Predicting Bearing Fault in the Drone Freight Industry: Legal Liability in Australia

Journal of Air Law and Commerce Journal of Air Law and Commerce

Volume 87 Issue 2 Article 4

2022

Predicting Bearing Fault in the Drone Freight Industry: Legal Predicting Bearing Fault in the Drone Freight Industry: Legal

Liability in Australia Liability in Australia

Prue Vines

Private Law Research and Policy Group

Anthony Song

University of New South Wales

Matthew Priestley

University New South Wales

Elias Aboutanios

University of New South Wales

Recommended Citation Recommended Citation

Prue Vines et al.,

Predicting Bearing Fault in the Drone Freight Industry: Legal Liability in Australia

, 87 J.

AIR L. & COM. 299 (2022)

https://scholar.smu.edu/jalc/vol87/iss2/4

This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted

for inclusion in Journal of Air Law and Commerce by an authorized administrator of SMU Scholar. For more

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PREDICTING BEARING FAULT IN THE DRONE FREIGHT

INDUSTRY: LEGAL LIABILITY IN AUSTRALIA

RUE

INES

NTHONY

ONG

ATTHEW

RIESTLEY

***

LIAS

BOUTANIOS

****

ABSTRACT

Many people are now aware of drones or remotely piloted air-

craft (RPAs), and several others have predicted the significant

impacts that drones will bring across society. Today, there is an

expectation that drones will play a pivotal role in industries such

DOI: https://doi.org/10.25172/jalc.87.2.4.

* Prue Vines is a Professor, Co-Director of the Private Law Research and Policy

Group, the Director of First Year Studies from 1996–2019, Associate Dean

(Education) in 2020, and Deputy Dean (Education) in 2021. Professor Vines’

research interests lie in the law of torts (particularly the use of apologies in civil

liability) and succession law. She is also a UNSW Scientia Education Academy

Fellow; sits on the Editorial Boards of the Torts Law Journal, Macquarie Law

Journal, Indigenous Law Journal, and Law & History; and she is the President of the

Australian and New Zealand Legal History Society. She has served as a Visiting

Professor at the School of Law at the University of Strathclyde, Glasgow, and

Scotland, from 2005-2017, and as a Visiting Fellow at UCLA; University of East

Anglia; New England Law School, Boston; Vrije Universteit, Amsterdam; and the

University of Padua, Italy. In 2017, she was made a Fellow of the Australian

Academy of Law in recognition of her exceptional distinction in the discipline of

law.

** Anthony Song is a Research Fellow at the Law Society of New South Wales

Future of Law and Innovation in the Profession (FLIP) Research Stream at

UNSW Faculty of Law & Justice. He received his bachelor’s degree in

International Studies/LLB from UNSW in 2020.

*** Matthew Priestley is an Associate Lecturer in the School of Electrical

Engineering and Telecommunications at UNSW. He received a bachelor’s

degree in Electrical and Electronics Engineering (with First Class Honors) at

James Cook University in Townsville, Australia in 2013 and his PhD in Electrical

and Electronic Engineering at UNSW in Sydney, Australia, in 2019.

**** Elias Aboutanios is Associate Professor at the School of Electrical

Engineering and Telecommunications at UNSW. He received a bachelor’s

degree in engineering from UNSW Australia in 1997, and a PhD degree from the

University of Technology Sydney (UTS), Australia, in 2003.

299

300 JOURNAL OF AIR LAW AND COMMERCE [87

as surveillance, security, surveying, construction, and freight

transport. However, in all these cases, whenever a drone is flying

over a populated area, it poses a danger to people or things on

the ground. Perhaps the sector where the greatest risk of injury

to the everyday person exists is the drone delivery industry. The

drone freight industry is proliferating fast, with many companies

like Skycart and Amazon investing in this sector. These compa-

nies plan to transport groceries, medical supplies, food, and par-

cels, among many other things. If fleets of delivery drones are

deployed around suburbs, the descent to lower altitudes and the

general logistics of an airborne delivery presents a novel risk of

harm. A drone failure resulting in a crash could lead to property

damage, destruction of natural environments, and injury or

death to persons, especially in areas of high population density.

One promising way to prevent such harm is to use structural

condition monitoring technology to preempt any deterioration

of the airworthiness of a drone. In the absence of any existing

precedent or authority on this, this Article investigates the legal

implications of using such technology to guide future regula-

tions and areas of research.

TABLE OF CONTENTS

I. INTRODUCTION.................................. 301

II. CONDITIONAL MONITORING OF BEARINGS

TO MITIGATE LEGAL RISK ...................... 306

III. TECHNICAL AND REGULATORY OVERVIEW OF

DRONES ........................................... 309

A. F

REIGHT

RONES

............................... 310

B. A

IRWORTHINESS

................................. 320

C. N

OISE

.......................................... 323

D. I

NSURANCE

...................................... 324

E. C

YBERSECURITY

................................. 326

IV. LEGAL LIABILITY CREATED BY BEARING

FAILURE........................................... 328

A. D

AMAGE BY

IRCRAFT

........................... 329

1. Scope of Legislation .......................... 329

a. Aircraft ................................ 329

b. In Flight ............................... 330

c. Surface Damage ....................... 330

2. State Legislation–Scope of Damage ............ 331

3. Commonwealth Legislation–Scope of Damage... 332

4. Psychiatric Injury ............................ 334

5. Pure Economic Loss .......................... 335

2022] PREDICTING BEARING FAULT 301

6. Trespass or Nuisance......................... 335

7. Damaged Goods ............................. 336

B. D

AMAGES

....................................... 337

V. NEGLIGENCE ..................................... 338

A. D

UTY OF

ARE

.................................. 338

1. Operator .................................... 339

2. Manufacturer ............................... 340

B. B

REACH

......................................... 341

1. Operator .................................... 345

2. Manufacturer ............................... 347

C. C

AUSATION

..................................... 348

1. Operator .................................... 349

2. Manufacturer ............................... 352

D. I

MPACT OF

IABILITY

& D

AMAGES

............... 353

1. Personal Injury .............................. 354

2. Property Damage ............................. 354

3. Multi-Party Liability ......................... 355

VI. PRODUCT LIABILITY UNDER THE

AUSTRALIAN CONSUMER LAW .................. 356

A. D

EFECTIVE

ANUFACTURE

....................... 357

B. D

EFECTIVE

ESIGN

.............................. 357

C. D

EFECTIVE

ARKETING

.......................... 358

D. C

ONSUMER

ULES

.............................. 359

E. D

AMAGES

....................................... 359

VII. TRESPASSORY TORTS ............................ 360

A. T

RESPASS TO

AND

.............................. 360

B. T

RESPASS TO

ERSONS

.......................... 363

C. T

RESPASS TO

OODS

............................ 364

VIII. NUISANCE ........................................ 365

IX. PRIVACY AND SURVEILLANCE ISSUES .......... 368

X. BREACH OF STATUTORY DUTY ................. 369

XI. DEFENSES ......................................... 369

A. G

OOD

AMARITANS

.............................. 369

B. I

NTOXICATION

.................................. 370

C. I

LLEGALITY

...................................... 370

XII. CONCLUSION..................................... 370

I. INTRODUCTION

RONES, OR “REMOTELY PILOTED AIRCRAFT” (RPAs),

are fast becoming prevalent across various industries, in-

We use the term “drone” and “RPA” interchangeably in this Article. How-

ever, it should be noted the term “drone” is not largely used by regulators inter-

302 JOURNAL OF AIR LAW AND COMMERCE [87

cluding agriculture, engineering, construction, energy, security,

and law enforcement.

However, continuing advancements in

engineering are seeing drones progress to increasingly versatile

and innovative applications beyond aerial scanning tools. There

is now significant discussion about drones revolutionizing trans-

port, delivery, and logistics systems.

This Article considers how

condition monitoring of drone bearings might affect the liabil-

ity of freight drones in Australia.

With developments in technological capability, navigation

technology, hardware performance, and lower costs, the com-

mercial adoption of drones is soaring.

In 2020, the worldwide

demand volume of drones eclipsed 689,400 units, valuing the

commercial drone market at U.S. $13.44 billion.

It is estimated

nationally or in Australia. Previously, the term Unmanned Aerial Vehicle (UAV)

was used in Australian regulations; however, the Civil Aviation Legislation Amend-

ment (Part 101) Regulation 2016 (Cth) (Austl.) updated the terminology in part

101 of the Civil Aviation Safety Regulations 1998 (Cth) (Austl.) to align it with ter-

minology of the International Civil Aviation Organization, including replacing

UAV with RPA. Other alternative terms used in this Article include remotely

piloted vehicle (RPV), remotely operated aircraft (ROA), or uncrewed aircraft

(UA). At the time this Article was written, the FAA term in use was unmanned

aircraft, with a proposal to change the regulatory term to uncrewed aircraft.

RONE

DVISORY

OMM

., F

. A

VIATION

DMIN

., P

UBLIC E

OOK

UNE

23, 2021

DAC M

EETING

104, 113 (2021), https://www.faa.gov/uas/programs_partnerships

/drone_advisory_committee/media/DAC_Public_eBook_06_23_2021.pdf

[https://perma.cc/8C4G-3W5S].

Drone Technology Uses and Applications for Commercial, Industrial and Military

Drones in 2021 and the Future,B

. I

NSIDER

[hereinafter Drone Technology Uses],

https://www.businessinsider.com/drone-technology-uses-applications [https://

perma.cc/G2NG-XA8F] (Jan. 12, 2021, 10:15 AM).

Atsushi Oosedo, Hiroaki Hattori, Ippei Yasui & Kenya Harada, Unmanned Air-

craft System Traffic Management (UTM) Simulation of Drone Delivery Models in 2030

Japan, 33 J. R

OBOTICS

& M

ECHATRONICS

348, 348 (2021); Rico Merkert & James

Bushell, Managing the Drone Revolution: A Systematic Literature Review into the Current

Use of Airborne Drones and Future Strategic Directions for Their Effective Control, 89 J.

RANSP

. M

GMT

., 2020, at 1, 5; D

ELOITTE

CCESS

CON

., A

USTL

. D

’

TOF

NFRA-

STRUCTURE

, T

RANSP

., R

’

. & C

OMMC

’

CONOMIC

ENEFIT

NALYSIS OF

RONES IN

USTRALIA

: F

INAL

EPORT

25–27 (2020), https://www2.deloitte.com/

content/dam/Deloitte/au/Documents/public-sector/deloitte-au-ps-economic-

benefit-analysis-of-drones-to-australia-11112021.pdf [https://perma.cc/6YLF-

DMSQ].

Drone Technology Uses, supra note 2.

See Commercial Drone Market Size, Share & Trends Analysis Report by Product

(Fixed-Wing, Rotary Blade, Hybrid), by Application, by End-Use, by Region, and Segment

Forecasts, 2021 - 2028,G

RAND

IEW

SCH

. (Apr. 2021) [hereinafter Drone Analysis

Report], https://www.grandviewresearch.com/industry-analysis/global-com

mercial-drones-market [https://perma.cc/7RAB-GGYA].

2022] PREDICTING BEARING FAULT 303

this will grow at a further compound annual growth rate

(CAGR) of 57.5% from 2021 to 2028.

A significant part of this exponential growth will be derived

from the freight industry, which despite only being the third

largest component of the commercial drone market,

is the area

of the market anticipated to exhibit the highest growth at a pro-

jected CAGR of over 60% from 2021 to 2028.

Bolstered by

wider societal tailwinds, such as the continuing adoption of e-

commerce and technology, the value of the global drone pack-

age delivery market is expected to grow from $532 million U.S.

dollars in 2020 to $11,519 million in U.S. dollars by 2027.

This growth is underpinned by the freight industry’s signifi-

cant commercial opportunities currently available.

Drones can

save time, reduce costs, and generally increase productivity in

novel ways.

This is achieved by taking advantage of unused air-

space zones, thus omitting the need to resort to significant capi-

tal investments in urban infrastructure.

The result is a freight

service that is a faster and greener alternative to increasingly

congested roadways.

A mix of blue-chip companies, startups, and leading vendors

are seeking to tap into this commercial opportunity.

Unlike

hobbyists, these companies invest substantial sums of money

into research and development to equip their drones with state-

Id.

C, C

LARITY

ROM

BOVE

: P

C G

LOBAL

EPORT ON THE

OMMERCIAL

PPLI-

CATIONS OF

RONE

ECHNOLOGY

4 (2016), https://www.pwc.pl/pl/pdf/clarity-

from-above-pwc.pdf [https://perma.cc/UG9N-5QD4].

Drone Analysis Report, supra note 5.

360iResearch, Drone Package Delivery Market Research Report by Type, by Duration,

by Range, by Package Size, by End-Use, by Region - Global Forecast to 2027 - Cumulative

Impact of COVID-19,R

EPORT

INKER

(Jan. 2022), https://www.reportlinker.com/

p06168777/Drone-Package-Delivery-Market-Research-Report-by-Type-by-Dura-

tion-by-Range-by-Package-Size-by-End-Use-by-Region-Global-Forecast-to-Cumula-

tive-Impact-of-COVID-19.html [https://perma.cc/SH6A-9KHA].

Merkert & Bushell, supra note 3, at 5.

Drone Technology Uses, supra note 2.

See id.;D

AVID

ODGKINSON

& R

EBECCA

OHNSTON

, A

VIATION

AW AND

RONES

: U

NMANNED

IRCRAFT AND THE

UTURE OF

VIATION

57 (2018).

360iResearch, supra note 9 (including Airbus S.A.S., Altitude Angel, Ama-

zon.Com, Inc., Bizzby, Boeing, Cheetah Logistics Technology, Deutsche Post Dhl

Group, Drone Delivery Canada Corp., Dronescan, Edronic, Ehang, Elroy Air,

Fedex, Fli Drone, Flirtey, Flytrex, Manna Aero, Matternet, Inc., Rigi Technologies

Sa, Skycart Inc., Skyports Limited, Speedbird Aero, United Parcel Service of

America, Inc., Volansi, Wing Aviation LLC, Wingcopter, Workhorse Group Inc.,

and Zipline).

304 JOURNAL OF AIR LAW AND COMMERCE [87

of-the-art technology.

The purpose of this investment is not

just for business efficiency but also to protect themselves from

the inherently greater legal, economic, and regulatory risks that

accompany commercial operations.

For drones to gain wide-

spread acceptance from a policy perspective, the technology

must be reliable, and adverse incidents should be minimal.

their most recent policy statement, the Australian government

has recognized that “[t]echnical and procedural solutions” are

options to achieve acceptable levels of safety performance for

drones.

Different technologies aim to solve different types of risks. In

aviation, risks are split into two categories: air risks (drones col-

liding with other aircraft) and ground risks (drones colliding

with a person or property on the ground).

Aerial avoidance

technology includes geo-fencing, sense-and-avoid technologies,

and other transponder-based systems, such as Automatic Depen-

dent Surveillance-Broadcast (ADS-B),

while ground damage

mitigation measures include structural condition monitoring,

Drone Technology Uses, supra note 2.

See, e.g., How to Properly Insure Your Drone Business,E

MBROKER

(Nov. 19, 2021),

https://www.embroker.com/blog/drone-insurance/ [https://perma.cc/2W43-

59B2].

See Drone Technology Uses, supra note 2.

See A

USTL

. D

’

TOF

NFRASTRUCTURE

, T

RANSP

., R

’

. & C

OMMC

’

, N

A-

TIONAL

MERGING

VIATION

ECHNOLOGIES

: P

OLICY

TATEMENT

19 (2021) [herein-

after P

OLICY

TATEMENT

], https://www.infrastructure.gov.au/sites/default/files/

migrated/aviation/technology/files/national-emerging-aviation-technologies-

policy-statement.pdf [https://perma.cc/HJ3Y-GFA5].

USTL

. D

’

TOF

NFRASTRUCTURE

, T

RANSP

., R

’

. & C

OMMC

’

MERG-

ING

VIATION

ECHNOLOGIES

: N

ATIONAL

VIATION

OLICY

SSUES

APER

23 (2020)

[hereinafter P

OLICY

SSUES

], https://www.infrastructure.gov.au/sites/default/

files/migrated/aviation/technology/files/drone-discussion-paper.pdf [https://

perma.cc/4L3W-RWSS].

For an overview of these technologies, see A

USTL

. S

ENATE

, R

URAL

& R

’

FFS

. & T

RANSP

. R

EFERENCES

OMM

., P

ARLIAMENT OF

USTL

., C

URRENT AND

UTURE

EGULATORY

EQUIREMENTS

HAT

MPACT ON THE

AFE

OMMERCIAL AND

ECREA-

TIONAL

SE OF

EMOTELY

ILOTED

IRCRAFT

YSTEMS

(RPAS), U

NMANNED

ERIAL

YSTEMS

(UAS)

AND

SSOCIATED

YSTEMS

77–78 (2018) [hereinafter A

USTL

. S

EN-

ATE

NQUIRY

], https://www.aph.gov.au/Parliamentary_Business/Committees/

Senate/Rural_and_Regional_Affairs_and_Transport/Drones/~/media/Commit-

tees/rrat_ctte/Drones/report.pdf [https://perma.cc/D6BB-UL83].

Yong Keong Yap, Structural Health Monitoring for Unmanned Aerial Sys-

tems (May 14, 2014) (Master’s thesis, University of California, Berkeley) (Techni-

cal Report No. UCB/EECS-2014-70), http://www.eecs.berkeley.edu/Pubs/

TechRpts/2014/EECS-2014-70.html [https://perma.cc/DXQ9-6B2N].

2022] PREDICTING BEARING FAULT 305

parachutes,

automatic descent functions, and redundancy sys-

tems.

Currently, most of these technologies are still being de-

veloped and perfected.

This Article focuses primarily on ground risks and using struc-

tural condition monitoring technology to mitigate these risks,

specifically that of a bearing health monitoring device. The

scope of this Article is kept within the confines of tort law, based

on commentary from the literature that in the case of emerging

technologies—where specific strategies for managing risk are

rarer—tort law provides a useful feedback environment and sig-

nal for future regulation.

Part II of this Article begins by contextualizing the current

state of drone technology that is being used to mitigate ground

damage. It is proposed that there exists both an engineering

and legal impetus for using structural condition monitoring

technology on drones. Part III then delves into a technical ex-

amination of drones and the broader regulatory framework

within which drones currently operate. It argues that it is likely

that a bearing condition monitoring device will greatly contrib-

ute to satisfying many general regulatory requirements. In Part

IV, the law of liability is discussed, first with a review of legisla-

tion and regulations and then an evaluation of the common law.

In regard to legislation, it is currently found that, because of the

strict liability or no-fault nature of the applicable legislation, a

bearing condition monitoring system will not operate as a com-

plete legal shield in the event of harm to persons or property.

Nonetheless, a monitoring system will still be of use in ensuring

the drone does not fall in the first place, which would avoid lia-

bility altogether. As to the common law, it is hypothesized that

using bearing condition monitoring technology in certain cir-

cumstances will be enough to determine that the drone opera-

tor or manufacturer is not at fault; however, this will depend on

Basem AL-Madani, Marius Svirskis, Gintautas Narvydas, Rytis Maskeliunas &

Robertas Dama

sevicius, Design of Fully Automatic Drone Parachute System with Temper-

ature Compensation Mechanism for Civilian and Military Applications,

J. A

DVANCED

RANSP

., Nov. 2018, at 1, 2.

In engineering, a redundancy is the duplication of critical components and

functions to increase reliability of a system. Sam, What Is a Redundant System and

How Do Drones Use Them?,

RONESVILLA

(Nov. 29, 2019), https://

www.dronesvilla.com/what-is-a-redundant-system/ [https://perma.cc/D543-

BM6K].

See generally Mary L. Lyndon, Tort Law and Technology, 12 Y

ALE

EGUL

137 (1995); Roger Clarke & Lyria Bennett Moses, The Regulation of Civilian Drones’

Impacts on Public Safety, 30 C

OMPUT

. L. & S

. R

. 263, 270 (2014).

306 JOURNAL OF AIR LAW AND COMMERCE [87

the cause of action and specific circumstances of each case. Part

V concludes the Article.

II. CONDITIONAL MONITORING OF BEARINGS TO

MITIGATE LEGAL RISK

Across most industries, especially in the freight sector, dam-

age on the ground from a drone is arguably the most significant

risk to consider and the risk most likely to have legal conse-

quences.

Air risks pose less of a concern because drones oper-

ate in “urban canyons,” or the airspace in between the tops of

buildings and the ground, and given that no crewed aircraft cur-

rently operates in that zone, there is a comparatively low risk of

collision.

Even then, any aerial collision, whether with build-

ings, drones, or aircraft, will still ordinarily lead to a ground risk

as debris or the drone itself falls to the ground.

Sharp rotor

edges and mechanical parts, in combination with high speeds

and elevated altitudes, mean that even the smallest of drones

can cause lethal kinetic force.

Where freight drones are con-

cerned, the increased payloads, the vast distances covered, and

the greater frequency of everyday use over populated areas exac-

erbate such risks.

Thus, if drone freight operations are to become routine in

cities, it will be essential to minimize the risk of drones falling to

the ground.

The main issue across all drones is that they rely

on propellers to stay in the air—the failure of which may impact

safety.

In a drone, electric motors spin the propellers to keep

See H

ODGKINSON

& J

OHNSTON

, supra note 12, at 34.

Id. at 57.

See Xuejun Zhang, Yang Liu, Yu Zhang, Xiangmin Guan, Daniel Delahaye &

Li Tang, Safety Assessment and Risk Estimation for Unmanned Aerial Vehicles Operating

in National Airspace System,

J. A

DVANCED

RANSP

., Oct. 2018, at 1, 2–3.

Henry H. Perritt, Jr., Who Pays When Drones Crash?, 21 UCLA J.L. & T

ECH

. 1,

69 (2017); H

ODGKINSON

& J

OHNSTON

, supra note 12, at 23–24.

Submission from Maurice Thompson, Anthony Tarr & Julie-Anne Tarr to

Austl. Dep’t of Infrastructure, Transp., Reg’l Dev. & Commc’ns, Emerging Avia-

tion Technologies: National Aviation Policy Issues Paper 4 (Oct. 22, 2020),

https://www.infrastructure.gov.au/sites/default/files/migrated/aviation/tech-

nology/files/submission-06-2020-10-22-clyde-co-ltr-to-director-airspace-and-

emerging-technologies.pdf [https://perma.cc/2Y8A-S3XT].

See, e.g., Julie-Anne Tarr, Maurice Thompson & Anthony Tarr, Regulation,

Risk and Insurance of Drones: An Urgent Global Accountability Imperative, 8 J. B

. L.

