From Low Jump to High Jump: Adventure recreation and the criminal law in New Zealand

Abstract

Until recently, New Zealand law set a very low threshold for culpability under criminal nuisance or criminal negligence — namely carelessness — and this threatened to impact negatively on the provision of adventure recreation. In 2004, a new interpretation of criminal nuisance — recklessness — was introduced and this, too, is potentially damaging for adventure recreation by raising the bar to criminal culpability too high. In this paper, we consider the implications of the law of criminal nuisance for New Zealand recreation in general, and we take risk recreations (also known as adventure recreations) as particular cases in which the threshold could have far‐reaching detrimental consequences for recreation provision and participation. Comparison with interpretations of criminal negligence (and civil in Australia) in other common law jurisdictions and a review of the New Zealand adventure recreation culture shows that the swing from a low jump to a high jump for culpability is not in the best interests of recreation in New Zealand, and that gross negligence or a major departure from accepted standards is the appropriate threshold.