The NSW Supreme Court recently upheld a claim by a sailor injured during a yacht race when struck by the bowsprit of a competing yacht after the yachts collided.

The decision clarified key issues for yacht skippers, sailing clubs and insurers on the scope of the s 5L ‘dangerous recreational activity’ in the Civil Liability Act 2002 (NSW), and the operation of risk warnings under s 5M and the enforceability of contractual waivers under s 5N.

Facts

The plaintiff was a crew member on Brand X, skippered by the Second Defendant, which was competing in a yacht race at Port Hacking alongside Knockabout, skippered by the First Defendant. Before the race, the skipper of Brand X completed a SailPass temporary membership on the plaintiff’s behalf, which included a risk warning and waiver, although the plaintiff understood it only as permission to sail and had no involvement in its completion. During the race, as the yachts rounded a marker, the plaintiff suffered serious lower‑back injuries when he was struck by the bowsprit of Knockabout.

The decision

The plaintiff sued both skippers/owners, alleging his injuries were caused by negligent navigation, including failures to keep a proper lookout and comply with racing rules, while the defendants denied liability and relied on defences under the Civil Liability Act 2002 (NSW), including that the injury arose from an obvious risk of a dangerous recreational activity (s 5L) and argued the SailPass operated as a risk warning and contractual waiver (ss 5M and N).

Knockabout was held totally liable because its skipper negligently failed to keep a proper lookout and take reasonable steps to avoid the collision when rounding the mark in breach of the racing rules, directly causing the plaintiff’s injuries, whereas Brand X was not negligent – its skipper complied with the racing rules and had no reasonable opportunity to avoid the incident – so it was not responsible.

Dangerous recreational activity defence under s 5L

In considering the ‘dangerous recreational activity’ defence under s 5L, the presiding judge assessed both the likelihood and severity of harm, noting evidence of approximately 70,000 yacht races between 2018 and 2025 with only 10 serious injuries. While there was an obvious risk of some harm, the Court held it was not a significant risk of physical harm¹, and the defence therefore failed.

Risk warning and waiver under ss 5M and 5N

As to the risk warning and waiver under ss 5M and 5N, the Court noted that the plaintiff did not personally execute any contract, but the defendants argued that the SailPass completed on his behalf created a binding agreement containing a risk warning and waiver.

The Court considered whether the plaintiff had become a party to a contract with the Cronulla Sailing Club and other competitors, and whether any risk warning or waiver in the SailPass was effective. It found no evidence that the plaintiff understood or accepted that the SailPass created legal obligations – distinguishing his belief that he was merely ‘right to sail’ from entering a contractual relationship – and noted he was not cross examined on this issue. Accordingly, the Court held that no contract was formed, the risk warning and waiver were ineffective, and the defendants’ reliance on ss 5M and 5N failed, with the result that the plaintiff’s claim against Knockabout’s skipper succeeded.

During the trial, the defendants tendered surveillance footage showing the plaintiff engaging in physically demanding activities, including working on his catamaran, lifting a 14kg flotation device between decks after a 220‑nautical‑mile voyage, and paddling a surf ski, which contrasted with his evidence that he needed to lie down for 18–20 hours a day at times. While not fatal to his claim, the presiding judge accepted that the footage demonstrated he was significantly less impaired than alleged, which was relevant to reducing damages for non‑economic loss and future care.

Commentary

The decision is relevant for all sailors and sailing clubs (and their insurers) as it highlights that:

• the availability of the ‘dangerous recreational activity’ defence is uncertain in competitive club sailing and will depend on the nature of the risk and event, though it may apply in higher‑risk contexts such as offshore racing in rough conditions;
• risk warnings and waivers must be clearly drafted and effectively brought to participants’ attention; where a participant is registered by another person without awareness of such terms, the defences are unlikely to succeed;
• registration forms – paper or online – provide a good opportunity to spell out the risks and show that participants (or their parents) were made aware of them. To make them count, the forms must clearly articulate the sport’s risks in a way that is easily understood and organisations should implement systems to properly retain and retrieve these records, as such evidence strengthens the ability to rely on ‘obvious risk’ and risk warning defences; and
• surveillance evidence is unlikely to defeat a claim entirely but can undermine alleged limitations and reduce damages where it shows greater capacity than claimed.

This article was written by Matthew Brooks, Partner, Anthony Highfield, Partner, Vicki Jenner, Special Counsel, and James McIntyre, Special Counsel.

¹ This is because the CLA defines a ‘dangerous recreational activity’ as one involving a significant risk of physical injury.