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University of Technology Sydney Law Research Series |
Last Updated: 10 April 2017
Drone Danger: Remedies for Damage by Civilian Remotely
Piloted Aircraft to Persons or Property on the Ground in
Australia
Pam Stewart*
Civilian use of drones (Remotely Piloted Aircraft: RPA) in Australian skies
is increasing at a dramatic rate. Whilst there is a strict
regulatory framework
in which RPA operate, they have the capacity to cause significant damage to
persons or property on the ground.
This article evaluates the availability and
scope of statutory and common law remedies for such damage demonstrating a
complex matrix
of potential accountability. Statutory strict liability under
Damage by Aircraft legislation does not apply uniformly to all RPA
with the
definition of RPA as ‘aircraft’ the crucial determinant. Where the
statutory remedy is unavailable, common law
causes of action must be relied upon
with the statutory safety regulations providing assistance in establishing
liability. The article
demonstrates that it would be appropriate for legislators
to ensure uniform application of the strict liability regime to all RPA
and for
compulsory identification and insurance of RPA.
Introduction
Rapidly increasing marketing and use in Australia of civilian drones,
more accurately described as “Remotely Piloted Aircraft”
(RPA),
makes it timely to analyse the availability and adequacy of legal remedies for
injury to person or property on the ground.
The Australian Civil Aviation Safety
Authority (CASA) has recently turned its attention to the proliferation of RPA
in our airspace
and the regulations applicable to RPA use for both recreational
and commercial purposes have been
amended.[1] Whilst the use of RPA is
subject to the regulatory framework discussed below, their potential to cause
serious harm invites consideration
of civil remedies available to persons who
suffer injury or damage on the ground.
Of critical significance is the
operation of Australian Damage by Aircraft
legislation.[2] The statutory strict
liability imposed by that legislation applies to pilots and operators only of
RPA within the definition of ‘aircraft’,
which is not uniform across
Australia. Where the Damage by Aircraft legislation does not apply, the torts of
negligence, trespass
to person and possibly, breach of statutory duty may
provide remedies for damage caused by RPA. The statutory safety regulations
assist to establish such liability. Remedies in nuisance and trespass for damage
to and interference with property are also relevant.
Invasion of privacy and
surveillance by RPA are not dealt with here as they have already been the
subject of thorough research by
the Australian Law Reform
Commission,[3] by Professor
Butler,[4] and the Australian
Parliament,[5] and by Australian and
international scholars.[6]
Nomenclature
The term ‘drone’ is widely understood because of its use in
the media, but it is not a term used internationally or in
Australia by
regulators or industry. The term RPA (Remotely Piloted Aircraft) is used in the
Australian Civil Aviation Legislation
Amendment (Part 101) Regulation
2016 (Cth) which commenced on 26th September
2016,[7] though previously the term
Unmanned Aerial Vehicle (UAV) was in use in Australian regulation. The term RPA
is used throughout this
article.
The surge in civilian use of RPA in Australia
While the CSIRO has been using RPA for scientific research since
1999[8], rapidly evolving technology,
coupled with significant cost reductions and widespread recognition of RPA
capabilities,[9] mean that RPA use for
both recreational and commercial purposes is increasing dramatically in
Australia. The number of recreational
RPA in use in Australia is unknown:
estimates put the number in the vicinity of 5,000 in 2014
[10] but the numbers would be
considerably greater today and growing at a fast rate.
In the Australian
business sector, in 2016, CASA lists on its website, 663 RPA ‘operator
certificate holders’ who are
commercial
operators.[11] In 2009, there were
only 10 such operators licensed by
CASA.[12] RPA are used in a myriad
of situations for surveying, photography, agriculture, advertising,
newsgathering[13] and more. In 2016,
with the approval of CASA, Australia Post conducted a “closed field”
trial, of RPA for domestic delivery
services.[14] RPA are already being
used by at least two Australian Law Enforcement agencies: the Australian Federal
Police and the Queensland
Police
Service.[15]
Some salutary lessons
There are obvious dangers posed by the increasing use of RPA. Their
potential for damage to persons and property on the
ground[16] is clear whether the
cause be illegal or irresponsible use, system failure, equipment malfunction or
human error.
There was a widely publicised incident of personal injury
on the ground by an RPA at the Geraldton Endure Batavia Triathlon in Western
Australia in April 2014. On that occasion Raija Ogden, a triathlete competitor,
was struck on the head by an RPA that fell from the
air whilst being used to
film the race.[17] In October 2013,
CASA reportedly investigated a ‘quad-copter’ RPA which crashed onto
the rail line on the Sydney Harbour
Bridge.[18] In November 2014 an RPA
crashed through the roof of a Perth
house.[19] In December 2014, an RPA
was flown over a police operation crashing to the ground and narrowly avoiding a
police officer in Victoria.[20] In
October, 2015 there was a police investigation into a drone crashing into one of
the sails of the Sydney Opera
House.[21] It is extremely unlikely
that all illegal, unauthorised or careless flights of RPA are reported or
investigated.[22]
Part 1 of
this article examines the regulatory framework governing RPA use in Australia.
Part 2 considers the applicability and adequacy
of statutory strict liability
for damage by aircraft in all Australian jurisdictions and concludes that the
differential application
of the legislation to some RPA and not others is a
matter that should be remedied by legislators. In Part 3 the inter-relationship
between state and territory Civil Liability legislation and Damage by Aircraft
legislation is explored. Part 4 considers common law
remedies for RPA damage to
persons and property on the ground in the torts of negligence, breach of
statutory duty and trespass to
person whilst in Part 5, liability of RPA pilots
in the torts of trespass to land and nuisance is examined. Lastly, Part 6
considers
the need for compulsory identification and insurance of RPA pilots and
operators to enable proceedings to be brought against them
and damages awards to
be met.
1 Regulatory Framework for RPA and Licensing Requirements for Pilots and Operators
Aircraft operations and safety in Australia are governed by Commonwealth
legislation and the regulations made
thereunder.[23] Constitutionally,
there are various heads of power[24]
which support the legislation. Pursuant to an agreement between the states and
the Commonwealth in 1937, all states enacted legislation
adopting the
Commonwealth Air Navigation Regulations to ensure uniform national aviation
regulation.[25]
Australia
was the first nation to regulate remotely piloted aircraft,
[26] in 2002 by way of Civil Aviation
Regulations 1988 (Cth), Part 101. This part has been reviewed over the past two
years[27] and
significant amendments commenced on 29 September 2016. On 10 October, 2016 the
Minister for Infrastructure and Transport announced
a further review of aviation
safety regulation of RPA.[28]
Part 101 of the Commonwealth regulations governs “unmanned
aircraft”[29] a term undefined
in the regulations. Part 101 applies to all unmanned aircraft (including
‘model aircraft’ operated remotely
outdoors) and to RPA which are
defined as “remotely piloted aircraft other than a balloon or a
kite.” [30] The regulations
define a model aircraft as one “that is used for sport or recreation,
and cannot carry a
person.”[31] So an unmanned
aircraft, an RPA, which is used for sport or recreation, is a ‘model
aircraft’, whereas the same RPA used
for another purpose is not.
Part 101 restricts the use of unmanned aircraft including model aircraft
and RPA. They must not be operated to create a hazard to
other aircraft, persons
or property[32] and must not be
operated over a “populous
area.”[33] A “populous
area” is defined as one having “sufficient density of population for
some aspect of the operation ...to
pose an unreasonable risk to ... life, safety
or property.”[34] Other
requirements include operation below 400 feet above ground
level;[35] in
daylight[36] in the visual line of
sight of the operator;[37] not
within 30 metres of persons;[38] and
not over prohibited areas[39] or
near airports.[40]
Some
restrictions such as the prohibition on operation within 30 metres of persons do
not apply to “micro RPA” defined
as having a gross weight of 100
grams or less.[41] Large RPA (with a
launch mass exceeding 150 kilograms) are subject to extensive regulation
including airworthiness certification,
maintenance requirements, and
registration and marking
requirements.[42]
Prior to
the 2016 amendments, controller and operator certification by CASA was mandatory
for all persons using RPA other than for sport or recreation. The CASA
regulatory review concluded that all RPA weighing less than 2 kilograms
(“very small RPA”) whatever their use should be exempt from CASA
approval or pilot or
operator
certification[43] provided they are
operating under “standard operating
conditions.”[44] Those
standard conditions require that the remote pilot maintains direct visual line
of sight with the RPA; that it be flown less
than 400 feet above ground level;
in daytime only; more than 30 metres from persons; outside controlled air space
and other restricted
areas; not over populous areas; more than 3 nautical miles
from an aerodrome; and not over areas where fire, police, public safety
or
emergency operations are being
conducted.[45]
Under the new
regulations persons who fly RPA with a gross weight above 2 kilograms or outside
the standard RPA operating conditions
(described above) will require a remote
pilot’s licence.[46] Persons
(other than the pilots) conducting operations using those RPA will require an
RPA operator’s certificate. There are
some limited exclusions for
“small” RPA (weighing between 2 and 25 kgs) used by private land
owners (for uses such as
aerial photography or agricultural operations) on their
own land in standard operating conditions where no remuneration is received
by
any person.[47]
Whilst pilots
and operators of very small RPA are not required to be licensed or certified,
they must give at least 5 days written
notice to CASA prior to operating a very
small RPA for hire or reward.[48]
CASA is able to maintain a publicly accessible database with details of these
notifications.[49]
The most
fundamental change wrought by the regulatory review is the removal of the
requirement for pilot/operator certification or
CASA approval for all RPA
weighing less than 2 kilograms operated under standard conditions. This
de-regulation recognises the difficulties
faced by the regulator dealing with
unprecedented rapid increase in small RPA use. CASA has frankly
admitted that it cannot regulate them
all.[50]
CASA conducted a
risk assessment for small RPA and established that because they have very low
kinetic energy, they pose little risk
to aviation and have a low potential for
harm to people and property on the ground if operated in the standard operating
conditions[51] Yet, the removal of
licensing requirements for under 2 kilogram commercially operated RPA may
increase the risk of injury to persons
on the ground, given that some relatively
unskilled operators may commence business. A two kilogram weight falling from a
height
of up to 120 metres (400 feet) and hitting a person on the ground would
have the capacity to cause substantial damage. In the case
of any RPA there is
the risk that a remote pilot will flout or be ignorant of safety regulations.
There will be accidents, notwithstanding
the most rigorous safety
regulation.
2 Statutory Strict Liability for Damage by Aircraft in Australia and its application to RPA
There is a strict liability remedy for injury on the ground under Damage by Aircraft legislation in the Commonwealth and all Australian states and territories. [52]
Generally, the effect of Australian Damage by Aircraft legislation is to make
operators and owners jointly and severally liable for
injury or damage to
persons or property on the ground caused by impact with an aircraft or part of
an aircraft or by something falling
from an aircraft or caused by something that
results from such an impact.[53]
Damages are recoverable without proof of intention, negligence or other cause of
action, as if the injury, loss, damage or destruction
had been caused by the
wilful act, negligence or default of the
defendant.[54] There are some
jurisdictional differences discussed below.
Accordingly, if an RPA is
within the definition of an ‘aircraft’ and the relevant provisions
apply, then personal injury
or damage to property caused by an RPA will be
compensable without the need for the plaintiff to prove any claim at common law
or
any fault on the part of the operator or owner of the RPA.
Damage by Aircraft Act 1999
(Cth)[55]and Constitutional
Issues
The applicable Federal legislation is the Damage by Aircraft
Act 1999 (Cth). Owing to constitutional limitations, in some cases the
relevant
state or territory legislation[56]
will be applicable rather than the Commonwealth act.
The Damage by
Aircraft Act 1999 (Cth) applies to Commonwealth aircraft (excluding Defence
Force aircraft) and to aircraft owned by
foreign or trading or financial
corporations (within s.51 (xx) of the Australian Constitution). It also applies
to air navigation in or to or from Australian territories, and to aircraft
engaged in international air navigation
or in trade or commerce internationally
or amongst the Australian states or to aircraft landing at or taking off from
places held
by the Commonwealth.[57]
The Commonwealth legislation has broad coverage but will not apply to RPA
operated for recreation or by individuals, unincorporated
associations or
partnerships engaged in commercial activities within State borders. It is likely
that many RPA will be operated by
trading or financial corporations especially
as it is common for media and other business organisations to use RPA for
photographic
purposes. A corporation that is not a foreign or trading or
financial corporation such as a State government instrumentality using
an RPA
within state boarders would not fall within the coverage of the Commonwealth
legislation. State legislation would apply to
these operators and to any others
outside the constitutional reach of the federal legislation.
State legislation
All Australian states have legislation imposing strict liability for
damage by aircraft, though there are jurisdictional differences.
