There is no question that it is becoming more dangerous for tourists interacting with elephants. But is the $850,000 award to an injured tourist in Kenya the right response?

Last November a Kenyan court awarded Wendy Martin, the wife of a British diplomat at the time serving in Kenya, 65 million Kenyan shillings in compensation for injuries she suffered in a 2000 elephant incident at the then new Il Ngwesi Lodge in northern Kenya. (This represented about half of Martin’s claim.)

It is a horrific incident, and you can read Martin’s own graphic and terrifying description from her own site: Wendy Martin’s own story It is remarkable that she survived.

Many don’t. According to Singapore’s Straits Times (April 8, 2009) more than 700 people are killed annually in India, Sri Lanka and Nepal. We don’t have a reliable count of elephant deaths in Africa, but last year the BBC claimed that about a dozen tourists annually are killed as tourists by elephants in Africa. And according to the Save the Elephant Fund, there are probably hundreds of villagers annually killed in Africa. I think it is more likely in the thousands.

And that’s the point. I’ve written before that a convergence of otherwise unusual circumstances requires that we be overly vigilant right now with regards to elephant encounters. These include the economic downturn, the reduction of habitat, and the increase in elephant poaching. Kenyan law compensates each villager for “death or destruction” by elephant with 30,000 Kenyan shillings (about $250).

Why should Martin get $850,000?

On April 8, a Dutch tourist was killed in India’s Kazaringa national park while on a guided bird walk. His small group was accompanied by two armed rangers, who did fire at the charging elephant. The other tourists escaped, but he was killed. Based on Martin’s award, his estate is now contemplating a massive suit.

The question as to why tourists ought be treated differently in such litigation to local citizens suffering the same or worse outcomes is not a flippant or rhetorical one. Tourists are not expected to be familiar with the areas they visit. Their “adventure visit” is often contracted by numerous disclaimers, but at the same time by assurances that their hosts know what they’re doing.

In Martin’s case (according to recently released testimony), there could also be the specific negligence that knowledge of an errant elephant family moving onto the estate was known the night before the incident. Martin also claimed that she was “pushed” into going on the bush run somewhat against her own better instincts, and apparently the judge accepted this claim.

There is also the reality that one British tourist is worth to the Kenyan economy a geometrically larger amount than one Kenyan farmer.

Nevertheless, I think this is wrong. The British are currently very reluctant to release aid for building Kenyan roads, because they doubt the Kenyans are capable enough of building a good road, and that corruption is likely to divert the allocated funds. Why does the wife of a British diplomat expect the management of a new and somewhat experimental tourist facility would do any better?

Il Ngwesi where Martin visited was a new local community based tourism project. These projects represent a wonderful new direction that much investment has taken in East Africa in the last decade. Part of this dynamic, however, is that relatively unskilled and untrained local villagers assume much of the management and guiding of these establishments. That’s wonderful, too, but it’s clearly not as professional as a long-established bush camp in South Africa, for instance.

And this dynamic is well understood. Consumers attracted by the “ecotourism” component of a tourist offering must understand that the “guide” who meets them at the front door is not an elephant Ph.D. researcher or Zimbabwe certified bush guide. In the vast majority of cases the project “guide” has had little schooling and even less training with regards to foreign tourism. Consumers must be sensitive to the fact that enthusiasm might trump safety.

Most elephant incidents of which I’m aware — including my own clients’ near escape of a March, 2007, incident near Amboseli — do not have the several incriminating factors of Martin’s epic. Clearly this is one for the books, a precedent that may be defining the thresholds of responsibility and the monetary levels assigned them.

But one factual number tells me something’s not right: Wendy Martin’s horrible incident is not equivalent to the death of 3400 villagers. And right now, that’s where Kenyan law stands.