Australian Tourism and Hospitality Law - Case Study Example

? Australian Tourism and Hospitality Law Australian Tourism and Hospitality Law Tortoiseshell is an island, situated on in Western Australia, it receives holiday visitors every year and accommodates 500 guests at any given time. Being an island, Totoiseshell can only be accessed by a boat or plane, and while on the island, the only mode of transport is using a bike, which makes the island safe and idyllic for holiday. Those who visit this island engage in activities such as fishing, camping. This island is managed and swimming. The Western Australian State Government had mandated the Island Authority to manage the island. There have been increased concerns over of the dangers posed by sharks in the water, according to the fishermen, shark sightings have increased in the local water, which poses a risk to the swimmers and fishermen. The fears of the fishermen were confirmed by an incident that occurred in 22nd October, during this day, Frank, who was swimming within the flags, was dumped into a sand bar, and when he was pulled from the water by the lifeguards, and taken for medical treatment, Frank was found with a fracture of his cervical vertebra. The fracture left him paralyzed from the waist down. Later in the day, there was a shark alarm, sounded by lifeguards for people to clear the water, however, Matt, who was 100 meters from the shore, was taken away and his body was never found. The events on this day leave a question of whether the Island Authority is liable for the Frank’s injuries and the death of Matt. Looking at the facts of this case, the Island is under the management of the Island Authority, therefore, the Island Authority is responsible for the safety of those fishing, swimming and camping on the island.1 This follows that Matt and Frank were visitors to the island; therefore, their safety was in the hands of the Island Authority. Again, the Island Authority is in charge of the island, including the waters and the activities that go on within this area, therefore, it should be in a better position to understand the waters, and any danger posed by the waters or the animals living in the water.2 In this case, the Authority should have traced the history of shark attacks, but concentrates on the recent reports of the attacks and their fatal cases. Looking at the statistics, 50 years before the year 2000, there was only one fatal attack in these waters, but within the last 5 years, there have been six attacks from the shark on the west coast, and these attacks were fatal. In addition, according to reports, there were 16 attacks near the sea, where the victims suffered serious injuries but survived. The Island Authority should have these statistics, and if they have them, then they should be more vigilant near the sea and in the water; they should have taken extra-measures to minimize the dangers caused by the sharks. When Frank got hurt, he was swimming within the flags; these flags indicated that the waters he was swimming in were safe, therefore, he had no worries about his safety. The same applied to Matt. This can only mean that the water was not inspected at all or the inspection was not well done, and considering the reports on the increasing shark attacks, the Island authority can be accused of negligence. In addition, the boat patrol is supposed to be done all the time, and they are supposed to be several boats and not one, if this was the case, maybe Matt could have been saved in time. Moreover, the Island Authority is not well equipped with the disaster management equipment, and the procedure used for clearing people from the water and rescuing people is not well organized. Knowing that people might not be quick enough to clear the water when the shark alarm is sound, the Authority did not take an initiative to necessitate quick water clearance. Again, most of the people visiting the Island for recreational activities are not locals, and this means that they are not aware of the dangers posed by sharks in the water in this region.3 Therefore, it is the responsibility of the Island Authority to inform them of the risk posed by the sharks by talking to them directly about use of signboards.4 Looking at the facts of Matt and Frank’s case, this is a case of negligence. However, negligence should be proved, which involves proving that the risk of injury to Matt and Frank should have been reasonably foreseeable and real. Looking at Matt and Frank, it is evident that the risk was foreseeable; this is according to the statistics, which shows that shark sightings had been increasing in the waters and the recent attacks by the sharks in the same waters were becoming fatal.5 A responsible Island Authority should have these statistics and use the statistics to foresee the dangers and fatalities of shark attacks.6 The injuries to Matt and Frank were foreseeable but the Island Authority did not take enough precautions to minimize the injury or completely avert it. Negligence should also show a duty of care; the management of the Island was bestowed to the Island Authority, and the safety of those swimming is in the hands of the Island Authority.7 Therefore, the Island Authority had a duty of care for Matt and Frank. This case is similar to the case between Nagle and Rottnest Island Authority; Nagle visited the reserve and dived in the water from a partially submerged rock. His head was struck by the submerged rock, which rendered him a quadriplegic; he sued the Board for negligence. According to Nagle, the Board had the duty of care, but it did not give enough warning to show that diving was unsafe. Nagle claimed that the board ought to have known when it is safe to dive and when it is not, and then inform the swimmers.8 The same case is with the Island Authority; it had a duty of care. It ought to know when it is safe to swim and when it is not, then advise or inform the swimmers; they should have learned the behavior of sharks to know when they are present in the water, in order to know the safe time for the swimmers to be in the waters. Again, knowing that Matt and Frank, as well as other people, would in all probability be swimming, it was the Island Authority’s duty to brief them on the dangers posed by sharks and let them know when it was safe for them to swim. There was also a breach of duty in this case. Apart from not giving the swimmers information on when it is safe to swim, the Island Authority, through the lifeguards, did not take