New South
Wales, Queensland, Victoria, Western Australia and Tasmania, have provisions
similar to, though broader than, the Damage
by Aircraft Act 1999
(Cth).[58] In South Australia
liability is to be determined on the same principles as under the Commonwealth
Act, subject to some
qualifications.[59] Some
differences between state enactments and the Commonwealth Act are significant,
especially regarding the effect of contributory
negligence of an injured person
and the applicability of the legislation to claims of purely psychiatric injury,
discussed below.
Are RPA Aircraft for the purposes of the Damage by Aircraft Legislation?
An RPA being used for a purpose other than sport or recreation is within
the definition of an ‘aircraft’ in Commonwealth
legislative
instruments regulating safety and strict liability of aircraft pilots and
operators. The position is not so clear in
the case of some state Damage by
Aircraft legislation.
The Damage by Aircraft Act 1999 (Cth), s4 provides
that the word “aircraft” has the same meaning as in
the Civil Aviation Act 1988 (Cth), but does not include
“model aircraft.”
The definition of
‘aircraft’ in the Civil Aviation Act 1988 (Cth), s 3, is as
follows:
[A]ny machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth’s surface.[60]
The inclusion of RPA within the definition of ‘aircraft’ in
the Damage by Aircraft Act 1999 (Cth) would seem beyond question
except where an
RPA is a ‘model aircraft’.
The definition of ‘model
aircraft’ is problematic as there is no definition included in either the
Damage by Aircraft
Act 1999 (Cth) nor in the Civil Aviation Act 1988 (Cth). The
only available definition is in the Civil Aviation Safety Regulations 1998
(Cth):
[A]n aircraft that is used for sport or recreation, and cannot carry a
person.[61]
That definition
clearly confines a ‘model aircraft’ to one being used for sport or
recreation. Other than for “giant
model aircraft” (between 25kgs and
150 kgs) which must have operational
approval,[62] there is no other
reference to size, weight, power or capability of the aircraft. The possibility
that significant damage might be
done by such aircraft to persons or property on
the ground is ignored for definitional purposes. The definition produces the
somewhat
surprising result that the same machine is capable of being both an
‘aircraft’ and a ‘model aircraft’ depending
on the
purpose for which it is being used.
In non-recreational instances, most
notably in commercial or law enforcement or information gathering exercises, an
RPA would certainly
not be a ‘model aircraft’ and would therefore
come within the definition of ‘aircraft’ within the Civil Aviation
Act 1988 (Cth) and the Damage by Aircraft Act 1999 (Cth) and would be subject to
strict liability for damage it caused on the ground, irrespective
of the size of
the RPA.
Two states, Queensland and South Australia, adopt the
Commonwealth definition of ‘aircraft’ but without specific exclusion
of ‘model aircraft.’[63]
NSW, Tasmania, Victoria and Western Australia do not define
‘aircraft’ at all.[64]
Whether the commonwealth definition of ‘aircraft’ might be adopted
in those states where the term is undefined is unclear,
though the Damage by
Aircraft legislation in those states refers specifically to the Commonwealth Air
Navigation Regulations.[65] A
definition of aircraft almost identical to that in the Civil Aviation Act 1988
(Cth) appears in the Air Navigation Act 1920 (Cth), s 3(1), but it does not
expressly exclude model aircraft. Most states have legislation that specifically
adopts the Commonwealth Air Navigation
Regulations.[66] So,
that definition may be applicable in the states where ‘aircraft’ is
undefined. But because it does not exclude model
aircraft, where State Damage by
Aircraft legislation applies, strict liability for damage on the ground may
attach to all RPA pilots
and operators including recreational users. This result
may lead to some hard fought argument about constitutional and choice of
law
issues with the high stakes result being the application of strict liability to
recreational RPA users.
These definitional challenges could be avoided by
amendment of the Damage by Aircraft legislation to include all RPA,
whatever their use, in the strict liability regime. As the Commonwealth
legislation stands, only commercial and non-recreational
RPA will be covered,
whilst in the states it may be that all RPA are subject to state legislation,
depending on the definition of
aircraft adopted. Given that all RPA have the
same capacity to cause injury whatever their use, liability across Australia
should
be uniform.
The scope of Damage by Aircraft Legislation
Section 10 (1) Damage by Aircraft Act 1999 (Cth) refers to personal
injury, loss of life, material loss, damage or destruction caused by an
impact with an aircraft or part of an aircraft in flight or in flight
immediately before impact, or by impact with a person or animal or
thing dropped
or falling from an aircraft in flight or by “something that is the result
of an impact of a kind mentioned”.
Not all State provisions
contain that form of words. In
NSW,[67]
Tasmania,[68]
Victoria[69] and Western
Australia,[70] the strict liability
provision does not depend on an ‘impact’ and does not refer to
“something that is a result
of an impact” with an aircraft. The
South Australian provision is narrower than the Commonwealth provision applying
only to
damage resulting from impact with an aircraft or part of the aircraft in
flight or crashing or falling to the
ground.[71] The Queensland
provision[72] is in generally the
same terms as the Commonwealth section and the Commonwealth Act applies in the
territories.
The Commonwealth act provides that the operator of an
aircraft and the owner (except where the owner had no role and another person
had exclusive use of the aircraft) and a person authorising use of the aircraft
and a person entitled to control the navigation
of the aircraft, will all be
jointly and severally liable for the
damage.[73] State legislation is not
uniform. The South Australian provision relies on the principles under the
Commonwealth legislation with
some
qualification.[74]The Queensland
provision[75] is similar though not
identical to the Commonwealth provision. In NSW, Tasmania, Western Australia and
Victoria the owner is liable
but is entitled to be indemnified by a person in
whom “a legal liability is
created.”[76]
In
ACQ Pty Ltd v Cook; Aircair Moree Pty Ltd v
Cook[77](the ACQ case)
the High Court considered the Commonwealth legislation and in particular the
nature of the causal link required between the impact
of an aircraft and the
resulting damage to a person on the ground. The central issue was whether the
plaintiff’s damage was
caused by “something resulting from an
impact” with an aircraft in order to impose strict liability under s 10
(1)(d)
of the Damage by Aircraft Act 1999 (Cth). The plaintiff was a linesman
sent by his employer to investigate damage to a power line
that the
defendant’s aircraft had earlier collided with and dislodged from its pole
so that it was only 1.5 metres off the
ground. The plaintiff fell on wet ground
and was injured by an electrical arc from the power line. The line was obscured
from the
plaintiff’s view by the crop growing in the field and the
overcast sky.
The aviation appellants argued that the plaintiff’s
injuries were not caused by “something that is a result of an
impact”
with an aircraft: that the electrical arc emanating from the
lowered wire was not causally related to the impact. The appellants
argued that
the legislation did not provide a compensation scheme for every person
who sustained injury in some way connected to an aircraft impact. They argued
that “something that is a result of an
impact” should be construed
as something having “an immediate (or reasonably immediate) temporal,
geographical and relational
connection with an
impact.”[78] The argument was
that the words of the section did not include persons brought to the scene by
reason of the impact,”[79] (as
the plaintiff had been) and that “there had to be injury caused by
‘something’- not a series of things or a
narrative of intermediate
events.”[80]The High Court
unanimously rejected this argument and dismissed the appeal. The court held that
as a matter of statutory interpretation,
there was “no linguistic strain
in characterising what happened to the plaintiff as a personal injury caused by
“something”
that is “a” result of an impact between the
aircraft in flight and the
conductor.”[81]The High Court
was reluctant to examine the relationship between the legislative provision and
the common law of causation and held
that it was unnecessary to rely on any
analogy with the common law to resolve the appeals. The Court did however state
that “but
for the impact of the aircraft on the conductor the plaintiff
would not have been injured; but the causal relationship between the
impact and
the injury was much closer than that, and did not rest exclusively on a
‘but for’
analysis.”[82] So, the
requisite causal connection to establish liability under the Damage by Aircraft
legislation may be closer than the common
law ‘but-for’ test for
causation in negligence, but the court did not consider parallels between the
two.
Whilst the ACQ case concerned the application of the Damage
By Aircraft Act 1999 (Cth) to injury caused by a fixed wing piloted aircraft,
the principles enunciated would have the same application to damage caused
by an
RPA (provided that it came within the definition of an ‘aircraft’).
As the High Court pointed out in the ACQ case, “most cases on s10
(1) are likely to be intensely fact-specific” as would a case of damage by
an RPA. The causation requirement as interpreted
by the High Court would
encompass most conceivable instances of damage by RPA on the ground. Such
collisions would more than likely
involve an impact that would come squarely
within the section, though there is always the possibility of some physical
damage to
person or property caused indirectly by an RPA collision with
something other than the plaintiff’s person or property.
3 The Application of State and Territory Civil Liability
Legislation to Claims under the Damage by Aircraft Act 1999 (Cth)
A state or territory court hearing a claim under the Damage by Aircraft Act
1999 (Cth) is exercising federal
jurisdiction.[83] By virtue of the
Judiciary Act 1903 (Cth), s 79, state and territory laws bind courts exercising
federal jurisdiction in all cases to which the State laws are
applicable.[84] The NSW Court of
Appeal held in the ACQ Case that the effect of s.79 Judiciary Act 1903
(Cth) was to make the Civil Liability Act 2002 (NSW) applicable depending upon
identification of a provision in that act relating to the case under
consideration. The effect of
the Judiciary Act 1903 (Cth) provision is not to
make the state act applicable in all respects. The result was therefore that
some parts of the state Civil
Liability legislation applied to the claim under
the Damage by Aircraft Act 1999 (Cth), whilst others did
not.[85]
Limitations on Damages
Significantly, the Court of Appeal held that the limitations on personal
injury damages in Part 2 of the Civil Liability Act 2002 (NSW) applied to the
claim brought in NSW under the Commonwealth Damage by Aircraft Act 1999. Part 2
of the Civil Liability Act 2002 (NSW) applies to awards of personal injury
damages other than those excluded by s 3B of the Act which does not exclude
damage by
aircraft claims. Part 2 is expressed to apply to all awards of
personal injury damages “whether brought in tort, in contract,
under
statute or otherwise”[86] so
the statutory damage by aircraft claim is caught and the limitations on damages
apply to those claims in NSW.[87]
Provisions in other states,[88]
concerning the application of restrictions on personal injury damages are not
always expressed in terms similar to the NSW legislation.
In Western Australia,
Queensland, Victoria, the Northern Territory and the
ACT[89] the damages restrictions
generally apply to all awards for personal injury damages and would apply to
claims under the Commonwealth
Damage by Aircraft legislation. In South Australia
the restrictions apply only to damages for injury arising from motor accidents
or accidents caused by negligence or unintentional tort or breach of a
contractual duty of care.[90] In
Tasmania the restrictions apply only to damages for personal injury or death
resulting from a breach of
duty.[91] So there are
significant jurisdictional differences as to restrictions on personal injury
damages where a claim is made pursuant
to the Damage by Aircraft Act 1999
(Cth).
Contributory Negligence
In the ACQ case it was held at
trial[92] that the defence of
contributory negligence was not available in respect of the Damage by Aircraft
Act 1999 (Cth) claim. That was
challenged on appeal. The Court of Appeal held
that the operation of the defence is modified by sections 5R and 5S Civil
Liability Act 2002 (NSW) but that those sections do not create any
defence,[93] so availability of the
defence depends on the Law Reform (Miscellaneous Provisions) Act 1965
(NSW).
Under the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) the
defence is available only in claims for a ‘wrong’ defined in s 8 as
“an act or omission that gives rise to a liability in tort
(emphasis added) in respect of which a defence of contributory
negligence is available at common law.” The Court of Appeal
held
that the Damage by Aircraft claim is a statutory right of action and not an
action in tort.[94] It is therefore
not a ‘wrong’ within s 8(a) of the Law Reform (Miscellaneous
Provisions) Act 1965 (NSW).
As to whether the defence of contributory
negligence would have been available at common law, Justice Campbell concluded
that s 11 Damage by Aircraft Act 1999 (Cth) which refers to damage caused by a
wilful act or default or negligence, was “quite unspecific about
the nature of that cause of action” that is a “default.” His
Honour held that
“it is impossible to say whether a defence of
contributory negligence would apply to it or
not.”[95] It was further held
that there is uncertainty as to when the defence might be available in respect
of damage caused by a wilful act
of a
defendant.[96] So, the wording of s
11 was held to be inadequate to make contributory negligence a defence to all
actions under the Damage by Aircraft
Act 1999
(Cth).[97]
Following the
ACQ decision, the Damage by Aircraft Act 1999 (Cth) was amended in 2012
to provide for a reduction of damages for contributory
negligence.[98] The South Australian
legislation[99] provides that
liability for aircraft damage is to be determined on the same principles as
under the Commonwealth Act so the position
there is the same with a reduction of
damages for contributory negligence. In NSW, s 73(1) Civil Liability Act 2002
(NSW) is the state provision imposing strict liability for damage by aircraft.
