The Supreme Court delivered a significant decision in Moore v Keane [2026] NSWSC 475, reshaping the landscape of liability in recreational activities.
The case arose from a yacht racing collision during a Cronulla Sailing Club race on Port Hacking in December 2020. The plaintiff, Mr Moore, was a crew member aboard the yacht Brand X when it collided with another racing yacht, Knockabout. During the collision, the bowsprit of Knockabout struck Mr Moore in the back, causing him significant injuries.
Central to the case was the interpretation of the Civil Liability Act 2002 (NSW), particularly whether competitive yacht racing constituted a “dangerous recreational activity” under s 5K of the Act, which requires the activity to involve a “significant risk of physical harm.” The defendants argued that collisions between racing yachts were an obvious risk of the sport and that liability was therefore excluded under s 5L.
Evidence before the Court demonstrated that serious injuries in competitive sailing were exceptionally rare. Statistical material showed that, despite tens of thousands of yacht races occurring over several years, only a very small number of serious injuries had been recorded. While collisions between vessels were recognised as an inherent risk of yacht racing, there was little evidence that such incidents commonly resulted in substantial physical harm.
Crucially, the Court held that an activity is not automatically “dangerous” simply because catastrophic injury is possible. Rather, the likelihood of physical harm occurring must itself be significant. Although yacht racing undoubtedly involved obvious risks, the statistical rarity of serious injuries meant the activity did not qualify as a dangerous recreational activity for the purposes of s 5L.
The decision highlights the importance of an evidence-based assessment when determining whether a recreational activity is “dangerous.” It confirms that courts will consider both the seriousness of potential harm and the probability of that harm occurring before applying the statutory protections available under the Civil Liability Act.
The ruling serves as an important reminder that organisers and participants in recreational sports cannot assume that all competitive activities will attract immunity under s 5L 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.
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