559, 563 (2019) (listing some of Australia’s safety regulations prohibiting RPA

use over populous areas such as parks).

J.J. Rold

an, D. Sanz, J. del Cerro & A. Barrientos, Lift Failure Detection and

Management System for Quadrotors, 252 A

DVANCES

NTELLIGENT

. & C

OMPUTING

2022] PREDICTING BEARING FAULT 307

the drone airborne.

Within the motor, a core component is

the bearing, a part which allows for a spinning shaft to be con-

nected to the stationary housing via a mechanism with very low

friction.

However, bearings become fatigued over time, and if

this is not addressed by bearing replacement or maintenance,

then catastrophic failure can occur with the potential to cause

serious damage or harm to persons or property.

The available

time from initial warning of fatigue to the onset of bearing fail-

ure depends on the loading and speed of the motor in opera-

tion.

One study analyzing 152 RPA incidents from 2006 to

2015 found equipment problems to be responsible for 64% of

all RPA accidents and incidents, highlighting the need for relia-

ble equipment and maintenance programs to ensure the drone

can safely remain airborne during operation.

Accordingly, to avoid accidents and maintain safe operations,

drone companies need to ensure a very low risk of drone motor

bearing failure. Currently, this is achieved by providing suffi-

cient redundancy at the expense of weight and cost, and by ad-

hering to a strict and rigorous bearing replacement schedule.

However, redundant systems can be uneconomical for many

heavy freight transport drones because the weight of the cargo

means multiple motors are already required to keep the drone

flying. Likewise, bearing replacement schedules are also not an

optimal solution as they rely on technical knowledge (making

predictions based on previous knowledge and experience) and

usage data (making predictions using “historical failure records

of comparable equipment without considering component-spe-

3 (2014), https://www.researchgate.net/profile/Juan-Roldan-Gomez/publica-

tion/

289979207_Lift_Failure_Detection_and_Management_System_for_Quadrotors/

links/576846bc08aef9750b0f9d27/Lift-Failure-Detection-and-Management-Sys-

tem-for-Quadrotors.pdf [https://perma.cc/YW5Q-GFVF].

Id.

See generally Bearing: Machine Component,E

NCYCLOPAEDIA

RITANNICA

, https://

www.britannica.com/technology/bearing-machine-component [https://

perma.cc/3TV2-HSQW].

SKF, B

EARING

AMAGE AND

AILURE

NALYSIS

7 (2017), https://

www.skf.com/binaries/pub12/Images/0901d1968064c148-Bearing-failures---

14219_2-EN_tcm_12-297619.pdf [https://perma.cc/5NM4-GPZG].

Id.

Graham Wild, John Murray & Glenn Baxter, Exploring Civil Drone Accidents

and Incidents to Help Prevent Potential Air Disasters, 3 A

EROSPACE

1, 8 (2016), https:/

/mdpi-res.com/aerospace/aerospace-03-00022/article_deploy/aerospace-03-

00022.pdf [https://perma.cc/J466-2C23].

See Perritt, Jr., supra note 27, at 46.

308 JOURNAL OF AIR LAW AND COMMERCE [87

cific differences.”).

This does not eliminate the likelihood of a

bearing fault since contamination; corrosion; incorrect bearing

manufacturing, storage, or installation; or excessive loading and

vibration can cause early bearing failure before it is scheduled to

be replaced.

Moreover, preventative maintenance means that

bearings are often replaced long before they are close to devel-

oping a fault, which is an unnecessary cost and inefficient for

operators.

Rather, what is needed is a way to monitor the condition of

bearings on a real-time basis.

This process, known as condition

monitoring, provides the advantage of being able to adequately

prepare for bearing maintenance or replacement long before a

catastrophic failure.

Flagging failures preemptively is also

more reliable than conventional preventive or reactive mainte-

nance technologies.

Reactive maintenance technologies react

to the fault after it occurs and include parachutes, automatic

descent software, or back-up redundancy systems, while preven-

tive maintenance technologies include pre-determined replace-

ment schedules.

In contrast, health monitoring is mechanism-

based and makes predictions based on direct sensing of the criti-

cal failure mechanisms of each unique physical model.

Ex-

isting research has found that “[i]n general, maintenance

techniques characterized by real-time monitoring solutions offer

more information and a better prediction of the occurring fail-

ure and are therefore more favorable.”

Because studies have

shown deficient maintenance to be one of the most common

causes of system failure in an RPA,

this is an essential area to

address.

This discussion demonstrates a clear rationale to consider us-

ing drone bearing condition sensing technology as a way to im-

Alberto Martinetti, Erik Jan Schakel & Leo A.M. van Dongen, Flying Asset:

Framework for Developing Scalable Maintenance Program for Unmanned Aircraft Systems

(UAS), 24

J. Q

UALITY

AINT

. E

’

152, 162 (2018).

See SKF, supra note 33, at 8.

See id.

See Martinetti et al., supra note 37, at 162.

Id. at 160.

See generally Reactive Vs. Preventive Vs. Predictive Maintenance,P

ROMETHEUS

(June 25, 2020), https://www.prometheusgroup.com/posts/reactive-vs-preven-

tive-vs-predictive-maintenance [https://perma.cc/5VF9-PJCY].

Id.

Martinetti et al., supra note 37, at 162.

Id.

Id. at 153.

2022] PREDICTING BEARING FAULT 309

prove the safety of drones. However, while this technology has

been investigated from an engineering perspective, the question

of whether there is a legal motivation is unexplored.

In this context, this Article aims to address this research gap

by investigating the extent to which using drone bearing moni-

toring technology can mitigate against legal liability, specifically

for freight drones. For example, bearing monitoring equipment

might be used to warn that a bearing may be about to fail, in

which case it may be possible to land the drone before it does

any damage,

or bearing monitoring equipment may be a

source of information about what, if anything, went wrong. Le-

gal liability for drone damage is a significant concern as fleets of

delivery drones are already operating today, and with no liti-

gated cases on the matter yet, the consequences of drone negli-

gence, recklessness, or misuse still largely occupy a legal grey

area.

Failing to properly fill this gap can hinder the continued in-

novation of drones and cause market opportunities and other

societal benefits to be missed. Conversely, properly bridging the

gap will solidify Australia’s role as a global leader in the adop-

tion of drones in both an engineering and legal capacity.

III. TECHNICAL AND REGULATORY OVERVIEW

OF DRONES

Broadly speaking, there are two types of drones available on

the market at varying costs:

fixed-wing drones (generally for

EP Editorial Staff, Methods for Monitoring Bearing Performance,E

FFICIENT

LANT

(Oct. 3, 2013), https://www.efficientplantmag.com/2013/10/methods-for-moni-

toring-bearing-performance/ [https://perma.cc/FJG4-MLCV].

See Submission from Wing Aviation Pty Ltd to Austl. Dep’t of Infrastructure,

Transp., Reg’l Dev. & Commc’ns, National Aviation Policy Issues Paper on

Emerging Aviation Technologies 1 [hereinafter Submission from Wing Aviation],

https://www.infrastructure.gov.au/sites/default/files/migrated/aviation/tech-

nology/files/submission-34-wing-response-to-national-aviation-policy-issues-pa-

per-on-emerging-aviation-technologies.pdf [https://perma.cc/W3LG-FPNT].

Recreational and hobbyist drones have an average sale price of $2,500, and

higher end models for commercial use have an average sale price of $40,000.

U.S. C

HAMBER

NST

FOR

EGAL

EFORM

, T

ORTS OF THE

UTURE

: A

DDRESSING THE

IABILITY AND

EGULATORY

MPLICATIONS OF

MERGING

ECHNOLOGIES

15 (2017),

https://instituteforlegalreform.com/wp-content/uploads/2020/10/

Torts_of_the_Future.pdf [https://perma.cc/B4EH-Q7KE]; see also

. A

VIATION

DMIN

., TC16-0002, FAA A

EROSPACE

ORECAST

: F

ISCAL

EARS

2016-2036, at 31

(2016), https://www.faa.gov/data_research/aviation/aerospace_forecasts/me-

dia/fy2016-36_faa_aerospace_forecast.pdf [https://perma.cc/8RNQ-8SKN].

310 JOURNAL OF AIR LAW AND COMMERCE [87

commercial use, long flight times, or fast-speed missions)

and

multi-rotor drones (generally for recreational use in locally con-

fined areas, or for more cost-effective missions).

These are

controlled by drone pilots that can be characterized as adjacent

pilots for Visual Line of Sight operations, remote pilots using

First Person View, and on-board computer pilots controlling au-

tonomous drones.

Based on the size, design, and operation of

a drone, the risk of damage has “different consequences and

require[s] different mitigations.”

A. F

REIGHT

RONES

Currently, there are four categories of cargo drone uses: first

and last mile parcel delivery (for dense urban areas); automa-

tion of intralogistics (for factories and warehouses); supply of

medical goods (for low-accessibility locations); and transporta-

tion of air freight (usually for rural areas).

The legal risks of all

these activities, as stated above, are mostly concerned with per-

sonal injury, death, and damage to property.

These are all

likely to occur because of a drone falling and doing damage.

There is also a possibility that there might be economic losses

caused by failures or delays in delivery, but this falls outside the

scope of this paper.

Large multinational companies are leading the adoption of

freight drones, with many already embarking on various pilot

projects.

In the United Kingdom, Amazon’s Prime Air has

been used to deliver packages, relying on drones being “built

with multiple redundancies, as well as sophisticated ‘sense and

Note that fixed-wing drones can sometimes have a single propeller and mo-

tor or a multiple propeller and motor arrangement depending on the design.

See, e.g., Michelle Sing Yee Hii, Patrick Courtney & Paul G. Royall, An Evalua-

tion of the Delivery of Medicines Using Drones, 3 D

RONES

1, 16 (2019), https://

www.mdpi.com/2504-446X/3/3/52/pdf [https://perma.cc/DR4B-GK2L] (not-

ing the benefit of multi-rotor drones taking off and landing vertically in urban

settings).

Clarke & Moses, supra note 23, at 265.

OLICY

SSUES

, supra note 18, at 25 (alteration in original).

Stephan Baur & Manfred Hader, Cargo Drones: The Future of Parcel Delivery,

OLAND

ERGER

(Feb. 19, 2020), https://www.rolandberger.com/en/Insights/

Publications/Cargo-drones-The-future-of-parcel-delivery.html [https://

perma.cc/TB6B-H5TF].

See Drone Delivery Legal Issues, HG.

ORG

, https://www.hg.org/legal-articles/

drone-delivery-legal-issues-53006 [https://perma.cc/N4C3-ZVFJ].

See, e.g., Alf Alferez, Top 10 Commercial Drone Delivery Companies,

OMMERCE

EXT

(Aug. 21, 2021), https://www.ecommercenext.org/top-10-commercial-

drone-delivery-companies/ [https://perma.cc/PXK4-587U].

2022] PREDICTING BEARING FAULT 311

avoid’ technology” to mitigate dangers.

Uber has been testing

its Uber Eats drone delivery service in San Diego in the United

States (as a precursor to more dense urban environments)

alongside Uber’s more ambitious Uber Elevate Drone Taxi pro-

ject in Melbourne.

Airbus Helicopters established a memoran-

dum of understanding with the Civil Aviation Authority of

Singapore to allow testing of drone delivery on campus at the

National University of Singapore.

Globally, Wing Aviation Pty.

Ltd. (Wing), the drone division of Alphabet (which is Google’s

parent company), just reached a milestone of 100,000 customer

deliveries.

Most of these pilot projects center around first- and last-mile

delivery using autonomous drones, which are often linked to e-

commerce supply chains.

“[T]hese drones carry packages to

[and] from a central distribution hub to [and] from a drop-off

[or] pick-up location.”

These hubs can range from a courier

distribution center to a retail shop, a food outlet, or a medical

center.

In the case of Australia, the wide geographical distances and

dispersed populations means that drones could provide real and

viable solutions to logistics and transport.

Alongside “Austra-

Amazon Prime Air,A

MAZON

, https://www.amazon.com/Amazon-Prime-Air/

b?ie=UTF8&node=8037720011 [https://perma.cc/3F3D-2D2S].

Peter Holley, Uber Plans to Start Delivering Fast Food via Drone This Summer,

ASH

. P

OST

(June 13, 2019), https://www.washingtonpost.com/technology/

2019/06/13/uber-plans-start-delivering-mcdonalds-hamburgers-by-drone-this-

summer/ [https://perma.cc/84MB-4D4L].

See Cara Waters, Uber Elevate Sale Set to Put Plans for 1000 Melbourne Flying

Taxis on Ice,S

YDNEY

ORNING

ERALD

(Dec. 10, 2020, 1:17 PM), https://

www.smh.com.au/technology/uber-elevate-s-sale-could-put-plans-for-1000-mel-

bourne-flying-taxis-on-ice-20201210-p56m9z.html [https://perma.cc/B5BA-

ZQAG]. Although note that Uber Elevate has since been acquired by Joby Avia-

tion. Eric Allison, Joby and Uber Elevate,

OBY

VIATION

(July 12, 2021), https://

www.jobyaviation.com/blog/joby-uber-elevate/ [https://perma.cc/D9WR-

PER8].

ODGKINSON

& J

OHNSTON

, supra note 12, at 128.

See Logan, Australia: The Drone Delivery Capital of the World,W

ING

(Aug. 25,

2021), https://blog.wing.com/2021/08/logan-australia-drone-delivery-capi-

tal.html [https://perma.cc/GG43-WG3L].

See D

ELOITTE

CCESS

CON

., supra note 3, at 25.

See id. (alteration in original).

Id.

OLICY

TATEMENT

, supra note 17, at 19; A

LPHA

ETA

, F

ASTER

, G

REENER AND

ESS

XPENSIVE

: T

OTENTIAL

MPACT OF

ELIVERY

RONES IN THE

USTRALIAN

APITAL

ERRITORY

16 (2018), https://wing.com/resource-hub/articles/act-re-

port/ [https://perma.cc/NG95-GL2P].

312 JOURNAL OF AIR LAW AND COMMERCE [87

lia’s relatively fast adoption of new technologies,” these factors

could provide a powerful catalyst for the rapid uptake of delivery

drones.

The New South Wales (NSW) government observed

that automated routine freight delivery and point-to-point trans-

port could well be in use by 2056.

Currently, Australia’s Civil Aviation Safety Authority (CASA)

has driven most drone adoptions in the country by licensing

Wing to operate drone delivery services in North Canberra in

the Australian Capital Territory and Logan in Queensland.

Consequently, Wing drones are already flying over populations

of 10,000 or more residents from morning to early evening on

both weekdays and weekends.

While these deliveries currently

comprise last-mile deliveries,

their use could expand across the

entire logistics chain as technology advances.

Accompanying this, “Wing is also developing an [uncrewed]

traffic management (UTM) platform that will allow [autono-

mous drones] to navigate around other drones, [crewed] air-

craft, and other obstacles like trees, buildings and power

lines.”

This flight path navigation software is interoperable and

can automatically “manage different drones from different man-

ufacturers as they conduct deliveries.”

This software enables

fleets of delivery drones to operate on an autonomous or semi-

autonomous basis, relying on GPS and on-board computers. A

range of other advanced technologies, such as cloud computing,

computer visioning, machine learning, and deep learning, al-

lows drones to carry out their missions without human interven-

See D

ELOITTE

CCESS

CON

., supra note 3, at 25. The report estimated that by

2040 the number of express parcel deliveries could range from 37 million to 61

million trips, food deliveries from 46 million to 65 million, and pathology deliv-

eries from 8 million to 17 million. Id. at 26.

RANSP

FOR

NSW, F

UTURE

RANSPORT

TRATEGY

2056, at 64 (2018), https://

future.transport.nsw.gov.au/sites/default/files/media/documents/2018/Fu-

ture_Transport_2056_Strategy.pdf [https://perma.cc/CH2P-KSJE].

Drone Delivery Services,A

USTL

. C

. A

VIATION

AFETY

UTH

., https://

www.casa.gov.au/drones/industry-initiatives/drone-delivery-services [https://

perma.cc/M24B-NJ78] (Feb. 16, 2022). Wing Aviation LLC was also the first com-

pany to receive a “Part 135 Single pilot air carrier certificate for drone opera-

tions” from the U.S. Federal Aviation Administration in April 2019. Package

Delivery by Drone (Part 135)

, F

. A

VIATION

DMIN

., https://www.faa.gov/uas/ad-

vanced_operations/package_delivery_drone/ [https://perma.cc/3HFC-DF7G]

(Oct. 21, 2021, 12:37 PM).

Submission from Wing Aviation, supra note 48, at 6.

See Oosedo et al., supra note 3, at 350–51.

Wing: Transforming the Way Goods Are Transported, X (alteration in original),

https://x.company/projects/wing/ [https://perma.cc/T2UK-XZ7R].

ODGKINSON

& J

OHNSTON

, supra note 12, at 128.

2022] PREDICTING BEARING FAULT 313

tion.

Accordingly, operators at a remote headquarters only

oversee rather than “pilot” the drones.

This distinguishes freight drones from most previous itera-

tions of drones, which were predominantly piloted to survey,

collect, and gather data.

Such a use primarily raised legal is-

sues of surveillance and privacy rights.

Conversely, the princi-

pal goal of freight drones is transportation of goods,

and while

the collection of data may be an ancillary utility, it is not the

priority or focus of this paper. This is evident from how Wing

aircraft’s cameras are only still image, greyscale, low-resolution

cameras that are for the purpose of providing a backup to its

navigation systems.

Consequently, the key legal issues that arise

from delivery drones are based more on the infringement of

tangible rights, such as personal injury and death; property dam-

age; or (possibly) nuisance, e.g., noise or pollution.

The pace of developments in the sector is rapid.

However, as

with any emerging technology, the challenge for all stakehold-

ers is how to balance innovation with risk.

The International

Civil Aviation Organization (ICAO), in its Convention on Inter-

national Civil Aviation, provides that the regulation of pilotless

Lukas Schroth, Drones and Artificial Intelligence,D

RONE

NDUS

. I

NSIGHTS

(Aug.

28, 2018), https://droneii.com/drones-and-artificial-intelligence [https://

perma.cc/KY38-9NSK].

Pam Storr & Christine Storr, The Rise and Regulation of Drones: Are We Embrac-

ing Minority Report or WALL-E?, in R

OBOTICS

,AI

AND THE

UTURE OF

105, 106

(Marcelo Corrales, Mark Fenwick & Nikolaus Forg

o eds., 2018).

The Drone Controversy: Are Drones an Invasion of Privacy?,P

SYMBOLIC

(Jan. 5,

2022), https://www.psymbolic.com/the-drone-controversy-are-drones-an-inva-

sion-of-privacy/ [https://perma.cc/E2PU-L9QF].

See Privacy Policy,W

ING

(Nov. 5, 2018), https://wing.com/en_au/privacy-us/

[https://perma.cc/H2YQ-6673] (explaining that data collected is to assist or im-

prove delivery process).

See id.

Drone Delivery Legal Issues, supra note 55; Michael S. Horikawa & David

Wright, A Drone’s Eye View of Rights and Legal Remedies,P

ILLSBURY

: I

NTERNET

& S

O-

CIAL

EDIA

LOG

(July 23, 2020), https://www.internetandtechnologylaw.

com/drones-rights-legal-remedies/ [https://perma.cc/97A8-6DRF] (describing

briefly how a nuisance suit against a drone would theoretically apply).

The Evolution of Drones, Then and Now,D

RONE

ERDS

, https://enter-

prise.dronenerds.com/the-evolution-of-drones/ [https://perma.cc/LK9P-

NEGZ].

See US Deloitte Drone Services: Government & Commercial Services,D

ELOITTE

https://www2.deloitte.com/us/en/pages/public-sector/solutions/drone-ser-

vices.html [https://perma.cc/9ZYM-HL4C].

314 JOURNAL OF AIR LAW AND COMMERCE [87

aircraft is enacted at the national level.

Thus, “in the absence

of clear guidelines from international bodies, many domestic ju-

risdictions . . . draft their own regulations.”

Many countries ex-

clude small drones below a certain weight from the standard

rules that apply to aircraft,

while others aim to regulate drones

by the same standards as crewed aircraft.

In 2000, Australia became the first country to begin drafting

drone regulation laws and has since established itself firmly as a

global leader in the space.

Rather than developing a new spe-

cific regulatory solution, drones were integrated into the ex-

isting legal framework, which was developed primarily for

airplanes. As a result, the applicable regulations straddle consti-

tutional lines of federal and state powers, creating a complex,

overlapping regulatory environment.

In Australia, drones are

considered “aircraft”

and thus fall under the scope of federal

aircraft operations and safety laws.

Part 101 of the Civil Avia-

Int’l Civ. Aviation Org. [ICAO], Convention on International Civil Aviation, at

5, ICAO Doc. 7300/9 (9th ed. 2006), https://www.icao.int/publications/Docu-

ments/7300_9ed.pdf [https://perma.cc/V83D-33VR].

ODGKINSON

& J

OHNSTON

, supra note 12, at 19.

Id. As a guide to sizes, see Des Butler, Drones and Invasions of Privacy: An

International Comparison of Legal Responses, 42 UNSW L.J. 1039, 1042 (2019). But-

ler provides “micro RPAs” would be toy drones, “very small RPAs” would be recre-

ational user drones (such as DJI drones), and “large RPAs” would be drones

similar in size to Predator drones used by the U.S. military. Id. However, regula-

tions of sizes can vary. H

ODGKINSON

& J

OHNSTON

, supra note 12, at 35. For exam-

ple, Australia’s smallest weight category (“micro”) is 250 grams or less, while

China’s smallest weight category (also “micro”) is 7 kilograms or less. Id.

ODGKINSON

& J

OHNSTON

, supra note 12, at 25.

Julie-Anne Tarr, Anthony Tarr, Ron Bartsch & Maurice Thompson, Drones in

Australia – Rapidly Evolving Regulatory and Insurance Challenges, 30 I

. L.J. 135,

143, 144 n.44 (2019).

Pam Stewart, Drone Danger: Remedies for Damage by Civilian Remotely Piloted Air-

craft to Persons or Property on the Ground in Australia 28 (July 6, 2017), https://

papers.ssrn.com/sol3/papers.cfm?abstract_id=2996331 [https://perma.cc/

N2EW-2VJ2] (published in Volume 23 of the Torts Law Journal in 2016).