The section provides that the strict liability regime
will not apply where the
plaintiff’s loss or damage was caused or contributed to by the negligence
of the plaintiff. So in
NSW a contributorily negligent plaintiff suffering
damage as a result of impact by aircraft, would have to bring a claim at common
law and if brought in negligence it would be subject to the Civil Liability Act
2002 (NSW) with the contributory negligence defence available. The position in
Victoria,[100] Western
Australia[101] and
Tasmania[102] is the same as in
NSW with claims excluded from the damage by aircraft legislation where the
plaintiff was negligent. In Queensland
to date there has been no amendment of
the damage by aircraft legislation to exclude claims where a plaintiff has been
negligent.
Claims for pure psychiatric injury
Section 10 (1A) inserted into the Damage by Aircraft Act 1999 (Cth) in
2012,[103] provides that
‘mental injury’ damages are not recoverable unless the plaintiff
suffers other damage to person or property.
So, only consequential mental injury
will be covered by the Commonwealth legislation. The states have not followed
the Commonwealth
in excluding claims for pure mental harm from the strict
liability provision, except in South Australia where the State legislation
relies on the Commonwealth principles.
In the Commonwealth and South
Australia,[104] claims for pure
mental injury as a result of an impact with an aircraft, would have to be
brought at common law.
The Damage by Aircraft legislation
which provides a statutory cause of action is not expressed to be in
substitution for other causes of action. It is a
matter of statutory
interpretation whether a statute which either expands or abrogates rights in
particular circumstances or for
particular classes of persons, removes common
law rights completely for cases in different circumstances or for different
classes
of plaintiff.[105]
The Damage by Aircraft Act 1999 (Cth) does not expressly shut out common law claims where person is unable to bring a claim under the legislation. Nor does the Act evince an intention that it is to be definitive of rights and liabilities in the case of all claims for damages, especially given that it enhances (rather than abrogates) common law rights to recover damages caused by impact with aircraft, by imposing strict liability on defendants. The following statement appears in the Explanatory Memorandum to the Aviation Legislation Amendment (Liability and Insurance) Bill 2012 (Cth):[106]
“In relation to third party victims (on the surface) a claimant may
also pursue a claim for ‘pure mental injuries’
under the civil
law.” (p.15)
So in cases of pure mental harm caused by an RPA
collision where the Damage by Aircraft Act 1999 (Cth) would otherwise apply, a
claim
would have to be brought at common law without the benefit of the strict
liability imposed by the act. Such a claim would be subject to the
provisions of relevant state or territory civil liability legislation setting
out the requirements
for a duty of care in cases of pure mental
harm.[107]
Other Aspects of Civil Liability Legislation and Claims under the Damage by Aircraft Legislation
There are some provisions in state and territory civil liability
legislation that would apply to claims under Commonwealth Damage
by Aircraft Act
1999 and its state counterparts because they are expressed to apply to
“civil liability of any kind.”
In all jurisdictions,
provisions protecting Good Samaritans from liability are applicable to
‘civil liability of any
kind.’[108] Similarly,
various provisions protecting community volunteers from liability apply to
‘civil liability of any
kind.’[109] These provisions
would protect RPA pilots and operators from liability under Damage by Aircraft
legislation (and at common law) if
they were engaged in unpaid volunteer or
rescue efforts.
There are other aspects of state and territory civil
liability legislation that would affect liability under Damage by Aircraft
legislation.
The Civil Liability Act 2002 (NSW) establishes a statutory defence
in claims by persons who are intoxicated at the time of their injury. The
provision applies
to “civil liability of any kind ... for personal injury
damages”[110] so that
defence would be available in a claim under the Damage by Aircraft Act 1999
(Cth) or its NSW counterpart.
In other jurisdictions there is a
presumption of contributory negligence where a plaintiff is intoxicated and
those provisions apply
to claims for “personal
injury”[111] or to
proceedings for “recovery of
damages.”[112] These
provisions may be applied to take a claim outside state Damage by Aircraft
legislation all together, given that in some jurisdictions
the statutory strict
liability regime does not apply where a plaintiff has been contributorily
negligent.[113]
There are
also some state and territory provisions that allow a type of illegality
defence,[114] limiting recovery of
damages in civil claims by persons engaged in criminal conduct at the time of
injury. These provisions would
apparently apply to claims under Damage by
Aircraft legislation.
The application of civil liability legislation is
a matter that will need to be considered in many instances where a claim is made
under Commonwealth or state Damage by Aircraft legislation. The
inter-relationship between the statutory provisions present complex
questions of
statutory construction.
4 Common Law Remedies
Whilst Commonwealth or state Damage by Aircraft legislation would apply
to many cases of damage by RPA, there will be cases where
a plaintiff will be
unable to rely on the legislation. Where an RPA is not within the Commonwealth
definition of an “aircraft”
because it is used for recreational
purposes, applicability of state damage by aircraft legislation would depend on
interpretation
of the definition of aircraft in relevant state legislation as
discussed above (in Part 2). There is also a constitutional law question
as to
whether in circumstances where the Commonwealth legislation would apply but for
the specific exclusion of recreational RPA
from that scheme, it would be
constitutionally permissible for the state legislation to be utilised to fill
the breach.[115] There would only
be rare circumstances in which a recreational RPA would come within the
Commonwealth legislation (but for the exclusion)
because of constitutional
limitations. It would be most unusual for a recreational RPA to be operated by a
trading or financial corporation
or to be otherwise within the coverage of the
Damage by Aircraft Act 1999 (Cth), s 9.
Cases of purely psychiatric
injury clearly fall outside the Commonwealth and South Australian legislation.
[116] Where a plaintiff has been
contributorily negligent, damage by aircraft legislation in NSW, Tasmania,
Western Australia and Victoria
does not
apply..[117] In all these
instances a plaintiff will need to rely on the common law for a remedy with
several causes of action available, the
most obvious being in the torts of
negligence or trespass to person but with possible actions for breach of
statutory duty, trespass
to land or nuisance.
The South Australian damage
by aircraft legislation differs in an important respect from other Australian
jurisdictions. It is drafted
so that the only cause of action available where
neither the Commonwealth nor state strict liability provisions apply, is in the
tort of negligence. The relevant section states “liability is to be
determined according to principles of negligence unless”
the impact occurs
whilst the aircraft is in flight or it crashes or falls to the
ground.[118] This form of words
does not seem to admit the possibility of a common law claim for damages in
trespass to person or for breach of
statutory duty.
Negligence
A cause of action in negligence will lie against an RPA pilot who
negligently flies an RPA so as to cause an injury to person or property.
A
plaintiff must establish that a duty of care was owed to a class of persons of
which the plaintiff was one.[119]
In the ACQ case the NSW Court of Appeal recognised that on ordinary
negligence principles, the pilot of an aircraft may well owe duties of care
to
persons on the ground that might be injured if struck by the aircraft or
anything dropped from it.[120] In
the ACQ case however, because of the unusual circumstances of the
plaintiff’s employment as an inexperienced power worker, the Court
of
Appeal held that it was not reasonably foreseeable that a hypothetical
electrical power worker might suffer injury if the pilot
were
negligent.[121]
At common
law, the pilot of an RPA would owe a duty of care to persons in the vicinity of
the flight of the RPA. It would be reasonably
foreseeable that a member of the
class of persons in the area over which an RPA is being flown might be
“not unlikely”
to suffer injury as a result of a consequence
“of the same general character” as that which
eventuated,[122] if the RPA were
negligently flown of if there was a technical mal-function of any kind. In
addition, the salient features of such
a case would certainly favour the
imposition of a duty of care[123]
given the vulnerability of a plaintiff and the significant level of control
exercised by a defendant
pilot.[124]
The question
of breach of duty is governed by Civil Liability legislation in all Australian
jurisdictions where the relevant provisions
are similar though not
identical.[125] A plaintiff would
have to establish that the defendant pilot could reasonably have foreseen the
risk of injury by the RPA colliding
with a person or property and that the risk
of such a collision was “not insignificant.” If that threshold
requirement
is satisfied then the plaintiff must establish that a reasonable
pilot in the position of the defendant would have taken precautions
to avoid the
risk of injury having regard to the ‘Shirt
Calculus”[126] as it is
enacted in the relevant State Civil Liability
legislation.[127]
Because
RPA operation is subject to extensive safety regulation under the Civil Aviation
Safety Regulations 1988 (Cth), the effect
of a breach of a statutory safety
provision on negligence liability is a crucial consideration. There is clear
Australian authority
that a breach of a statutory obligation can be relied upon
as evidence of negligence,[128]
although it is a question of fact whether a failure to act in accordance with a
statutory obligation constitutes a breach of a duty
of
care.[129] In the case of an RPA
pilot who, for example, breaches the prohibitions on flying over populous
areas[130] or within 30 metres of
persons,[131] the failure to
comply with the regulations would be persuasive evidence of a failure to take
reasonable care. Compliance with the
regulations would be a precaution that a
reasonable person would take to avoid the plainly foreseeable and ‘not
insignificant’
risk of injury. And this would be so whatever the cause of
the RPA crash: whether it was because of some negligent manoeuvre by
the pilot
or by some technical failure or even outside interference with the computer
functions of the RPA. A denial of fault by
a defendant based on an RPA collision
that is the result of a technical equipment failure or even hacking of the RPA
computer system
rather than any action of the pilot should fail on this
basis.
The issues of causation and scope of liability would be determined
pursuant to the two-stage
process[132] set out in state
civil liability legislation.[133]
An impact with an RPA or something falling from it would satisfy the
“necessary
condition”[134] requirement
for causation and it is difficult to imagine a scenario in which a court would
not find it appropriate for the scope
of
liability[135] of an RPA pilot to
extend to damage caused by such an impact.
A technical fault or outside
interference with the operation of the RPA might be argued by a defendant pilot
to amount to a novus actus interveniens breaking the chain of causation
between the defendant’s negligent act (flying the RPA over a populous area
for example) and
the impact with the plaintiff or his property. But because the
“scope of liability” provisions in civil liability legislation
have
been held to be normative with considerations of policy for the imposition of
liability being relevant,[136] it
is likely that the courts would refuse to find that such an event should absolve
a negligent pilot from liability, particularly
where there has been a breach of
a safety law. Common law principles concerning intervening causation have
focused on the risk created
by the defendant’s negligence and questions of
“the very kind of thing likely to
happen”[137] as well as the
purpose and scope of the cause of
action.[138] These kinds of
considerations indicate that liability should be imposed on a negligent pilot
notwithstanding technical failure.
The Damage by Aircraft legislation
imposes joint and several liability on both the operator & owner of an
aircraft.[139] Clearly this would
not be the case in a common law negligence action where a Plaintiff would have
to rely on vicarious
liability[140] or
agency[141] to establish liability
of the operator/owner who was not also the negligent pilot.
Breach of Statutory Duty
The tort of Breach of Statutory
Duty[142] may provide a remedy to
persons injured by the failure of an RPA pilot to comply with statutory safety
obligations. The tort has
been the subject of academic criticism for lacking a
rational basis in legal
doctrine.[143] The significant
advantage to a plaintiff of the action for Breach of Statutory Duty is that the
liability is strict: proof of the
defendant’s failure to comply with the
relevant statutory obligation is sufficient to establish
liability.[144]
As
discussed in Part 1 above, the Civil Aviation Safety Regulations 1988 (Cth)
impose detailed restrictions on the operation of RPA.
Prescriptive regulations
concern matters such as flight outside populous areas, daytime flying and line
of sight operation, and make
provision for strict liability
offences[145] in the event of
non-compliance. There is also a general prohibition on unsafe
operation.[146]
The
elements of the action for breach of statutory duty were succinctly stated by
the High Court of Australia in Byrne v Australian
Airlines[147] (a case dealing
with employment matters not damage by aircraft):
A cause of action for damages for breach of statutory duty arises where a
statute which imposes an obligation for the protection or
benefit of a
particular class of persons is, upon its proper construction, intended to
provide a ground of civil liability when the
breach of the obligation causes
injury or damage of a kind against which the statute was designed to afford
protection.
