SB-issue59_digital

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UNTANGLING LIABILITY
IN UNPROVOKED
SHARK ATTACKS
UNTANGLING LIABILITY
IN UNPROVOKED
SHARK ATTACKS
# 59 58 // smorgasboarder //
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Global shark bite deaths doubled in 2023 to ten with
Australia recording a disproportionate number of shark
attack fatalities when compared with anywhere else in
the world, according to The Florida Museum of Natural
History’s International Shark Attack File (ISAF). 1
While 40% of these fatalities occurred in Australia, the
US leads the world (again) in unprovoked shark bites at
36, with ISAF studies revealing that surfers and others
participating in board sports were the most likely to be
attacked, accounting for 42% of bites. 2
Three of these four fatal attacks in Australia in 2023
occurred in a region known for its seal colonies and
high density of great white sharks – the Eyre and Yorke
Peninsulas in South Australia. One of these tragically
involved a 15-year-old up and coming surfer, Khai
Cowley, on the Yorke Peninsula.
Each shark attack stokes new debate about shark
protection measures and how to prevent such tragic
loss of life for those enjoying our waters. Should the
shark be hunted and killed? Are shark nets effective and
are alternative shark protection systems required? And
inevitably, who is to blame and who is liable?
Do local and state authorities, being aware a particular
shark has attacked a person, owe beachgoers a duty of
care to reduce the risk of further attack? By say hunting
and killing that shark? Or if a surf competition is aware
of a shark near competitors, would event organisers be
liable if they persisted with the competition despite that
risk, and one of the competitors was attacked?
In an unprovoked shark attack, liability will always depend
on various factors, including the specific circumstances
of the incident and the legislation that applies based on
where the attack occurred. It’s advisable to consult with
a local legal professional for specific advice.
At the end of the day though, the risk of a shark attack
remains extremely low - you are more likely to be struck
by lightning than killed by a shark. 3
This extremely low risk of an incident occurring is one of
the difficulties with any argument to impose liability on a
council or other authority to say hunt and kill a shark after
it has fatally attacked someone. Removing one shark
does not avoid or even minimise the risk of another shark
related incident.
The other difficulty with the argument to impose liability
is that by entering the ocean we accept we are entering
their habitat and natural environment where the presence
of sharks is a known risk.
While it is difficult to imagine a situation where a surf
competition continues despite knowing a shark is in the
vicinity, the organising body could be exposed if a shark
attack were to occur. This is because of their knowledge
of the risk and their ability to control their participants’
exposure to that risk by halting the competition.
Competitors will usually sign a waiver form prior to
competing but in reality, it is rare for waivers to preclude
the recovery of compensation.
According to the ISAF, the uptake of fatalities in 2023
might be reflective of the increasing number of white
sharks near popular surf breaks, particularly in Australia.
Emersion in nature, through surfing or other water
sports, involves a degree of unpredictability, and it is this
inability to control the environment in which we surf that
only adds to the beauty of it.
1
The Florida Museum of Natural History’s International Shark Attack File (ISAF) - https://www.floridamuseum.ufl.edu/
science/shark-bites-consistent-with-recent-trends-with-small-spike-in-fatalities/#:~:text=The%20University%20
of%20Florida's%20International,consistent%20with%20long%2Dterm%20trends
2
The ISAF 2023 Shark Attack Report - https://www.floridamuseum.ufl.edu/shark-attacks/yearly-worldwide-summary/
3
The ISAF Annual Risk of Death During One’s Lifetime: https://www.floridamuseum.ufl.edu/shark-attacks/odds/
compare-risk/death/
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