USTL

. G

’

. A

VIATION

AFETY

UTH

., Drone Rules,Y

UBE

, at 1:00

(July 30, 2019), https://www.youtube.com/watch?v=-urP2fIJYk8 [https://

perma.cc/ZNT6-4GUS] (“Drones may be aircraft, but they can’t fly anywhere

near major airports.”). As per the Civil Aviation Act 1988, an aircraft is defined as

“any machine or craft that can derive support in the atmosphere from the reac-

tions of the air, other than the reactions of the air against the earth’s surface.”

Civil Aviation Act 1988 (Cth) s 3 (Austl.). A similar definition appears in the Air

Navigation Act 1920 (Cth) s 3 (Austl.).

See Civil Aviation Act 1988 (Cth) s 3 (Austl.); Civil Aviation Safety Regulations

1998 (Cth) reg 21.820 (Austl.); Civil Aviation Regulations 1988 (Cth) reg 2C (Austl.);

Air Navigation Act 1920 (Cth) pt 101 (Austl.).

2022] PREDICTING BEARING FAULT 315

tion Safety Regulations 1998 (CASR)

consolidates all the rules

applicable to RPAs into one body of legislation. CASA has also

issued Part 101 (Unmanned Aircraft and Rockets) Manual of Stan-

dards 2019 (MOS),

which sets out further standards in relation

to safety and regulatory oversight. The MOS is a Class One docu-

ment under CASR Part 21, and thus has standing as prima facie

evidence in court.

Generally, all drones are subject to standard operating condi-

tions.

In Australia, as in most jurisdictions, drones cannot fly

higher than 400 feet above ground level without approval from

the appropriate regulator,

and “high-risk” flights are prohib-

ited without obtaining CASA’s grant of approval.

Such flights

include flying at night, through clouds or fog, over populous

areas, near airfields, beyond the pilot’s visual line of sight, or

within 30 meters of a person who is unrelated to the drone

operation.

Following an Australian Senate Inquiry Report into the use

and safety of RPA,

new legislation mandates compulsory regis-

tration and operator accreditation with CASA for all drones ex-

cept for micro-sized “model aircraft.”

A micro-sized drone is

Civil Aviation Safety Regulations 1998 (Cth) pt. 101 (Austl.).

See A

DVISORY

& D

RAFTING

RANCH

, L

EGAL

, I

’

& R

EGUL

. A

FFS

. D

., Part 101

(Unmanned Aircraft and Rockets) Manual of Standards 2019 (as amended), C

. A

VIA-

TION

AFETY

UTH

. (2020).

ONALD

I C B

ARTSCH

VIATION

AW IN

USTRALIA

475 (4th ed. 2013).

Drone Safety Rules,C

. A

VIATION

AFETY

UTH

., https://www.casa.gov.au/

drones/drone-rules/drone-safety-rules [https://perma.cc/23ZC-PFR3] (Mar. 21,

2022).

ODGKINSON

& J

OHNSTON

, supra note 12, at 35; Civil Aviation Safety Regula-

tions 1998 (Cth) sub-reg 101.085(1) (Austl.); 14 C.F.R. § 107.51 (2021).

See, e.g., Civil Aviation Safety Regulations 1998 (Cth) reg 101.280 (Austl.).

Id. regs 101.095, 101.245, 101.280; Drone Safety Rules, supra note 92. A “popu-

lous area” is defined in the regulations as an area that “has a sufficient density of

population for some aspect of the operation, or some event that might happen

during the operation (in particular, a fault in, or failure of, the aircraft . . . ) to

pose an unreasonable risk to the life, safety or property of somebody who is in the

area but is not connected with the operation.” Civil Aviation Safety Regulations

1998 (Cth) reg 101.025 (Austl.).

USTL

. S

ENATE

NQUIRY

, supra note 19, at 4 para. 1.12.

See Explanatory Statement, Deputy Prime Minister & Minister of Infrastruc-

ture, Transp. & Reg’l Dev., Civil Aviation Safety Amendment (Remotely Piloted

Aircraft and Model Aircraft – Registration and Accreditation) Regulations (No.

2) 2019 (Cth) Attachment A: Statement of Compatibility with Human Rights

(Austl.). However, non-excepted micro-sized model aircraft are subject to a regis-

tration requirement. Id. Model aircraft above 250 grams are also excepted if they

are operated indoors or at CASA-approved Model Aircraft flying fields. Id.; Regis-

ter Your Drone,

. A

VIATION

AFETY

UTH

., https://www.casa.gov.au/drones/re-

316 JOURNAL OF AIR LAW AND COMMERCE [87

one weighing no more than 250 grams.

Under CASR, model

aircraft are excluded from the definition of an RPA.

A model

aircraft is defined as an aircraft used for the purpose of sport or

recreation weighing less than 150 kg; or an aircraft used for edu-

cational, training, or research purposes weighing less than 7

kg.

100

Any drone operated for a purpose other than sport and

recreation is defined as an RPA.

101

Thus, the only exclusions

from registration are micro-toy drones or entry-level hobbyist

drones, such as the 249 gram Mavic Mini, which are specifically

designed to fall outside regulations (so long as their operation

remains exclusively for sport or recreation).

102

Accordingly, beginning January 28, 2021,

103

all drones classi-

fied as RPAs—regardless of size—require registration

104

and ac-

creditation with CASA.

105

Then, depending on the extent of the

commercial use,

106

applying for a Remote Pilot License

(RePL)

107

or Remote Operator Certificate (ReOC)

108

may be re-

gistration-and-flight-authorisations/register-your-drone [https://perma.cc/

FM3B-2W24] (Dec. 23, 2021).

Civil Aviation Safety Regulations 1998 (Cth) reg 101.022 (Austl.).

Id. reg 101.021; Civil Aviation Act 1988 (Cth) s 4 (Austl.).

100

While the term “model aircraft” is not defined in either the Damage by Air-

craft Act 1999 (Cth) s 4 (Austl.) or the Civil Aviation Act 1988 (Cth) s 3 (Austl.),

Civil Aviation Safety Regulations 1998 (Cth) reg 101.023 (Austl.) provides the defi-

nition. However, note that “giant model aircraft” (i.e., aircraft with a take-off

mass of 25–150 kg) require operational approval and do not fit within this defini-

tion. See id. regs 101.380, 101.405.

101

Civil Aviation Safety Regulations 1998 (Cth) regs 101.021, 101.023 (Austl.).

102

See DJI Support, DJI Mavic Mini FAQ: Answer Your Questions, DJI G

UIDES

(Aug. 19, 2020), https://store.dji.com/guides/mavic-mini-faq-everything-you-

need-to-know/ [https://perma.cc/Z7N8-JP4P] (“Weighing under 250 grams,

Mavic Mini is almost as light as the average smartphone. This makes it exception-

ally portable and places it in the lowest and safest weight class of drones, which in

many countries may exempt it from certain regulations.”).

103

See CASA 44/20 – Remotely Piloted Aircraft – RPA Application Day Determination

2020 (Cth) s 3 (Austl.).

104

See Civil Aviation Safety Regulations 1998 (Cth) div 47.c.2 (Austl.). Previously,

micro RPA were excluded, even if their purpose was for hire and reward. See id.

reg. 101.237; Norton White, Drone Regulation in Australia,

EXOLOGY

(Dec. 10,

2019), https://www.lexology.com/library/detail.aspx?g=9c52371e-5bf2-4ef7-

a922-ffd777689918 [https://perma.cc/GF3B-AW5B].

105

See Civil Aviation Safety Regulations 1998 (Cth) divs 101.F.3–101.F.4 (Austl.).

106

Certain “excluded RPA” do not require a remote pilot license, such as those

used for the benefit of the RPA owner’s land for activities such as aerial spotting,

land surveying, agricultural operations, infrastructure inspections, or carrying

cargo. Id. reg 101.237. Micro RPAs are also excluded. Id. reg 101.235(3).

107

The RePL is a legal document that permits an individual to operate an RPA

within the categories shown on the license. Remote Pilot Licence, C

. A

VIATION

2022] PREDICTING BEARING FAULT 317

quired. Flying an unregistered drone,

109

flying without an opera-

tor accreditation, or flying without a remote pilot license for

business use

110

is a strict liability offense and carries penalties of

up to fifty units.

111

Freight RPAs are regulated by the same regime that applies to

commercial RPA operators.

112

Any legal entity

113

wishing to

carry out RPA operations in Australia, either commercially or

for the purpose of research and development (R&D), must ob-

tain a ReOC.

114

To satisfy a ReOC, the RPA operator must have a chief remote

pilot

115

who holds a remote pilot license and who is competent

to carry out those duties and perform the necessary functions.

116

For example, in the case of a freight drone, the ReOC needs a

description of the cargo or payloads and the requirements for

special handling.

117

The chief remote pilot must also either

maintain a position as maintenance controller or arrange a com-

AFETY

UTH

., https://www.casa.gov.au/drones/get-your-operator-credentials/

remote-pilot-licence [https://perma.cc/SN3B-W2R5] (Dec. 23, 2021).

108

The ReOC permits a business to operate commercial or R&D operations in

Australia. Remotely Piloted Aircraft Operator’s Certificate, C

. A

VIATION

AFETY

UTH

https://www.casa.gov.au/drones/get-your-operator-credentials/remotely-

piloted-aircraft-operators-certificate [https://perma.cc/NZ7C-EFAE] (Feb. 21,

2022). Much like a license, the ReOC will provide information on what categories

and types of RPA may be operated as well as the privileges and limitations of the

approved operations. See id. “A ReOC is required for more complex commercial

RPA activities, such as flying at night or over people,” for a person to obtain a

ReOC, they must complete training through a certified training provider.

VIATION

AFETY

UTH

., CASR P

ART

101: M

ICRO AND

XCLUDED

EMOTELY

ILOTED

IRCRAFT

PERATIONS

4 (2020), https://www.casa.gov.au/sites/default/

files/2021-08/part-101-micro-excluded-rpa-operations-plain-english-guide.pdf

[https://perma.cc/P8JS-58GG].

109

Civil Aviation Safety Regulations 1998 (Cth) sub-reg 47.015(1) (Austl.) re-

quires aircraft to be registered unless they are exempt.

110

Id. sub-reg 101.374B(1).

111

Id. As of the time of writing, one penalty unit is 222 AUD under the Crimes

Act 1914 (Cth) s 4AA (Austl.).

112

White, supra note 104.

113

A ReOC holder “must be a natural person or have legal personality (capa-

ble of enjoying and being subject to legal rights and duties).” C

. A

VIATION

AFETY

UTH

., F

ORM

101-06: I

NSTRUMENT OF

ELEGATION

PPLICATION FOR

RPA

PERATOR

’

ERTIFICATE

, at ii (2016), http://www.unmannedapprovals.com.au/

wp-content/uploads/2016/11/Form101-06.pdf [https://perma.cc/TG9E-FK2F].

114

See Civil Aviation Safety Regulations 1998 (Cth) reg 101.340 (Austl.).

115

Id. sub-reg 101.340(1)(a).

116

Id. sub-reg 101.340(1)(b).

117

See Part 101 (Unmanned Aircraft and Rockets) Manual of Standards 2019 (as

amended) (Cth) sub-div 10.03(1)(b)(v) (Austl.).

318 JOURNAL OF AIR LAW AND COMMERCE [87

petent person to do so.

118

Failure to comply is a strict liability

offense with a penalty of fifty penalty units.

119

A maintenance controller has a duty to ensure that mainte-

nance is completed to an adequate standard.

120

Generally, this

includes “maintaining a record of the serviceability . . . of the

operator’s RPA systems[,] ensuring that each item of equipment

essential to the operation of the operator’s RPA is servicea-

ble . . . [and] investigating all defects in the operator’s RPA sys-

tems.”

121

Part of this includes keeping a technical log, which

outlines information relating to the continuing airworthiness of

the RPAs, such as its total flight time; maintenance schedule;

dates for the next maintenance action; documented practices

and procedure of maintenance; the results of any rectification

of defective equipment; and descriptions of pieces of unservice-

able parts.

122

Additionally, a job-safety assessment is required for certain

RPA operations, almost certainly including freight drones.

123

job-safety assessment is completed in accordance with the

ReOC’s procedures and involves identifying safety risks and for-

mulating risk mitigation measures and risk management

plans.

124

These include factors such as the weather, danger to

the public, obstructions, or possible interference from power-

118

Civil Aviation Safety Regulations 1998 (Cth) sub-reg 101.340(c) (Austl.).

119

Id. reg 101.370.

120

Id. sub-reg 101.340(1)(c)(i) (alteration in original). The Civil Aviation Act

defines “maintenance” as: “any task required to ensure, or that could affect, the

continuing airworthiness of an aircraft or aeronautical product, including any

one or combination of overhaul, repair, inspection, replacement of an aeronauti-

cal product, modification or defect rectification.” Civil Aviation Act 1988 (Cth) s 3

(Austl.).

121

. A

VIATION

AFETY

UTH

., A

DVISORY

IRCULAR

AC 101-05: F

UNCTIONS AND

UTIES OF

RPAS M

AINTENANCE

ONTROLLERS

(2016) (alteration in original),

https://www.casa.gov.au/sites/default/files/2021-08/advisory-circular-101-05-

functions-duties-rpas-maintenance-controllers.pdf [https://perma.cc/6MCL-

U8PE].

122

See Part 101 (Unmanned Aircraft and Rockets) Manual of Standards 2019 (as

amended) (Cth) sub-reg 10.07(d) (Austl.).

123

See White, supra note 104.

124

Id.

2022] PREDICTING BEARING FAULT 319

lines or antennas.

125

Further rules apply to large RPAs

126

and

autonomous RPAs.

127

Obviously, a reliable drone bearing monitoring system that

demonstrates the airworthiness of a drone will greatly assist an

operator in both meeting and proving the satisfaction of many

of these requirements.

Regarding delivery drones specifically, current regulations al-

low RPAs to deliver “just-in-time” supplies to customers living

within a ten-kilometer radius from a base station.

128

Items availa-

ble for delivery include food and drinks, medicine, small items

of hardware, and recreational supplies.

129

Wing has been al-

lowed to operate in this capacity after a rigorous safety screening

and submission of applications to operate beyond visual line-of-

sight.

130

However, CASA’s approval of a drone operation does not au-

tomatically establish immunity should an accident or regulatory

breach occur.

131

It will still be an offense to operate an RPA in a

way that creates a hazard to other aircraft, people, or property

125

See Hazard Identification and Management in Aviation,C

. A

VIATION

AFETY

UTH

., https://www.casa.gov.au/operations-safety-and-travel/safety-advice/haz-

ard-identification-and-management-aviation [https://perma.cc/76HQ-N498]

(Dec. 23, 2021).

126

Civil Aviation Safety Regulations 1998 (Cth) reg 101.260 (Austl.) requires that

any person who carries out maintenance on a large RPA comply with any direc-

tions given in writing by CASA.

127

Id. reg 101.097 requires approval from CASA before an autonomous air-

craft is launched.

128

Drone Delivery Services, supra note 68.

129

Id.

130

Id. To operate beyond or extended visual line-of-sight class 2 operations in

Australia, the remote pilot, or supervising remote pilot of the operator, must

meet the requirements as defined in CASA Exemption EX46/21. See Civil Avia-

tion Safety Regulations 1998 (Cth) sub-reg 101.300(4) (Austl.). These include hold-

ing certain licenses, passing the Australian Instrument Rating Exam (IREX), and

passing other CASA-approved examinations. See id. Operators are also generally

required to conduct a Specific Operational Risk Assessment (SORA) and partici-

pate in a workshop with CASA. JARUS Guidelines on Specific Operations Risk Assess-

ment (SORA),

OINT

UTHS

FOR

ULEMAKING OF

NMANNED

., JAR-DEL-WG6-

D.04, at 11 (2d. ed. 2019), https://wpo-altertechnology.com/wp-content/

uploads/2017/11/jar_doc_06_jarus_sora_v1.0.pdf [https://perma.cc/K3DP-

F4CB]. The SORA is an operational risk assessment developed by the Joint Au-

thorities for Rulemaking in Unmanned Systems (JARUS). Id.

131

Kate Tilley, Drones – Friend or Foe for Underwriters?,R

ESOLVE

(Mar. 30, 2016),

republished in M

ERIDIAN

AWYERS

: I

NSIGHTS

, https://www.meridianlawyers.

com.au/insights/drones-friend-foe-underwriters/ [https://perma.cc/9FUY-

HCZ2].

320 JOURNAL OF AIR LAW AND COMMERCE [87

with a penalty up to fifty units for contravention.

132

Further, the

Civil Aviation Act 1988, the Aviation Transport Security Act 2004,

and aviation security regulations consider interference with the

safe conduct of air transport and reckless flying as criminal of-

fenses, which can result in imprisonment.

133

An operator who

negligently or carelessly fails to conduct the required mainte-

nance on their drone motor bearing will be exposed to liability

under these Acts. The Australian government is developing a

new enforcement framework to allow state and territory police

to issue infringement notices and enforce minor breaches of

drone regulations, while prosecution of serious offenses remains

under existing legislation.

134

However, these offenses are only penal in nature, meaning

that the parties who suffer harm from their violation have no

entitlement to compensation, and they will instead need to turn

to other legal avenues such as statutes or common law.

135

Addi-

tionally, it will be up to CASA to investigate any breaches of

these regulations, subject to its own resources and limitations.

Notwithstanding these existing regulations, there are also sev-

eral areas where future regulation and liability are likely to

emerge. This Article now addresses four developing areas: air-

worthiness, noise, insurance, and cybersecurity.

B. A

IRWORTHINESS

CASA has yet to implement a comprehensive set of airworthi-

ness regulations for the drone industry. Currently, only large

RPAs weighing more than 150 kilograms are required to obtain

a certificate of airworthiness.

136

Otherwise, the only require-

ments are contained within the airworthiness standards of an

operator’s technical logs

137

and the general understanding of

airworthiness as an aeronautical knowledge unit for RePL train-

ing courses.

138

There will be a variety of different sizes of deliv-

ery drones, depending on the flight distance and weight of the

132

Civil Aviation Safety Regulations 1998 (Cth) sub-reg 101.055(1) (Austl.).

133

White, supra note 104.

134

OLICY

SSUES

, supra note 18, at 27.

135

See Hawke v. Waterloo-Wellington Flying Club Ltd. et al. (1971), 22 D.L.R.

3d 266, 272–73 (Can. Ont. Co. Ct. J.) (discussing and finding negligence for

failure to keep maintenance log books).

136

Civil Aviation Safety Regulations 1998 (Cth) regs 101.046, 101.255 (Austl.).

137

Part 101 (Unmanned Aircraft and Rockets) Manual of Standards 2019 (as

amended) (Cth) ss 10.07(1)(d), 10.12(2)(b) (Austl.).

138

Id. sch 4 appendix 1 unit 6 (Austl.).

2022] PREDICTING BEARING FAULT 321

payload. Lighter drones (specializing in last-mile delivery) are

expected to carry an estimated 2.5 kilogram payload with round-

trip distances of twenty kilometers by 2030.

139

Currently, Wing’s

delivery drones are designed to weigh 4.8 kilograms and deliver

small packages that weigh approximately 1.5 kilograms or less.

140

Larger delivery drones may have a maximum payload of 15 kilo-

grams, and the craft itself would probably weigh 5–20 kilo-

grams.

141

For example, Swoop Aero drones can transport up to

five kilograms of supplies across geographical ranges up to 130

kilometers and have a maximum take-off weight of eighteen

kilograms.

142

These significant variations in size pose a challenge

for regulators, compelling some—such as the U.S. National

Transportation Safety Board—to move criterion from weight-

based thresholds to holding airworthiness certificates.

143

The Australian Senate Inquiry recommended the develop-

ment of clearly defined airworthiness standards with mandated

fail-safe functions.

144

It has been argued that a set of standards

would “clarify expectations about the continuum of specifica-

tion, design, construction, operation and maintenance of RPAs”

and assist in regulating imported and domestically manufac-

tured RPA products.

145

One submission to the Inquiry com-

mented, “RPA hardware has not undergone significant testing

and malfunctions are common. Mean time between failure of

the electric motors is not known and software is potentially

‘open-source’ with many ‘bugs.’”

146

Australia’s Commonwealth

Scientific and Industrial Research Organisation (CSIRO) sub-

139

LPHA

ETA

, supra note 65, at 11.

140

Drone Delivery Under Google’s Wing,O

SINTO

(Jan. 24, 2020), https://

www.osinto.com/post/drone-delivery-under-googles-wing [https://perma.cc/

M9X2-HMTF]. Similarly, Amazon Prime Air delivery drones can deliver packages

up to 2.26 kilograms (five pounds). Elyse Betters, How Does Amazon Prime Air Work

and Where Is Drone Delivery Available?,

OCKET

LINT

(Dec. 16, 2016), https://

www.pocket-lint.com/drones/news/amazon/139746-how-does-amazon-prime-air-

work-and-where-is-drone-delivery-available [https://perma.cc/C3M8-YEDL].

141

See, e.g., Hercules 20 Heavy Lift Drone,D

RONE

OLT

, https://www.dronevolt.

com/en/expert-solutions/hercules-20/ [https://perma.cc/P5F4-4G3Y].

142

Say Hello to Kite,S

WOOP

ERO

, https://swoop.aero/kite [https://perma.cc/

4KLG-AW2C]; Nadine Cranenburgh, Drones Deliver Vaccines to Remote Areas of the

South Pacific in World-First Trial,

REATE

(Dec. 13, 2018), https://createdig-

ital.org.au/drone-delivery-vaccines-world-first [https://perma.cc/JFB7-GS3T].

143

Amendment to the Definition of Unmanned Aircraft Accident, 86 Fed.

Reg. 27,550, 27,551 (proposed May 21, 2021) (to be codified at 49 C.F.R. pt.

830).

144

USTL

. S

ENATE

NQUIRY

, supra note 19, at 108 para. 8.37.

145

Id. at 83 para. 6.29 (citation omitted).

146

Id. at 84 para. 6.30 (citation omitted).

322 JOURNAL OF AIR LAW AND COMMERCE [87

mitted that “[p]resently the risk mitigation relies on operational

safety controls such as operator and crew licencing together

with operational limitations.”

147

These conclusions align with

current research in the engineering field. For example, Mar-

tinetti, Schakel, and van Dongen have pointed out that the

maintenance program of RPA companies is mainly based on in-

ternal knowledge, meaning that quality depends on the compe-

tence and experience of the mechanics.

148

In a nascent market,

drone startup companies and divisions are operating with lim-

ited resources, and because legislation on airworthiness is still in

development, designing systems with absolute safety takes less of

a priority than profit-generating functions.

149

This presents a

danger because maintenance errors can go undetected as latent

conditions for years.