The High Court has held that where a statute prescribes a
safety precaution in circumstances where the person having the burden of
that
safety requirement would, under the general law of negligence, owe a duty to
exercise due care, then “the statutory duty
will give rise to a
correlative private right unless a contrary intention appears in the
statute.”[148] In the
context of the Civil Aviation Safety Regulations 1988 (Cth), it is arguable that
the availability of a private right to sue
for breach of the statutory duty is
within the intent of the legislature. An RPA pilot would owe a duty of care at
general law so
the statutory obligation should create a correlative private
right. A person suffering injury as a result of an RPA pilot’s
failure to
comply with the safety regulations would certainly fall within the class of
persons protected by the regulations.
The specificity of the safety standard enacted is relevant on the question of
whether parliament intended a private right of action.
In O’Connor v
Bray, Dixon J considered it influential that a statutory regulation defined
“specifically what must be done in furtherance of the
general duty to
protect the safety of those affected by the operations carried
on.”[149] The highly
specific nature of most of the regulations in Part 101 of the Civil Aviation
Safety Regulations 1988 (Cth) would meet
the requirement of specific
prescription of what “must be done in furtherance of the duty to
protect,” though a general
prohibition of hazardous
operation[150] may be
problematic.
There is some authority that where a statutory protection is
for the benefit of the public at large rather than a discrete class of
persons,
a private right of action for breach would not be
supported.[151] This has been
referred to as the “limited class”
rule[152] though it has been
doubted in the High Court:
“[C]ases of actions for breach of statutory duty cannot be confined to
instances where the plaintiff belongs to some so-called
‘special class of
the community’ ... [T]he dominant consideration is prevention of danger to
all persons brought into
proximity to a specific peril which can easily be
avoided if the regulation is
observed.”[153]
Significantly,
Australian courts have refused to allow a private right of action in respect of
breach of road safety
regulations.[154] In the traffic
cases the Courts have inferred that the legislative intent was not to create a
private right of action because traffic
regulations were made primarily for the
control of traffic rather than to create new private rights unknown to
the common law.[155]
Similarly, in Repacholi Aviation Pty Ltd v Civil Aviation Safety
Authority,[156] the Federal
Court held (in an application for leave to appeal from an interlocutory
judgment) that the provisions of the Civil Aviation Act 1988 (Cth) were
for the benefit of the public at large with the safety of air navigation as the
most important objective and they were
not designed to protect the commercial
interests of aviation companies. That case was not concerned with injury as a
result of impact
by aircraft but rather with a claim concerning commercial
losses incurred as a result of the cancellation of a licence and it is
not
authoritative. But it may be instructive. It might be difficult to argue the
converse given that the civil aviation regulations
are in the same class as road
safety regulations in the sense that they are part of a very broad scheme
governing air safety.
There is one important point of distinction
between motor traffic regulation and air safety regulation. Whereas the scheme
of motor
traffic legislation is one of “mutual and reciprocal obligations
imposed on all who engage in traffic” as identified
in Abela v
Giew, the scheme of civil aviation safety legislation does not always
involve “mutual and reciprocal obligations.” Persons
on the ground
are not mutually or reciprocally obligated by the legislation to those
controlling or operating aircraft. This distinction
may enable a court to
determine a parliamentary intention that breach of the civil aviation safety
regulations should provide a private
right of action for breach of statutory
duty to an injured person on the ground.
Given the High Court statement
in O’Connor v S & P Bray
Ltd[157] concerning
correlative rights where a general duty of care would arise, an action for
breach of statutory duty could be available
to a plaintiff in respect of injury
caused by an RPA in breach of the Civil Aviation Safety Regulations 1998 (Cth).
Clearly the air
safety regulations applicable to RPA operation are designed to
afford protection to persons and property on the ground as well as
other
aircraft. Moreover the regulations are highly specific as to what is required to
be done to ensure safety and it is likely
that a breach will cause injury. It
was recognised by the High Court in O’Connor v S & P Bray Ltd
that whether the right of action arises will depend on “the scope and
object of the duty imposed and the probability or certainty
that a breach of the
duty will be likely to cause death or injury.”
[158]
There is one
persuasive argument against a parliamentary intention to create a private right
of action for breach of the air safety
regulations. That is the very existence
of the strict liability remedy available under the Damage by Aircraft Act 1999
(Cth) and
its state counterparts. The argument is simply that if parliament has
created a statutory strict liability regime to provide a remedy
in the event of
injury by aircraft to person or property on the ground, then it is unlikely that
parliament intended to provide a
further private cause of action for breach of
statutory duty in respect of the air safety regulations. A plaintiff would be
likely
to press a claim for Breach of Statutory duty only in circumstances where
the Damage by Aircraft statutory action was unavailable
(as discussed above).
The argument would be that Parliament no doubt intended the Damage by Aircraft
strict liability action to be
available only in the circumstances limited by the
statute and would not have intended an alternative common law strict liability
to supplement the statutory regime.
If a plaintiff were able to
establish a private right of action in the tort of breach of statutory duty then
satisfaction of the remaining
elements of the claim should be relatively
straight forward. Proof that the defendant breached the statutory obligation
will result
in liability provided the plaintiff can establish the casual
connection between the breach and the damage. It should be noted that
some
aspects of state Civil Liability legislation would apply to claims for Breach of
Statutory Duty, in particular the provisions
relating to quantum of personal
injury damages which apply to all claims whether brought in tort or contract or
under statute or
otherwise.[159]
Trespass to Person – Battery
A plaintiff who has been hit by an RPA or something falling from it would
have a cause of action in Battery. The plaintiff must prove
that the defendant
committed an intentional positive voluntary act which directly caused a contact
with the plaintiff’s
body.[160] A battery is
actionable per se without proof of
damage.[161]
It is unlikely
that a collision between an RPA, or something falling from it, and a person
would be a deliberate act by a defendant,
though it may be reckless in nature
and on current authority that would suffice as to
intention.[162] Further,
Australian common law to date, allows for a negligently committed
battery,[163] contrary to the
position in England.[164] Doubt
has been expressed judicially[165]
and by some academic
commentators[166] about the
continued availability of an action in trespass to person where the act of the
defendant is negligent rather than deliberate:
it is suggested that the only
cause of action in that event should be in the tort of negligence. But the
current state of authority
in Australia enables a claim in battery based on a
negligent act by a defendant.
A plaintiff will have to establish the
requisite directness[167] between
the act of the pilot and the interference with the plaintiff. In the case of an
RPA collision with a person, the act of the
pilot (who may be a considerable
distance away) in remotely controlling the machine is not physically connected
to the impact with
the plaintiff’s body. But, just as a person who fires a
gun or throws a missile at another commits a battery,
[168] so the RPA pilot who is
remotely controlling a machine that hits another should satisfy the directness
element of battery.
The advantage of a claim in trespass to person in
Australia is that the plaintiff does not have to prove the defendant was at
fault.
Once the trespassory contact is established, then the defendant must
prove lack of fault to escape
liability.[169] A person injured
by an RPA falling from the sky will possibly have scant evidence as to the cause
of the event, though negligence
of the operator would be a likely cause.
Generally, state civil liability legislation would apply to a claim in
trespass to person where the act of the defendant was negligent
as opposed to
deliberate.[170]
5 Liability of RPA Pilots for Trespass to Land and Nuisance
In
addition to the remedies discussed above, there would in limited circumstances,
be remedies for damage or interference by RPA in
trespass to land or private
nuisance.
Recent New Zealand regulation of RPA recognises the need to
address safety of persons and property as well as privacy, when RPA are
flown
over private property. Amendments to Civil Aviation Rules 1997 (NZ) that
commenced on 24 September 2015, provide that an RPA may not be operated in
airspace above property unless
prior consent has been obtained from the occupier
or owner of the property.[171]
By contrast in Australia, there is statutory protection from liability
for flight over real property in several jurisdictions for
RPA which fall within
the definition of aircraft.
Statutory protection
Legislation in NSW, South Australia, Tasmania, Victoria and Western
Australia [172] provides that
there is no action in trespass or nuisance by reason only of the flight of an
aircraft over any property at a reasonable
height so long as Air Navigation
Regulations are complied with. As previously discussed (in Part 2), except in
South Australia, ‘aircraft’
is not defined in state legislation and
there is no exclusion for ‘model aircraft’. So the legislation in
NSW, Tasmania,
Victoria and WA, would probably protect all RPA. In Queensland,
the Northern territory and the ACT there is no statutory protection
from
liability for trespass or nuisance by reason of over-flight.
In the event
that a flight by an ‘aircraft’ is at an unreasonable height (having
regard to wind, weather and all the circumstances
of the case) or is in breach
of the Air navigation Regulations then the statutory immunity is lost.
The statutory protection is from liability “by reason only” of
flight over property.
So where the claim is for something other than the flight
alone, there may be an action: where there is undue disturbance or noise,
or
where something falls from the RPA or the machine itself falls to the
ground.
Trespass to Land
The common law as to trespass to land by over-fight of aircraft is as
stated in the English decision in Bernstein of Leigh (Baron) v Skyviews &
General Ltd (Skyviews).[173]
In Skyviews Griffiths J held, relying on various
authorities,[174] that the right
of a person in possession of land to the air space above is limited to
“such height as is necessary for the
ordinary use and enjoyment of his
land and the structures upon
it.”[175] Interestingly, the
Australian High Court has not adopted and applied the Skyviews decision,
though it has referred to it in obiter
dictum.[176] The NSW Court of
Appeal has stated obiter, citing Skyviews that it is “not a
trespass for an aircraft to pass over someone’s land at a height greater
than the owner needs for the
ordinary use and enjoyment of his or her land and
the structures upon
it.”[177]
In
Skyviews Griffiths J took a pragmatic view of the competing interests
between land owners and the flying public and held that a balance e required
restriction of owners’ rights.
[178] In 1978 when Skyviews was
decided, Griffiths J was concerned solely with over flight by a
plane.[179] But of course, an RPA
is not a plane and it flies at a much lower altitude than a plane. It might be
argued therefore that the rights
to be balanced are not as clearly delineated as
Griffiths J supposed and that in the case of an RPA, some very different
considerations
apply. The flight height of an RPA (which must not be higher than
400 feet above ground but may be substantially lower) is such that
it may
interfere with the ordinary use and enjoyment of land and thereby constitute a
trespass. The remaining elements of the tort
of trespass to land would be likely
satisfied: that the RPA pilot engaged in a positive voluntary
act[180] (the physical controlling
of the RPA) that directly[181]
caused a physical interference with the airspace above the plaintiff’s
land. The requisite intention to enter the plaintiff’s
air space on the
part of the defendant RPA pilot should be established: either a deliberate or
reckless act[182] although in
Australia the onus of proving absence of intention should rest on the defendant
as it does in cases of trespass to
person.[183] This is a distinct
advantage to a plaintiff.
Nuisance
Whether an interference with the use or enjoyment of private
property[184] by over-flight of an
RPA amounts to the tort of private nuisance is problematic, there being no
authority of assistance. Whether
interference is so unreasonable as to
constitute a nuisance is dependent on various factors including
locality,[185]
duration,[186] time of
day,[187]
frequency,[188] the extent of the
interference and “give and take” between
neighbours.[189]There is the
obiter statement in the Bernstein case that a defendant might be liable
in nuisance for aircraft activity amounting to harassment from the
air.[190]
It is doubtful
that a single RPA flight would amount to an unreasonable interference, unless it
was somehow additionally irksome.
Though, if it caused material damage then that
would be sufficient to prove an unreasonable interference unless the defendant
could
establish by way of defence that it acted
reasonably.[191]
Whilst
material damage to property can be recovered, whether a plaintiff can recover
personal injury damages in a private nuisance
action is a vexed question in
Australian law.[192] There is High
Court obiter dicta in Benning v
Wong[193] to the effect that a
plaintiff may recover personal injury damages in private nuisance though there
is sparse other Australian
authority.[194]
The
advantage to a plaintiff of a claim in nuisance over negligence is that in a
case of material damage caused by a nuisance, it
is incumbent on the defendant
to prove reasonableness.[195]
6 Compulsory Third Party Insurance and Identification of Drone Pilots and Operators
The availability of a cause of action to a person injured by an RPA is of
little value unless the pilot and the operator of the RPA
can be identified and
sued by the injured party and have the means to satisfy a damages
award.
At present in Australia there is no requirement for identification
on RPA except for a large RPA, defined as an “unmanned aeroplane
with a
launch mass greater than 150
kilograms.”[196] These are
required to be registered and to carry a manufacturer's data plate and an
aircraft registration identification
plate.[197] The 2016 amendments to
Part 101 of the Australian Civil Aviation Safety Regulations 1998 (Cth)
did not include any alteration to previous
requirements.[198] So any RPA
under the 150 kilogram threshold does not require any ‘on board’
identification with the result that a person
injured by such an RPA may have no
way of tracing the responsible pilot or operator.
