Why do you need drone insurance?
Drone liability in the US and Australia
The unmanned aerial vehicles (commonly known as drones) brought revolution not only to air traffic and photography or video making but also to the realm of liability and insurance. When we hear about a public road accident in the news, we all know that after the police the insurers will investigate the circumstances to decide to whom and how much premium they will pay. But what is the case when an accident happens with a drone? Or is it necessary to have an accident in order to claim damages against the operator of a drone? Below I will highlight some cases where such questions arose focusing on the USA and Australia and trends in the lawmaking how these countries are trying to handle the legal and insurance challenges.
I. United States of America
When flying an unmanned aerial vehicle (commonly known as drone) the liability of the operator and the involvement of insurer may arise from several aspects:
- endangering air traffic;
- invasion of privacy;
- causing damages (bodily injury, property damage).
I.1. Air traffic
As drones are considered to be aerial vehicles, they are subject to aviation law and are subordinated to the order of air traffic. According to the Federal Aviation Administration’s (FAA-US) sources 2,100 drone sightings were reported by pilots of manned aircrafts in 2017 within the airspace of the US. FAA launched 23 investigations[1] last year against illegal drone flying however, as in these cases fines shall be imposed, no coverage is available via drone liability insurance.
I.2. Invasion of privacy
When people think about injury the first thing that comes to their mind upon damage is a bodily injury or damage in property. Privacy infringements are also important and some drone liability insurance policies can provide coverage for invasion of privacy. The insurance called Aerial Pak provided Hill & Usher can - for extra fee – also include coverage against such claims reflecting to what legal expert says that the “misuse of a drone by a private operator is most likely to give rise to a claim of intrusions upon seclusion.”[2]
When it comes to privacy infringement, the most well known drone related case in the US is the Boggs vs. Merideth case. Meredith shot down Boggs’ drone over his property. Merideth claimed that the drone was hindering his privacy therefore his shoot was an act of self defense. Surprisingly, Merideth was not charged by the court and did not have to reimburse the price of the shot drone. After this decision Mr. Boggs could seek reimbursement only from his insurer, if he had any insurance covering equipment loss.
Upon very old court cases legal expert find it reasonable “to infer that flights at a very low level, such as a height of eight feet, will potentially incur liability for trespass, provided the additional elements of the tort are met.”[3]
I.3. Causing damages
According to the writers of the DRONE ON! Emerging Legal Issues for Commercial Use of Unmanned Aerial Vehicles (UAVs): Will You and Your Clients Be Ready for the Invasion of American Airspace? study[4] the following aspects shall be considered in a drone liability case.
„• Drone operators can potentially be held liable for personal injuries and property damage as a result of flying their drone.
• Under the tort theory of negligence, a drone operator could be held liable for losing control of their drone and allowing it to crash into a person or damage property.
• Generally, in order to prevail in a drone accident lawsuit, the plaintiff must establish that the drone operator failed to exercise “reasonable care” while operating the drone.
• Case law will be developed over the next few years to set the boundaries of “reasonable care” but expect plaintiffs to focus on any operator violations of FAA regulations and state laws in order to establish negligence per se.
• In addition, the plaintiff will need to establish causation between the drone operator’s negligent acts and the claimed injuries.
• Consider hypothetical where drone is launched with low battery power which results in crash into passerby who sustains bodily harm.
• Successful recovery in drone personal injury litigation could include recovery for economic and non-economic losses.
• Intentional misconduct or gross negligence may also lead Court to award punitive damages.”
These are the aspects that shall be proven by plaintiffs and be investigated by courts in the following pending cases too:
Ellis v. Billcliff and Searles Castle
In 2014 a drone hit one of guests on the wedding causing injuries. Ellis the plaintiff sued therefore the groom whose drone caused her bodily harms alleging that the defendant, groom Billcliff was conducting the drone when the accident happened. The plaintiff submitted a motion against the Searles Castle, the hotel where the wedding and the incident took place. The plaintiff is claiming damages from defendants.
