The plaintiff was injured during a yacht racing collision and brought proceedings against the defendants, who argued that yacht racing was a 'dangerous recreational activity' such that no duty of care was owed under the Civil Liability Act.
The Court rejected that defence, finding that while sailing involved obvious risks, the low statistical likelihood of serious injury meant it was not 'dangerous', with liability instead determined under ordinary negligence principles.
In issue
- The Court was required to determine whether the plaintiff, who was injured while participating as a crew member in a yacht race, was engaged in a 'dangerous recreational activity' as contemplated by s 5K of the Civil Liability Act 2002 (NSW) (CLA), such that the defendants could rely on the statutory defence in s 5L of the CLA to exclude liability. This raised the question of whether competitive yacht racing involves a 'significant risk of physical harm', and whether that assessment turns on the mere possibility of serious injury or requires evidence of a meaningful likelihood of harm. The Court also considered whether risk warnings or alleged contractual arrangements operated to negate any duty of care, and, if the statutory defence failed, whether the defendants were negligent at common law.
The background
The plaintiff, Mr Moore, was a crew member aboard a yacht participating in a competitive sailing race conducted at Port Hacking in December 2020. During the race, the plaintiff’s vessel (Brand X) collided with another yacht (Knockabout), resulting in the bowsprit of the opposing vessel striking the plaintiff in the back and causing significant injury.
The plaintiff commenced proceedings against the owners and skippers of the vessels involved in the collision. Mr Keane, as owner and skipper of Knockabout, was the named first defendant, and Mr Brand, as owner and skipper of Brand X, was the named second defendant. The defendants contended that yacht racing was a dangerous recreational activity such that no duty of care was owed in respect of obvious risks under the CLA. They relied on the inherent risks of sailing, including collisions between vessels, as well as the presence of risk warnings associated with participation in the race.
Evidence before the Court included statistical material concerning the frequency of yacht races and the incidence of serious injury, as well as factual evidence of the circumstances of the collision, including adherence to racing rules and the conduct of the respective skippers.
The decision at trial
The Court rejected the defendants’ reliance on the statutory defence, finding that competitive yacht racing did not constitute a 'dangerous recreational activity' for the purposes of s 5K of the CLA. In reaching that conclusion, the Court emphasised that the definition requires a 'significant risk of physical harm', which imports a requirement that the likelihood, and not merely the seriousness, of harm be significant.
Although the Court accepted that collisions were an inherent and obvious risk of yacht racing, it found that serious injury arising from such incidents was rare in practice. Statistical evidence demonstrated that, across a large number of races conducted over several years, only a very small number of serious injuries had been recorded. That evidence supported a finding that the probability of serious harm was low, such that the activity could not properly be characterised as 'dangerous' within the statutory meaning.
As a consequence, a s 5L defence was not available to the defendants and the Court proceeded to determine liability by reference to the ordinary principles of negligence. The Court found that the first defendant had failed to keep a proper lookout and had not complied with applicable sailing rules requiring the vessel to give way, thereby breaching the duty of care owed to the plaintiff and being 100% liable. The second defendant was not found to be liable, as there was no reasonable opportunity to avoid the collision in the circumstances.
The Court further rejected arguments that risk warnings on participation documents gave rise to a contractual waiver of liability, finding that the material relied upon did not establish a binding agreement sufficient to exclude the duty of care owed to the plaintiff.
Implications for you
This decision confirms that the 'dangerous recreational activity' defence under the CLA will not be engaged merely because an activity involves obvious risks or the potential for serious injury. Courts will require defendants to establish, by reference to objective and preferably statistical evidence, that the activity in question carries a real and significant likelihood of physical harm. In the absence of such evidence, the defence is unlikely to succeed.
The case underscores that the availability of the statutory protection will increasingly turn on the quality of evidence as to risk, including industry data concerning the frequency and severity of injuries. Insurers and defendants should not assume that activities commonly perceived as high risk will satisfy the statutory threshold.
Finally, the decision highlights the limitations of relying on risk warnings and informal participation arrangements as a substitute for statutory protection. Absent clear and binding agreements, such measures are unlikely to displace a duty of care.