In the USA, Unmanned
Aircraft Systems (UAS) weighing more than 0.55 pounds (250 grams) and less than
55 pounds (25 kilograms) are
required to be registered online with the Federal
Aviation Administration’s UAS
registry.[199] The registration
number must be marked on the aircraft to enable identification, with civil and
criminal penalties for failure to
comply.[200] For UAS weighing
more than 55 pounds there are more stringent registration, licensing and
certification requirements.[201]
There are no registration requirements for small RPA in the EU or the UK, though
in 2015, the House of Lords European Union Committee
recommended the development
of a computerised system that would monitor flight plans and coordinate
airspace, and enable identification
of every RPA and its
pilot.[202]
The current
Australian Civil Aviation Safety
Regulations[203] do not require
pilots or operators of RPA to have any third party insurance cover. The EU
requires all commercial RPA operations
to carry third party liability insurance.
For RPA weighing less than 500kg the minimum cover required is approximately
€660,000,
though model aircraft, including RPA for leisure use, weighing
less than 20kg are exempted from the requirement for
insurance.[204]
It is
unfortunate that, having recently reviewed Part 101of the Civil Aviation Safety
Regulations 1998 (Cth), Australian regulators
have missed an opportunity to
consider a requirement for ‘on board’ identification of RPA
operators and compulsory insurance
in respect of injury to third parties on the
ground. Such a requirement might have been imposed for RPA other than micro RPA
(weighing
less than 100 grams) or at least in respect of those in weight
categories above 2 kilograms.
For a person seeking to claim damages for
injury by an RPA there is little certainty that the CASA records of licensed
remote pilots
or certified operators or RPA commercial use will enable
identification of the pilot or operator of a specific RPA in the absence
of some
identifier on the RPA itself.
Conclusion
The regulatory framework applicable to RPA use in Australia imposes
stringent safety measures and licensing and certification requirements,
yet the
propensity for RPA to cause damage to persons and property on the ground is
significant. Australian law provides both statutory
and common law remedies for
injury by RPA to persons or property on the ground.
The legislative
landscape is anything but simple. Jurisdictional differences result in
disparities in available remedies. The availability
of statutory strict
liability under Commonwealth and State Damage by Aircraft legislation depends on
the status of RPA as ‘aircraft’
which turns on interpretation of
several statutory definitions. The Damage by Aircraft Act 1999 (Cth) excludes
recreational RPA from
strict liability. Damage by Aircraft legislation in some
jurisdictions does not apply to claims where a plaintiff has been contributorily
negligent or to claims for purely psychiatric injury. There is a complex
inter-relationship between Damage by Aircraft legislation
and state and
territory civil liability legislation with respect to assessment of damages and
other aspects of tort law that have
been the subject of reform.
A
plaintiff who does not have the benefit of a statutory strict liability claim
will have to rely on the common law of negligence
or trespass to person or
possibly, breach of statutory duty to recover damages for injury on the ground
by RPA. In some cases, causes
of action in trespass to land or private nuisance
may be available against RPA pilots.
But, if a plaintiff is to have a
real opportunity to pursue a damages claim against an RPA pilot or operator, the
person at fault
must be able to be identified. Recent amendments to Australian
Civil Aviation Safety Regulations applicable to RPA have failed to
make any
provision for ‘on board’ identification of RPA owners, pilots, or
operators or for compulsory third party insurance
which would ensure that
damages awards are satisfied.
One thing is certain: the proliferating use
of RPA in Australian skies, recreationally, commercially and by government, will
provide
ample opportunity for statutory and common law remedies to be tested and
refined by Australian courts and will challenge legislators
to meet the demands
of fair access to compensation for injured persons.
* LLB, LLM, Senior Lecturer, Faculty of Law, University of Technology
Sydney.
The author would like to thank Professor Anita Stuhmcke, University
of Technology Sydney, for her valuable comments on an earlier
draft of this
Article.
1 Civil Aviation legislation Amendment (Part 101)
Regulation 2016, amending Civil Aviation Safety Regulations 1988 (Cth). See
also,
Civil Aviation Legislation Amendment (Part 101) Regulation 2016
Explanatory Statement, available at https://www.legislation.gov.au/Details/F2016L00400/Explanatory%20Statement/Text
2
Damage by Aircraft Act 1999 (Cth) (also applies in the Australian Capital
Territory and the Northern Territory); Air Navigation Act 1937 (Qld); Civil
Liability Act 1936 (SA), s 61; Civil Liability Act 2002 (NSW), s 73; Damage by
Aircraft Act 1963 (Tas); Wrongs Act 1958 (Vic), s 31(1); Damage by Aircraft Act
1964 (WA), s 5(1).
[3] Australian
Law Reform Commission, Serious Invasions of Privacy in the Digital Era,
(ALRC Report 123) 2014, Commonwealth of Australia, Canberra; B. McDonald et
al, Serious Invasions of Privacy in the Digital Era: Australian Law Reform
Commission Discussion Paper 80, 2014, Commonwealth of Australia,
Canberra.
[4] Des Butler,
“The Dawn of the Age of the Drones: An Australian Privacy Law
Perspective” [2014] UNSWLawJl 17; (2015) 37 UNSW Law Journal
434.
[5] Australian Parliament,
House of Representatives Standing Committee on Social Policy and Legal Affairs
(SPLA) Eyes in the Sky: Inquiry into drones and the regulation of
air safety and privacy, July 2014, The Parliament of the Commonwealth of
Australia, Canberra. (Report: Eyes in the Sky)
http://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_Legal_Affairs/Drones/Report
[6]
B. McDonald, Surveillance, Tort and Privacy, Association of Aviation Law
of Australia and New Zealand (ALAANZ) Annual Conference 2015, Cairns, Qld; B.
Gogarty and I. Robinson,
"Unmanned Vehicles, Surveillance Saturation and
Prisons of the Mind" (2012) 21(2) Journal of Law, Information and Science
180; G. Cho,” Unmanned Aerial Vehicles: Emerging Policy and Regulatory
Issues" (2013) 22(2) Journal of Law, Information and Science
201; H.B. Farber “Eyes in the Sky: Constitutional and Regulatory
Approaches to Domestic Drone Deployment” (2014) 64 Syracuse law
Review 1; U. Volovelsky, "Civilian Uses of Unmanned Aerial Vehicles and the
Threat to the Right of Privacy: An Israeli Case Study”
(2014) 30
Computer Law and Security Journal
506;
[7] Civil Aviation
legislation Amendment (Part 101) Regulation 2016, amendment to Part 1 of the
Dictionary, Civil Aviation Safety Regulations
1988 (Cth).
See also, Civil
Aviation Legislation Amendment (Part 101) Regulation 2016 Explanatory
Statement, available at https://www.legislation.gov.au/Details/F2016L00400/Explanatory%20Statement/Text
and
CASA, Notice of Proposed Rule-Making (1309OS), Remotely Piloted
Aircraft Systems Terminology and Weight Categorisation of Remotely Piloted
Aircraft, CASA Standards Division, Australian Government, May 2014, pp 8-9,
available at:
http://www.casa.gov.au/wcmswr/_assets/main/newrules/ops/nprm/nprm1309os.pdf
[8]
Report: Eyes in the Sky, p 10
[2.22].
[9] B. Gogarty & M.
Hagger, "The Laws of Man Over Vehicles Unmanned: The Legal Response to Robotic
Revolution on Sea, Land and Air"
(2008) 19 Journal of Law, Information and
Science 73; B. Gogarty and I. Robinson, "Unmanned Vehicles: A (Rebooted)
History, Background and Current State of the Art" (2012) 21(2) Journal of
Law, Information and Science
1.
[10] Australian Parliament,
House of Representatives Standing Committee on Social Policy and Legal Affairs
(SPLA) Eyes in the Sky: Inquiry into drones and the regulation of
air safety and privacy, The Parliament of the Commonwealth of Australia,
Canberra , July 2014, Chapter 2, p.6 [2.4].
http://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_Legal_Affairs/Drones/Report
[11]
Civil Aviation Safety Authority, Operations, Remotely Piloted Aircraft, List
of UAS operator Certificate Holders, https://www.casa.gov.au/uas-operator-certificate-holders
, Accessed 28th July 2016; Eyes in the Sky, Chapter 2, p.5, [2.4].
[12] Department of
Infrastructure and Regional Development, National Aviation Policy White
Paper: Flight Path to the Future, Australian Government, Canberra,
2009. https://infrastructure.gov.au/aviation/publications/pdf/Aviation_White_Paper_final.pdf
[13]
M. Corcoran, D. Goldberg and R. G. Picard, Remotely Piloted Aircraft Systems
& Journalism: Opportunities and Challenges of Drones in News Gathering,
June 2013, Reuters Institute for the Study of Journalism, Oxford
University.
https://reutersinstitute.politics.ox.ac.uk/sites/default/files/Remotely%20Piloted%20Aircraft%20and%20Journalism.pdf
;
M. Corcoran. Drone Journalism: Newsgathering applications of Unmanned
Aerial Vehicles (UAVs) in covering conflict, civil unrest and disaster.
Introductory Paper, January 2014, Flinders University, Adelaide.
http://www.flinders.edu.au/ehl/fms/law_files/Drone%20Journalism%20During%20Conflict,%20Civil%20Unrest%20and%20Disasters%20March%201%202014.pdf
; N. Syed & M. Berry, “Journo-drones: A flight over the
landscape” (2014) 30 Communications Lawyer
1.
[14] Australia Post Newsroom,
“Australia Post Delivery Trial Takes Flight”15 April 2016, News
Releases, Australia Post. https://auspost.newsroom.com.au/Content/Home/02-Home/Article/Australia-Post-Delivery-Trial-Takes-Flight-/-2/-2/6092
[15]
Report: Eyes in the Sky, p.7
[2.8].
[16] The issue of
liability for collision in the air by RPA with other aircraft is beyond the
scope of this article and is governed by
the Civil Aviation Act 1988 (Cth).
Compensation for death or injury to persons on board aircraft and in aircraft
accidents pursuant to Civil Aviation (Carriers Liability) Act 1959 (Cth) (or
state equivalents) does not arise because this article considers damage caused
by RPA which by definition, do not carry
passengers or crew.
[17] BBC News, “Australian triathlete injured after drone crash”, BBC News Services, 7 April, 2014: http://www.bbc.com/news/technology-26921504 and The Guardian, “Air Safety Investigation into Drone Incident with Triathlete.” Guardian News & Media Limited, 8 April, 2014, ,http://www.theguardian.com/world/2014/apr/08/air-safety-triathlete-struck-drone . It was subsequently reported that the UAV operator had been fined by CASA: S. Taillier, “Drone operator fined after UAV crashed into Geraldton triathlete” ABC News, 13 Nov 2014: http://www.abc.net.au/news/2014-11-13/drone-operator-at-geraldton-marathon-fined/5887196
[18] B. Jabour, “Drone
Crash on Sydney Harbour Bridge Investigated”, The Guardian, 5
October, 2013, Guardian News and Media Limited.
http://www.theguardian.com/world/2013/oct/05/drone-crash-on-sydney-harbour-bridge-investigated
[19]
C. Tyrrell and AAP, “Drone Crashes into Perth House” The West
Australian, 20 November 2014.
https://au.news.yahoo.com/thewest/wa/a/25569788/drone-crashes-into-perth-house/
[20]
P. Gibson, CASA Media Release (MR13214), “CASA to issue fine after Vic
drone crash” Civil Aviation Safety Authority,
Australian Government. https://www.casa.gov.au/standard-page/media-release-archive;
ABC News, “Man who flew drone over Victorian Siege Fined $850” 19
December, 2014. ABC. http://www.abc.net.au/news/2014-12-18/drone-fine-man-hit-with-24850-penalty-for-interfering-with/5977594
[21]
M. O’Sullivan, “Straying Drones put pilots, firefighters at
risk” The Sun Herald, Sydney, 11 October 2015
Fairfax
[22] The Association of
Australian Certified UAV Operators Inc. (ACUO) Reply to the Aviation Safety
Regulation Review Panel Report, 30 June, 2014; Brad Mason, Secretary ACUO,
ACUO Submission to CASA’s Notice of Proposed Rule Making 1309OS
Process, 30 June 2014. https://infrastructure.gov.au/aviation/asrr/public_comments/files/Australian_Certified_UAV_Operators_Inc.pdf
[23]
Civil Aviation Act 1988 (Cth); Civil Aviation Safety Regulations 1998 (Cth);
Civil Aviation Regulations 1988 (Cth); Air Navigation Act 1920 (Cth). For
discussion of various jurisdictions see, R. Clarke and L. B. Moses, “The
regulation of civilian drones’ impact
on public safety” (2014) 30
Computer Law and Security Review
263.
