Risking a shark attack

One would have thought that the sort of nightmarish vision conjured up by Steven Spielberg in his classic 1977 film Jaws was a fascinating but ultimately laughable version of reality. After all, sharks just aren't interested in humans, are they?

And surely even if some were so minded as to attack a human that would only happen where someone had deliberately put themselves in a position of extreme danger far away from the usual holiday comfort spots?

However, the truth may be somewhat closer to fiction than we would ever feel comfortable with, as a recent spate of stories have only served to confirm.

With the peak booking time for holidays upon us, it it worth remembering last summer when within the space of a week three tourists were the victims of shark attacks off the coast of Florida. Armin Trojer, 19, of Baden, was bitten in chest-deep waters off Boca Grande, 140 miles north-west of Miami. He was airlifted to hospital in Fort Myers for surgery on torn ligaments and tendons.

Previously a 16-year-old boy lost his leg in an attack in Cape San Blas. Craig Hutto, 16, from Tennessee, was fishing in the waist-deep waters when he was bitten, and his leg had to be amputated.

But the most tragic attack of all happened to a 14-year-old girl, who was killed 60 miles further north near Destin. Jamie Marie Daigle from Louisiana, was killed as she swam on a boogie board with her friend. It is believed that bull sharks, which are from the same family as reef sharks, were responsible for attacks.

And don't just think these incidents are restricted to far away exotic climes. In August 2005, 25-year-old surfer Luke Goodman from Penzance claimed to have seen a bull shark at least 6ft long, which swam under his surfboard off the Cornish coast.

Fortunately such incidents, although terrible in themselves, remain relatively rare. But, according to the latest information from the International Shark Attack File (ISAF) the general pattern saw unprovoked attacks on the increase last year.

The 2004 total of 61 unprovoked attacks was slightly higher than the 57 unprovoked attacks in 2003 but lower than totals of 63 in 2002, 68 in 2001, and 78 in 2000. Despite the recent yearly declines, the ISAF claims that the number of unprovoked shark attacks has grown at a steady rate over the past century.

Overall, it says, the 1990s had the highest attack total (481) of any decade, and the 2000-2004 totals indicate this decade likely will continue that upward trend.

Understandably for the travel insurance industry, the fact that shark attacks appear to be on the increase and in areas popular with tourists is of some interest. Yet there is no need for tour operators and their insurers to panic, despite the ghoulish headlines.

So far we have not seen any claims arising from shark attacks on humans. One of the main reasons is that the victim or person bringing a claim on the victim's behalf would have to demonstrate that a specific party was negligent, whether that be the tour operator, the hotel, or the public authority. And this may be difficult to establish.

Of course negligence is possible. A duty of care exists. For example, a hotel in the vicinity of waters which are known to have dangerous sharks swimming in them might arguably be expected to outline the dangers of bathing in such waters and stress that doing so is at the holidaymaker's own risk.

A court could find there is a duty to ensure that warning signs are erected and are adequate, and that if an organisation knows there will be tourists of various nationalities swimming in a particular area that such warning signs should be in different languages.

In reality, unless there is clear negligence it may be difficult to hold someone responsible. However, under provisions of the Package Travel Regulations 1992, tour operators have clear obligations to their customers and the operator will always be a claimant's first point of call when it comes to bringing an action.

Despite the avenues that exist for bringing a claim, this is not the type of action that most tour operators and their public liability insurers need to worry about.

Many of the situations that involve the possibility of attacks by sharks are more likely to affect those specialist diving holidays that are run by niche tour operators. A higher duty of care may be placed upon them by a court, and any specialist tour operators working in this area will need to ensure that their staff and suppliers are properly trained to avoid, as far as is reasonably possible, putting their customers at risk.

There has been criticism of shark safaris where tour members have behaved in a highly irresponsible manner by throwing offal and raw meat overboard into the sea to attract sharks, and then sending people down in cages to observe them.

Such thrill-seeking behaviour may be just what the customer ordered - until a tragedy occurs and serious injury or even death takes place. And a court may well sympathise with a claimant who alleges that sharks in such instances are not in their natural habitat, and their aggressive instincts have deliberately - and negligently - been aroused. So despite the fact that no claims have yet been brought in this country, the possibility remains distinctly open.IT

' Rebecca White is an associate partner with Plexus Law and Cecilia Hughes is an assistant solicitor with Plexus Law