Pituch vs.Perfect Event Inc. and Pi Kappa Phi
Pituch the plaintiff was a participant on party where one of the defendants hired a drone operator to record a video and take pictures about the event. The drone in question hit the plaintiff causing injuries. Pituch sued the defendants for negligence and premised liability.
II. Australia
II.1 Air traffic
From 2012 to 2016, 127 near drone encounters were reported in Australia but no collision occurred between drones and manned aircrafts.[5] These cases shall be investigated by civil aviation authorities and if necessary punished with fines. It is also important that the role of aviation authorities and courts shall be separated. The aviation authorities may not and shall not investigate liability of operator other than breach of air traffic rules. However the breach of air traffic rules can later be ground for constituting liability for damages or invasion of privacy. This separation of roles became very important in Ms. Odgen’s case (see below).
II.2 Privacy invasion and causing damages
According to Special Counsel Matthew Craven there was no case so far in Australia where a private individual could successfully sue a drone operator on the ground of privacy invasion.[6]
As Mr. Craven added when suing a drone operator plaintiff’ success is „depending on the conduct and how the drone has been flown, other laws, such as trespass to property, may provide an avenue for redress in certain circumstances”.[7]
Ms. Craven’s comments are in line with statements of the US legal experts underpinning the major role of the courts and case-law in the field of liability for damages caused by drone-operation and the fact that the circumstances of flying (where aviation law’s prescription may help to find a standard for the way of lawful flying) are decisive.
In 2014, Raiji Odgen, an athlete participating on a triathlon competition in Australia, suffered injuries after a drone filming the race from 10 meter height fell down to the ground causing her a bleeding wound on her head as she dropped to the floor. The operator of the drone reflected that the athlete’s injury were due to falling onto the ground and not because of the drone however, the operator admitted that Odgen looked back to the drone while running and was scared of it. Thereby she lost her balance which implies the indirect liability of the drone and its operator.
The operator was fined by the Civil Aviation Safety Agency (CASA - AUS) to AUD 1,700 because flying within 30 metres of people however; the Commonwealth Director of Public Prosecutions (CDPP) did not charge the operator because the accident happened because of radio interference between the drone and the event’s timing device and not because of actions of the operator. This case shows that different authorities consider actions of operators differently (as their roles also different): the operator was liable for breach of the air traffic rules but not for the injury which occurred – admittedly – indirectly because of this breach.
This case also shows that drones are so revolutionary that lawmakers are lagging behind trying to conciliate the legal regulation of these small unmanned vehicles. As many of the abovementioned cases are still pending or not went through a complete court trial, it is still too early to say that US and Australian jurisdiction have elaborated the circumstances among which a drone operator’s liability can be determined with no doubt.
[1] Perspectives on Maintaining Safety and Enhancing Oversight of a Diverse and Complex Aviation Industry (available at: https://www.oig.dot.gov/sites/default/files/DOT-OIG%20Statement%20on%20Aviation%20Safety-CC2018002.pdf)
[2] Benjamin D. Mathews, Potential Tort Liability for Use of Drone Aircraft, 46 ST. MARY’S L.J. 573, 586–587 (2015)
[3] Benjamin D. Mathews, Potential Tort Liability for Use of Drone Aircraft, 46 ST. MARY’S L.J. 573, 592–593 (2015).
[4] https://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2016_joint_cle/1_drone_on__final_of_outline.authcheckdam.pdf
[5] Review of aviation safety regulation of remotely piloted aircraft systems - May 2018 (available at: https://www.casa.gov.au/files/review-aviation-safety-regulation-remotely-piloted-aircraft-systems)
[6] https://www.choice.com.au/electronics-and-technology/gadgets/tech-gadgets/articles/drones-and-privacy-rights
[7] https://www.choice.com.au/electronics-and-technology/gadgets/tech-gadgets/articles/drones-and-privacy-rights