[24]The external affairs
power, the trade and commerce power, the corporations power and the
incidental power: Commonwealth of Australia
Constitution Act, s
51(xxix); (i); (xx) and (xxxix)
respectively.
[25] Air Navigation
Act 1938 (NSW); Air Navigation Act 1937 (Qld); Air Navigation Act 1937 (SA); Air
Navigation Act 1937 (Tas); Air Navigation Act 1958 (Vic) (now repealed); Air
Navigation Act 1937 (WA); Commonwealth Powers (Air Transport) Act
1950 (QLD); Commonwealth Powers (Air
Transport) Act 1952
(TAS).
[26] Civil Aviation
Safety Authority, “CASA and Remotely Piloted Aircraft.” Australian
Government Canberra. http://www.casa.gov.au/scripts/nc.dll?WCMS:STANDARD::pc=PC_100376
[27]
CASA, Notice of Proposed Rule-Making (1309OS), Remotely Piloted
Aircraft Systems Terminology and Weight Categorisation of Remotely Piloted
Aircraft, CASA Standards Division, Australian Government, May 2014. http://www.casa.gov.au/wcmswr/_assets/main/newrules/ops/nprm/nprm1309os.pdf
[28]
Hon D. Chester, “Drone safety review announced.” Press release
DC138/2016, 10 October 2016, Canberra.
http://minister.infrastructure.gov.au/chester/releases/2016/October/dc138_2016.aspx
[29]
Civil Aviation Safety Regulations 1998 (Cth), Reg.
101.005.
[30] Civil
Aviation Safety Regulations 1998 (Cth), Part 1 of the
Dictionary.
[31] Civil Aviation
Safety Regulations 1998 (Cth),
Dictionary.
[32] Civil Aviation
Safety Regulations 1998 (Cth), Reg. 101.055; Reg 101.280 (uncertificated
RPA).
[33] Civil Aviation Safety
Regulations 1998 (Cth), Reg 101.250 (for very small, small and medium RPA); Reg.
101.395 (for model aircraft);
Reg 101.280 (uncertificated
RPA).
[34] Civil Aviation Safety
Regulations 1998 (Cth), Reg
101.025.
[35] Civil Aviation
Safety Regulations 1998 (Cth), Reg 101.085 and Reg 101.070 (unmanned Aircraft);
Reg 101.250 (very small, small, and
medium
RPA).
[36] Civil Aviation Safety
Regulations 1998 (Cth), Reg
101.095
[37] Civil Aviation
Safety Regulations 1998 (Cth), Reg
101.073(3).
[38] Civil Aviation
Safety Regulations 1998 (Cth), Reg 101.245 and 101.395 (for model
aircraft).
[39] Civil Aviation
Safety Regulations 1998 (Cth), Reg 101.065. Prohibited and restricted areas are
designated by CASA pursuant to Airspace
Regulations 2007(Cth), Reg.6 and
may include military areas or areas that pose a danger to
aircraft.
[40] Civil Aviation
Safety Regulations 1998 (Cth), Reg
101.075
[41] Civil Aviation
Safety Regulations 1998 (Cth), Regs Dictionary, Part
1.
[42] Civil Aviation Safety
Regulations 1998 (Cth), Regs 101.235; 101.240; 101.255 21.820; Subpart
45D.
[43] Reg. 101.237 defines
“excluded RPA” to which regs 101.252 “Requirement for remote
pilot licence” and 101.270
“Requirement for RPA Operators
certificate” do not
apply.
[44] Defined in Civil
Aviation Safety Regulations 1998 (Cth), reg. 101.238 as amended by Civil
Aviation legislation Amendment (Part 101)
Regulation
2016.
[45] Civil Aviation Safety
Regulations 1998 (Cth), Regs 101.237 and 101.238. CASA, Notice of Proposed
Rule-Making (1309OS), Remotely Piloted Aircraft Systems Terminology and
Weight Categorisation of Remotely Piloted Aircraft, CASA Standards Division,
Australian Government, May 2014, pp 8-9.
http://www.casa.gov.au/wcmswr/_assets/main/newrules/ops/nprm/nprm1309os.pdf
[46]
Civil Aviation Safety Regulations 1998 (Cth), reg.
101.252.
[47] Civil Aviation
Safety Regulations 1998 (Cth), reg. 101.237.
[48] Civil Aviation Safety
Regulations 1998 (Cth), reg. 101.371.
[49] Civil Aviation Safety
Regulations 1998 (Cth), reg.
101.374.
[50] CASA, Notice of
Proposed Rule-Making (1309OS), Remotely Piloted Aircraft Systems
Terminology and Weight Categorisation of Remotely Piloted Aircraft, CASA
Standards Division, Australian Government, May 2014, pp 8-9; Terry Farquharson,
CASA Deputy Director of Aviation Safety, UAVs (Drones) in Civil Airspace and
Challenges for CASA. Speech delivered at a public seminar organised by the
Sir Richard Williams Foundation, Canberra 3 July
2013.
[51] Ibid.
[52] Damage by Aircraft Act 1999
(Cth), s11; Air Navigation Act 1937 (Qld) Pt 3; Civil Liability Act 1936 (SA), s
61; Civil Liability Act 2002 (NSW), s73; Damage by Aircraft Act 1963 (TAS), s 4;
Wrongs Act 1958 (VIC), s 31; Damage by Aircraft Act 1964 (WA), s
5.
[53] Section 10 (1) Damage by
Aircraft Act 1999 (Cth).
[54]
Damage by Aircraft Act 1999 (Cth), s11; Air Navigation Act 1937 (Qld), s 17(2);
Civil Liability Act 1936 (SA), s 61(3); Civil Liability Act 2002 (NSW), s73 (1);
Damage by Aircraft Act 1963 (TAS), s 4(1); Wrongs Act 1958 (VIC), s 31(1);
Damage by Aircraft Act 1964 (WA), s 5(1).
[55] The Damage by Aircraft Act
1999 (Cth) repealed the Civil Aviation (Damage by Aircraft) Act 1958 (Cth),
which by s 8(1), incorporated
into domestic law in Australia, The Convention on
Damage Caused by Foreign Aircraft to Third Parties on the Surface (Rome
Convention
1952) (1952) 310 UNTS 181. That Act imposed strict liability for
damage by aircraft but imposed a limit on compensation which became manifestly
inadequate.
The Act was repealed by Damage by Aircraft Act 1999 (Cth), Schedule
1. Australia no longer adheres to the Rome
Convention.
[56] See Civil
Liability Act 2002 (NSW), s.73; Air Navigation Act 1937 (Qld), s 16; Civil
Liability Act 1936 (SA), s 61; Damage by Aircraft Act 1963 (Tas), s 4; Wrongs
Act 1958 (Vic), s 31; Damage by Aircraft Act 1964 (WA), s
5.
[57] Civil Aviation Act 1999
(Cth), s.9
[58] Civil Liability
Act 2002 (NSW) s 73; Air Navigation Act 1937 (Qld), Pt 3, s 16; Wrongs Act
1958 (Vic), Part VI, s.31 (1); Damage by Aircraft Act 1964 (WA), s.5; Damage by
Aircraft Act 1963 (Tas), s. 4.
[59] Civil Liability Act 1936
(SA), s 61.
[60] A similar
definition appears in the Air Navigation Act 1920 (Cth), s
3(1).
[61] Civil Aviation
Safety Regulations 1998 (Cth),
Dictionary.
[62] Civil Aviation
Safety Regulations 1998 (Cth), Regs 101.380,
101.405.
[63] Air Navigation Act
1937 (Qld), s 4; Civil Liability Act 1936 (SA) s 61(1) which defines
‘aircraft damage’ by reference
to the Commonwealth Damage by
Aircraft Act.
[64] Civil
Liability Act 2002 (NSW); Damage by Aircraft Act, 1963 (Tas); Wrongs Act 1958
(Vic) Pt VI; Damage By Aircraft Act 1964
(WA).
[65] Civil liability Act
2002 (NSW), s 72; Damage by Aircraft Act 2002 (Tas), s2; Damage by Aircraft Act
1964 (WA), s 3; Wrongs Act 1958 (Vic), s 29. The commonwealth Air Navigation
Regulations are: Air Navigation (Aerodrome Flight Corridors) Regulations 1994;
Air Navigation (Aircraft
Engine Emissions) Regulations; Air Navigation (Aircraft
Noise) Regulations 1984 ; Air Navigation (Coolangatta Airport Curfew)
Regulations
1999; Air Navigation (Essendon Airport) Regulations 2001; Air
Navigation (Fuel Spillage) Regulations
1999.
[66] Air Navigation Act
1938 (NSW); Air Navigation Act 1937 (Qld); Air Navigation Act 1937 (SA); Air
Navigation Act 1937 (Tas); Air Navigation Act 1937 (WA); Commonwealth Powers
(Air Transport)
Act 1950 (QLD); Commonwealth Powers (Air Transport)
Act 1952 (Tas). In Victoria the Air Navigation Act 1958 (Vic) adopting
Commonwealth legislation was repealed by Australian Airlines (Intrastate
Services) Act 1990 (Vic) s 4. The Government had advice that
the Air Navigation Act 1958 (Vic) had no practical application in Victoria, due
to case law on Commonwealth powers and legislation passed by the
Commonwealth:
Hansard, Victorian Legislative Assembly,
29th March 1990 at
517.
[67] Civil Liability Act
2002 (NSW), s 73.
[68] Damage by
Aircraft Act 1963 (Tas), s
4.
[69] Wrongs Act 1958 (Vic) s
31.
[70] Damage by Aircraft Act
1964 (WA), s 5.
[71] Civil
Liability Act 1936 (SA), s 61
(c).
[72] Air Navigation Act 1937
(Qld), s 16.
[73] Damage by
Aircraft Act 1999 (Cth), s 10(2), (2A) and
(3).
[74] Civil Liability Act
1936 (SA), s 61(3), (4) . The qualifications concern liability of persons who
rely on the skill of another (not
an employee) to operate aircraft; provide for
an indemnity where there is unauthorised use of an aircraft; restrict the
operation
of the Commonwealth legislation to damage caused by impact between an
aircraft or part of an aircraft and a person or object whilst
the aircraft is
in flight or when it crashes or falls to the
ground.
[75] Air Navigation Act
1937 (Qld), s 16 (2), (3).
[76]
Civil Liability Act 2002 (NSW) s 73 (1), (2); Damage by Aircraft Act 1962 (Tas),
s 4 (1), (2); Damage by Aircraft Act 1964 (WA), s 5(1), (2); Wrongs Act 1958
(Vic), s 31(1), (2).
[77] ACQ
Pty Ltd v Cook; Aircair Moree Pty Ltd v Cook (ACQ case) [2009] HCA 28; (2009) 237
CLR 656.
[78] ACQ case,
[10], French CJ, Gummow, Heydon, Crennan and Bell
JJ.
[79] Ibid
[11].
[80] Ibid
[13].
[81] Ibid
[18].
[82] ACQ case, [27],
French CJ, Gummow, Heydon, Crennan AND Bell JJ. The High Court referred to
March v Stramare (1999) 71 CLR
506.
[83] Judiciary Act 1903
(Cth), s 39(2).
[84] Judiciary
Act 1903 (Cth), s 79.
[85] ACQ
v Cook; Aircair Moree v Cook; Cook v Country Energy; Country Energy v Cook
[2008] NSWCA 161; (2008) 72 NSWLR 318, (ACQ case, Court of Appeal), [150]-[157] per
Campbell JA.
[86]
Civil Liability Act 2002 (NSW), s11A.
[87] ACQ case, Court
of Appeal, [156] per Campbell JA.
[88] Civil Liability Act 20023
(Qld) Chapter 3; Civil Liability Act 1936 (SA) Part 8; Civil Liability Act 2002
(Tas), Part 7; Wrongs Act 1958 (Vic) Parts VB and VBA; Civil Liability Act 2002
(WA) Part 2; Civil Law (Wrongs) Act (ACT) Part 7; Personal Injuries (Liabilities
and Damages) Act
2003 (NT), Part
4.
[89] Civil Liability Act 2002
(WA), s.6; Civil Liability Act 20023 (Qld), s.50; Wrongs Act 1958 (Vic), s. 28C;
Personal Injuries (Liabilities and Damages) Act 2003 (NT), s.4; Civil Law
(Wrongs) Act (ACT), s.93.
[90]
Civil Liability Act 1936 (SA),
s.51.
[91] Civil Liability Act
2002 (Tas), s.24.
[92] Cook v
Aircair Moree Pty Ltd (2007) 5 DCLR (NSW) 142 per Johnstone
DCJ.
[93] ACQ case, Court
of Appeal, [158] per Campbell JA (Beazley and Giles JJ
agreeing).
[94] Ibid
[174].