sufficient and necessary measures to ensure the safety of the swimmers.9 The boat patrols were not frequent enough, and this led to late sighting of the shark that killed Matt; if the boat patrols were frequent enough, maybe, the sharks would have been spotted in time to alert the people to clear the water before the attack. Again, Matt could have been saved from the shark attack if there were means to extract him from the water instead of him swimming all along to the shore; the Island Authority should have considered using planes to lift people such as Matt from the waters before they were attacked. The sound of alarm by the lifeguards was not enough to save the people from the shark attack; this means that the Island Authority did not perform their duty of protecting the visitors from the shark attacks. In Nagle vs Rottnest Island Authority, Nagle referred to Australian standards for water safety signs; according to these standards, safety flags and signs with graphic symbols should be used during water sports for identification of hazardous areas and condition, in order to avoid drowning or serious accidents.10 According to Nagle, the sign to show that it was dangerous to dive should have been placed in the swimming basin to warn him and other swimmers and divers.11 Following the Australian standards for water safety signs, the Island Authority breached the law for water safety when it failed to display a sign to warn the swimmers of dangerous sharks in the waters In cases relating to visitors and the Island Authority, for instance, in the case Nagle Vs. Rottnest Island Authority, majority of High Court judges employ reliance and assumption of responsibility.12 In this case, it is assumed that the Authority had a relationship with the visitors, and they lawfully visit the Island for swimming purposes. This means that the Island Authority is the occupier of the Island; therefore, it is its statutory duty to manage and control it on behalf of the public.13 Again, as the occupier, the Island Authority is liable for the well being of the visitors, who included Matt and Frank, and for anything that happens to them the Authority should be responsible. Considering reliance on the Authority to provide security to the visitors as the management of the Island and controller of activities on the island, then the Authority is liable for the safety of Frank and Matt.14 Considering the facts of the case and the analysis of the water safety standards of Australia, as well as the past cases of negligence, the Island Authority is liable for Frank’s injury and Matt’s death. First, the Island Authority knew or should have known of the danger posed by the sharks, and foresee future attacks; the statistics show that the waters had a history of shark attacks with fatalities, and those who survived ended up like Frank, who was paralyzed.15 Therefore, the attacks on Frank and Matt were foreseeable, which means that they could have been prevented by the Authority. Also according to Australian water safety standards, waters should have flags and signs with graphics to show the dangerous waters and areas to avoid serious accidents, but the Island Authority in this case did not follow these standards.16The Authority has only used flags to show that the water was safe for swimming, and not signs with graphics to inform the swimmers of the dangers of sharks; in this case, the Authority is considered not keen on safety of the swimmers. Also, knowing of the possibility of shark attacks, the Island Authority did not take sufficient and effective precautions. First, the boat patrols were not frequent enough for timely sighting of sharks for quick response before any attacks, and the quick clearance of people from the water was overlooked. If the planes were used for clearing those people who are far away from the shore, from the waters, then Matt could have been saved; this is a precautionary measure that the Authority overlooked. The Island Authority were bestowed with the responsibility for managing the Island and controlling all the activities on the island; this means that they are occupiers of the island, therefore, they are liable for the safety of the activities carried out on the island and its waters.17 It also means that the Authority is liable for the safety of the visitors, who included Frank and Matt, and anything that happens to them is their responsibility.18 Therefore, it is because of the negligence on the side of the Island Authority that Frank was attacked by the shark and injured, and Matt was killed by the shark. Bibliography Allen Judy. "Liability of a public authority as occupier: Romeo v Conservation Commission of the Northern Territory" Torts Law Journal, 5.7 (1997); 7-8. Allen Judy and Dixon Marion. Foreseeability Sinks and Duty of Care Drifts: The High Court Visits Rottnest. Western Australian Law Review, 23 (1993); 320-328. Bennett Cortlan. “'Unprecedented' number of shark attacks as WA named world's deadliest spot.” News, http://www.news.com.au/national/unprecedented-number-of-shark-attacks- wa-deemed-worlds-deadliest/story-e6frfkvr-1226315868418 Buckley, Ralf, Pickering, Catherine & Weaver Bruce. Nature-based Tourism, Environment, and Land Management. Australia: CABI, 2003. Carver Tracy. Obviously Obvious: Obvious Risks, Policy and Claimant Inadvertence. Common Law, 5 (2006); 66-99. Crawford, J. Austrulzan Courts oj'law, 3rd edn .Melbourne: OUP, 1993. Department of Local Government & Co-Operatives. “Beach Safety.” Practice note 11, (1955), http://www.dlg.nsw.gov.au/dlg/dlghome/documents/PracticeNotes/pnote11.pdf. Eilperin Juliet. “Shark kills diver off southwest Australia.” The Washington Post, http://www.washingtonpost.com/national/health-science/shark-kills-diver-off-southwest- australia/2012/03/31/gIQAiCwLnS_story.html Handford Peter A Century of Torts: Western Australian Appeals to the High Court 1903-2003, UWAL REV, 32(2004); 106-113. Healey Deborah. Sport and the Law. Australia: UNSW Press, 2005. Latimer Paul. Australian Business Law. Australia: CCH Australia Limited, 1992. Nagle v Rottnest Island Authority. Aust Torts Rep, 69 (1989); 226. Sutherland SC v Heyman supran 20, Mason J, 461; B J Reiter "Contracts, Torts, Relations & Reliancem inB JReiter & J Swan (eds) Studies in ContractLaw. (Toronto: Butterworths, 1980), 235, 242. Trindade, "The Liability of Public Authorities To The Public In Negligence". Tort Law Review, 69.2, (1994); 69-73. Ultramares Corp v Touch, Niven & Co (1931) 225 NY 170, 174 NE 441. Read More