150

A drone bearing condition monitoring system would mitigate

many of these concerns, and if proven to be reliable, could be a

strong defense in the future of any legal liability arising from a

regime based on airworthiness. However, the probability of

missed detections or false positive (false alarm) results with the

condition monitoring system needs to be considered here. Note

that a missed detection means that a fault occurs and goes unde-

tected by the condition monitoring system; whereas, a false posi-

tive means that the system is healthy, but the condition

monitoring system incorrectly diagnoses a fault.

151

False posi-

tives can lead to inefficiencies, increased costs, or financial

losses, while missed detections can lead to incidents and hence

possible liability.

152

The probabilities of detecting a fault and

avoiding false alarms are always traded against each other.

153

The legal implication of this trade-off will mean, depending on

the cause of action, that foreseeability and a breakdown of the

monitoring system will need to be taken into account. The exis-

tence of this trade-off suggests that drone bearing condition

147

Id. at 84–85 para. 6.33 (citation omitted).

148

Martinetti et al., supra note 37, at 153.

149

See id.

150

See id.

151

OMPUT

. S

. R

. C

., Glossary: False Positive,N

’

NST

. S

TANDARDS

ECH

. https://csrc.nist.gov/glossary/term/false_positive [https://perma.cc/

WKK6-K4Q8].

152

See Bin Zhang, Chris Sconyers, Carl Byington, Romano Patrick, Marcos E.

Orchard & George Vachtsevanos, A Probabilistic Fault Detection Approach: Applica-

tion to Bearing Fault Detection, 58

IEEE T

RANSACTIONS ON

NDUS

. E

LECS

. 2011, 2011

(2011).

153

See id. at 2012.

2022] PREDICTING BEARING FAULT 323

monitoring may need to be part of a holistic bearing mainte-

nance program to ensure that the safest, most cost-effective, and

least legally liable solution is achieved.

Currently, both the Department of Infrastructure, Transport,

Regional Development and Communications

154

and CASA are

“investigating the merits of adopting an appropriate airworthi-

ness framework model,” including potentially mirroring the

frameworks of other aviation authorities.

155

C. N

OISE

While no drone-specific regulations on noise currently exist,

the Air Navigation (Aircraft Noise) Regulations 2018 apply to com-

mercial and recreational drone operations, and CASA will likely

undertake an assessment of noise before approving opera-

tions.

156

Approval may be revoked if a condition of approval is

breached or use of the aircraft will likely have a significant noise

impact on the public.

157

In NSW, drones are also captured under the Protection of the

Environment Operations Act 1997.

158

The definition of aircraft in-

cludes a remotely piloted aircraft, an uncrewed aircraft system,

or a drone.

159

Persons who find the sound of a drone offensive

can seek a noise abatement order from the court, which oper-

ates like an injunction on the drone operator to stop the

noise.

160

Worn or damaged bearings usually have identifiable indica-

tors such as vibration (which may generate audible noise) and

increased friction heat (which may generate higher than ex-

154

OLICY

TATEMENT

, supra note 17, at 17.

155

USTL

. S

ENATE

NQUIRY

, supra note 19, para. 6.34 at 85 (citing Civil Aviation

Safety Authority, Submission 17, at 10–11 (Austl.)); see Discussion Paper: UAS Airwor-

thiness Framework,C

. A

VIATION

AFETY

UTH

. para. 4.9 (2016), https://

www.coaxhelicopters.com/wp-content/uploads/2019/01/CASA-UAS-Airworthi-

ness-Discussion-Paper-UAS-Airworthiness-Framework.pdf [https://perma.cc/

4TAK-8JBV] (discussing how CASA’s paper looks at the JARUS and European

Aviation Safety Agency (EASA) frameworks).

156

Air Navigation (Aircraft Noise) Regulations 2018 (Cth) reg 17 (Austl.); Drone

Delivery Operations–Australia,D

’

NFRASTRUCTURE

, T

RANSP

., R

’

. &

OMMC

’

, https://www.infrastructure.gov.au/infrastructure-transport-vehicles/

aviation/emerging-aviation-technologies/drone-delivery-operations-australia

[https://perma.cc/7CEF-DSLB].

157

Air Navigation (Aircraft Noise) Regulations 2018 (Cth) reg 17 (Austl.).

158

Protection of the Environment Operations Act 1997 (NSW) (Austl.).

159

Id. at div. 4.

160

Id. at divs. 2, 3.

324 JOURNAL OF AIR LAW AND COMMERCE [87

pected bearing temperatures).

161

Monitoring for the first signs

of wear can minimize noise and ensure that noise regulations

are complied with, especially for larger delivery RPAs, which

may be significantly louder or generate higher pitch buzzing

sounds due to the high-speed small rotors in their propellers.

162

The Australian government is developing the National Drone

Detection Network during 2021 and 2022 with the aim of start-

ing operations in 2023.

163

Included is an outcome-based noise

framework, which will have processes for measuring noise out-

put, modelling of noise impacts (including cumulative impacts)

at ground level, and imposing agreed noise-threshold settings to

reflect noise sensitivity of particular communities.

164

It is likely

that further regulations will follow after this is implemented and

more data is available.

D. I

NSURANCE

Many countries, including Canada, China, Austria, Belgium,

Cyprus, Germany, and Italy, require mandatory insurance.

165

The type of coverage that is required varies by jurisdiction, from

insurance that covers all aspects of an operation to only third-

party insurance.

166

In Canada, for example, insurance is re-

quired with respect to “every incident related to the operation

of the aircraft,”

167

while in the European Union, commercial

drone operators are required to have third-party liability insur-

ance.

168

Australia (alongside the United States, Indonesia, and

Brazil) does not require mandatory insurance, although CASA

does strongly advise that RPA operators discuss with insurers the

potential liability to third parties and consider taking out

insurance.

169

161

S. J. Lacey, Using Vibration Analysis to Detect Early Failure of Bearings,A

-N

https://www.agg-net.com/resources/articles/maintenance-repair/using-vibra-

tion-analysis-to-detect-early-failure-of-bearings [https://perma.cc/W63N-TQA5].

162

Garth Paine, Drones to Deliver Incessant Buzzing Noise, and Packages,C

ONVERSA-

TION

(May 3, 2019, 6:42 AM), https://theconversation.com/drones-to-deliver-in-

cessant-buzzing-noise-and-packages-116257 [https://perma.cc/WB5L-L6HK].

163

OLICY

TATEMENT

, supra note 17, at 8.

164

Id. at 22.

165

ODGKINSON

& J

OHNSTON

, supra note 12, at 36.

166

Id.

167

Canadian Aviation Regulations

SOR/96-433 (Can.) (Regulation

606.02(2)).

168

See Council Regulation 785/2004 of Apr. 21, 2004, Insurance Requirements

for Air Carriers and Aircraft Operators, 2004 O.J. (L 138) 1, 11.

169

. A

VIATION

AFETY

UTH

., R

EMOTELY

ILOTED

IRCRAFT

YSTEMS

- L

ICENS-

ING AND

PERATIONS

AC 101-01, 35 (2019), https://www.casa.gov.au/remotely-

2022] PREDICTING BEARING FAULT 325

CASA can also “impose a condition on a licensed commercial

drone operator to obtain insurance as part of that operator’s

risk management procedures,” such as when an operator wants

to operate commercially at night.

170

RPA operators may also be

“expected to have public liability coverage as part of state and

territory business obligations.”

171

However, where an operator

uses an unregistered drone, “[p]ublic liability insurance could

be voided as operating an unregistered drone [is] an illegal

activity.”

172

While no standard form of drone insurance exists, coverage

for drone-related losses can be found in traditional policies cov-

ering first-party loss, such as damage to the drone aircraft itself,

or coverage for third-party claims for damage caused by the

drone.

173

It has also been noted that there is an increasing num-

ber of insurers offering specialized drone insurance; for exam-

ple, Flock launched an app for “pay-as-you-fly” drone insurance

in Europe.

174

A drone bearing monitoring device with data-recording capa-

bilities would provide invaluable information to insurance com-

panies about the technical durability of the drone and would

assist in determining whether fault should be attributed to a

mechanical failure or an operator. This could operate analo-

gously to a plane’s flight recorder as a sort of “black box,” which

are often used as important evidence in court proceedings.

175

Academics have criticized the fact that current regulations

keep insurance optional, especially in the commercial operating

piloted-aircraft-systems-licensing-and-operations [https://perma.cc/DYS4-

VUKP].

170

Tarr et al., supra note 85, at 151.

171

Id.

172

Commercial Drone Registration Warning,A

USTL

. C

. A

VIATION

AFETY

UTH

(Jan. 27, 2021) (alteration in original), https://www.casa.gov.au/about-us/con

tent-search/news-media-releases-speeches/commercial-drone-registration-warn

ing [https://perma.cc/6K7K-PPE7].

173

Michael S. Levine & Jorge R. Aviles, As Amazon’s and Walmart’s Drones Take to

the Skies, It Is Important for Commercial Policyholders to Have a Strategy to Protect Against

Drone-Related Risks and to Maximize Their Recovery in the Event of a Loss,

EXOLOGY

(Sept. 11, 2020), https://www.lexology.com/library/detail.aspx?g=ada9eb20-

ef4e-4b1a-9891-0ebf730cea6c [https://perma.cc/7J7T-VVAE].

174

Tarr et al., supra note 85, at 151.

175

P de Jersey, C.J., Supreme Court of Queensland, David Boughen Memorial

Address at the Aviation Law Association of Australia and New Zealand Confer-

ence: The Disclosure in Evidence of Black Box Recordings (Oct. 18, 1999). See

generally Carol A. Roberts, The Status of Flight Recorders in Modern Aircraft, 43

J. A

L. & C

. 271, 272 (1977).

326 JOURNAL OF AIR LAW AND COMMERCE [87

context.

176

As the sector develops, further regulation creating

mandatory insurance may appear on the horizon, especially for

commercial industries such as freight or transport.

E. C

YBERSECURITY

Drones are also subject to communication and media regula-

tory frameworks.

177

Wireless communication links used by

drones rely on access to the radiofrequency spectrum to provide

the command-and-control functions (e.g., telemetry, radar, and

navigation) and payload communications (e.g., high-resolution

video).

178

Communication spectrum management legislation

regulates wireless frequencies and imposes manufacturing

standards.

179

Drones use software and continuous streams of data to deter-

mine their location and behavior. However, these may not be

encrypted, leading to drones becoming increasingly favored as a

target for hackers. Because of their larger size and weight,

freight drones may be a more attractive target than recreational

or survey drones for malicious purposes.

For example, in the Geraldton Endure Batavia Triathlon in

Western Australia in April 2014, a triathlete was reported to

have sustained head lacerations after being struck in the head by

a drone that had been filming the race and had fallen from the

sky.

180

The owner of the drone did not have a commercial li-

cense, and the chief pilot was his twenty-year-old daughter.

181

176

See, e.g., Tarr et al., supra note 85, at 156; Stewart, supra note 86, at 27.

177

See generally Telecommunications Act 1997 (Cth) (Austl.); Telecommunications

(Consumer Protection and Service Standards) Act 1999 (Cth) (Austl.); Radiocommunica-

tions Act 1992 (Cth) (Austl.).

178

Nozhan Hosseini, Hosseinali Jamal, Jamal Haque, Thomas Magesacher &

David W. Matolak, UAV Command and Control, Navigation and Surveillance: A Review

of Potential 5G and Satellite Systems, 2019 IEEE

EROSPACE

ONF

. 1, 1 (2019).

179

See, e.g., Radiocommunications Labelling (Electromagnetic Compatibility) Notice

2008 pt. 2(2.1) (Austl.); Radiocommunications (Electromagnetic Compatibility) Stan-

dard 2008 para. 5 (Austl.); Radiocommunications (Compliance Labelling – Devices) No-

tice 2014 pt. 1(5) (Austl.). There are also State-based regulations. See, e.g.,

Electricity Safety Act 1998 (Vic) (Austl.).

180

Michael Safi, Air Safety Investigation into Drone Incident with Triathlete,G

UARD-

IAN

(Apr. 8, 2014), https://www.theguardian.com/world/2014/apr/08/air-

safety-triathlete-struck-drone [https://perma.cc/KW5B-YRNC].

181

Geraldton Businessman Whose Drone Fell from Sky, Injuring Triathlete, Mocks

Crash Probe on Social Media,C

OURIER

AIL

(Nov. 7, 2014, 5:28 PM), https://

www.couriermail.com.au/news/national/geraldton-businessman-whose-drone-

fell-from-sky-injuring-triathlete-mocks-crash-probe-on-social-media/news-story/

186bac1f1ec1445bc64e867828c09a25 [https://perma.cc/EE3X-S3B9].

2022] PREDICTING BEARING FAULT 327

The owner’s statement that the drone was hacked fueled initial

media speculation about what went wrong, but the owner later

retracted his claim.

182

The matter was referred by CASA to the Commonwealth De-

partment of Public Prosecutions (CDPP), which found “[t]he

evidence indicated that the cause of the incident was not the

actions of the operator but rather radio interference to the UAV

[Unmanned Aerial Vehicle] caused by the event’s timing de-

vice.”

183

The CDPP did not proceed with prosecution after tak-

ing into account all of the circumstances, including the young

age of the operator.

184

The matter was returned to CASA, and

the owner was only fined $1,700 for flying the drone within

thirty meters of people.

185

This event demonstrates the potential harm to people where

drones are operated in populated areas. While the cause of the

crash was inconclusive in this case, if the case did proceed to

litigation, and if a motor and motor bearing monitoring system

had been installed, the device could have provided insight as to

whether the fault was due to issues with motor operation or

whether the fault was present in another drone sub-system such

as the flight control system or flight control sensors.

Lawyers have commented that an increase in government reg-

ulation of cybersecurity measures for drones is imminent.

186

In-

deed, the Australian government is developing security

regulations and is considering the future inclusion of

“cyberworthiness” standards over RPAs.

187

While many of the above regulations are currently undevel-

oped and only broadly applicable to the failure of a freight

drone’s bearing motor, there are nonetheless specific laws that

182

See Ben Grubb, ‘River of Blood’ After Drone ‘Hits’ Australian Athlete,S

YDNEY

ORNING

ERALD

, https://www.smh.com.au/technology/river-of-blood-after-

drone-hits-australian-athlete-20140407-zqruh.html [https://perma.cc/Q67Y-

A994] (Apr. 7, 2014, 7:08 PM); Safi, supra note 180.

183

Sarah Taillier, Drone Operator Fined After UAV Crashed into Geraldton Triathlete,

ABC N

EWS

(alteration in original) https://www.abc.net.au/news/2014-11-13/

drone-operator-at-geraldton-marathon-fined/5887196 [https://perma.cc/A5AM-

NKX8] (Nov. 12, 2014, 6:25 PM).

184

Cf. C

OURIER

AIL

, supra note 181.

185

Taillier, supra note 183.

186

See Darryl Smith & Marcus O’Brien, Cyber: A View from Above,L

EXOLOGY

(Dec. 13, 2017), https://www.lexology.com/library/detail.aspx?g=78b0bf74-

a6d8-4436-acdb-471d70ad7e5c [https://perma.cc/LZP9-LUJU].

187

OLICY

TATEMENT

, supra note 17, at 21.

328 JOURNAL OF AIR LAW AND COMMERCE [87

can turn the case into a litigated matter. This is discussed in the

following part.

IV. LEGAL LIABILITY CREATED BY BEARING FAILURE

While Australia’s drone regulations are advanced compared

to the rest of the world,

188

there has yet to be any reported deci-

sions of civil or criminal actions in court related to drones. Most

documented injuries have only been minor in nature.

189

However, the relative lack of incidents does not imply the po-

tential does not exist. CASA has commissioned reports to this

effect, investigating the possibility for injury to persons on the

ground from drones.

190

Likewise, academics have pointed out

that the possibility for damage to persons and property on the

ground is apparent, “whether the cause be illegal or irresponsi-

ble use, system failure, equipment malfunction, or human

error.”

191

Liability for personal injuries caused by drone bearing failures

may arise in a number of legal frameworks. If drones are certi-

fied as aircraft (as freight drones would be), then liability may

arise under the various statutes which provide for damage by

aircraft.

192

Most of these statutes in Australia will apply strict lia-

bility—that is, if the damage is caused by the aircraft, liability

will be found regardless of the defendant’s lack of fault, intent,

recklessness, or negligence.

193

188

See T

HERESE

ONES

, I

NTERNATIONAL

OMMERCIAL

RONE

EGULATION AND

RONE

ELIVERY

ERVICES

20 (2017), https://www.rand.org/content/dam/rand/

pubs/research_reports/RR1700/RR1718z3/RAND_RR1718z3.pdf [https://

perma.cc/ZQK9-GMM6].

189

Serap Gorucu & Yiannis Ampatzidis, Drone Injuries and Safety Recommenda-

tions: AE560/AE560, 2021 D

’

GRIC

. & B

IOLOGICAL

’

IFAS E

XTENSION

. 1, 2 (2021), https://journals.flvc.org/edis/article/view/128455/131011

[https://perma.cc/MJS6-SE2F].

190

See, e.g., Human Injury Model for Small Unmanned Aircraft Impacts,A

USTL

. C

VIATION

AFETY

UTH

. & M

ONASH

NIV

. 2 (2013), https://www.casa.gov.au/

sites/default/files/2021-12/human-injury-model-small-unmanned-aircraft-im

pacts.pdf [https://perma.cc/AVV4-JDYX].

191

Stewart, supra note 86, at 3. For similar statements, see Perritt, Jr., supra

note 27, at 64; Vivek Sehrawat, Liability Issue of Domestic Drones, 35 S

ANTA

LARA

IGH

ECH

. L.J. 110, 117–19 (2018).

192

Damage by Aircraft Act 1999 (Cth) ss 10, 11 (Austl.); Air Navigation Act 1937

(Qld) ss 16, 17 (Austl.); Civil Liability Act 2002 (NSW) s 73 (Austl.); Civil Liability

Act 1936 (SA) s 61 (Austl.); Damage by Aircraft Act 1963 (Tas) s 4 (Austl.); Wrongs

Act 1958 (Vic) s 31 (Austl.); Damage by Aircraft Act 1964 (WA) s 5 (Austl.).

193

Criminal Code Act 1995 (Cth) s 6.1 (Austl.).

2022] PREDICTING BEARING FAULT 329

This means that the other areas of law which might be ap-

plied—such as negligence; nuisance; and trespass to land, per-

sons, or goods—are less likely to be attractive to a plaintiff

because strict liability is easier to prove than these fault-based

torts.

194

However, this does not mean that a plaintiff may not

choose to sue both under Damage by Aircraft legislation and the

other causes of action available. Also, it will remain possible to

sue for consumer law claims, interference to privacy (in some

situations), trespass to land, and nuisance.

195

A. D

AMAGE BY

IRCRAFT

In Australia, the Damage by Aircraft Act 1999 (DAA) and its

state counterparts establish strict liability for surface damage

caused by an aircraft in flight.

196

Based on an examination of

each element, a drone would fall within the scope of this

legislation.

1. Scope of Legislation

a. Aircraft

The DAA applies to Australian and foreign “aircraft”

197

and to

aircraft owned by foreign, trading, or financial corporations

(within the meaning of paragraph 51 (xx) of the Australian

Constitution).

198

The Act is subject to the constitutional limita-

tions of Commonwealth legislative powers.

199

Consequently, in-

trastate aircraft operations by non-corporations are not within

the scope of the DAA and must be subject to state enact-

194

See Hyewon Hannah Choi, Comment, Delivery Drones: Inapt for Application of

Current Negligence Theory, 86 J. A

L. & C

. 435, 456 (2021).

195

See id. at 438.

196

Damage by Aircraft Act 1999 (Cth) s 11 (Austl.) (applying to ACT and NT as

well); Air Navigation Act 1973 (Qld) s 17(2) (Austl.); Civil Liability Act 2002 (NSW)

s 73(1) (Austl.); Civil Liability Act 1936 (SA) s 61(3) (Austl.); Damage by Aircraft Act

1963 (Tas) s 4(1) (Austl.); Wrongs Act 1958 (Vic) s 31(1) (Austl.); Damage by Air-

craft Act 1964 (WA) s 5(1) (Austl.).

197

Section 4 of the Act provides that “aircraft has the same meaning as in the

Civil Aviation Act 1988, but does not include model aircraft.” Damage by Aircraft Act

1999 (Cth) s 4 (Austl.). Defence Force Aircraft are also excluded. Id. s 9(2).

198

Id. s 9(4)(b). The Act also applies to air navigation in or to or from Austra-

lian territories, and to aircraft engaged in international air navigation, or in trade

or commerce internationally, or amongst the Australian states, or to aircraft land-

ing at or taking off from places held by the Commonwealth. Id. s 9(4)(c); Stew-

art, supra note 86, at 8.

199

Australian Constitution s 51 (including corporations (xx), external affairs

(xxix)), overseas and interstate trade and commerce (i), and matters incidental

to any of the Commonwealth’s powers (xxxix)).

330 JOURNAL OF AIR LAW AND COMMERCE [87

ments.

200

An aircraft is defined as “any 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.”

201

An RPA would thus be classified as an aircraft and be subject to

the DAA. However, recreational model aircraft are excluded.

202

b. In Flight

Drones are classified as “power-driven aircraft [which are]

heavier than air” and accordingly will be “in-flight from the mo-

ment when power is applied for the purpose of take-off until the

moment when [the] landing run ends.”

203

c. Surface Damage

Surface damage occurrences are those where “a person or

property on, in, or under land or water suffers personal injury,

loss of life, material loss, damage, or destruction” caused by any

of the following:

(a) an impact with an aircraft . . . in flight

204

. . . ; or

(b) an impact with part of an aircraft that was damaged or de-

stroyed while in flight;

205

from an aircraft in flight;

206

(d) something that is a result of an impact of a kind mentioned

in [the preceding list].

207

While the most basic kind of contemplated incident of a

drone motor failure leading to a crash and surface damage

would clearly be covered by the DAA, scenarios where the injury

200

Airlines of N.S.W. Pty Ltd v New South Wales [No. 2] (1965) 113 CLR 54

(Austl.); Ronald IC Bartsch, Commentary, Statutory Provisions Affecting Surface

Damage Liability, in T

AWS OF

USTRALIA

para 34.2.7010 (2020) [hereinafter

Bartsch Commentary]. For example, it would not apply to RPAs operated by nat-

ural persons, unincorporated associations, or partnerships engaged in commer-

cial activities within state borders.

201

Civil Aviation Act 1988 (Cth) s 3 (Austl.). A similar definition appears in

other statutes, such as the Air Navigation Act 1920 (Cth) s 3(1) (Austl.).

