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Introduction Tourism had been one of the most popular and fast-growing industries over many decades be it for leisure, recreational or business. Despite its high demand, many travelers out there may not have much knowledge of the “masterminds” that make tourism’s operational activities possible. The tourism industry is actually made up of a group of people who are in charge of performing and dealing with different tasks. They are most commonly known as tour providers or operators which cover hotels, airlines, travel agents and carriers.

Tour providers are usually in charge of planning and leading tours for travelers who needs the guidance of a better informed person to bring them to places of interest across the travel destination of their choice. Many travelers prefer to rely on tour providers as they help them to prepare for their trips without having to deal with all the travel plans on their own. However, how many travelers had embarked on their “journey” and later find it unsatisfactory or encounter various issues with the holiday package which are planned out for them. There are bound to be a handful of them who falls under that category.

The main question is are the tour providers going to be responsible of those losses or are the tourists being negligent thus should warnings be given beforehand by the tour providers? With the application of law to this kind of situation, there are certain ways to encounter such problems. Law of Negligence Negligence originates from tort law, a judge-made law which deals with civil wrongdoings which does not include the breach of contract or trust that results in injury to another person and for which the injured party is entitled to sue for compensation.

This can happen to an individual, businesses, organizations or even sporting participants. In conjunction, occupiers or owners of sporting premises or other recreational facilities can be held liable under the Occupiers’ Liability Act 1985 (WA). [1] An occupier of premises also known as ‘entrants’ is defined as a person occupying or having control of land or other premises and that’s includes any vessel, aircraft or means of transportation. [2] The standard of care owed by the occupiers who enter the premises would vary depending on how they are classified.

In Australian Safeway Stores v Zaluzna (1987)[3], the High Courts stated since Zaluzna was a lawful entrant in the shop thus there is a duty of care owed by Safeway to whoever who is entering the premises and reasonable care should be taken into consideration. [4] In tort law, the term negligence is used to categorize behavior that creates unreasonable risks of harm to a person and property. Negligence usually occurs when a person is careless and fails to exercise appropriate amount of care that a reasonable careful person would or when the person does something that a reasonably careful person would not do under the circumstances. 5] In order to justify a person being guilty of negligence, the plaintiff must be able to prove three things: 1) Existence of Duty of Care The person is obliged to take reasonable care in order to avoid any acts or omissions that are reasonably foreseeable that could cause harm or injury to another party as held in Donoghue v Stevenson (1932) [6] though tour operators do not necessarily owe a duty of care for all personal injuries or losses of personal belongings that a traveler suffers. 2) Breach of Duty of Care There was a breach of duty not only did the duty of care existed but failed to do so due to lack of reasonable care.

Using the comparison between Vairy v Wyong Shire Council (2005)[7] and Mulligan v Coffs Harbour City Council (2005)[8] it illustrates the measure of reasonable care for the riskiness of recreational activities and warning signs. The two claimant, Vairy who had dived off a rocky platform had hurt his head on the seabed, Mulligan on the other hand dived into the pool struck his head on an sharp part of the creek bed , both suffered serious injuries in different water recreation activities but failed to recover damages for their injuries. They sued the councils being negligent for not providing warnings to ward off risks.

The High Court dismissed both appeals as the appeal by Vairy, it’s held that Wyong Council’s duty of care did not include putting up signs warning against or prohibiting diving at the beach. Seawaters carry risks by nature and as an adult one should appreciate the risks of diving from a dangerous ground. In Mulligan’s appeal, the Court also held that Coffs Harbour Council’s duty of care excludes the posting of warning signs at Coffs Creek when the danger of diving into such deep waters is reasonably foreseeable. 3) Damages caused by breach of Duty of Care

The breach of duty of care has caused material damage or injuries and not some other contributing factors. [9] However, in conjunction with that there were times when negligence is contributory. In Section 5R of the Civil Liability Act (2002), it states that the principles applied to identify whether a person is negligent also applies in determining contributory negligence. For that purpose, the standard of care required of the person who suffered harm should be reasonable enough to the eyes of the injured victim and the matter is to be confirmed based on what that person knew or ought to know at that point of time. 10] Contributory Negligence The Law Reform Act (1995)[11] played a crucial role in dealing with contributory negligence. The Act had allowed the claim for damages in cases of contributory negligence, for instance if a plaintiff’s damage is mainly the plaintiff’s fault and the defendant is only partially at fault, the plaintiff can still reclaim damages in the form of equitable remedies from the defendant just that the amount recoverable shall be reduced to the xtent as the Courts find is justifiable[12] in regards to the claimant’s share in the responsibility of the damages. Changes were implemented to the law through introducing reforms. In general, it is categorized into Stage 1 and Stage 2 reforms. Stage 1 reforms targeted at the decreasing number of claims and the cost of it through limiting of damages in different circumstances. Whereas Stage 2 reforms cover a larger area that involve basic reassessment of negligence law and also personal injury. 13] Waivers also known as exclusion clauses would be allowed to be implemented into contracts for the service providers so that liability would be limited in the case when someone get injured when doing dangerous recreational sports activities. In the case of Rootes v Shelton (1967)[14], it was held that there are inherent risks in sports activities and the claimant who had engaged in those activities would be considered as acknowledging the risks.

