Dangerous recreational activity defence faces headwinds

David Moore (the Plaintiff) commenced proceedings in the Supreme Court of NSW after he was injured while participating in an inshore sailing competition in Port Hacking, run by the Cronulla Sailing Club (the Club). Inshore sailing takes place in protected waters such as bays, lakes or coastal areas and the conditions on the day of the competition were moderate, with a swell of approximately one metre and a breeze of between 15 and 20 knots.

The Plaintiff was crewing on ‘Brand X’, which was owned and skippered by the Second Defendant (Greg Brand). The First Defendant (Jeffrey Keane) was the owner and skipper of another vessel, ‘Knockabout’ which collided with Brand X, and the bowsprit extending from the front of Knockabout struck the Plaintiff in his lower back. 

The race required the yachts to navigate a course in the correct direction around a series of marks. The Racing Rules of Sailing set out the circumstances where one vessel must give way to another. Under a number of those rules, Knockabout was required to give way to Brand X, the vessel the Plaintiff was upon. 

The Court found the First Defendant failed to keep a proper lookout and on his own evidence, was distracted by things occurring within his own vessel. His son, who was positioned in front of him, became caught in the mainsheet. The Second Defendant was not found negligent as they were not on a collision course and there was no reasonable opportunity for them to avoid the collision, noting they were responding to an onboard safety concern. Contributory negligence defences were withdrawn throughout the course of the hearing. 

As a complete defence to the Plaintiff’s claim, both Defendants submitted they were not liable in negligence because any injuries sustained arose as a result of the materialisation of an obvious risk, while the Plaintiff was engaged in a dangerous recreational activity (under section 5L of the CLA). 

The Defendants were not successful in establishing the risk of harm arose during the course of a dangerous recreational activity. How precisely a risk of harm is characterised is key to deciding whether it can be considered obvious or not, that is, obvious to a reasonable person in the position of the Plaintiff, not the Plaintiff personally. The risk of harm in this instance was found to be the risk that the yacht the Plaintiff was a crew member of might collide with another yacht and cause harm. While an obvious risk can be a risk that has a low probability of occurring, the Court found the same cannot be said for what constitutes a dangerous recreational activity in that context. 

Interestingly, Acting Justice Harrison had ‘difficulty with the proposition that any recreational activity could be considered or characterised as dangerous when there is only a low probability of the relevant risk materialising, even if the consequences of it doing so may be substantial.’ Evidence was tendered from a Sydney Harbour Friday Twilight Inquiry Report, which was created following a fatality when two yachts collided in December 2024. That report estimated that after approximately 10,000 occurrences of boats racing on Sydney Harbour for twilight races each year, since 2018, there had only been 10 serious injuries (that is to say, a risk of approximately 0.1 per cent). 

This approach adopted a statistical analysis to inform the decision of whether or not recreational yachting is dangerous. This seems to depart from earlier decisions which indicate that the materialisation of an obvious risk which results in even a catastrophic injury which rarely occurs, will not qualify as a dangerous recreational activity. That is because the risk of physical harm, while serious, is not significant due to how unlikely it is that it will occur.

Both Defendants submitted any liability was extinguished by the presence of a risk warning under section 5M of the CLA, therefore defeating any duty of care owed. Further to that or in the alternative, the Defendants relied on a waiver that excluded liability for the recreational activity, under section 5N of the CLA. 

As noted in oral submissions from the Plaintiff’s senior counsel, ‘had there been a signed written document, this would be a very straightforward case. If there were a signed risk warning with someone’s printed signature.’ Indeed, that was not the case. The Defendants’ pleadings were grounded in the assertion that the Plaintiff had completed a ‘SailPass’ application, which extended a temporary membership allowing him to sail in the competition. It was only in cross-examination of the Second Defendant that it became apparent he had completed that on the Plaintiff’s behalf. 

Each boat had a unique QR code which the Second Defendant had used to fill in details of the Plaintiff’s next of kin. The Court found there was no evidence the Plaintiff had reviewed the terms of any contract which would have arisen from him having completed that form personally. 

The Court found those circumstances did not amount to a contract being formed between the Plaintiff, the Club and other participants in the competition, as no risk warning or waiver were brought to the Plaintiff’s attention.