202

Damage by Aircraft Act 1999 (Cth) s 4 (Austl.). However, in some states and

territories, it may be that all drones are subject to the legislation, including recre-

ational units, depending on the definition of “aircraft” adopted. See Stewart, supra

note 86, at 16–17.

203

Damage by Aircraft Act 1999 (Cth) s 5(2) (Austl.) (alteration in original).

204

Id. s 10(1)(a) (alteration in original).

205

Id. s 10(1)(b).

206

Id. s 10(1)(c).

207

Id. s 10(1)(d) (alteration in original).

2022] PREDICTING BEARING FAULT 331

or damage was not caused by the impact of the crash itself raise

more complex legal issues. This involves an examination of the

legal scope of damage. As Stewart points out, difficulty may arise

in the definition of the scope of damage because of the differ-

ences between the Commonwealth and state enactments of the

DAA.

208

In NSW, Tasmania, Victoria, and Western Australia, 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 air-

craft.

209

Thus, all that is required is direct causation of damage

by an aircraft in flight. The Acts also expressly extend to “take

off” and “landing,” which seemingly enlarges the temporal am-

bit of these provisions.

210

However, in the Queensland and South Australia provisions,

similar to the Commonwealth provisions, because damage must

follow some impact, liability applies to a narrower range of inci-

dents.

211

South Australia also excludes damages during agricul-

tural purposes, firefighting, pollutant dispersal, and similar

operations, leaving any injury caused by the specified activities

to be subject to common law principles.

212

2. State Legislation–Scope of Damage

The distinction between the scope of damage contemplated

by the legislation is demonstrated in case law. The NSW law was

applied in Southgate v Commonwealth when a plaintiff riding a

horse along the beach was injured by a helicopter that hovered

over her.

213

The crew sought to get a better view to observe her,

which startled the horse and caused the plaintiff to be thrown

off and dragged along the ground as her right foot was caught

in the stirrup.

214

The plaintiff sued for damages, alleging negli-

gence and entitlement to damages under the Damage by Aircraft

Act 1952,

215

and was awarded $500,000.

216

208

Stewart, supra note 86, at 10.

209

Civil Liability Act 2002 (NSW) s 73(1) (Austl.); Damage by Aircraft Act 1963

(Tas) s 4(1) (Austl.); Wrongs Act 1958 (Vic) s 31(1) (Austl.); Damage by Aircraft Act

1964 (WA) s 5(1) (Austl.).

210

Bartsch Commentary, supra note 200.

211

Air Navigation Act 1937 (Qld) s 16 (Austl.); Civil Liability Act 1936 (SA)

s 61(5) (Austl.).

212

Civil Liability Act 1936 (SA) s 61(5) (Austl.).

213

Southgate v Commonwealth (1987) 13 NSWLR 188, 189 (Austl.).

214

Id.

215

Note that this Act has since been subsumed into the Civil Liability Act 2002

(NSW) s 73 (Austl.).

332 JOURNAL OF AIR LAW AND COMMERCE [87

The defendant argued that due to the plaintiff’s share in the

responsibility of damage, the court was required to treat the

plaintiff’s claim as contributory negligence in order to properly

assess the qualities of the defendant’s act.

217

Justice Brownie re-

jected the claim and held that the test for liability under the

DAA is “direct causation” of damage on the surface by an air-

craft in flight rather than a direct impact.

218

Justice Brownie fur-

ther stated:

“[T]he rationale behind the Damage by Aircraft Act is based

wholly on fairness, considering the inequality between the par-

ties where one is wholly at the risk of the other, and has not even

voluntarily exposed himself to the risks[.]”

219

In relation to drones, an analogous argument can be made

that a similar nexus of inequality exists between the drone oper-

ator and a civilian on the ground who has not voluntarily ex-

posed themselves to the risks of a drone flying overhead.

Regarding the scope of damage, the reasoning in Southgate v

Commonwealth is likely to apply under the NSW DAA, widening

the ambit of liability to include indirect damage.

3. Commonwealth Legislation–Scope of Damage

In comparison, the first Commonwealth test of the Common-

wealth DAA’s scope was in ACQ Pty Ltd v Cook; Aircair Moree Pty

Ltd v Cook (Cook), where the NSW District Court,

220

NSW Court

of Appeal,

221

and the High Court

222

considered the nature of

the causal link required between the impact of an aircraft and

the resulting damage to a person on the ground. In Cook, the

defendant’s aircraft collided with a power line, dealing damage

to the pole and causing it to hang 1.5 meters off the ground.

223

The plaintiff was sent to repair the power line but was electro-

cuted from an electrical arc after he accidentally fell onto wet

ground.

224

216

Southgate, 13 NSWLR at 191 (Austl.).

217

Id. at 189.

218

Id.

219

Id. at 191 (alteration in original).

220

Cook v Aircare Moree Pty Ltd [2007] NSWDC 164 (Austl.).

221

ACQ v Cook; Aircair Moree v Cook; Cook v Country Energy; Country Energy v

Cook [2008] NSWCA 161 (Austl.).

222

ACQ Pty Ltd v Cook; Aircair Moree Pty Ltd v Cook [2009] HCA 28 (Austl.)

(joint decision delivered by the bench comprising French CJ, Gummow, Heydon,

Crennan, and Bell JJ).

223

Id. at para 1.

224

Id.

2022] PREDICTING BEARING FAULT 333

The aviation defendants argued the plaintiff’s injuries fell

outside the scope of the Commonwealth DAA because “‘some-

thing that is a result of an impact’ . . . should be construed as

being a thing (for example, a fire or a collapse of a building)

which ‘has an immediate (or reasonably immediate) temporal,

geographical and relational connection with an impact.’”

225

The

High Court rejected this argument and instead took a broader

reading stating, “[t]he injury was caused by the dangerous posi-

tion of the conductor, and its dangerous position was the result

of an impact between the aircraft and it.”

226

Thus, while the NSW and Commonwealth legislation differ se-

mantically on the scope of damage, it seems that the interpreta-

tion by courts on construction reaches analogous conclusions.

As Stewart points out, the Commonwealth causation require-

ment, as interpreted by the High Court in Cook, would encom-

pass most conceivable instances of damage by RPA on the

ground and would include both direct damage and potentially

indirect damage from the impact.

227

The High Court also emphasized that “[m]ost cases on

s 10(1) are likely to be intensely fact-specific.”

228

In the course of

illustrating the scope of the provision, the defendants posited a

scenario where a plane explodes on landing and sets a nearby

structure on fire, causing death or injury to a plaintiff and prop-

erty damage to their house.

229

The defendants argued that while

a firefighter as an urgent rescuer would be protected by the

scope of the legislation, a linesman who came to address the

danger precisely “because of their skills, experience and posi-

tion, occupation, in order to repair or rectify that dangerous

position where there is no peril to another person” would not

be within the legislation’s scope.

230

The High Court rejected this

and found that there clearly was the presence of a peril to an-

other person.

231

The damaged conductor pole in this case posed

a danger to agricultural workers and others in the area.

232

In a

similar vein, a drone crash can be the catalyst for major losses,

225

Id. at para 10.

226

Id. at para 18.

227

Stewart, supra note 86, at 12.

228

ACQ Pty Ltd v Cook; Aircair Moree Pty Ltd v Cook [2009] HCA 28 para 14

(Austl.) (alteration in original).

229

Id. at para 15.

230

Id.

231

Id. at para 16.

232

Id.

334 JOURNAL OF AIR LAW AND COMMERCE [87

such as the sparking of fires or explosions, and in such a circum-

stance a court may rely on similar logic to hold a drone operator

liable for generating peril to persons beyond the impact.

233

Thus, where a drone bearing failure causes a crash onto a

property, inciting a perilous situation, any casualties that result

from the situation can give rise to a strict liability claim under

Damage by Aircraft legislation. Additionally, under the Com-

monwealth DAA, if the plaintiff was contributorily negligent, lia-

bility will still be imputed but subject to limitations on

damages.

234

Even if the chances of the drone bearing failure

were minuscule, or the cause was due to a third party, fault will

still lie with the RPA operator. The only way to avoid liability

under Damage by Aircraft legislation is to prevent the injury or

damage from occurring in the first place. This is a highly oner-

ous standard of care that highlights the importance of a system

like condition monitoring, which may be the only way to prevent

such damage.

This raises questions about whether the current statutory

framework is appropriate. Applying the Damage by Aircraft leg-

islation without specific recognition and amendment for drones

may generate unfair outcomes for operators. The most obvious

scenario is when the crash is caused by an inherent defect, at no

fault of an otherwise compliant operator. The operator can still

be held accountable, and in cases where the manufacturer’s sol-

vency is questioned, the operator is a natural target for the re-

covery of damages. The manufacturer, the operator, the

operator’s employer, and the owner are all possible defendants.

This provides a strong legal impetus for the operator to use

drone motor bearing condition monitoring technology to

preemptively prevent the harm from materializing at all.

4. Psychiatric Injury

The Commonwealth Act only covers consequential psychiatric

injury. This means that the person is only compensated for psy-

chiatric injury if the person suffering from the psychiatric harm

first suffers physical loss or damage.

235

South Australia mirrors

the Commonwealth Act and thus would also require a plaintiff

to bring a cause of action in the common law for a purely

233

Thompson et al., supra note 28, at 4.

234

Damage by Aircraft Act 1999 (Cth) s 11A (Austl.). Note, however, strict liabil-

ity will not apply in NSW, Victoria, WA, and Tasmania. See infra Section IV.B.

235

Id. at s 10(1A).

2022] PREDICTING BEARING FAULT 335

mental injury.

236

However, in other states and territories, purely

mental harm may be claimed under strict liability Damage by

Aircraft legislation.

237

5. Pure Economic Loss

Recovery for solely economic loss is recovery for economic

losses not causally consequential upon damage or loss of tangi-

ble property. This would refer, for example, to loss of business

because of a failure of delivery. It has been suggested that the

terminology in section 10(1)(a), stating that “an impact with an

aircraft that is in flight, or that was in flight immediately before

the impact happened,”

238

would mean that pure economic loss

is probably outside the scope of the Commonwealth provi-

sions.

239

This would also preclude South Australia, which applies

the Commonwealth provisions.

240

While the scope of damage is

broader in the other states and territories, direct causation is

still required, which suggests that purely economic loss will be

excluded.

6. Trespass or Nuisance

In certain states, the act of only flying an aircraft (mere flight)

over a property does not constitute trespass or nuisance, so long

as the aircraft is flown in compliance with the Air Navigation Reg-

ulation 2016 and at a reasonable height with regard to the wind,

weather, and other circumstances.

241

This provision would not apply where a bearing failure leads

the drone or drone part to fall to the ground because this is

236

Stewart, supra note 86, at 14.

237

See Civil Liability Act 2002 (NSW) s 73(1) (Austl.); Damage by Aircraft Act 1963

(Tas) s 4(1) (Austl.); Wrongs Act 1958 (Vic) s 31(1) (Austl.); Damage by Aircraft Act

1964 (WA) s 5(1) (Austl.). For limitations on recovery for mental injury, see Civil

Liability Act 2002 (NSW) pt 3 (Austl.); Civil Liability Act 2002 (Tas) pt 8 (Austl.);

Civil Liability Act 1936 (SA) s 33 (Austl.); Wrongs Act 1958 (Vic) pt XI (Austl.);

Civil Liability Act 2002 (WA) s 5S (Austl.); Civil Law (Wrongs) Act 2002 (ACT)

pt 3.2 (Austl.).

238

Damage by Aircraft Act 1999 (Cth) s 10(1)(a) (Austl.).

239

Bartsch Commentary, supra note 200.

240

Civil Liability Act 1936 (SA) s 61(1)–(3) (Austl.).

241

Air Navigation Regulation 2016 (Cth) (Austl.) (for example, licensing and

timetable approval). See, e.g., Civil Liability Act 2002 (NSW) s 72 (Austl.); Civil

Liability Act 1936 (SA) s 62 (Austl.); Damage by Aircraft Act 1963 (Tas) s 3 (Austl.);

Wrongs Act 1958 (Vic) s 30 (Austl.); Damage by Aircraft Act 1964 (WA) s 4 (Austl.).

There are no equivalent provisions in the Australian Capital Territory, the North-

ern Territory, or Queensland. Such provisions are common and virtually identi-

cal throughout Australia and other Commonwealth countries.

336 JOURNAL OF AIR LAW AND COMMERCE [87

outside the scope of mere flight.

242

Thus, “where damage was

done to any persons on the ground, the owner of the offending

aircraft would be liable without forcing the injured person to

prove negligence” or nuisance.

243

Where there is only noise, a creative argument can be made

that the impact of noise and vibrations may cause personal in-

jury or property damage by way of “something that is a result” of

such an impact, even if not directly.

244

For example, one such

impact may exist where the delivery drone in the course of its

descent generates strong noise or vibrations due to a dysfunc-

tional motor, and startles a person or even a nervous pet into

causing damage. However, complying with relevant regulations

and noise certifications would nullify any cause of action.

245

Be-

cause noncompliance with these regulations would be relatively

rare by a prudent operator, very few instances of aircraft noise

or vibration may be actionable even when physical damage oc-

curs.

246

A bearing monitoring device would make such an occur-

rence even rarer because any motor issue can be resolved as it

happens. In these circumstances, aggrieved plaintiffs will need

to turn to the common law torts of negligence, trespass, or nui-

sance to litigate their claims.

247

7. Damaged Goods

Strict liability does not extend to people or goods onboard

the aircraft, but other legislation deals with this.

248

Thus, a bear-

242

See Glen v. Korean Airlines Co. Ltd. [2003] EWHC 643 (QB) [6], [8]

(Eng.).

243

Id. at [29].

244

Noise and vibrations may also give rise to a claim in nuisance. See infra Part

VIII.

245

Bartsch, supra note 200.

246

Id. at para 34.2.7050.

247

See infra Part V.

248

See Civil Aviation (Carriers’ Liability) Act 1959 (Cth) ss 28–29 (Austl.). The

Commonwealth Act applies to the Australian Capital Territory and the Northern

Territory. Id. s 7(1). Complementary legislation in the various States applies the

following Commonwealth provisions: Civil Aviation (Carriers’ Liability) Act 1967

(NSW) s 5 (Austl.); Civil Aviation (Carriers’ Liability) Act 1964 (Qld) s 5 (Austl.);

Civil Aviation (Carriers’ Liability) Act 1962 (SA) s 6 (Austl.); Civil Aviation (Carriers’

Liability) Act 1963 (Tas) s 5 (Austl.); Civil Aviation (Carriers’ Liability) Act 1961 (Vic)

s 5 (Austl.); Civil Aviation (Carriers’ Liability) Act 1961 (WA) s 6 (Austl.). See also

Leith v Medhurst [1991] 2 VR 362, 365–66 (Austl.) (citing Steel-Maitland v. Brit.

Airways Bd. (1981) SLT 110, 110–112 (Scot.)); Compensation for Damages & Loss,

USTRALIAN

OMPETITION

& C

ONSUMER

OMM

’

, https://www.accc.gov.au/con

sumers/consumer-rights-guarantees/compensation-for-damages-loss#what-com

pensation-is-covered- [https://perma.cc/W263-HTFL].

2022] PREDICTING BEARING FAULT 337

ing failure that causes damage to cargo would require a claim

under the Australian Consumer Law to recover the cost of goods

lost in transit.

B. D

AMAGES

Damages can be recovered against all owners, pilots, and op-

erators of the aircraft involved immediately before the impact

occurred.

249

They are jointly and severally liable,

250

except

where there is a lease or agreement.

251

A person using an air-

craft is taken as its “operator” unless the person authorizing

such use retains control over navigating the aircraft.

252

State and

territorial occupational health and safety laws also apply to

drone operators.

253

While Cook held the defense of contributory negligence was

not available due to a lack of clarity in the law, an amendment

now allows contributory negligence to reduce amounts of com-

pensation.

254

In NSW, Western Australia, Tasmania, and Victo-

ria, state provisions exclude claims from Damage by Aircraft

legislation where the plaintiff was negligent.

255

Claimants in

these states would have to bring a claim in common law and face

the possibility of a contributory negligence defense.

256

The court in Cook held that limitations on damages also ap-

ply.

257

Part 2 of the Civil Liability Act 2002 (NSW) applies to all

awards of personal injury damages whether “brought in tort, in

249

In the event of a collision between two or more aircraft in flight, liability

applies to each of the aircraft. Damage by Aircraft Act 1999 (Cth) s 10(4) (Austl.).

250

Id. s 10(2).

251

Id. s 10(2A)(c)(i).

252

Id. s 6.

253

See, e.g., Work Health Auth v Outback Ballooning Pty Ltd (2019) HCA 2, para 60

(Austl.).

254

Aviation Legislation Amendment (Liability and Insurance) Act 2012 (Cth) s 6

(Austl.), which inserted s 11A titled “Contributory negligence” into Damage by

Aircraft Act 1999 (Cth) (Austl.). See also ACQ v Cook; Aircair Moree v Cook; Cook v

Country Energy; Country Energy v Cook [2008] 72 NSWLR 161, para 212 (Campbell,

JA.).

255

Civil Liability Act 2002 (NSW) s 73(1) (Austl.); Damage by Aircraft Act 1963

(Tas) s 4(1) (Austl.); Damage by Aircraft Act 1964 (WA) s 5(1) (Austl.); Wrongs Act

1958 (Vic) s 31(1) (Austl.);

ICTORIAN

OMPETITION

& E

FFICIENCY

OMM

’

, A

D-

JUSTING THE

ALANCE

: I

NQUIRY INTO

SPECTS OF THE

Wrongs Act 1958, at 114

(2014), https://www.dtf.vic.gov.au/sites/default/files/2018-02/adjusting-the-bal

ance-inquiry-into-aspects-of-the-wrongs-act-1958.pdf [https://perma.cc/A76T-

QKAZ].

256

Stewart, supra note 86, at 13–14.

257

Cook, 72 NSWLR at 350 para 109.

338 JOURNAL OF AIR LAW AND COMMERCE [87

contract, under statute or otherwise;”

258

this also applies to

other states except South Australia.

259

Currently, while there is some uncertainty in a DAA claim de-

pending on the state the claim is based in, the Australian gov-

ernment has emphasized that, in the future, it aims to

coordinate across the Commonwealth, State, and Territory gov-

ernments to achieve a nationally consistent approach.

260

V. NEGLIGENCE

While a drone equipped with a bearing monitoring device

that crashes might well create strict liability, the device would be

useful in fault-based torts such as negligence or nuisance. It can

be used as evidence of reduced fault, showing that the operator

or manufacturer had taken reasonable steps to prevent a known

risk from materializing.

A plaintiff who has suffered personal injury or damage to

property will likely turn to the tort of negligence. Negligence is

a broad right of redress for harm caused by a failure to take

reasonable care when a person owes a duty of care to someone

whom it is reasonably foreseeable may be harmed by the first

person’s act or omission.

261

To succeed, plaintiffs need to show

that the defendants owed them a duty of care, which they

breached, and that the breach caused harm to the plaintiffs.

262

Each element will be addressed in turn.

A. D

UTY OF

ARE

First, a plaintiff must establish that a duty of care was owed by

the defendant to a class of persons of which the plaintiff be-

longs.

263

In personal injury and death cases, it is relatively easy to

establish a duty exists if it was reasonably foreseeable that a per-

son in the plaintiff’s position might be harmed by the defen-

dant’s actions or failure to act.

258

Civil Liability Act 2002 (NSW) s 11A (Austl.).

259

Civil Liability Act 2003 (Qld) s 50 (Austl.); Wrongs Act 1958 (Vic) ss 28C,

28LC (Austl.); Civil Liability Act 2002 (WA) s 6 (Austl.); Civil Law (Wrongs) Act

2002 (ACT) s 93 (Austl.); Personal Injuries (Liabilities and Damages) Act 2003 (NT)

pt. 4 (Austl.); Civil Liability Act 1936 (SA) s 51 (Austl.); Civil Liability Act 2002

(Tas) s 24 (Austl.).

260

OLICY

SSUES

, supra note 18, at 54.

261

Perritt, Jr., supra note 17, at 24.

262

Id. at 23.

263

Chapman v Hearse (1961) 106 CLR 112, 121 para 6 (Austl.).

2022] PREDICTING BEARING FAULT 339

In the event of an RPA crash, possible defendants might in-

clude the operator, the owner, the manufacturer, the distribu-

tor, the person responsible for maintenance, and possibly the

designer. Where that crash is caused by a bearing failure, this

Article focuses on the two most likely parties an aggrieved plain-

tiff may litigate against: the RPA operator and the RPA

manufacturer.

1. Operator

In the Cook cases, the NSW Court of Appeal recognized that

the pilot “may have owed a duty to people on the ground who

might be injured if the plane or anything dropped from it struck

them or caused them to injure themselves while taking evasive

action.”

264

They also recognized that it is reasonably foreseeable

that an aircraft pilot flying a plane in a fashion that could pull

down a power line would bring repairpersons to the scene who

could then injure themselves.

265

However, it was not reasonably

foreseeable that the “power authority would send a person who

was not properly trained, experienced, and capable of protect-

ing [themselves].”

266

No duty was imposed in the latter

circumstance.

Where a falling delivery drone causes physical injury from the

negligent act of an operator, in the absence of specific authority

or precedent, general principles of negligence apply.

267

Apply-

ing these involves determining whether the risk of injury was

reasonably foreseeable and whether the “salient features”

268

the case lend themselves to a duty being established.

269

In this

case, a duty likely exists because there is clearly foreseeable risk

of harm to people or property on the road if the drone malfunc-

tions in the course of performing its delivery operations in some

way. Some salient features would also favor a duty of care given

the vulnerability of potential plaintiffs on the ground,

270

the de-

gree of control by a defendant operator,

271

and the policy con-

264

ACQ v Cook; Aircair Moree v Cook; Cook v Country Energy; Country Energy v Cook

[2008] NSWCA 161, 337 para 99 (Campbell, JA.).

265

Id. at 338 para 101.

266

Id. (alteration in original).

267

See, e.g., Donoghue v. Stevenson [1932] AC 562 (HL) 564 (appeal taken

from Scot.) (UK).

268

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 para 149 (Austl.).

269

Chapman v Hearse (1961) 106 CLR 112, 121 para 6.

270

See Perre v Apand Pty Ltd [1999] HCA 36 para 15 (Austl.).

271

Graham Barclay Oyster Pty Ltd V Ryan [2002] HCA at para 20.

340 JOURNAL OF AIR LAW AND COMMERCE [87

siderations to hold negligent operators and manufacturers

accountable for their actions. The counterargument is that op-

erators have a restricted range at which a drone is controllable,

and beyond that range, it is not controlled by anyone.