[95] Ibid,
[165].
[96] Ibid, [164].
[97] Ibid,
[167].
[98] Aviation Legislation
Amendment (Liability and Insurance) Act 2012 (Cth) which inserted s11A into
Damage by Aircraft Act
1999(Cth).
[99] Civil Liability
Act 1936 (SA), s 61.
[100]
Wrongs Act 1958 (Vic), s 31(1); Competition and Efficiency Commission, Inquiry
into Aspects of the Wrongs Act 1958, Final Report, Adjusting the
Balance: Inquiry into Aspects of the Wrongs Act 1958, 26 February 2014. http://www.vcec.vic.gov.au/Inquiries/Completed-inquiries/Wrongs-Act/Final-report
[101]
Damage by Aircraft Act 1964 (WA), s
5(1)
[102] Damage by Aircraft
Act 1963(Tas), s 4(1)
[103]
Amended by Aviation Legislation Amendment (Liability and Insurance) Act
2012 (Cth), schedule 1
[104]
Civil Liability Act 1936 (SA) s 61; In Victoria, it has been recommended that
the damage by aircraft legislation (Wrongs Act 1958, s 31) in that State
be amended to exclude claims for pure mental harm but no amendment has yet been
enacted: Competition and Efficiency
Commission of Victoria, Final Report -
Adjusting the Balance: Inquiry into Aspects of the Wrongs Act 1958, 26 Feb
2014.
[105] Gifford v Strang
Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.
[106] Parliament of the
Commonwealth of Australia, House of Representatives: http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r4856_ems_b4b5f024-2bd9-4a62-912f-d6e256297979/upload_pdf/371907.pdf;fileType=application%2Fpdf
[107] Civil Liability Act 2002
(NSW), Pt 3; Civil Liability Act 2002 (Tas) Pt 8; Civil Liability Act
1936 (SA), s 33; Wrongs Act 1958 (Vic), Pt XI; Civil Liability Act
2002 (WA), s 5S; Civil Law (Wrongs) Act 2002 (ACT),
Pt 3.2.
[108] Civil Law
(Wrongs) Act 2002 (ACT), s.5; Civil Liability Act 2002 (NSW), s.55-58; Personal
Injuries (Liability and Damages) Act 2003 (NT), s.8; Civil Liability Act 2003
(Qld), s.25-27; Civil Liability Act 1936
(SA), s 74; Civil Liability Act 2002
(Tas) s.35A-35C; Wrongs Act 1958 (Vic), s.31A-31D; Civil Liability Act 2002
(WA), s 5AB-5AE.
[109]
Civil Law (Wrongs) Act 2002 (ACT), s.6-11; Civil Liability Act 2002 (NSW),
s.59-66; Personal Injuries (Liability and Damages) Act 2003 (NT), s.7; Civil
Liability Act 2003 (Qld), s.38-44;Volunteers Protection Act
2001 (SA), s 74;
Civil Liability Act 2002 (Tas) s.44-49; Wrongs Act 1958 (Vic), s.34-42;
Volunteers and Food and Other Donors (Protection from Liability) Act 2002
(WA).
[110] Civil Liability Act
2002 (NSW), s 47.
[111] Civil
Law (Wrongs) Act 2002 (ACT), s.93,
s.95.
[112] Civil Liability Act
2002 (WA), s 5L; Personal Injuries (Liability and Damages) Act 2003 (NT),
s.14-17; Civil Liability Act 1936 (SA),
s46-48; Civil Liability Act 2002 (Tas)
s.5; Civil Liability Act 2002 (WA), s 5L. In Queensland and Victoria the
provision applies only in the case of a breach of duty: Civil Liability Act 2003
(Qld), s.47-49; Wrongs
Act 1956 (Vic),
s.14G.
[113] Civil Liability
Act 2002 (NSW), s.73; Damage by Aircraft Act 1963(Tas), s 4(1); Wrongs Act 1958
(Vic), s 31(1); Damage by Aircraft Act 1964 (WA), s 5(1); Damage by Aircraft Act
1963(Tas), s 4(1).
[114] Civil
Law (Wrongs) Act 2002 (ACT), s .93, s.94; Civil Liability Act 2002 (NSW),
s .51, s.54; Personal Injuries (Liabilities and Damages) Act 2003
(NT),s. 10; Civil Liability Act 1936 (SA), s 43; Civil Liability Act
2002 (Tas),
s.5A,
s. 6.
[115] Commonwealth
of Australia Constitution Act, s.109; Halsbury's Laws of Australia,
LexisNexis, [90-1980]-[90-2040]. The Damage by Aircraft Act, 1999 (Cth), s 9
clearly indicates that the Act it is not intended to
‘cover the
field’ completely with respect to liability for damage by aircraft so that
state legislation would apply where
the constitutional reach of the Commonwealth
Act is exhausted. But where the Commonwealth Act applies because the particular
instance
is within the constitutional power (for example where an RPA is being
used by a trading corporation) but is excluded by operation
of the Act (because
of recreational use), then state legislation may not be applicable on
constitutional grounds.
[116]
Damage by Aircraft Act 1999 (Cth), s 10(1)(A); Civil Liability Act 1936 (SA) s
61.
[117] Damage by Aircraft
Act 1999 (Cth), s 11(A); Civil Liability Act 2002 (NSW), s73; Damage by
Aircraft Act 1963 (Tas), s4 (1); Damage by Aircraft Act 1964 (WA), s5 (1);
Wrongs Act 1956 (Vic), s31
(1).
[118] Civil Liability Act
1936 (SA), s 61 (c).
[119]
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR
112.
[120] ACQ Case,
Court of Appeal Campbell JA, Beazley & Giles JJA agreeing, [99].
The duty of care issue was not relevant in the High Court
appeal.
[121] Ibid,
[101].
[122] Chapman v
Hearse [1961] HCA 46; (1961) 106 CLR 112, 125, Dixon CJ, Kitto, Taylor and Windeyer
JJ.
[123] Sullivan v Moody
( 2001) 207 CLR 562.
[124]
Perre v Apand [1999] HCA 36; (1999) 198 CLR 180; Crimmins v Stevedoring Industry
Finance Committee [1999] HCA 59; (1999) 200 CLR 1; Graham Barclay Oysters Pty Ltd v
Ryan [2002] HCA 54; (2002) 211 CLR
540.
[125] Civil Liability Act
2002 (NSW), s 5B; Civil Liability Act 2003 (Qld), s 9; Civil Liability
Act 1936 (SA), s 32; Civil Liability Act 2002 (Tas), s 11; Wrongs Act
1958 (Vic), s 48; Civil Liability Act 2002 (WA), s 5B; Civil Law
(Wrongs) Act 2002 (ACT),
s 43.
[126] Wyong Shire
Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47-48, Mason
J.
[127] Civil Liability Act
2002 (NSW), s 5B; Civil Liability Act 2003 (Qld), s 9; Civil Liability
Act 1936 (SA), s 32; Civil Liability Act 2002 (Tas), s 11; Wrongs Act
1958 (Vic), s 48; Civil Liability Act 2002 (WA), s 5B; Civil Law
(Wrongs) Act 2002 (ACT),
s 43.
[128]
O’Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 at 477 per Dixon
J.
[129] Sibley v Kais
[1967] HCA 43; (1967) 118 CLR 424 at 427; Abela v Giew (1965) 65 SR (NSW) 485 at 489;
Tucker v McCann [1948] VicLawRp 40; [1948] VLR 222 at 225 per Herring CJ; Ridis v Strata
Plan 10308 [2005] NSWCA 246; (2005) 63 NSWLR 449, [90], McColl
JA.
[130] Civil Aviation Safety
Regulations 1998 (Cth), Reg 101.250 (for very small, small and medium RPA); Reg.
101.395 (for model
aircraft).
[131] Civil Aviation
Safety Regulations 1998 (Cth), Regs 101.245 and 101.395 (for model
aircraft).
[132] Adeels
Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420, [41]-[45], French CJ, Gummow,
Hayne, Heydon and Crennan JJ, referring to Civil Liability Act 2002 (NSW), s 5D.
The two-stage process is relevant at common law also: Pledge v RTA [2004] HCA 13; (2004)
205 ALR 56, [10], Hayne
J.
[133] Civil Liability Act
2002 (NSW), s 5D; Civil Liability Act 2003 (Qld), s 11; Civil Liability Act 1936
(SA), s 34; Civil Liability Act 2002 (Tas), s 13; Wrongs Act 1958 (Vic), s 51;
Civil Liability Act 2002 (WA), s 5C; Civil Law (Wrongs) Act 2002 (ACT), s 45.
The Northern Territory has not enacted any statutory
provision concerning
causation.
[134] The High Court
held in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 that s 5D(1)
Civil Liability Act 2002(NSW) is a statutory equivalent of the common law
‘but for’ test: at [45] French
CJ, Gummow, Hayne, Heydon and Crennan
JJ.
[135] The scope of
liability provision in s 5D(1)(b) and s 5D(4) Civil Liability Act 2002 (NSW) was
held to be “entirely normative” by the High Court in Wallace v
Kam [2013] HCA 19, [14], French CJ, Crennan, Kiefel, Gageler And Keane
JJ.
[136] Wallace v Kam
[2013] HCA 19; (2013) 250 CLR 375.
[137]
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 518 Mason CJ;
Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522, 529, per
Gibbs CJ, Mason, Wilson, Brennan and Dawson
JJ.
[138] Allianz Australia
Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568; Travel
Compensation Fund v Tambree [2005] HCA 69; (2005) 224 CLR
627.
[139] Damage by Aircraft
Act 1999 (Cth), s11(2); Air Navigation Act 1937 (Qld) Pt 3; Civil Liability Act
1936 (SA), s 61; Civil Liability Act 2002 (NSW), s73; Damage by Aircraft Act
1963 (Tas), s 4; Wrongs Act 1958 (VIC), s 31; Damage by Aircraft Act 1964 (WA),
s 5.
[140] Hollis v Vabu
[2001] HCA 44; (2001) 207 CLR 21; Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986)
160 CLR 16; NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511; Deatons v Flew [1949] HCA 60; (1949)
79 CLR 370.
[141]
Scott v Davis (2000) 204 CLR 333; Sweeney v Boylan Nominees Pty
Ltd [2006] HCA 19; (2006) 226 CLR
161.
[142] For discussion
generally see R A Buckley, ‘Liability in Tort for Breach of Statutory
Duty’ (1984) 100 Law Quarterly Review
204.
[143] P. D. Finn, ‘A
Road Not Taken: The Boyce Plaintiff and Lord Cairns’ Act’ (1983) 57
Australian Law Journal 493; J L R Davis, ‘Farewell to the Action
for Breach of Statutory Duty?’ in Nicholas J Mullany and Allen M Linden
(eds),
Torts Tomorrow: A Tribute to John Fleming LBC Information
Services, 1998. The tort has been abolished in Canada: R v Saskatchewan Wheat
Pool [1983] 1 SCR 205. The UK Law Commission, Administrative Redress:
Public Bodies and the Citizen, Report No 322 (2010) 5 recommended its
abolition. For argument in favour of the tort see Neil Foster, “The Merits
of the Civil
Action for Breach of Statutory Duty” [2011] SydLawRw 3; (2011) 33 Sydney Law
Review 67.
[144] Stuart
v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215 at [130] per Crennan and Kiefel
JJ
[145] See Civil Aviation
Safety Regulations 1988 (Cth), Part 101 Unmanned Aircraft and Rockets,
Regulations 101.055; 101.065; 101.070;
101.075; 101.085; 101.090; 101.095;
101.245; 101.250; 101.255; 101.270; 101.275; 101.280; 101.285; 101.385; 101.390;
101.395; 101.400;
101.405;
[146] Civil Aviation Safety
Regulations 1988 (Cth), Part 101, Reg.
101.055
[147] (1995) 185 CLR
410 at [16] per Brennan CJ, Dawson & Toohey JJ, citing Sovar v Henry Lane
Pty Ltd [1967] HCA 31; (1967) 116 CLR 397,
404-405.
[148]
O’Connor v Bray [1937] HCA 18; (1937) 56 CLR 464 at 478 per Dixon J; John
Pfeiffer Pty Ltd v Canny [1981] HCA 52; (1981) 148 CLR 218, 231, Mason J.
[149] O’Connor v S
& P Bray Ltd [1937] HCA 18; (1937) 56 CLR 464, 478, Dixon
J.
[150] Civil Aviation Safety
Regulations 1988 (Cth),
101.055
[151] Read v Croydon
Corp [1938] 4 All ER 631, 652; Morrison Sports Ltd v Scottish Power
[2010] UKSC 37 [39]-[40].
