With the commercial and private use of drones on the increase, what do these drone operators need to consider before they take flight?
The UK has seen a stormy start to 2022. With Arwen, Barra, Corrie, Dudley, Eunice and Franklin already behind us, the benefits of drone technology for assessing storm damage have been in the spotlight, especially for insurers with a focus on reducing the environmental impact of sending assessors out on the roads, and when trying to reduce the risk of personal injury when assessing damage in remote locations. In addition, private landowners are taking advantage of the ever-advancing digital capabilities of drones fitted with aerial surveillance technology. Drones can assess damage quickly and pinpoint issues in places where it may be dangerous for people to venture. Drones fitted with infrared and high-zoom sensors can undertake detailed inspections of, for example, damage to property, power lines and substations.
With the commercial use of drones on the increase, and private individuals also wanting to take advantage of the benefits, what do these drone operators need to consider before they take flight?
Prior to 31 December 2020, permission from the Civil Aviation Authority was required in order to fly a SUA (Small Unmanned Aircraft). This requirement has now fallen away with the introduction of the Implementing Regulation, which aims to ensure that increasing drone traffic across the European Union is safe and secure for people on the ground and in the air. The EU approach has long been that the hazard to third parties posed by a drone is the same, whether it is being operated for commercial or recreational purposes for commercial operations. It no longer matters if drones are being used for commercial or private operations. The rules are the same.
Following Brexit, the UK has retained EU Law, including various regulations such as the UAS (Unmanned Aircraft Systems) Regulations, which take precedence if there is any overlap between those regulations and the Air Navigation Order (the primary national regulation governing the operation of drones in the UK). The UK Parliament have provided no guarantees that it will retain EU law indefinitely and are constantly reviewing/repealing/amending those EU laws which are no longer fit for purpose for the UK. However, for now, this UK domestic EU retained law remains in force.
The UAS Regulations categorise the way that drones are being used. There are three categories — open (lowest risk), specific (medium risk) and certified (highest risk). Operators can conduct operations in the open category as long as the operations are within the parameters of the A1, A2 or A3 subcategories. The types of drones typically being used for damage assessment tend to fall within the open category. The applicable subcategory will depend on various factors, such as weight. There is a tendency for operators new to the technology to lean towards use of lighter drones where the risk of damage is far less if an accident occurs, but heavier models will tend to offer more stability in flight and better control in windy conditions.
The open A1 subcategory is available to ‘toys’ and legacy drones with a maximum take-off mass, including any payload, of less than 250g. If the drone is privately built, in order to fly in the open A1 subcategory, it must weigh less than 250g and its maximum speed must be less than 19 metres per second (approx. 42.5 mph). Not an insignificant speed, especially when considering that drones flying in this subcategory are allowed to fly within ‘congested areas’, which includes residential, commercial, industrial and recreational areas. These drones can also fly over uninvolved persons (those who are both directly and indirectly exposed to the drone) but they must not fly over assemblies of people. There is no defined distance for flying these drones close to or over uninvolved persons but the laws on endangering persons, property and animals still apply. Until 31st December 2022, the A1 subcategory is also available to A1 Transitional drones (drones with a take-off mass <500g), if the Pilot holds an A2 Certificate of Competency.
The A2 subcategory is available to legacy drones with a take-off mass, including any payload, of less than 2Kg. These are known as A2 Transitional Drones and require pilots to carry proof of competency issued by the CAA. These drones are also permitted to be used in congested areas. As the size and capabilities of the drones increase, so do the risks.
So what if it all goes wrong? Drones flying at relatively low altitude in close proximity to people, property, power lines and animals, perhaps by operators who are still fairly inexperienced, might result in more insurance litigation than it resolves.
Individuals and companies must register before flying most drones or model aircraft outdoors in the UK. For those flying drones a theory test must be passed and flyer ID will be issued. For those responsible for a drone or model aircraft, you must register for an operator ID. These requirements assist with identification and effective assignment of liability if an accident occurs.
Even then there are complex issues to consider regarding how liability might be distributed between operators, owners, designers, distributors, and manufacturers. There are complex issues of product liability to untangle. Was the drone airworthy and did it meet expected standards? Were the mandated ‘fail-safe’ functions operating, such as forced flight termination and return-to-home functionality? If not, was that potentially down to operator error, design error, negligent distribution, or unauthorised modifications by an owner?
The drone insurance market is also a complex and evolving space. The increased use of drones for multiple purposes will necessitate the development of products which are diverse enough to cover all eventualities, with ‘pay as you fly’ policies and annual coverage options, as well as considering extensions for drone theft, damage incurred by a third-party pilot, and loss of drones mid-air or in transit. Recreational users are likely to be less aware of the litigation risks of using drones than experienced commercial users, which will necessarily affect the pricing models.
The potential uses for drones expands daily, with extreme weather events being just one example. The legal framework and the insurance markets need to evolve quickly as access to drone technology becomes more accessible, to ensure that members of the public have recourse to compensation in the event of drone accidents occurring.
For more information on the assessment of storm damage, contact our insurance solicitors.
