The use of UAVs (alternatively known as Remotely Piloted Aircraft (RPA) or drones) has grown exponentially in recent years and shows no signs of abating in the near future. By 2020 it is estimated that there will be 30,000 UAVs operating in the United States alone. These UAVs are used both recreationally and commercially, as well as by the governments through their law enforcement agencies and military. The technology is progressing at such a rate that it is difficult for regulators and legislators to keep pace and it is worthwhile to stop and take stock of how these UAVs are viewed in terms of liability legislation and the common law.
Legislative Position
Actions for aircraft passing over or through airspace above a person's property were historically framed in terms of nuisance and trespass. All Australian States, with the exception of Queensland, have introduced legislation allowing aircraft to fly over a property at a height above ground that is reasonable so long as the Air Navigation Regulations are complied with. In conjunction with this legislation, the Commonwealth and each State has enacted further legislation relating to the damage to persons or property on the ground arising as a result of articles or persons falling or being dropped from an aircraft. The language used by the Commonwealth and each State varies slightly but there are two distinct general wordings1 . The Commonwealth Act (which is closely mirrored by that of Queensland and South Australia) states that:
the owner and operator of an aircraft will be jointly and severally liable in respect of the injury, loss, damage or destruction without proof of intention, negligence or any other cause of action if a person or property on, in or under land or water suffers personal injury, loss of life, material loss, damage or destruction caused by:
- an impact with an aircraft that is in flight, or that was in flight immediately before the impact happened; or
- an impact with part of an aircraft that was damaged or destroyed while in flight; or
- an impact with a person, animal or thing that dropped or fell from an aircraft in flight; or
- something that is a result of an impact of a kind mentioned in paragraph (a), (b) or (c).
In contrast, the NSW Act (similar in terms to the Victorian, Western Australian and Tasmanian Acts) provides that:
Where material loss or damage is caused to any person or property on land or water by, or by a person in, or an article or person falling from, an aircraft while in flight, taking off or landing, then unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage are recoverable without proof of negligence or intention or other cause of action, as if the loss or damage had been caused by the wilful act, neglect, or default of the owners of the aircraft.
The effect of each of the above provisions is to render the owner (in both instances) and/or the operator (when the Commonwealth Act applies) strictly liable when loss or damage is caused to any person or property on the ground. The significant difference between the NSW and Commonwealth legislation being that the Commonwealth legislation requires an impact, whereas the NSW legislation merely requires the loss or damage to be as a result of a person in, or an article or person falling from, an aircraft whilst in flight. Where this difference is most apparent is in cases involving what would have traditionally been a claim in nuisance or trespass, for example, where someone suffers injury as a result of a horse "bolting" due to fear of a low flying aircraft. In this situation, arguably the NSW Act would impose strict liability, whereas due to the lack of an "impact", the Commonwealth Act would not.
"Aircraft"
Whilst the above summary of the legislation concerning damage by aircraft is hardly new, consideration should be given to whether UAVs fall within that legislative framework and if not, what liability regime are they subject to?
The legislation in all jurisdictions require the damage to be caused by an "aircraft" (or something falling from an aircraft) before strict liability will apply. This begs the question: What is an aircraft and does a UAV qualify as one? The answers appears to be "Yes"...........and "No"
The Civil Aviation Act 1988 defines aircraft as "any machine or craft that can derive support in the atmosphere from the reactions of the air, other than reactions of the air against the Earth's surface". That definition would, at first glance, appear to cover all UAVs. However, the Damage by Aircraft Act 1999 (Cwth), although adopting the above definition, specifically excludes model aircraft from its application but unhelpfully does not define model aircraft.
Part 101 of the Civil Aviation Safety Regulations 1998 (CASR) deals with the operation of unmanned aircraft. The Dictionary section of the CASR provides a definition of model aircraft as "an aircraft that is used for sport or recreation, and cannot carry a person." Confusingly, the Advisory Circular (AC 101-3(0)) issued by the Civil Aviation Safety Authority (CASA) in July 2002 concerning the operation of model aircraft includes a weight restriction of 150 kilograms (including fuel and equipment installed in or attached to the aircraft) for it to be considered a model aircraft. Notwithstanding that contradiction, it is apparent that UAVs operated for sport and recreation and weighing less than 150 kilograms would fall outside the scope of the various legislative regimes outlined above, in respect of damage by aircraft to persons or property on the ground.
What liability regime would govern the growing number of hobbyists and enthusiasts who are operating UAVs of various size and purpose? It is not hard to imagine a UAV of significant weight causing life threatening injuries far in excess of that suffered by a triathlon runner in Western Australia who was struck by a UAV that was filming the event. It would appear that the injured party would not be able to take advantage of the strict liability provisions of the Acts mentioned and would be required to bring an action in negligence in order to recover damages. That, in itself, could pose significant difficulties to the potential claimant given that the cause of the accident could be anything from battery depletion, human error, to software or design defects in the UAV.
The Future
CASA are aware that there is an issue with the regulation of recreational UAVs in light of the changes that have occurred in that field. In response CASA have initiated Project US 14/18 with the stated objective of reviewing the provisions in Subpart 101.G-Model Aircraft, for effectiveness in managing the emerging risks associated with use of unmanned aircraft which fall outside the Scope of Subpart 101.F-UAVs. CASA are also working on a complete re-write of CASR 101 which will result in new CASR 102. Indications are that CASR 102 will categorise UAVs (to be named RPAs in line with the International Civil Aviation Organisation) into 3 classes of weight:
- those under 2 kilograms
- 2 kilograms – 20 kilograms
- Over 20 kilograms.
CASA have stated in their Notice of Proposed Rule Making (NPRM 1309OS) that they arrived at the lower weight limit of 2 kilograms following development of a human injury prediction model that provides estimates of injury severity as a function of the UAV's mass and impact velocity. That model predicted that UAVs of less than 2 kilograms have a low potential for harm to people and property on the ground.
Conclusion
Australia were quick of the mark in respect of the regulation of UAVs with CASR 101 coming into force 12 years ago. No one at that time could have foreseen the growth that has occurred in recreational UAV use and it is apparent that the statutory liability regimes have not caught up. No regulatory body or legislature could be criticised for not keeping pace and CASA, as they were 13 years ago, look to be at the forefront of changes to keep the regulatory framework (and with it the liability regime) from falling too far behind and perhaps even catching up.
Footnotes
1 See Damage by Aircraft Act 1999 (Cwth); Civil Liability Act 2002 (NSW); Wrongs Act 1958 (Vic); Air Navigation Act 1937 (Qld); Damage by Aircraft Act 1964 (WA); Civil Liability Act 1936 (SA); Damage by Aircraft Act 1963 (Tas).
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