272

For

autonomous drones, the question of control may be an entirely

different matter. In that case, it will probably be a matter of the

manufacturer’s negligence rather than the negligence of the

operator.

273

2. Manufacturer

In 1932, the court in Donoghue v Stevenson

274

found a duty of

care existed between the manufacturer and consumer. This is

also known as product liability. A duty of care is not restricted to

only the ultimate consumer or user but extends to “innocent

bystanders”—i.e., “everyone within the foreseeable range of the

product’s harmful effects.”

275

For example, like how a manufac-

turer of a defective car owes a duty to road users,

276

car repair-

ers,

277

and any person endangered within “the vicinity of its

probable use;”

278

a drone manufacturer would similarly owe a

duty of care to civilians on the ground to manufacture an air-

worthy drone. Otherwise, it is reasonably foreseeable that a de-

fective RPA may cause bodily harm, property damage, or

economic loss to users or people struck by it during use.

Product liability is also not restricted only to the original man-

ufacturer of goods. Other parties in a supply chain, whether it

be suppliers, importers, distributors, or maintenance organiza-

tions, can owe a duty of care to all foreseeable persons affected

by the aircraft.

279

In the case of aviation motor bearings, liability

most often arises from negligent maintenance.

280

For instance,

272

Perritt, Jr., supra note 27, at 69.

273

See infra Section V.C.

274

Donoghue v. Stevenson [1932] AC 562 (HL) 564 (appeal taken from Scot.)

(UK).

275

LEMING

’

AW OF

ORTS

557 (Carolyn Sappideen & Prue Vines eds.,

10th ed. 2011).

276

Stennett v. Hancock [1939] 2 All ER 578 (KB) (Eng.); Marschler v. G.

Masser’s Garage, [1956] 2 D.L.R. (d) 484, para 12 (Can. Ont. H.C.).

277

Hobbs Mfg. v. Shields, [1962] S.C.R. 716, 718 (Can.). But see Daley v Gypsy

Caravan Co Pty Ltd [1966] 2 NSWR 22, 29 (Austl.) (deciding that the car re-

pairer’s injury from the manufacturer’s mistake was not foreseeable).

278

LEMING

’

AW OF

ORTS

, supra note 275, at 557.

279

See B

ARTSCH

, supra note 91, at 490.

280

See id.

2022] PREDICTING BEARING FAULT 341

in Cifuentes v Fugro Spatial Solutions,

281

an aeronautical engineer

appointed by CASA incorrectly advised that a sleeve bearing

could be replaced with aluminum bronze alloy, which led the

engine to fail and the plane to crash.

282

The court found a duty

was owed to the passengers of the aircraft because it was reason-

ably foreseeable that using an unsuitable alloy and unsatisfactory

finish would increase the risk of bearing failure, endangering

the aircraft passengers.

283

However, while a manufacturer can owe duties to a wider class

of persons, not everyone who is injured is necessarily within the

class of “neighbor.”

284

For example, in Daley v Gypsy Caravan

Co,

285

no duty of care was found between the manufacturer and

a qualified electrician who was electrocuted by a copper pipe in

a caravan after the repairman exercised an error of judgment.

While it could be expected for an electrician to interact with the

copper pipe, the manufacturer could not have reasonably antici-

pated that the plaintiff would choose to incur the “risk of mis-

chance” during his repair attempt.

286

No duty was found in

those circumstances. By a similar stream of logic, a repairperson

sent to repair a crashed drone who does not wear gloves and is

consequently electrocuted would likely not be captured within

the manufacturer’s duty of care.

287

B. B

REACH

Having established that a duty of care exists and is owed to

citizens on the ground, the next step is considering whether that

duty is breached when a drone falls to the ground and causes

damage. It is this element of breach that provides the strongest

legal rationale for using a bearing monitoring device. The

proper use of a device can provide a compelling argument that

the operator or manufacturer was endeavoring to meet the rea-

sonable standard of care that was required of them.

To establish that a breach has occurred, it must be established

that the defendant fails to respond like a reasonable person

281

Cifuentes v Fugro Spatial Sols Pty Ltd [2009] WASC 316 (Austl.).

282

Id. at paras. 1, 276-78.

283

Id. at paras. 278-279.

284

Daley v Gypsy Caravan Co Pty Ltd [1966] 2 NSWR 22, 26 (Austl.); ACQ Pty Ltd

v Cook; Cook v Country Energy; Country Energy v Cook [2008] 72 NSWLR 318, 335,

para. 87. See Grant v Australian Knitting Mills Ltd [1936] AC 85, 104-05 (Austl.).

285

Daley, 2 NSWR at 22.

286

Id. at 28–29.

287

Contributory negligence would also be a factor to consider.

342 JOURNAL OF AIR LAW AND COMMERCE [87

would to a foreseeable risk or injury.

288

Determining the proper

response requires weighing the likelihood of the harm, gravity

of harm, ease of avoiding harm, and other issues.

289

Failure to

act like the reasonable person will mean that breach is

proven.

290

Matters that are likely to be regarded as breaches

would include failure to properly maintain bearings and failure

to keep a proper lookout when piloting the aircraft.

In the case of RPAs, the risk of harm is also likely to be not

insignificant. This is a question of the probability of the risk

eventuating, not the magnitude of the resulting harm.

291

Re-

search has emphasized that generally drones are not very relia-

ble systems.

292

One study found RPA mishaps happen at a rate

100 times higher than crewed aircraft, with fifty percent being

attributed to aircraft failure.

293

It is submitted that an operator or manufacturer using a

drone bearing monitoring device has substantially more

favorable chances of discharging their duty of care than an en-

tity that is not using this device when a bearing-related incident

occurs. First, while the consequence of an airborne drone fall-

ing on someone or something due to a bearing fault could in-

deed be reasonably foreseeable, with the installation of a drone

bearing monitoring device, the probability of it happening from

a one-off flight could become so improbable that it would not

be reasonable to do anything about it.

294

288

Civil Liability Act 2002 (NSW) s 5B(1)(a) (Austl.); Civil Liability Act 2003

(Qld) s 9(1)(a) (Austl.); Civil Liability Act 1936 (SA) s 32(1)(a) (Austl.); Civil

Liability Act 2002 (Tas) s 11(1)(a) (Austl.); Wrongs Act 1958 (Vic) s 48(1)(a)

(Austl.); Civil Liability Act 2002 (WA) s 5B(1)(a) (Austl.); Civil Law (Wrongs) Act

2002 (ACT) s 43(1)(a) (Austl.).

289

Civil Liability Act 2002 (NSW) s 5B(2) (Austl.).

290

Id. s 5B(1)(c). Traditionally under common law, a foreseeable injury is not

far-fetched or fanciful. Wyong Shire Council v Shirt (1980) 146 CLR 40, paras.

13–15 (Austl.).

291

Benic v New South Wales [2010] NSWSC 1039, para 101(c) (Austl.).

292

Yap, supra note 20, at 3; see also Wild et al., supra note 35, at 1–2.

293

Alberto Susini, A Technocritical Review of Drones Crash Risk Probabilistic Conse-

quences and Its Societal Acceptance, in 7 L

ECTURE

OTES IN

NFORMATION

CIENCES

ISK

NFORMATION

ANAGEMENT

, R

ISK

ODELS

AND

PPLICATIONS

27, 29 (2015),

https://www.researchgate.net/profile/Alberto-Susini-2/publication/291697791

_A_Technocritical_Review_of_Drones_Crash_Risk_Probabilistic_Consequences_

and_its_Societal_Acceptance/links/56a5365a08ae232fb207a641/A-Technocriti

cal-Review-of-Drones-Crash-Risk-Probabilistic-Consequences-and-its-Societal-Ac

ceptance.pdf [https://perma.cc/UU52-KAYN].

294

Bolton v. Stone [1951] AC 850 (HL) (Eng.).

2022] PREDICTING BEARING FAULT 343

The counterargument to this would be that everyday fleets of

delivery drones, operating beyond the line of sight or over

densely populated neighborhoods and cities, would amplify the

probability of such an incident beyond merely a remote risk.

295

Yet again, the addition of a bearing condition monitoring device

would reduce the likelihood of this scenario. Assuming the

monitoring device does not fail, it is far less probable for a

drone aircraft to experience catastrophic failure and fall. Using

such a device could provide persuasive evidence that the opera-

tor or manufacturer sought to meet the standard of reasonable

care during a bearing-related incident.

Second, the drone bearing condition monitoring system can

reduce the gravity of harm from a falling freight drone. For

freight drones, the seriousness of harm is high, not just from

their larger size but also from their cargo.

296

For certain drones,

a condition monitoring device may reduce an excessive alloca-

tion of weight to redundancy systems, lowering the weight of the

RPA and the potential gravity of harm it can cause.

297

For lighter

drones, CASA has itself acknowledged that micro-RPAs have low

kinetic energy and pose little risk to people and property.

298

Some scholars also share this view, finding it difficult to imagine

how a crash of smaller drones, such as survey RPAs, could cause

serious injury.

299

Nonetheless, other academics have rebutted that argument

on the basis that the kinetic force generated from even a small

drone falling from a height of up to 120 metres (400 feet) can

cause significant damage.

300

Further, the sharp edges on the

propellers can cause “more substantial physical and mental

trauma than the drone’s mass and velocity alone suggest.”

301

Cit-

izens are also more vulnerable to injuries from above them as it

is hard to see the falling object, and there will be less time to

take evasive action.

302

These innate characteristics of drones sug-

295

Perritt, Jr., supra note 27, at 65–66.

296

ODGKINSON

& J

OHNSTON

, supra note 12, at 25.

297

Perritt, Jr., supra note 27, at 46.

298

USTL

. C

. A

VIATION

AFETY

UTH

., N

OTICE OF

ROPOSED

ULE

AKING

(1309OS): R

EMOTELY

ILOTED

IRCRAFT

YSTEMS

3.1.2 (2014); Terry Farquharson,

CASA Deputy Director of Aviation Safety, Speech at the Sir Richard Williams

Foundation Seminar, Canberra: UAVs (Drones) in Civil Airspace and Challenges

for CASA (July 3, 2013).

299

Perritt, Jr., supra note 27, at 64–65.

300

Stewart, supra note 86, at 7.

301

Clarke & Moses, supra note 23, at 264; Perritt, Jr., supra note 27, at 69.

302

Clarke & Moses, supra note 23, at 264.

344 JOURNAL OF AIR LAW AND COMMERCE [87

gest a certain seriousness of harm is unavoidable. In this case,

preemptive detection with bearing monitoring to prevent harm

remains the best legal avenue for avoiding liability.

Third, a defendant can argue that there would be an undue

burden in taking any further steps to avert the foreseeable harm

of a drone falling. This element is often compared with the mag-

nitude of the harm, so cases often hold defendants liable where

the risk of harm is high but actions to avoid them are not overly

burdensome.

303

Installing a drone bearing condition monitor-

ing system shows a defendant has actively taken steps to prevent

harm from a bearing fault. Courts may then consider that any

further precautions may make drones prohibitively expensive

and defeat their commercial purpose.

304

An argument could also be made that no technology is abso-

lutely reliable and extremely rare mechanical failures should be

treated in the same way as “Acts of God”—being environmental

incidents such as severe turbulence and lightning—which are

foreseeable but unpreventable.

305

However, it is unlikely that

this argument would be accepted without weighing up all the

other factors mentioned.

Finally, there is social utility in delivery drones being allowed

to operate without overbearing restrictions. Drone-based deliv-

ery can generate substantial social utility by reducing economic

costs, lowering emissions, and even potentially saving lives

through just-in-time healthcare deliveries.

306

Wing has proven it

can successfully and effectively transport the likes of meals, gro-

ceries, medicines, and even heavier items such as spare car

parts.

307

This utility was particularly pronounced during the

COVID-19 pandemic, with Wing drones seeing a 500% increase

in use from February to April in 2020.

308

Condition monitoring

of drones can ensure the efficient operation of these fleets while

303

Haileybury Coll. v Emanuelli [1983] 1 Vic 323 (Austl.); see also Romeo v Conser-

vation Comm’n of The Northern Territory (1998) 192 CLR 431, paras. 50, 69 (Austl.);

Roads & Traffic Auth of NSW v Dederer (2007) 234 CLR 330, para 3 (Austl.).

304

NST

FOR

EGAL

EFORM

, supra note 49, at 2–3.

305

Clarke & Moses, supra note 23, at 264.

306

Oosedo et al., supra note 3, at 348.

307

About Delivery: Learn About How Wing Delivery Works,W

ING

, https://

wing.com/about-delivery/ [https://perma.cc/SC7Q-2RCD].

308

Sharon Masige, Alphabet’s Drone Delivery Service Wing Has Made ‘Thousands’ of

Deliveries in Australia During the Pandemic,B

. I

NSIDER

USTL

. (May 25, 2020, 1:27

PM), https://www.businessinsider.com.au/alphabets-drone-delivery-service-wing-

has-made-thousands-of-deliveries-in-australia-during-the-pandemic-2020-5

[https://perma.cc/23SV-9LQZ].

2022] PREDICTING BEARING FAULT 345

also minimizing costs and liability through a more precise sys-

tem of maintenance.

1. Operator

Despite the strength of these arguments, it is important to re-

call that RPAs are subject to extensive safety regulations. While a

breach of any statutory or regulatory provision will not in of it-

self necessarily signal liability in a common law determination,

in some circumstances it could.

309

For example, an RPA opera-

tor who flies at night to complete a late delivery when their

CASA permit is only valid for daytime flights could be regarded

as failing a reasonable person’s standard of care which is to com-

ply with regulations.

Consequently, an operator cannot depend exclusively on us-

ing a drone bearing monitoring device or other means of tech-

nology to meet their standard of care. Even if the device is

marketed to be absolutely accurate and the operator wholly re-

lies on such a marketing claim, yet the device fails, the operator

may still be liable for a breach of duty if the operator had failed

in their obligations, such as performing the maintenance at the

level expected of a reasonable operator as required by the regu-

lations.

310

For example, one requirement found in the MOS is

the keeping of a technical log, which records essential informa-

tion relating to the continuing airworthiness of the RPA.

311

Fail-

ure to do so may lead to an outcome as in the Canadian case of

Hawke v. Waterloo-Wellington Flying Club,

312

where aircraft mainte-

nance engineers who failed to exercise reasonable care towards

maintaining accurate logbook records on airworthiness were

found to have breached their duty of care.

313

The County Court

of Ontario stated, “if reasonable care be not exercised, personal

injury or property damage to the aircraft may reasonably be ex-

pected to follow.”

314

309

Tucker v McCann [1948] VLR 222, 225 (Austl.) (explaining that breach of a

statute will not necessarily be evidence of negligence).

310

Civil Aviation Safety Regulations 1998 (Cth) pt. 101.340(1)(c)(i), (1)(e). See

supra Section III.A.

311

See A

DVISORY

& D

RAFTING

RANCH

, L

EGAL

, I

’

& R

EGUL

. A

FFS

. D

., ss

10.07(1)(d), 10.12(2)(b) (Unmanned Aircraft and Rockets) Manual of Standards

2019 (as amended),

. A

VIATION

AFETY

UTH

. (2020).

312

See Hawke v. Waterloo-Wellington Flying Club Ltd. et al. (1971), 22 D.L.R.

3d 266, 272–73 (Can. Ont. Co. Ct. J.).

313

Id. at 272–73.

314

Id. at 266.

346 JOURNAL OF AIR LAW AND COMMERCE [87

In such cases, the standard of care to be applied is a profes-

sional one because engineers exercise special skill and expertise

in their work.

315

This will be treated as a high standard by courts.

For instance, in Cifuentes,

316

the court found that while an engi-

neer advising on the design of a bearing was not considered to

be high risk, the advice was central to the exercise of his exper-

tise as an aeronautical engineer.

317

By providing negligent ad-

vice, his standard of care fell below that of a reasonable design

engineer rendering him liable in negligence.

318

Similar logic applied in Aircraft Technicians of Australia Pty v.

St. Clair.

319

In that case, the plaintiff suffered an aircraft accident

while mustering cattle in a Robinson R22 helicopter due to the

failing of an upper actuator bearing.

320

The plaintiff filed a

claim against the owner of the helicopter, Timtalla Pty Ltd, and

against the operator, the Aircraft Technicians of Australia Pty

Ltd (ATA).

321

The court found that ATA breached their duty

when an employee, Mr. Fisher, installed an incorrect “NTN”

bearing instead of a “Robinson” bearing.

322

The court deter-

mined that Mr. Fisher should have known from his training and

qualifications that the features differed from a specially modi-

fied bearing as designated in a maintenance manual.

323

The

manual also identified personal injury as a risk from failing to

heed the warning against substitution, and Mr. Fisher’s duty of

care extended to investigating the provenance of the bearing.

324

Thus, his failure to do so constituted a breach of duty for

ATA.

325

In the above circumstances, on a practical level, a bearing

monitoring device could have preemptively flagged the bearing

issues before they led to a catastrophic failure. On a legal basis,

the use of such a device could assist an operator in meeting the

reasonable standard of care to ensure an airworthy drone. A log

315

See Rogers v Whitaker (1992) 175 CLR 479, 487 (Austl.) (explaining a similar

principle of ordinary skills of practitioners in the context of medical expertise).

316

Cifuentes v Fugro Spatial Sols. Pty Ltd [2009] WASC 316 (Austl.).

317

Id. at para 296.

318

Id. at paras. 289–296.

319

Aircraft Technicians of Austl Pty Ltd v St Clair; St Clair v Timtalla Pty Ltd [2011]

QCA 188 (Austl.).

320

Id. at paras. 7–8.

321

Id. at para. 1.

322

Id. at paras. 93, 103.

323

Id. at para. 102.

324

Id.

325

Id. at para. 103.

2022] PREDICTING BEARING FAULT 347

of the condition of the drone bearing could be adduced as evi-

dence, and assuming the operator acted in a timely and reasona-

ble manner based on any warnings, a plaintiff will find it more

difficult to refute objective and technical evidence when assert-

ing that operators breached their duty of care.

2. Manufacturer

A drone bearing monitoring device would also assist manufac-

turers in defending against a claim for breach of duty in negli-

gence. A discussion on the liability of manufacturers under the

Australian Consumer Law follows below. In the case of drones,

ignoring the recommendations of CASA can provide evidence

of not meeting the standard of a reasonable manufacturer. For

example, CASA recommends that exteriors of drones have cur-

vatures, that sharp protrusions be avoided, and that design areas

should use energy absorbing materials.

326

However, by designing

drones with in-built condition monitoring systems, manufactur-

ers can turn CASA’s attention to an internal design for safety.

Manufacturers can demonstrate they have not only met the rea-

sonable standard of care within the industry, but they have gone

above the standard.

Presently, such technology is novel and unused, but arguably

greatly needed.

327

Technical data on the reliability of drone

hardware has suggested that RPA operations are most likely to

experience loss of control in flight while cruising.

328

It is also

cruising that poses the greatest danger to people or property on

the ground, given the increase in elevation compared to take-off

or landing and the drone’s operation beyond visual line of

sight.

329

It can be argued that a manufacturer that installs a real-

time bearing monitoring device demonstrates an awareness and

commitment to address the fundamental dangers that have

been flagged by the literature.

Taking a step further, manufacturers that do not install such

technology once it becomes widely available may find it more

326

USTL

. C

. A

VIATION

AFETY

UTH

. & M

ONASH

NIV

., supra note 190, at 25

s 9.2.

327

See Wild et al., supra note 35, at 8 (emphasizing the technology’s stage of

infancy).

328

Id. at 9; see generally Bill Kaliardos & Beth Lyall, Human Factors of Unmanned

Aircraft System Integration in the National Airspace System, in H

ANDBOOK OF

N-

MANNED

ERIAL

EHICLES

2135 (Kimon P. Valavanis & George J. Vachtsevanos

eds., 2015).

329

See Kaliardos & Lyall, supra note 328, at 2138–40.

348 JOURNAL OF AIR LAW AND COMMERCE [87

onerous to disprove a breach of duty. This is because certain

functions of a drone (such as return to home) have matured to

become industry standards, so bearing monitoring devices

might eventually become one as well. This line of legal argu-

ments has had success in the United States where failing to use

appropriate technology can be classified as a breach of duty.

330

In the case T.J. Hooper v. Northern Barge Corp., a tugboat operator

was liable for not equipping his tugboat with radio equipment

so that the crew could obtain current weather reports.

331

During

this time, radio was beginning to proliferate into regular use by

boats.

332

It is noted, however, that proving breach and negligence or

defect in high technology products is extremely challenging

since it often requires expert witnesses, simulations, laboratory

and flight tests, and extensive data analysis to succeed in a

claim.

333

This may preclude most plaintiffs from running a case

with the exception of class actions. However, with Australia’s ro-

bust class action landscape in recent years,

334

there is nonethe-

less a legal rationale for manufacturers to fit their drones with

functional bearing monitoring devices so that the argument of a

drone having inadequate technology cannot be raised in the

first place.

C. C

AUSATION

If breach is established, plaintiffs must then prove that the

negligence caused their injuries (factual causation) and that it is

appropriate to extend liability to the negligent party (legal cau-

sation).

335

In relation to causation, a drone bearing monitoring

device can help track the chain of causation of an incident—

identifying wherein the catastrophic failure, if any, occurred,

and whether it was within the area of responsibility of the manu-

facturer, supplier, maintenance organization, operator, or other

party.

330

Perritt Jr., supra note 27, at 25.

331

T.J. Hooper v. N. Barge Corp., 60 F.2d 737, 740 (2d Cir. 1932).

332

Perritt, Jr., supra note 27, at 25.

333

Id. at 70.

334

Lauren Croft, ‘Record’ Number of Class Actions Filed in FY21,L

AWYERS

EEKLY

(Sept. 26, 2021), https://www.lawyersweekly.com.au/biglaw/32592-record-num-

ber-of-class-action-filed-in-fy21 [https://perma.cc/R3CE-XKKE].

335

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 paras. 41–45 (Austl.)

(referring to Civil Liability Act 2002 (NSW) s 5D(1) (Austl.)). The two-stage pro-

cess is relevant at common law also. See Pledge v Roads & Traffic Auth (2004) 205

ALR 56, 59 para 10 (Austl.).

2022] PREDICTING BEARING FAULT 349

1. Operator

The impact of an RPA falling would be regarded as a neces-

sary condition of causation of injury or property damage. A

court would extend the scope of liability to damage caused by

such an impact.

