Yacht racing may seem high-risk but injuries are so rare the sport does not qualify as a “dangerous recreational activity”, a court has found – in a decision lawyers say “reshapes the landscape of liability” around similar pursuits.

The NSW Supreme Court ruling was made in a negligence action brought by a crew member who was seriously hurt when two yachts crashed.

David Moore was a crew member on Brand X when it collided with the yacht Knockabout during a race at Port Hacking, south of Sydney, in 2020.

He sued Knockabout owner and skipper Jeffrey Keane and Brand X owner and captain Greg Brand.

The skippers argued they had no liability because the NSW Civil Liability Act states no duty of care is owed to someone who engages in a dangerous recreational activity if the person has been warned of the risk.

But the court heard that a review of 70,000 yacht races on Sydney Harbour between 2018 and 2025 found only 10 serious injuries were recorded.

Associate Justice Joanne Harrison does not accept a recreational activity can be considered dangerous when there is a low probability of harm, even though serious injury is possible.

In a note on the case, McAuley Lawyers said: “The ruling serves as an important reminder that organisers and participants in recreational sports cannot assume that all competitive activities will attract immunity under [the act] merely because risks are obvious.

“Instead, liability will depend on whether the activity, viewed objectively and in practice, truly involves a significant risk of physical harm.”

Mr Brand and Mr Keane also argued that in participating in the race with a SailPass from the Cronulla Sailing Club – a day membership that enabled him to sail – Mr Moore became party to a contract between them and the club and this waived any duty of care under the Civil Liability Act.

The SailPass had a warning that stated sailing can be dangerous and participants are exposed to a significant risk of property damage, physical harm and possibly death, including from a collision between vessels.

Mr Brand obtained the SailPass for Mr Moore using a QR code that led to a form asking for details of next of kin.

The court found this was not enough to establish a contract with Mr Moore, who only understood the SailPass as giving him the “right to sail” that day.

Law firm McInnes Wilson says the decision is a reminder for sporting and other clubs that waiver processes should be reviewed to ensure terms are clearly displayed, accepted personally by participants and meet the essential requirements of a contract.

Mr Moore won his bid for damages against Mr Keane but was unsuccessful in his action against Mr Brand.

Find the judgment here.

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