Tourism Law
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1.0 Main content of the case and Introduction
In this case, the events happened in Tortoiseshell Island which was delegated for Island Authority by the Western Australian State Government. The origin of the case was that in recent times, the fishermen found the haunt of the sharks off shore, and in lase five years, there were several fatalities and injuries because of the sharks attacks. The summer came and island was filled of the people. There were the patrol conducted by the lifeguards and had the two flags to remind the tourists where the safe swimming area was, but unfortunately, two events still came up: (1) Frank was bodysurfing within the safe swimming area, but a wave dumped him into the sandbar, which made him permanently paralysis. (2) A white shark was found in two meters off shore. When other tourists were hearing the shark alarm and leaving the beach, Matt was snorkelling which made that he didnt hear the alarm and was taken by the shark.
In this report, we will separately analyse Franks and Matts case according to the relevant principles of law and seek the legal relationship between the victims and Island Authority which was managed by the Tortseshell Island.
1.1 Identification of the legal issue in Franks injuries and Matts death
In these case, we can estimate if the Island Authority was ought to be liable for Franks injuries and Matts death or not, according to whether the Island Authority had the tort of negligence.
2.0 Franks injuries
2.1 Applying the relevant principles of law in Franks case
Negligence is the most common form of civil action today. It is based on the notion that the defendants reckless,careless or blameworthy conduct caused the plaintiff harm in circumstances in which the defendant should have taken more care.
It must be proved that:
● the defendant owed the plaintiff a duty of care;
● the defendant breached that duty of care,
● the defendants breach caused the plaintiff loss, and
● that loss suffered was reasonably foreseeable.[ Atherton T. C. & Atherton T. A., Tourim,Travel and Hospitality Law, second edition. Thomson Reuters Australia Ltd, Sydney, 2011. p.97]
On the basis of above, we can know that the first step we need to prove whether the Island Authority owed the Frank a duty a care. The explanation what is the duty of care can find in the case Donoghue v. Stevenson (1932)[ Donoghue v. Stevenson (1932) AC562]:
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is me neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
Then, how can we prove the existing of duty of care? Barron mentioned that ” before the law will say a duty of care exists, foreseeability must exists.”[ Barron M.L., Fundamentals Of Business Law, sixth edition. McGraw Hill Pty Ltd, Australia. 2009. p.68] In the beginning of this case, it refered that there had only two signs to remind safe swimming area and several lifeguards were patrolling on the beach. After the accident happened, the lifeguards had pulled him form the water and given the emergency treatment for him, at last, sent him to the mainland for medical treatment. On below, we discuss the liability of Frank and Island Authority:
Frank was swimming within the safe area and the conduction of Frank was acted on his subjectivity, moreover, at the unpredictable sea, people were going on a variety of water activities which the tourists were ought to know that there were the obviousness of the danger – Prast v. the Town of Cattesloe (2000)[ Prast v. the Town of Cattesloe (2000) WASCA 275 at (42)-(43)]. Frank was bodysurfing for half an hour without any incidents, and the last wave dumped him into the sandbar. Under ordinary circumstances, it can be said that this consequence was not completely unreasonable foreseeable – Ratcliffe v. Jackson (1994)[ Ratcliffe v. Jackson (1994) Aust Torts Repts 81-284], so Frank needed to take a part of responsibilities in his injuries.
On the other hand, we discuss with the Island Authoritys liability. The elements of breach of duty of care are risk of harm, seriousness of harm, burden of eliminating the risk, and social utility of the conduct[ Atherton T. C. & Atherton T. A., Tourim,Travel and Hospitality Law, second edition. Thomson Reuters Australia Ltd, Sydney, 2011. p.101] – Wyong Shire Council v. Shirt (1980)[ Wyong Shire Council v. Shirt (1980) 146 CLR 40]. It is obvious that as a management of the Tortoiseshell Island, the Island Authority owed a certain extent of the responsibility to protect the tourists safe who came the island to enjoy holiday. Island Authority was ought to be clear about the foreseeable dangers and its seriousness on Island, and Island Authority had the liability to set up the warning sign to remind people the potential risks – Vairy v. Wyong Shire (2005)[ Vairy v. Wyong Shire (2005) 223 CLR 422] and the lifeguards were responsible for concentrating on the dangers the beach conditions might cause swimmers, which was the burden of removing the dangers – Swain v. Waverley Municipal Council (2005)[ Swain v. Waverley Municipal Council (2005) 220 CLR 517; (2005) HCA 4, High Court]. In this case, the Island did not establish any warning sign of the potential risk of the sandbar, except the signs of safe swimming area. It can be said that the Island Authority and the lifeguards did not tried their best to do everything they could do and breached the duty of care.
Moreover, the case mentioned that Frank was injured by dumping into the sandbar where was the potential risk. According to the Damage, it is an essential part of the tort of negligence. There are times when the defendants actions are the cause of the damage and times when it is only a cause of the damage. As for the but for test, the plaintiff may only recover where the damage would not have occurred but for the defendants negligent acts and omissions[ Atherton T. C. &