336

Even in situations where the damage to the

plaintiff is indirect as in Cook—when the repairperson fell when

attempting to repair the 22 kV conductor—the court has been

willing to impute liability on the basis that “but for the impact of

the aircraft on the conductor the plaintiff would not have been

injured.”

337

Legal causation is a normative question which should be an-

swered by a consideration of the “purpose” for which liability is

sought to be imposed as well as relevant policy issues.

338

The

argument that a technical fault of the bearing device amounts to

a novus actus interveniens (an intervening act that breaks the

chain of causation between the negligent act and the impact

causing damage to person or property) is also unlikely to suc-

ceed unless a system fault is clearly not a causally independent

event. Stewart opines that because common law principles focus

on the risk created by the defendant’s negligence and involve

questions of “the very kind of thing likely to happen,”

339

liability

will likely still be imposed.

340

Another area of difficulty is in circumstances where there is

an external interference (possibly with malicious intentions)

where the operator was otherwise complying with regulations.

341

A drone’s GPS may be attacked through “jamming” or “spoof-

ing.”

342

Jamming is when a strong interfering signal is transmit-

ted that makes the drone unable to obtain its position.

343

Meanwhile, spoofing is when fake GPS signals are transmitted

which cause the drone to think it is going in the correct direc-

336

Stewart, supra note 86, at 18–19.

337

ACQ Pty Ltd v Cook; Aircair Moree Pty Ltd v Cook (2009) 237 CLR 656, 665

para 27 (Austl.).

338

Pledge, 205 ALR at 59, para. 10; Wallace v Kam (2013) 250 CLR 375, para. 11

(Austl.).

339

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, 518 (Austl.); Mahony

v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, 529 (Austl.).

340

See, e.g., Allianz Austl Ins. Ltd. v GSF Austl Pty Ltd (2005) 221 CLR 568, para.

65 (Austl.); Travel Comp Fund v Tambree (2005) 224 CLR 627, paras. 31–32

(Austl.).

341

See H

ODGKINSON

& J

OHNSTON

, supra note 12, at 131.

342

Bharat Rao, Ashwin Goutham Gopi & Romana Maione, The Societal Impact of

Commercial Drones, 45 T

ECH

. S

’

83, 86 (2016).

343

Id.

350 JOURNAL OF AIR LAW AND COMMERCE [87

tion when, in fact, it is being misguided.

344

That is, the drone

thinks it is in a location that it is not and so, heads in a direction

other than that intended.

345

This direction would still be cor-

rectly deduced from the internal logic of the drone, but it would

be based on incorrect inputs.

346

In this scenario, a drone crash-

ing or causing damage as a result of the external interference of

a third party raises novel legal questions. These include whether

such an interference would warrant a break in the chain of cau-

sation and to what extent each party—the operator, owner,

manufacturer, or malicious third-party (if they are even identifi-

able)—should be attributed liability in this instance.

These scenarios raise broader considerations of the operation

of tortious liability and whether it is meeting the needs of a rap-

idly evolving society. The challenge of tort law is its focus on

singular responsibility and its failure to properly address dam-

age caused by systemic failure.

347

With today’s context of “open”

robotics, where an original product adopts a modular design

comprising a combination of hardware or software, multiple in-

dependent parties can contribute to an incident.

348

This applies

evidently to drones, which as robots, may be designed, “manu-

factured, assembled, programmed, owned, and operated by dif-

ferent legal persons.”

349

Academics have argued that “[e]xisting provisions of tort law

may or may not include liability through remotely operated ve-

hicles,” which include “not only drones but also driverless cars

and other vehicles.”

350

In recent tort literature, in light of the

rise of autonomous vehicles, Soh criticizes the continuing com-

mitment to frame vehicle accident liability as driver-centric.

351

similar logic persists in aviation, where following a crash, the fo-

cus of liability is generally first drawn to the pilot. Instead, Soh

advocates that a control-centric approach to determining liabil-

ity is not only possible but consistent with the tests for liability

344

See id.

345

See id.

346

See id.

347

See Clarke & Moses, supra note 23, at 270.

348

Id.

349

Id.

350

Storr & Storr, supra note 74, at 118.

351

Jerrold Soh Tsin Howe, Towards a Control-Centric Account of Tort Liability for

Automated Vehicles,S

ING

. M

GMT

. U. 3 (2020), https://ink.library.smu.edu.sg/cgi/

viewcontent.cgi?article=5174&context=sol_research [https://perma.cc/R6PJ-

KA37] (published in Volume 26 of the Torts Law Journal).

2022] PREDICTING BEARING FAULT 351

and should be the preferred approach for autonomous

vehicles.

352

A control-centric approach can also reconcile the different

meanings of control in the fields of engineering and law. In the

engineering concept of control, “a ‘controller’ is said to control

an object . . . only when the controller can make specific input

choices that translate into the object exhibiting desired output

behaviours.”

353

In comparison, the legal definition of control is

“concerned with the determination of the metaphysical risks of

harm posed to society.”

354

In tort law, “active physical control of

the subject is neither necessary nor sufficient to constitute legal

control; what matters is that the controller is in a position to

determine the risks of harm the subject poses to society.”

355

the case of commercial aircraft, there has been a longstanding

requirement to have a human pilot to pilot or, at the very least,

to monitor the aircraft systems.

356

Even where functions on

planes or autonomous drones are automated, the pilot or opera-

tor is still considered to be in legal control.

357

However, a control-centric approach will mean that even

though an autonomous vehicle is physically steered by software,

legal persons across the supply chain including manufacturers,

developers, operators, and consumers can all be said to be par-

ticipants in the vehicle’s risk creation process.

358

Each party can

be said to have a degree of legal control and consequent legal

liability.

359

Applying the same logic to drones will allow a plain-

tiff to pursue other defendants beyond just the operator in the

scenario of defective or hijacked drones. While conventionally,

the operator would have “legal control,” with a control-centric

analysis, it will be possible to trace liability back to novel defend-

ants such as software developers who had negligently left vulner-

abilities in their code or to manufacturers for hardware

failures.

360

352

Id. at 3.

353

Id. at 15 (citing Bryant Walker Smith, Lawyers and Engineers Should Speak the

Same Robot Language 78, 83 n.18, in R

OBOT

(Ryan Calo, A. Michael Froom-

kin, & Ian Kerr eds., 2016)).

354

Id. at 16 (alteration in original).

355

Id. at 19 (alteration in original).

356

ODGKINSON

& J

OHNSTON

, supra note 12, at 129.

357

Soh, supra note 351, at 19.

358

Id. at 20.

359

Id. at 4.

360

See id. at 25–26.

352 JOURNAL OF AIR LAW AND COMMERCE [87

Throughout this exercise of tracing liability, a drone bearing

monitoring device would provide valuable data in pinpointing

or excluding fault of respective parties who are involved in bear-

ing maintenance or manufacture. For example, the device may

show that operators failed to conduct regular maintenance

when required, making it easier to prescribe fault to them. Con-

versely, if the device detects that the underlying bearings were

fully functioning, yet the drone still fell, this may point liability

towards the software developers, a third-party interference, or

perhaps a manufacturing defect caused by another piece of

equipment on the drone.

These also raise important policy questions, such as what the

threshold for a legally acceptable probability of detection of a

bearing failure should be that—upon being met—would dis-

charge the duty of care. Further nuances also need to be ex-

plored, such as if a bearing failure was determined as the cause

of the accident or contributing to it, what liability would then

flow to the monitoring system? Clearly such questions apply to

every subsystem of the drone including, for instance, the naviga-

tion subsystem. Determining these standards of performance

are important to enable the industry to evolve and for its bene-

fits to be realized.

2. Manufacturer

For drone manufacturers, a control-centric approach would

mean liability could be more readily established as fault and

could be traced back to any potential defects in equipment,

hardware, or software.

361

Establishing causation would be the

primary hurdle to overcome in a claim against the manufac-

turer. In the case of a freight drone, it is likely to be operated

semi-autonomously and be flying on pre-mapped routes as op-

posed to a pilot operating the drone within line of sight. This

will also help to mitigate potential unfairness in a strict liability

regime for RPAs where, for example, if a drone has defective

software, instead of only the operator or pilot being held strictly

liable,

362

the manufacturer or software developer could be

traced to be a legal controller and held liable under negligence

law.

361

See id. at 20.

362

ARTSCH

, J

AMES

OYNE

& K

ATHERINE

RAY

, D

RONES IN

OCIETY

: E

XPLOR-

ING THE

TRANGE

ORLD OF

NMANNED

IRCRAFT

91–92 (2017).

2022] PREDICTING BEARING FAULT 353

Whether a court or parliament adopts this approach in the

future remains to be seen. As technologies like autonomous ve-

hicles and drones propagate across society, the possibility of the

law evolving to meet the literature’s call to evolve from a driver-

centric to a control-centric approach of tortious liability is cer-

tainly a possibility.

363

D. I

MPACT OF

IABILITY

& D

AMAGES

An aggrieved plaintiff must show that he or she suffered a loss

or damage in order to recover monetary compensation or “dam-

ages.”

364

The award of damages could be either a combination

of compensating the plaintiff (compensatory), acknowledging a

breach of legal rights (nominal), or punishing the defendant

(exemplary).

365

Usually for torts, damages are given on a com-

pensatory basis, so plaintiffs are returned to their original posi-

tion (restitutio in integrum).

366

Legislation in all jurisdictions

confers on the courts a general power to award interest on dam-

ages for the period up to judgment.

There are two categories of damages: economic and non-eco-

nomic loss, which are further split into separate heads of dam-

age.

367

Economic losses include out-of-pocket expenses, lost

wages, loss of earning capacity, and other needs created includ-

ing medical or related bills.

368

These may need to be calculated

for the rest of a person’s life if the harm is permanent.

369

Non-

economic loss relates to a plaintiff’s capacity to enjoy life, en-

compassing physical pain and suffering, loss of amenities of life,

and any shortening of life expectancy and disfigurement.

370

Le-

gal costs of bringing actions can also be expensive, even though

363

ODGKINSON

& J

OHNSTON

, supra note 12, at 114; Roger Clarke, Understand-

ing the Drone Epidemic, 30 C

OMPUT

. L. & S

. R

. 230, 243 (2014); Kristiaan

Bernauw, Drones: The Emerging Era of Unmanned Civil Aviation, in 66 C

OLLECTED

APERS OF

AGREB

ACULTY

223, 244–45 (2016), http://hdl.handle.net/

1854/LU-7279272 [https://perma.cc/2M7V-MR8L]; Kieran Tranter, The Chal-

lenges of Autonomous Motor Vehicles for Queensland Road and Criminal Laws, 16

QUT

L. R

. 59, 77–81 (2016).

364

Perritt, Jr., supra note 27, at 51.

365

See XL Petroleum (NSW) Pty Ltd v Caltex Oil (Austl) Pty Ltd (1985) 155 CLR

448, 471 (Austl.).

366

Todorovic v Waller (1981) 150 CLR 402, 412 (Austl.).

367

See Sharman v Evans (1977) 138 CLR 563; 13 ALR 57, 86 (Austl.).

368

See Medlin v State Gov’t Ins Comm’n (1995) 182 CLR 1, para. 2 (Austl.); Wynn

v NSW Ins Ministerial Corp (1995) 184 CLR 485, para. 2 (Austl.).

369

See Sharman, 13 ALR at 67; Van Gervan v Fenton (1992) 175 CLR 327; 109

ALR 283, 296 (Austl.).

370

Skelton v Collins (1966) 115 CLR 94, 13 (Austl.); Sharman, 13 ALR at 63.

354 JOURNAL OF AIR LAW AND COMMERCE [87

some cases are brought on a “no win-no fee” basis.

371

Generally,

the rule in Australia is that costs are paid by the party who loses

the case.

372

The court gives parties an adequate opportunity to dispute

the assessment if needed,

373

although many cases are settled ear-

lier. Negligence requires proof of actual loss or injury to be

proven, unlike trespassory torts.

374

Damages may be reduced

where the plaintiff’s unreasonable conduct before (contributory

negligence) or after (failure to mitigate) suffering the injury

contributes to the damage suffered or fails in whole or in part to

alleviate it.

375

1. Personal Injury

Traditionally, damages were assessed at the date of breach or

when the cause of action arises, but courts have become increas-

ingly flexible.

376

Personal injury is typically assessed on the date

of the judgment to allow for a more accurate assessment after

the court has evaluated all the evidence and the progress of the

plaintiff’s condition up to that time.

377

Where there is permanent personal injury, the award of dam-

ages must account for the impossibility of being able to restore

plaintiffs to their physical pre-injury position with compensation

for the future consequences of the injury.

378

2. Property Damage

Property damage torts usually do not involve complications of

assessing future consequences. Awards usually fully compensate,

although plaintiffs should reasonably mitigate any losses.

379

Repairs may also be compensated so plaintiffs return to their

pre-tort position. Where there is a difference in value, such as if

repairs cost more than replacements, reasonableness will deter-

371

See generally “No Win-No Fee” Costs Agreements: Information for Consumers,

UEENSLAND

EGAL

ERVS

. C

OMM

’

(July 2021), https://www.lsc.qld.gov.au/__

data/assets/pdf_file/0009/690543/no-win-no-fee-costs-agreement-july-2021.pdf

[https://perma.cc/J99X-PTHF].

372

See id. at 1.

373

Sharman, 13 ALR at 65.

374

See supra Section V.D.

375

Dodd Props. (Kent) Ltd. v. Canterbury City Council [1979] 2 All ER 118

(QB) 125 (Eng.); Stewart, supra note 86, at 14.

376

See Johnson v Perez (1988) 166 CLR 351, 355–357 (Austl.).

377

See id. at 355–56.

378

Todorovic v Waller (1981) 150 CLR 402, 412–13 (Austl.).

379

Dodd Props. Ltd., 2 All ER at 128.

2022] PREDICTING BEARING FAULT 355

mine the end amount.

380

One scenario where this might be rele-

vant is where a drone bearing fault causes the drone to fall

which then causes fire damage to real property.

381

Often the is-

sue will be whether damages should be valued at the cost of re-

building or at the diminution in value.

382

Previously, courts have

allowed the cost of rebuilding a family home to be compen-

sated;

383

conversely, they have refused an investment property

on the basis that plaintiffs could mitigate their damages by sell-

ing and then buying another property with the same investment

return more cheaply rather than paying the more expensive cost

of rebuilding.

384

Where there is a net gain in the value of the property, the

“betterment” may be reduced depending on the circumstances

of the case. For example, courts have reduced damages in cir-

cumstances where an old tractor had caught on fire because the

plaintiffs would have needed to purchase a new tractor later at

some point anyways.

385

Conversely, where an old factory was

burnt down, a defendant was required to pay the costs of a new

factory as the owner would have continued to use the old factory

had it not been destroyed.

386

3. Multi-Party Liability

While Damage by Aircraft legislation imposes joint and sev-

eral liability, in the common law, a plaintiff may need to rely on

vicarious liability

387

or agency

388

to establish liability of the oper-

ator or owner who was not also the negligent pilot.

380

See Evans v Balog [1976] 1 NSWLR 36, 40 (Austl.).

381

Thompson et al., supra note 28, at 4 para. 2.2.

382

Evans, 1 NSWLR at 40.

383

Id. at 41.

384

Pantalone v Alaouie (1989) 18 NSWLR 119, 137–38 (Austl.).

385

See Hoad v Scone Motors Pty Ltd [1977] 1 NSWLR 88, 93–94 (Austl.).

386

Harbutt’s Plasticine Ltd. v. Wayne Tank & Pump Co. Ltd. [1970] 1 All ER

225 (Civ) 242 (Eng.).

387

Hollis v Vabu Pty Ltd (2001) 207 CLR 21, 23 (Austl.); Stevens v Brodribb

Sawmilling Co Proprietary Ltd (1986) 160 CLR 16, 23 (Austl.) (whether there was

an employer-employee or contracting relationship); New South Wales v Lepore

(2003) 212 CLR 511, 517 (Austl.) (whether a teacher’s improper punishment of

a student was within scope of employment or an isolated incident of sexual as-

sault); Deatons Proprietary Ltd v Flew (1949) 79 CLR 370, 376 (Austl.) (accepting

the test that an employee acting deliberately or negligently within scope of au-

thority holds the employer is liable).

388

Scott v Davis (2000) 204 CLR 333, 353 (Austl.); Sweeney v Boylan Nominees Pty

Ltd (2006) 226 CLR 161 (Austl.) (discussing in depth the development of agency

law).

356 JOURNAL OF AIR LAW AND COMMERCE [87

Where two or more defendants are legally responsible for the

same property damage or economic loss, statutory contribution

and proportionate liability may apply.

389

If a defendant’s tort has

caused personal injury, death, or intentional property damage,

he or she will have to pay a contribution.

390

Proportionate liabil-

ity applies where property or economic loss was unintentionally

caused and allows defendants to limit their damages to a fair

and equitable portion in accordance with their responsibility for

the harm.

391

VI. PRODUCT LIABILITY UNDER THE AUSTRALIAN

CONSUMER LAW

While negligence creates broad liability for actors, product lia-

bility focuses on responsibility of manufacturers for defective

products. This can arise under the law of negligence as dis-

cussed above or pursuant to the Australian Consumer Law.

“Product safety standards are a crucial aspect in the manufac-

ture of drones.”

392

A plaintiff may pursue a statutory claim against the drone

manufacturer under Schedule 2 of the Competition and Consumer

Act 2010 (Cth) or the Australian Consumer Law (ACL).

393

Under the ACL, there are now significant ramifications for air-

craft manufacturers, creating a risk that must be recognized and

managed.

394

Liability is imposed on a strict liability basis where a manufac-

turer “supplies . . . goods in trade or commerce” with a “‘safety

defect’ that causes injury.”

395

A manufacturer includes any per-

son who allows his or her business name, brand, or trademark to

389

Hunt & Hunt Laws v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613,

619 (Austl.).

390

See id.

391

Id. at 625.

392

Storr & Storr, supra note 74, at 116.

393

Competition and Consumer Act 2010 (Cth) sch 2 (Austl.). The Fair Trading

laws of each State and Territory adopt Schedule 2 of the Competition and Consumer

Act 2010 (Cth) as the Australian Consumer Law. Id. The ACL applies to transac-

tions occurring on or after January 1, 2011. Id.

394

For a discussion of how a case involving the supply of a defective bolt to a

helicopter, causing rotor failure, would be decided differently today, see

ARTSCH

, supra note 91, at 495 (citing Helicopter Sales (Aust) Pty Ltd v Rotor-Work Pty

Ltd (1974) 132 CLR 1 (Austl.)).

395

See F

LEMING

’

AW OF

ORTS

, supra note 275, at 573; ACL, supra note

393, at s 138(1).

2022] PREDICTING BEARING FAULT 357

be applied to the good,

396

but also includes “manufacturers of

component parts, maintenance organizations, distributors, sec-

ond-hand dealers,”

397

and importers if the manufacturer has no

place of business in Australia.

398

Goods include “aircraft and

other vehicles,”

399

and a safety defect is where “their safety is not

such as persons generally are entitled to expect.”

400

This is an

objective standard based upon what the public at large would

expect.

401

A good can generally be defective from negligence in

the process of its manufacture, design, or marketing.

A. D

EFECTIVE

ANUFACTURE

Defective manufacture or production defects refer to prod-

ucts that are deviants from the manufacturer’s specifications in

their construction or assembly.

402

Where the plaintiff establishes

the existence of a defect in the product and an accompanying

injury, the court will infer liability unless the manufacturer can

prove the defect was not present at the time it supplied the

goods.

403

In the event of a bearing failure, a bearing monitoring

device with data-recording functions would be helpful to a man-

ufacturer as it could provide a history of data that the drone

bearing was functional from its inception and free of produc-

tion defects.

B. D

EFECTIVE

ESIGN

Defective designs relate to such elements as the form, struc-

ture, and composition of goods.

404

However, this is a more com-

plex action as design decisions are often conscious choices by

the manufacturer after weighing up relative cost, consumer

396

Competition and Consumer Act 2010 (Cth) s 7(1)(c) (Austl.); see Glendale Chem

Prods Pty Ltd v Austl Competition & Consumer Comm’n (1998) 90 FCR 40, 44

(Austl.).

397

ARTSCH

, supra note 91, at 184.

398

Competition and Consumer Act 2010 (Cth) s 7(1)(e) (Austl.).

399

Id. at s 2(1). Computer software is also included. Id. This is relevant because

software flies aircraft. F

LEMING

’

AW OF

ORTS

, supra note 275, at 578.

400

Competition and Consumer Act 2010 (Cth) s 9(1) (Austl.).

401

Carey-Hazell v Getz Bros & Co (Austl) Pty Ltd [2004] FCA 853, para 186

(Austl.); Glendale Chem Prods Pty Ltd v Austl Competition & Consumer Comm’n (1998)

90 FCR 40, 47 (Austl.).

402

LEMING

’

AW OF

ORTS

, supra note 275, at 557.

403

Id. at 574; Competition and Consumer Act 2010 (Cth) s 142(a)(ii) (Austl.);

Carey-Hazell, [2004] FCA at paras 190-91; Effem Foods Ltd v Nicholls [2004] NSWCA

332, para. 17 (Austl.).

404

Mabel Tsui, The State of the Art Defence: Defining the Australian Experience in the

Context of Pharmaceuticals, 13 QUT L. R

. 132, 134 (2013).

358 JOURNAL OF AIR LAW AND COMMERCE [87

preferences, or even public interest (for example, delivery

drones that are smaller and less safe but quieter, cheaper, or

more environmentally friendly). Academics have pointed out

that judiciaries are ill-equipped to deal with such polycentric is-

sues and their implications.

405

There is additional difficulty in

actually determining whether a drone’s design is defective as

currently no specific airworthiness standards to compare against

exist.

406

Courts will need to consider the risk of harm against the

cost of reducing it by adopting an alternative design. Installing a

drone with a bearing monitoring device would reduce its risk of

harm and likewise afford it greater protection to a defective de-

sign claim.

C. D

EFECTIVE

ARKETING

Defective marketing includes instructional defects such as in-

sufficient labelling, warnings, or instructions.

407

This may be rel-

evant in scenarios where a drone manufacturer or supplier faces

a lawsuit alleging that the drone would not have fallen to the

ground if the instructions or warnings regarding the airworthi-

ness of the drone were adequate. However, it is often difficult to

ascertain the known risks of a product, which is especially the

case with new technologies such as drones.