[152]
Foster N. J. “The Tort of Breach of Statutory Duty” Chapter 18 in
Sappideen & Vines (Eds), Fleming’s The Law of Torts,
10th Edn, 2011, Thomson Reuters,
Sydney.
[153] O’Connor
v S & P Bray Ltd [1937] HCA 18; (1937) 56 CLR 464, 486–487, Evatt and McTiernan
JJ.
[154] Abela v Giew
(1965) 65 SR (NSW) 485; Tucker v McCann [1948] VicLawRp 40; [1948] VLR
222.
[155] Tucker v
McCann [1948] VicLawRp 40; [1948] VLR 222, 225, Herring
CJ.
[156] [2010] FCA 994 (10
September 2010) Gilmour J,
[20]–[31].
[157] [1937] HCA 18; (1937)
56 CLR 464.
[158]
O’Connor v S & P Bray Ltd [1937] HCA 18; (1937) 56 CLR 464, 486–487,
Evatt and McTiernan JJ.
[159]
Civil Liability Act 2002 (NSW), Part 2 Personal Injury Damages. In other states
and territories: Civil Liability Act 20023 (Qld) Chapter 3; Civil Liability Act
1936 (SA) Part 8; Civil Liability Act 2002 (Tas), Part 7; Wrongs Act 1958 (Vic)
Parts VB and VBA; Civil Liability Act 2002 (WA) Part 2; Civil Law (Wrongs) Act
(ACT) Part 7; Personal Injuries (Liabilities and Damages) Act
2003 (NT), Part
4.
Other parts of the NSW Act that would apply are: Part 5, Liability of
Public and other authorities; Part 6, Intoxication; Part 7,
Self Defence and
recovery by Criminals; Part 8, Good Samaritans; Part 9, Volunteers; Part 10
Apologies.
[160] Secretary,
Department of Health and community Services v JWB (Marion’s case)
[1992] HCA 15; (1992) 175 CLR 218.
[161]
Cole v Turner (1704) 6 Mod 149; 87 ER
907.
[162] James v
Campbell [1832] Eng R 527; (1832) 172 ER 1015; Ball v Axtens [1866]
Eng R 2; [1866] 176 ER 890. See discussion in Francis Trindade, Peter Cane and
Mark Lunney, The Law of Torts in Australia 4th ed, 2007, Oxford
University Press, 41-431.
[163]
Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465; McHale v Watson [1964] HCA 64; (1964) 111
CLR 384; New South Wales v Knight [2002] NSWCA
392.
[164] Letang v
Cooper [1964] EWCA Civ 5; [1965] 1 QB 232, 238-40, Denning
LJ.
[165] Dicta suggests some
judicial disapproval of a negligent trespass action: Hackshaw v Shaw
[1984] HCA 84; (1984) 56 ALR 417, 420, Gibbs, CJ; Platt v Nutt (1988) 12 NSWLR 231,
244-6, Kirby J.
[166] P.
Handford, “Intentional Negligence: A contradiction in Terms” [2010] SydLawRw 2; (2010)
32 Sydney Law Review 29; 9.Heffey, P G and Glasbeek, H J, "Trespass: High
Court versus Court of Appeal” [1966] MelbULawRw 2; (1966) 5(2) Melbourne University Law
Review 158.
[167] Scott
v Shepherd [1746] EngR 121; (1773) 2 Wm Bl 892; 96 ER 525; Leame v Bray; Reynolds v
Clarke; Ounapuu, Albert "Abolition or Reform: The Future for Directness as a
Requirement of Trespass in Australia " [2008] MonashULawRw 4; (2008) 34(1) Monash University Law
Review 103. For the difficult distinctions between direct and
consequential contact see, Hutchins v Maughan [1947] VicLawRp 18; [1947] VLR 131; Reynolds
v Clarke (1726) 1 Str 634; Southport Corporation v Esso Petroleum Co Ltd
[1954] EWCA Civ 5; [1954] 2 QB 182, 195-6 Denning
LJ.
[168] McHale v
Watson [1964] HCA 64; (1964) 111 CLR 384, [9], Windeyer
J
[169] McHale v Watson
[1964] HCA 64; (1964) 111 CLR 384, [9], Windeyer J. In England the plaintiff bears the
burden of proof as to the defendant’s fault: Fowler v Lanning
[1959] 1 QB 426; Letang v Cooper [1964] EWCA Civ 5; [1965] 1 QB
232
[170] Civil Liability Act
2002 (NSW), s.3B ; Civil Liability Act 2002 (Tas),s.3B; Wrongs Act 1958 (Vic),
s.28C; Civil Liability Act 2002 (WA), s 3A; Civil Liability Act 2003 (Qld) does
not exclude deliberate acts; Civil Liability Act 1936 (SA)
does not exclude
deliberate acts; Civil Law (Wrongs) Act (ACT) does not exclude deliberate acts;
Personal Injuries (Liabilities and
Damages) Act 2003 (NT) does not exclude
deliberate acts.
[171] Civil
Aviation Rules (NZ), Rule 101.207 (a) (1)
(ii).
[172] Civil Liability Act
2002 (NSW), s 72; Civil Liability Act 1936 (SA) s 62; Damage by Aircraft Act
1963 (Tas), s3; Wrongs Act 1958 (Vic), s 30; Damage by Aircraft Act 1964 (WA),
s.4.
[173] [1977] EWHC 1; [1978] QB 479,
488-9. There is Australian authority in Davies v Bennison (1927) 22 Tas
LR 52. A bullet was fired over the plaintiff’s land. Nicholls CJ held
“So far as the ability to use land and the air above it,
exists
mechanically speaking,... any intrusion above land ... is in principle a
trespass” at p. 57. His Honour recognised that
there would be difficulty
in deciding “how far the rights of a landowner “ad coelom”
will have to be reduced to
permit the free use of beneficial inventions such as
flying machines etc.”
p.56.
[174] Griffiths J held
that there was no direct authority but relied upon dicta in the following cases:
Pickering v. Rudd (1815) 4 Camp.219; Saunders v. Smith (1838) 2 Jur. 491;
Commissioner for Railways v. Valuer-General [1974] A.C. 328; Sovmots
Investments Ltd. v. Secretary of State for the Environment [1977] UKHL 3; [1977] Q.B.
411; Wandsworth Board of Works v. United Telephone Co. Ltd. (1884) 13
Q.B.D. 904
[175] [1977] EWHC 1; [1978] QB
479, 488.
[176] Western
Australia v Ward (2002) 213 CLR 1 [638], Callinan
J.
[177] ACQ Case, Court of
Appeal, [131]. See cases applying Skyviews though not in the context
of trespass by aircraft: LJP Investments Pty Ltd v Howard Chia
Investments (No 2) (1989) 24 NSWLR 490; Bendal Pty Ltd v Mirvac Project
Pty Ltd (1991) 23 NSWLR
464.
[178] [1977] EWHC 1; [1978] QB 479,
488.
[179] The US Supreme Court
decided its own Bernstein case, in United States v Causby [1946] USSC 99; 328 U.S.
256, 264 (1946), 260-6. Douglas J held the ‘ad coelum’ doctrine did
not apply “in the modern world” but a landowner’s
rights
extended to “at least as much of the space above the ground as he can
occupy or use in connection with the land.”;
Troy A. Rule, “Airspace
in an Age of Drones” (2015) 95 Boston University Law Review
155.
[180] Smith v Stone
[1658] EngR 443; (1647) Style 65; 82 ER
533
[181] Esso Petroleum Co
Limited v Southport Corporation [1956] AC
218.
[182] League Against
cruel Sports v Scott [1986] 1 QB
240.
[183] McHale v
Watson [1964] HCA 64; (1964) 111 CLR 384; Williams v Milotin [1957] HCA 83; (1957) 97 CLR
465.
[184] A plaintiff must
have a legal right to occupy the land in order to have title to sue: Malone v
Laskey [1907] 2 KB 141; Oldham v Lawson (No 1) [1976] VicRp 69; [1976] VR 654;
Hunter v Canary Wharf Ltd [1997] AC 655; Hoxton Park Residents Action
Group Inc v Liverpool City Council [2010] NSWSC
1312.
[185] Sturges v
Bridgman (1879) 11 Ch D
582.
[186] Andreas v
Selfridge & Co Ltd [1938] Ch
1.
[187] Seidler v Luna Park
Reserve Trust (unreported NSWSC, Hodgson J, 21 September 1995, BC9505507);
Haddon v Lynch [1911] ArgusLawRp 28; [1911] VLR 230; McKenzie v Powley [1916] SALawRp 1; [1916] SALR
1.
[188] Seidler v Luna Park
Reserve Trust (unreported NSWSC, Hodgson J, 21 September
1995,
[189] Clarey v The
Principal and Council of the Womens College [1953] HCA 58; (1953) 90 CLR
170.
[190] Bernstein of
Leigh (Baron) v Skyviews & General Ltd (Skyviews) [1977] EWHC 1; [1978] QB 479, 489,
Griffiths J. It has been held that ‘watching and besetting’ premises
will amount to a nuisance: Animal Liberation (Vic) Inc v Gasser [1991] VicRp 5; [1991] 1
VR 51; Raciti v Hughes (1995) 7 BPR 14,
83.
[191] Kraemers v
Attorney-General (Tas) [1966] TASStRp 15; [1966] Tas S R 113, 122-3 per Bunbury CJ; Corbett
v Pallas (1995) Aust Torts Reps 81-329 at 62,241; Harris v
Carnegie’s Pty Ltd [1916] ArgusLawRp 115; [1917] VLR 95; M. Davies & I. Malkin,
Torts 7th Edn, LexisNexis Butterworths, Australia, 2015,
pp717-718.
[192] M. Davies,
“Private Nuisance, Fault and Personal Injuries” (1990) 20 UWA Law
Rev 129; F. Newark, “The Boundaries of Nuisance” (1949) 65
LQR 480; Spencer, “Public Nuisance – A Critical
Examination” [1989] Cam LJ 55; M. Davies & I. Malkin,
Torts 7th Edn. LexisNexis Butterworths, Australia, 2015,
pp721-723.
[193] [1969] HCA 58; (1969) 122 CLR
249, 318 per Windeyer J.
[194]
Pelmothe v Phillips [1899] NSWLawRp 3; (1899) 20 LR (NSW) 58; Cohen v City of Perth
[2000] WASC 306; Wilson v NSW Land and Housing Corp [1998] ANZ Conv R
623; cf Clifford v Dove [2006] NSWSC
314.
[195] Kraemers v
Attorney-General (Tas) [1966] TASStRp 15; [1966] Tas S R 113, 122-3 per Bunbury
CJ.
[196] Civil Aviation Safety
Regulations 1998 (Cth), reg 101.240
[197] Civil Aviation Safety
Regulations 1998 (Cth), regs. 47.015; 21.820 and Subpart 45.D of Part
45.
[198] Civil Aviation
legislation Amendment (Part 101) Regulation 2016, amending Civil Aviation Safety
Regulations 1988 (Cth) available
at: http://www.austlii.edu.au/au/legis/cth/num_reg/cala101r2016r1n544/
See also Civil Aviation Safety Authority, Notice of Proposed Rule Making
1309OS, Annexure B, Exposure Draft Civil Aviation Legislation Amendment
(Part 101) Regulation 2014 and Annexure C, Draft Advisory Circular AC
101-1, May
2014.
[199]Registration and
Marking Requirements for Small Unmanned Aircraft Interim Final Rule
12/16/2015. https://www.federalregister.gov/articles/2015/12/16/2015-31750/registration-and-marking-requirements-for-small-unmanned-aircraft
For
commentary see, H. Perritt &A. Plawinski, “Making Civilian Drones
safe: Performance standards, self-certification and
post-sale data
collection” (2016) 14(1) Northwestern Journal of Technology and
Intellectual Property 1.
[200] Exemptions from
requirements can be obtained pursuant to s.333 FAA Modernization and Reform Act
2012.
[201] Traditional
Aircraft Registration under Title 14 Code of Federal Regulations, Part
47.
[202] House of Lords
European Union Committee, 7th Report of Session 2014-15, Civilian Use of
Drones in the EU (HL Paper 122), The Stationery Office Limited, London,
2015.
http://www.publications.parliament.uk/pa/ld201415/ldselect/ldeucom/122/122.pdf
[203] Civil Aviation Safety
Regulations 1998, Part
101.
[204] Regulation (EC) No
785/2004 of the European Parliament and of the Council of 21 April 2004 on
insurance requirements for air carriers
and aircraft operators. It sets minimum
third party liability insurance required based on the mass of the aircraft on
take-off.
The adequacy of insurance requirements has been considered in the UK:
Lloyds, Drones Take Flight: Key Issues for Insurance, Emerging Risk Report,
Innovation Series, 2015, London.
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