However this does not give the rights for the defendant to eliminate the duty of care. There was a review on the law of negligence by Mr. Justice Ipp, a focus was created on liability for negligently causing injury or death. This report also known as the Ipp Report contained recommendations for reform and created the foundation for possible reform to Australia’s statute law including the very important legislative act Civil Liability Act (2002) that are relevant to determine the standard of care. 15] CLA 2002 had changed the law regarding the liability owed by public authorities and also duties to warn others of obvious risks, confirming that there is no duty to warn a person of an obvious risk unless there’s a particular reason to provide such information on the risk and also there will be no liability for causing injury to another if a risk is foreseeable and obvious in dangerous recreational activities. [16] Cases involving intoxication is not applicable to the duty and standard of care. 17] An intoxicated plaintiff is obliged to argue with the presumption of contributory negligence and any allegations for personal injury damages are decided by a court without jury. [18] Reasonable Forseeability In the case of Nagle v Rottnest Island Authority (1993)[19], Nagle who works under Rottnest but who had never visited the facilities provided by the Board, dived from a partially submerged rock ledge into the water. His head landed the rock ledge and he suffered serious injuries.

He decided to sue Rottnest for being negligent and failing to provide appropriate warning signs to ward off the danger of hidden rocks. Nagle also claim for damages in respect of the injuries he suffered. [20] Despite the risk of the plaintiff being injured was reasonable foreseeable, if only Rottnest had put up warning signs, there’s a possibility that it would refrain Nagle to dive into the waters recklessly thus the plaintiff won the overall claim.

In comparison with Nagle’s case, Romeo v Conservation Commission NT (1998)[21] a rather similar scenario where claimant, Ms Romeo suffered serious injuries and was later intoxicated when she fell from a cliff onto a beach located in a nature reserve owned by the defendant despite the obvious risks of getting hurt. She had sued for compensation but her appeal against the defendant was turned down by the trial judge and the Northern Territory Court of Appeal. It was held that even though the defendant owes Romeo a duty of care but looking at the fact that the risk of someone falling off the cliff was reasonably foreseeable.

Unfortunately unlike in Nagle’s case, the plaintiff did not managed to succeed in the claim as the defendant had not breach the duty of care for not building a barrier at the edge of the cliff. The main difference of this cases and how they relate to one another was that in Nagle’s case, the danger involved was hidden whereas in Romeo’s case, the danger was obvious and any reasonable person would have known that standing too near those cliffs would propose inherent risks. Conclusion

The intention and effectiveness of the CLA 2002 would make it harder for claimants including tourists to be successful in situations where they suffer from injuries when engaging in recreational activities or sports at the point of time. As such activities most of the time occurs in natural settings distinguished by inherent risks, it is reasonably foreseeable that travelers may suffer from injuries. Such incidents had occurred in a range of adventure tourism operations including scuba diving, yachting, bungee-jumping and horse riding.

As illustrated using the different cases and legislative “Acts” to determine whether tour providers should give warnings to tourists, it all depends on the type of circumstances, the foreseeability of the danger and how it occurred. Normally warnings are not given if that particular activity had the potential of causing harm based on past experiences or common knowledge. On the other hand warnings are given when the risks is something that is rare and does not happen often.

Personally I feel despite that being the case, I believe there should be a responsibility for tour operators to give warnings to tourists as it can further minimize the risks of the tourists getting hurt. The tourists on their part should be liable for their own safety at all times, especially when doing dangerous recreational activities cause warnings only serve as a form of prevention from risks but not to be taken for granted as accidents may still occur to somebody when they least expected it. ———————- [1] Occupier’s liability falls within the mainstream law of negligence: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, p. 10 [2] Occupiers Liability Act 1985 (WA) s2 [3] Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 [4] Margaret Barron, Fundamentals of Business Law, 6th Edition, The Law of Torts,p. 86-87 [5] Aaron Larson, Law Offices Of Aaron Larson (2003) Negligence and Tort Law 2 Donoghue v. Stevenson (1932) AC 532 6] Vairy v Wyong Shire Council (2005) 221 ALR 711; [2005] HCA 62, High Court [7] Mulligan v Coffs Harbour City Council (2005) 221 ALR 764 ; [2005] HCA 63 9 Stella Tarakson (2005) Hot Topics 51, Personal Injury, The Law of Negligence, p. 2 [8] Civil Liability Act (2002) – Sect 5R, New South Wales Consolidated Act [9] Law Reform Act (1995) [10] Law Reform (Contributory Negligence) Amendment Bill 2001, p. 1 [11] Stella Tarakson (2005) Hot Topics 51, Personal Injury, Changes to the Law in New South Wales, p. [12] Rootes v Shelton (1967) 116 CLR 383, 386-387 [13] Review of the Law of Negligence Report (2002) Canberra (referred to as the Ipp Report) [14] Civil Liability Act (2002) NSW, s 17-19 [15] Civil Liability Act (2002) NSW, s 46-47 [16] Civil Liability Act (2002) NSW, s 73 [17] Nagle v Rottnest Island Authority (1993) 177 CLR 423 [18] Margaret Barron, Fundamentals of Business Law, 6th Edition, The Law of Torts, p. 88 [19] Romeo v Conservation Commission of Northern Territory (1998) 72 ALJR 208

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