion of liability for personal assumption of risk
No person shall be subject to coercion, liability or penalty under relevant health and safety legislation (within the meaning of this Act) in respect of stipulated health and safety risks and hazards, in the circumstances and under the conditions following:
a) The risks and hazards are expressly assumed personally, only by persons (“volunteers”) who qualify under this section ;
b) The volunteer is fairly informed about the risks and hazards;
c) The only persons whose exposure to the risks or hazards is affected or governed under the exclusion in this section are volunteers with respect to the same risks and hazards, including for any aggravation of risk or hazard ( or diminution of mitigation) attributable to the actions or inaction of other volunteers;
d) No person who would be liable in respect of the risks or hazards without this exclusion has financially induced the volunteer to assume the risk or hazard, directly or indirectly;
e) The volunteer’s assumption of the risks or hazards is unequivocal.

In this section:
a) Stipulated risk or hazard means all risks or hazards that
a. Are specifically described in any acknowledgement or instrument evidencing the volunteer’s assumption of the risks and hazards
b. `a reasonable person in the situation of the volunteer should reasonably appreciate to be present or inherent in the circumstances for which they wish to assume the risks and hazards; and includes
c. .[technical detail reflecting the peculiar exhaustive descriptions of the Act]
b) For a volunteer to assume a risk or hazard means to accept irrevocably that:
a. the volunteer takes full responsibility for the volunteer’s health and safety in the face of the stipulated risks or hazards and
b. recognises that persons who would be bound under the relevant health and safety legislation to eliminate or to mitigate the risk and hazards are not so bound with respect to the volunteer, and will not be liable if they mature/eventuate, and that
c. no other person will be obliged in law or in morality to place themselves or anyone else at material risk, or to expend resources in rescue or remedy or mitigation of the consequences of the risk or hazard (without diminishing the right of others to offer help)
c) Fairly informed means:
a. having information to the extent a normal adult would require in the circumstances prevailing, to decide whether the probability of adverse health or safety outcomes from taking the risks or facing the hazards were outweighed by the benefits for that person or any other person whose interests they wanted to advance or to protect;
b. being expressly advised of any particular information about risks or hazards peculiarly within the knowledge of the persons who would be liable, that would be likely to alter the outcome of the volunteer’s risk/benefit assessment referred to in the preceding paragraph;
d) Unequivocal means expressed in terms and circumstances that make it reasonable to consider that the volunteer knows and intends that no third party who would be liable without this exclusion should face liability for the maturing of specified risks or hazards and accepts that the precautions those persons may have taken may be inadequate to protect volunteers under this section.
e) Financially induced does not include a waiver or reduction of reasonable charges or costs that would apply in the absence of the assumption of risk and hazard, where it is reasonable for the volunteer to take on the personal responsibility as a rational calculation of greater benefit than the costs of the precautions the person relieved by the exclusion would be obliged to take in the absence of the exclusion.

Comments

Gravatar
  • Jim Rose
  • December 14th, 2016
  • 8:55 pm

should require that entry team have Winston as its leader

Gravatar

I like the concept. This clause looks essential “b. recognises that persons who would be bound under the relevant health and safety legislation to eliminate or to mitigate the risk and hazards are not so bound with respect to the volunteer, and will not be liable if they mature/eventuate, and that”. Would it need to be explicit that the owner of the property is not liable? (I also have in mind small business tenants and employees who are prepared to put themselves at risk after an earthquake by ducking back into their damaged premises to secure what is necessary to be able to keep their businesses running.)

Gravatar
  • Philob
  • January 2nd, 2017
  • 12:34 pm

A good idea. Its a shame that it takes so long for a waiver process even to be discussed.
We seem to be in an era of more earthquakes, so it is even more important to institutionalise some form of exemption before the Health and Safety juggernaut rules all. I often wonder how much of the cost of a disaster is caused by the disaster itself, and how much is driven by government response to it. I will be following the progress of Ian Harrison of “Tailrisk” (not Tailgate per the Dompost) as to the cost of disasters and their prevention and remedy.

As to the drafting, I will leave comment to others. I am not nearly a good enough lawyer.

Gravatar
  • Jim Rose
  • January 19th, 2017
  • 7:07 pm

Peters said today that he was “willing to become the director of a company and take legal responsibility”.’

Gravatar
  • Jim Rose
  • January 19th, 2017
  • 7:08 pm

That was a narrow, I miss read it. That was a challenge by English to Peters

Gravatar

Good article and fantastic information thanks a lot

Leave your comments:

* Required fields. Your e-mail address will not be published on this site

You can use the following HTML tags:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>