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The collision between the yachts occurred in a Saturday race conducted by Cronulla Sailing Club on Port Hacking in December 2020. David Moore was crewing on Brand X, owned and skippered by Greg Brand. Jeffrey Keane owned and skippered the yacht Knockabout.
The conditions were moderate, with a south-easterly breeze of 15 to 20 knots and a swell of about one metre.
As the boats approached the Bate Bay mark, they collided. Moore, who was handling the mainsheet, was struck in the lower thoracic region by Knockabout’s bowsprit and thrown about three metres across the deck. He suffered multiple vertebral fractures and later underwent a T11/12 fusion and further cervical surgery.
Moore claimed compensation for his injuries in the NSW Supreme Court from Keane’s marine insurer.
Video from a mast-mounted camera on Knockabout showed Keane had allowed Brand X room at the mark then began his own gybe. During the manoeuvre, Keane was distracted after a crew member was caught by the mainsail traveller.
Keane accepted that he had not been looking out of the boat while distracted but was confident that had he continued the turn to port, he could have passed behind Brand X.
He argued that Brand had also failed to keep a proper lookout and could have altered course to avoid the collision.
Keane’s insurer also argued that Moore’s temporary membership required to crew the boat that was completed and accepted through a SailPass QR code on his behalf afforded him Civil Liability Act immunity as the SailPass terms incorporated a risk warning and a disclaimer of liability.
Moore had asked whether the necessary arrangements had been made for him to be “right to sail”, but he had not personally completed or accepted the SailPass terms.
For that reason, Acting Justice Ian Harrison rejected the contractual liability immunity argument.
The evidence did not establish – in the judge’s view – that the QR-code procedure created a contract to which Moore was a party, or that he understood it to do so. Being authorised to race was not, without more, proof of an agreement to contractual terms or a waiver.
The insurer’s Civil Liability Act risk-warning and contractual-waiver defences therefore failed.
Undeterred, Keane’s insurer also relied on another CLA provision – section 5L – which removes negligence liability where harm results from an obvious risk of a dangerous recreational activity.
Moore argued that yacht racing was recreational but not dangerous, in terms of bestowing civil liability immunity.
The judge accepted that competitive sailing was “recreational” and that a reasonable person in Mr Moore’s position would recognise the general risk of a collision between racing yachts.
But was the activity “dangerous” in the statutory sense? In that regard the court heard evidence that of 70,000 yacht-races since 2018 only 10 serious injuries had occurred. That allowed the court to conclude that – while collisions and injury were possible – the activity did not present a significant risk of physical harm. The section 5L defence was rejected.
The court reasoned that the collision was caused solely by Keane’s failure to watch the position and movement of Brand X in the critical seconds. A proper lookout would have allowed him to react and avoid the impact.
Medical evidence supported the conclusion that Moore – a 68 yr-old heavy truck driver – was permanently unable to return to his pre-injury work.
The judge assessed non-economic loss at $330,000, allowed $150,000 for past medical and related expenses, $25,000 for future medical expenses, and $43,680 for past domestic assistance. Past and future economic loss was also awarded in sums to be calculated from the judge’s findings.
Moore had also sued the skipper of his own boat – Mr Brand – but with the finding that Keane had solely been at fault, the claim against brand was dismissed.
Moore v Keane [2026] NSWSC 475, Harrison AJ, 25 May 2026
Categories: Recreational accident , Boating & Watercraft