Moore v Keane

HIS HONOUR: On 5 December 2023, Mr Moore served a report from Ms Cahalan dealing with the issue of whether competitive sailing was dangerous. Her opinion was directed to the question of the defendants’ reliance upon s 5L of the Civil Liability Act 2002 dealing with the existence or otherwise of the obvious risk of a recreational activity. It may be assumed for present purposes that competitive sailing is a recreational activity. There remains a live issue in the proceedings about whether or not it is dangerous and whether or not any risk that it is could be described as obvious.

On 10 March 2026, which was the second day of the hearing before me, Mr Sheldon of senior counsel for Mr Moore indicated that he no longer wished to rely upon Ms Cahalan’s report and asked that it be removed from the court book.

The defendants now seek leave to tender a report obtained from Mr Shane Patrick Connelly dated Friday, 13 March 2026. To put that in context, the hearing of these proceedings commenced before me four days earlier on Monday, 9 March 2026.

Each of the defendants had completed their evidence-in-chief and had been cross-examined by the time of the service of Mr Connelly’s report. The defendants are respectively the owners and skippers of the boats that were involved in the marine collision in the course of which Mr Moore was injured. It might in that respect be assumed that the defendants would have had a view, and may well have been legitimately asked, about the dangers associated with competitive sailing and whether they were obvious.

Proof of the defence raised by s 5L is a matter for those who rely upon it. To the extent that the defendants or either of them thought that evidence was necessary to establish that competitive sailing is dangerous or that the dangers were obvious, it was incumbent on them to lead the evidence they may have considered was necessary for that purpose. Reports, such as that which the defendants now seek to rely upon, should obviously be served in accordance with the rules: see UCPR 31.28. Mr Connelly’s expert report was not served in that way.

The defendants now contend that there are exceptional circumstances that justify the receipt of Mr Connelly’s report. While at one level there are no positive matters to which the defendants draw attention in order to establish the existence of exceptional circumstances, they point to what they wish to characterise as a lack of identifiable prejudice to Mr Moore, which they contend would, in the circumstances of this case, amount to exceptional circumstances within the meaning of that expression in UCPR 31.28(4)(a): see State of New South Wales v Tyszyk [2008] NSWCA 107 at [207]. I disagree.

To start with, it is clear to the point of demonstration that the defendants somewhat incautiously took the risk that Mr Moore would tender Ms Cahalan’s report. That assumption was not well founded and cannot be used by the defendants to support some notional case that it led or encouraged them to alter their position to their detriment by not qualifying their own expert. Mr Moore was perfectly entitled to choose not to rely upon Ms Cahalan’s report and cannot be criticised for doing so. That reasonable decision is in my view a countervailing factor in the sense identified in Tyszyk at [207]. Moreover, the very fact that Mr Moore has now taken that course was always on the cards when regard is had to the terms of Ms Cahalan’s report. The defendants became so enthusiastic about the prospect that her report should be tendered that they re-served it on Mr Moore in the hope that they might rely upon it.

Secondly, however, there is identifiable prejudice to Mr Moore. As I have noted, both Mr Keane and Mr Brand are experienced sailors. At the point when they had completed their evidence, neither had been asked any questions in cross-examination by Mr Sheldon that went to the existence of the dangers that they might have recognised were part of competitive sailing in general or the race in which Mr Moore was injured in particular. It is reasonably apparent that the approach taken to these witnesses by Mr Sheldon, as well as to several others with sailing experience called by the defendants, was consistent with the decision to forsake any reliance upon Ms Cahalan’s report. Mr Sheldon has since understandably indicated that he is not prepared to explain or particularise the way in which his cross-examination of these witnesses may have been different, in order that such details might provide more force to his argument that Mr Moore has suffered prejudice. Having regard to the fact that my decision on this application could not have been known when these submissions were made, Mr Sheldon’s cautious reticence is entirely reasonable.

Thirdly, these proceedings relate to a collision between yachts in late 2020 that spawned this litigation in April 2023. As at 13 March 2026, the proceedings have been on foot for a few weeks shy of three years. It seems to me to be entirely uncontroversial, but without wishing or intending to express any view about the viability of a defence based on s 5L of the Civil Liability Act, that a contention that Mr Moore was injured as the result of the materialisation of an obvious risk of a dangerous recreational activity in which he was engaged was always in the forensic mix. Indeed, it became a pleaded issue in the proceedings as long ago as 3 October 2023, when the first defendant filed his defence. The defendants’ application to tender Mr Connelly’s report is now too late.

The application is refused.