408

Further, in the

case of commercial delivery drones, which are more complex

than hobbyist drones, it is likely that specialized training would

be required to use them. In any case, however, manufacturers

will still need to ensure sufficient instructions are provided to

operators on not just general drone usage but also on the strict

maintenance that is required. While a bearing monitoring de-

vice helps in this regard by flagging potential airworthiness is-

sues, to minimize legal liability, the manufacturer should also

instruct that the device cannot be relied upon exclusively.

405

LEMING

’

AW OF

ORTS

, supra note 275, at 559; Lon L. Fuller & Ken-

neth I. Winston, The Forms and Limits of Adjudication, 92 H

ARV

. L. R

. 353,

394–95, 400 (1978) (“Generally . . . problems in the allocation of economic re-

sources present too strong a polycentric aspect to be suitable for adjudication.”).

406

In the United States, this normally involves a “risk-utility” test. See Kris-

topher-Kent Harris, Drones: Proposed Standards of Liability, 35 S

ANTA

LARA

IGH

ECH

. L.J. 65, 85 (2018).

407

Glendale Chem Prods Pty Ltd v Austl Competition & Consumer Comm’n (1998) 90

FCR 40, 46 (Austl.).

408

Harris, supra note 406, at 90.

2022] PREDICTING BEARING FAULT 359

D. C

ONSUMER

ULES

An additional source of liability specific to freight drones

comes from consumers. The ACL imposes minimum standards

in relation to commercial services provided to consumers, which

will apply to RPA deliveries.

409

A Commonwealth Minister can

also issue a mandatory set of specific safety standards of delivery

services.

410

Where commercial drone operators contravene the

safety standards, they can be liable for a penalty for any loss suf-

fered as a consequence of the breach.

411

Currently, no ministe-

rial safety standards have been imposed for RPA delivery;

however as adoption grows, such standards can be expected to

be issued.

E. D

AMAGES

Those who suffer personal injury (or death)

412

and damage to

goods,

413

including land and fixtures,

414

can sue the manufac-

turer for damages under consumer law. Third parties who suffer

loss due to injuries caused by a defective product can also re-

cover damages.

415

This includes dependents reliant upon the in-

jured person and potentially bystanders who suffer emotional

harm from witnessing the injury.

416

A three-year limitation pe-

riod applies from the time the claimant became, or ought to

have become, aware of the damage and identity of the

manufacturer.

417

In relation to defenses, where the manufacturer of a drone is

independent from a bearing monitoring device’s manufacturer,

under the ACL, component manufacturers have a defense if

they can establish that the defect is attributable to the design,

markings, instructions, or warnings of the finished good—

rather than a defect in the component.

418

Other than this, be-

cause manufacturers are held strictly liable for defective prod-

ucts, there is a clear legal impetus for manufacturers to focus on

409

Competition and Consumer Act 2010 (Cth) s 104(3) (Austl.).

410

Id. at ss 104–08, 194–96.

411

Id. at s 107.

412

Id. at s 138(3).

413

Id. at s 40.

414

Id. at ss 140–41.

415

Id. at s 139.

416

Erwin v Iveco Trucks Austl Ltd (2010) 267 ALR 752, 784 (Austl.).

417

Competition and Consumer Act 2010 (Cth) s 143(1) (Austl.); see also Consumer

Protection Act 1987 § 6(6) (UK).

418

Competition and Consumer Act 2010 (Cth) s 142(d) (Austl.).

360 JOURNAL OF AIR LAW AND COMMERCE [87

preventing the drone from falling in the first place using diag-

nostic or early warning systems such as bearing monitoring

technology.

VII. RESPASSORY TORTS

Trespassory torts are actionable per se, meaning that proof of

pecuniary loss or injury is not necessary.

419

Rather, the law seeks

to recognize that a plaintiff’s absolute right has been violated.

420

Nonetheless, evidence of a specific loss is still generally re-

quired; otherwise the award is only for a token sum of nominal

damages.

421

In relation to trespassory torts, the key benefit of a drone

bearing condition monitoring system is the improvement to

drone airworthiness, lowering the chance of a catastrophic fail-

ure causing the drone to fall to the ground and cause an act of

trespass to occur.

A. T

RESPASS TO

AND

In aviation cases, trespass to land often relates to surface dam-

age caused by chattels falling from aircraft or damage by the

aircraft itself.

422

A drone or its freight falling to a plaintiff’s land

can constitute trespass to land.

This requires a positive, voluntary act that directly interferes

with the plaintiff’s exclusive possession of his or her land.

423

this case, the drone pilot’s or operator’s act of controlling the

drone to enter the land would be adequate.

424

Intention is nec-

essary to establish trespass to land, although a reckless or negli-

gent act is adequate.

425

The defendant has the onus of proving

the absence of intention.

426

The act of interference must be direct and not consequent-

ial.

427

For example, courts have held an oil spill discharged into

419

LJP Invs v Howard Chia Invs Pty Ltd (1989) 24 NSWLR 490, 496 (Austl.).

420

See id. at 497.

421

Id. at 496.

422

ARTSCH

, supra note 91, at 212.

423

Stewart, supra note 86, at 25.

424

Pub Transp Comm’n (NSW) v Perry (1977) 137 CLR 107, para. 8 (Austl.);

Stewart, supra note 86, at 25.

425

League Against Cruel Sports Ltd. v. Scott [1985] 2 All ER 489 (QB) 494,

[1986] 1 QB 240 (Eng.).

426

See, e.g., McHale v Watson (1964) 111 CLR 384, 384 (Austl.).

427

Southport Corp. v. Esso Petrol. Co. Ltd. (1954) 3 WLR 200, [1954] 2 All ER

561 (Civ) 561–62 (Eng.).

2022] PREDICTING BEARING FAULT 361

an estuary that was then carried onto the plaintiff’s land by the

river to be a consequential interference.

428

The distinguishing

factor is how closely related the act is with the interference.

429

a significant passage of time elapses, it may lead to a conse-

quential rather than immediate and direct finding.

Where a bearing condition sensing device is relevant is when

the device indicates that due to bearing failure, a drone should

either land immediately or hover to a lower altitude over the

neighborhood, which in turn causes an interference with a land-

owner’s property rights. While this may not be an issue for the

recipient of the delivery parcel (in a similar way to how implied

consent is given to postage carriers to enter land for the purpose

of delivering a parcel) a disgruntled neighbor may take issue

with the unwarranted trespass. In this scenario, assuming the

landowner has sufficient title to sue, whether a claim of trespass

will succeed will depend on the circumstances and extent of the

interference.

430

Where the drone or cargo falls to the ground, and there is a

clear, direct, and obvious physical interference with the surface

of the land, it is likely that the above elements for a trespass to

land will be made out. If, however, there is only a mere over-

flight over property, for example, as the RPA descends to a

lower altitude to prevent further bearing deterioration, it will be

a much more complex determination.

The issue of trespass into airspace by an overflying aircraft has

not been dealt with in Australia; however, the principles from

overseas jurisdictions have been tested and approved in Austra-

lian courts.

431

In LJP Investments v Howard Chia Investments Pty.

Ltd.,

432

Justice Hodgson approved the view from the English

case Bernstein of Leigh v. Skyviews & General Ltd. (Bernstein)

433

that

a landowner’s right to the air space above his property is limited

to “such height as is necessary for the ordinary use and enjoy-

428

Id.

429

Id. at 562.

430

See Newington v Windeyer (1985) 3 NSWLR 555, 559 (Austl.).

431

LJP Invs Pty Ltd v Howard Chia Invs Pty Ltd (1989) 24 NSWLR 490, 495

(Austl.); see also Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464, 465

(Austl.); Break Fast Invs Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311, para 49

(Austl.) (dealing with a physical encroachment rather than an aircraft encroach-

ment onto property).

432

LJP Invs, 24 NSWLR at 495.

433

Bernstein of Leigh v. Skyviews & Gen. Ltd. [1977] 3 WLR 136 (QB) (Eng.).

362 JOURNAL OF AIR LAW AND COMMERCE [87

ment of his land and the structures upon it.”

434

In Bernstein, the

defendant company Skyviews took a single aerial photograph

from a plane while flying over the plaintiff’s country resi-

dence.

435

The plaintiff claimed his right to exclude any entry

into the airspace above his land.

436

The court held that a land-

owner’s rights do not extend to unlimited heights and are lim-

ited to the height of an “ordinary user.”

437

However, it is unsettled whether the same outcome will be

reached upon application to drones. Stewart contemplates that

the liability of RPAs may be ruled differently today given Bern-

stein was decided in 1978 and concerned solely with flights by

planes.

438

In Bernstein, Justice Griffiths found a flight of several

hundred feet above the ground to not be a trespass because

there was no real interference with the landowner’s use of his

land.

439

However, the flight height of a delivery drone is substan-

tially lower than that of a plane, especially during the actual de-

scent of the delivery.

440

In Australia, trespasses to land have

previously been found where crane jibs intruded at heights of

fifty feet above the plaintiff’s roof.

441

It also does not matter if

the trespasses are not continuing. Even irregular or intermittent

intrusions can be sufficient for an action. In Graham v KD Morris

& Sons Pty Ltd,

442

wind causing a crane jib to extend sixty-two

feet above an adjoining land was held to be a trespass to land.

The counterargument is that the formulation of the Skyviews

test should be understood in the context of a case about a mere

entry into airspace as distinct from an intrusion by something

erected on other land (i.e., the encroaching crane cases liti-

gated in Australia). In the United States, there is authority that

actual overflight must have occurred at a height which adversely

affects the use and enjoyment of the surface to the extent to

434

Id. at 141 (rebutting the old Roman maxim cujus est solum ejus est utque ad

coelum et ad inferos—that whoever owns the soil owns all that lies above it).

435

Id. at 137.

436

Id. at 138.

437

Id. at 140.

438

Stewart, supra note 86, at 24–25.

439

Bernstein, 3 WLR at 141.

440

Stewart, supra note 86, at 25.

441

LJP Invs Pty Ltd v Howard Chia Invs Pty Ltd (1989) 24 NSWLR 490, 495

(Austl.); Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1, 2 (Austl.); Bendal Pty

Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464, 466 (Austl.).

442

Graham, [1974] Qd R at 2, 4; see also Woollerton & Wilson Ltd. v. Richard

Costain Ltd. [1970] 1 All ER 483 (Ch) 484 (Eng.) (English case preceding

Graham).

2022] PREDICTING BEARING FAULT 363

devaluing the property’s value.

443

Additionally, some academics

have pointed out the difficulties of the alternative view, as it

would “involve the courts in the impossible task of trying to de-

termine whether there has been an invasion of a particular col-

umn of airspace.”

444

Thus, it seems so long as the RPA flies above the height of an

ordinary user, it would not commit a trespass to land. As Butler

points out, drones may operate at heights well above sixty-two

feet, as recognized by CASA’s standard RPA operating condi-

tions which stipulate operation at a height of up to four hun-

dred feet above ground.

445

B. T

RESPASS TO

ERSONS

Where the RPA collides with a person, or a part of the RPA

falls and causes damage, a cause of action in battery can arise.

The plaintiff is required to prove that the defendant committed

an intentional, positive, voluntary act which directly caused con-

tact with the plaintiff’s body.

446

A battery is actionable per se

without proof of damage.

447

A collision does not have to be a deliberate act; recklessness is

adequate to suffice as intention.

448

A negligent act can also en-

able a claim in battery in Australia.

449

State civil liability would

then apply.

450

443

United States v. Causby, 328 U.S. 256, 266 (1946). The U.S. Supreme Court

found that government aircraft frequent flying so low as to make the land

unusable amounts to an unconstitutional “taking” of property within the mean-

ing of the Fifth Amendment. Id. at 258, 266. Subsequent decisions confirmed

overflight as well as a reduction in property value is necessary for there to be an

unconstitutional taking. See Griggs v. Allegheny Cnty., 369 U.S. 84, 90 (1962);

Batten v. United States, 306 F.2d 580, 585 (10th Cir. 1962).

444

Margaret Lee, No Noise Is Nice, 9 V

ICTORIA

U. W

ELLINGTON

L. R

. 165, 177

(1978).

445

Butler, supra note 83, at 1043.

446

Sec’y, Dep’t of Health & Cnty Servs v JWB [Marion’s Case] (1992) 175 CLR 218,

311 (Austl.).

447

Cole v. Turner (1704) Eng. Rep. 958, 958; 6 Mod Rep 149.

448

James v. Campbell (1832) Eng. Rep. 1015, 1015; Ball v. Axten [1866] Eng.

Rep. 2, 176 ER 890 (QB) 891 (Eng.); see F

RANCIS

RINDADE

, P

ETER

ANE

& M

ARK

UNNEY

AW OF

ORTS IN

USTRALIA

41 (4th ed. 2007).

449

See Stewart, supra note 86, at 23.

450

Civil Liability Act 2002 (NSW) s 3B (Austl.); Civil Liability Act 2002 (Tas) s 3B

(Austl.); Wrongs Act 1958 (Vic) s 28C (Austl.); Civil Liability Act 2002 (WA) s 3A

(Austl.). Some State jurisdictions do not exclude deliberate acts. See Civil Liability

Act 2003 (Qld) s 5 (Austl.); Civil Liability Act 1936 (SA) s 4 (Austl.); Civil Law

(Wrongs) Act 2002 (ACT) s 141(b) (Austl.) (covering negligent trespass of land);

Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 4 (Austl.).

364 JOURNAL OF AIR LAW AND COMMERCE [87

In relation to directness, Stewart contemplates that like how

firing a gun or throwing a missile at another constitutes a bat-

tery, an RPA pilot controlling a machine that impacts another

would satisfy the directness element.

451

The key advantage to plaintiffs is they do not need to prove

fault. As Stewart points out, “[a] person injured by an RPA fall-

ing 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.”

452

For trespass to person, however, once the

trespassory contact is established, the onus shifts to the defen-

dant to prove lack of fault to escape liability.

453

In that case, any

available data readings of a drone bearing monitor could poten-

tially be adduced by an operator to show that the crash was not

the result of a catastrophic failure from the bearing or any other

maintenance problem which falls under the operator’s responsi-

bility. In this way, the device can potentially help ground an ar-

gument in redirecting or narrowing fault to other causes.

However, the success of this argument will depend on the

data of the respective monitoring device records. At the bare

minimum, a device recording just the immediate data surround-

ing a warning signal would help in verifying the operation of the

monitoring system and confirm the accuracy of its determina-

tion. On the other hand, a device that records all the real-time

data, beyond just the condition of a bearing, would provide the

most legal benefit in demonstrating where fault occurred (al-

though such capabilities would likely cost more).

C. T

RESPASS TO

OODS

Where a drone either lands or crashes into a plaintiff’s goods

(such as a car), the operator can be liable to an action for tres-

pass to goods. Trespass to goods involves the intentional or neg-

ligent act of the defendant which directly interferes with the

plaintiff’s possession of a chattel without lawful justification.

454

The plaintiff must be able to show he or she was in possession of

the goods at the time of the act of interference by the

defendant.

455

451

Stewart, supra note 86, at 23; McHale v Watson (1964) 111 CLR 384, 389

para. 9 (Austl).

452

Stewart, supra note 86, at 23.

453

See McHale, 111 CLR at 389 para. 20.

454

Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, 214–15 (Austl.).

455

Id. at 216.

2022] PREDICTING BEARING FAULT 365

Plaintiffs will have a duty to mitigate their damages. For exam-

ple, for mass-produced goods, it is expected that plaintiffs re-

place their goods if repairing it would cost more.

456

However, a

more expensive repair job has been permitted by courts, such as

in the case of a car with sentimental value.

457

Like other trespas-

sory torts, the determinative factor will be evidence of

reasonableness.

458

Again, the bearing monitoring device will help with prevent-

ing the trespass from occurring to begin with, or it will forewarn

of a danger of catastrophic failure early enough for the drone to

be able to land safely at a significantly lower velocity than falling

out of the sky.

VIII. NUISANCE

In addition to improving the airworthiness of the drone, a

drone-bearing monitoring system can also help prevent or rebut

a claim in nuisance. A condition monitoring device can provide

evidence that the motor bearing is healthy and operating nor-

mally. It can then be deduced that the bearing is not causing the

drone to vibrate excessively and that any audible noise gener-

ated by the propulsion system should be within typical operating

limits.

There are two types of torts based in nuisance: “Private nui-

sance concerns a nuisance to the private rights of an individual,

specifically those concerning their use and enjoyment of land;

and public nuisance concerns interference with those interests

that are shared by the public.”

459

Unlike trespass to land, a nui-

sance may be caused by an indirect act of interference, and thus

includes intangible invasions such as noise, smell, and offensive

sights, in addition to more tangible invasions such as fire, leaves,

flood, and dust.

460

A plaintiff may also prefer to run a claim in

nuisance because, unlike negligence, defendants cannot avoid

liability by demonstrating they exercised reasonable care while

456

Harbutt’s Plasticine Ltd. v. Wayne Tank & Pump Co. [1970] 1 All ER 225

(Civ) at 240 (Eng.).

457

O’Grady v. Westminster Scaffolding Ltd. (1962) 2 Lloyd’s Rep. 238 (QB) at

240 (Eng.).

458

Murphy v Brown (1985) 1 NSWLR 131; 2 MVR 29, 31–32 (Austl.).

459

AROLYN

APPIDEEN

, P

RUE

INES

& P

ENELOPE

ATSON

ORTS

: C

OMMENTARY

AND

ATERIALS

753 (11th ed. 2012).

460

See Osborne M. Reynolds, Distinguishing Trespass and Nuisance: A Journey

Through a Shifting Borderland, 44 O

KLA

. L. R

. 227, 231–33 (1991).

366 JOURNAL OF AIR LAW AND COMMERCE [87

performing their duty of care.

461

Thus, as Quinlivian explains in

a hypothetical scenario, if a properly trained operator flies a

well-maintained drone over a worksite, and the drone is struck

by a large bird rarely seen in the area, causing a crash and dam-

age to the property—while the operator could likely defend an

action in negligence due to the reasonableness of his or her ac-

tions—the worksite owner may succeed with a claim in

nuisance.

462

In the case of a drone delivery, the relevant claim would most

likely be one in private nuisance from somebody who has found

the peaceful enjoyment of his or her land disturbed by the RPA

in some way. Some authority suggests that actions in nuisance

against aircraft operators could lie in cases of excessive noise,

vibration, or pollution which seriously interfere with a plaintiff’s

enjoyment of his or her property.

463

In regard to Wing’s opera-

tions in Canberra, it has been reported of “dogs going wild,”

“children being too scared to play in backyards due to the

racket,” and “birds disappearing from the area.”

464

However, as

these are only media reports, any legal claim will need to ex-

amine the specific facts of the case.

The court will weigh the nature and circumstances of the de-

fendant’s activity and the character of the resulting interference

against the plaintiff’s interest.

465

The factors that comprise this

“give and take” equation include the duration,

466

time of day,

467

frequency,

468

locality,

469

and the extent of the interference.

While a temporary interference will not preclude it from being a

material interference, generally it will not qualify as a nui-

461

Peter Quinlivian, Airborne Effrontery: Dealing with an Unwanted Drone Over-

Flight Under Australian Law, 9 I

’

-H

OUSE

OUNS

. J. 1, 5–6 (2016).

462

Id. at 6.

463

Bernstein of Leigh v. Skyviews & Gen. Ltd. [1977] 3 WLR 136 (QB) 143

(Eng.); Steel-Maitland v. British Airways Bd. (1981) Scots LT 110, 111–12 (Scot.).

464

Kate Christian & Craig Allen, ‘Territorial’ Ravens Disrupt Surge in Wing Drone

Deliveries Under Canberra’s Lockdown, ABC N

EWS

, https://www.abc.net.au/news/

2021-09-22/territorial-ravens-disrupt-canberra-drone-deliveries/100480470

[https://perma.cc/3REP-5V2X] (Dec. 9, 2021, 6:27 PM).

465

See Munro v S Dairies Ltd [1955] VLR 332, 337 (Austl.).

466

See Andreae v. Selfridge & Co. [1938] Ch 1 (CA) 4 (Eng.) (discussing noise

“resulting from temporary and lawful work carried out with reasonable care and

skill”).

467

McKenzie v Powley [1916] SALR 1, 17–18 (Austl.).

468

Seidler v Luna Park Rsrv Tr (Unreported, Supreme Court of New South

Wales Equity Division, Hodgson J, 21 September 1995) 31 (Austl.).

469

Sturges v. Bridgman (1879) 11 Ch D 852, 865 (Eng).

2022] PREDICTING BEARING FAULT 367

sance.

470

Further, akin to trespass to land on the basis of Bern-

stein, mere overflight will not be considered a nuisance.

471

The

plaintiff will need to prove some sort of constant and continuing

interference or harassment.

472

Wing has argued that their deliv-

eries are infrequent and cited that it is “unlikely people will ex-

perience considerable or repeated noise events during the

hover phase, as it is limited to the immediate vicinity of the de-

livery location.”

473

Wing has also pointed out that drones differ

from crewed aircraft in landing or take off, being much quieter

and taking place in significantly shorter windows of time.

474

However, a bearing problem can lead to an increase in audi-

ble noise which may potentially lead to a violation of legal noise

limits in certain areas. Wing has previously received complaints

about their drone noise levels and was forced to re-engineer

their drones as a result.

475

Wing has now stated that, when hov-

ering to deliver, their drones are the same noise level as an ordi-

nary cruising car and quieter than most common neighborhood

noises, such as a leaf blower or lawnmower.

476

However, it has

also been pointed out that the noise is more noticeable since it

is a high frequency pitch that suburban environments have not

previously experienced.

477

Consequently, there is still potential

for delivery drones to be vulnerable to legal arguments of nui-

sance. This provides a strong incentive for operators to install

bearing monitoring devices to prevent any further amplifica-

tions of audible noise or vibration arising from bearing fatigue.

470

See Bernstein of Leigh v. Skyviews & Gen. Ltd. [1977] 3 WLR 136 (QB) 143

(Eng.).

471

Id. at 141.

472

See id. at 143.

473

Wing Aviation Pty Ltd, Submission No. 35 to Austl. Dep’t of Infrastructure,

Transp., Cities & Reg’l Dev. (Nov. 19, 2019), in R

EVIEW OF THE

AVIGATION

IRCRAFT

OISE

EGULATIONS

2018 – R

EMOTELY

ILOTED

IRCRAFT

5–6 [herein-

after Wing Submission No. 35], https://www.infrastructure.gov.au/sites/default/

files/migrated/aviation/environmental/aircraft-noise/files/035_Wing_RPA_sub

mission_ATT.pdf [https://perma.cc/F2PQ-EUZN].

474

Id. at 10.

475

Stuart Layt, Drone Delivery Service Wing Launches Less Noisy Drones to More Sub-

urbs,B

RISBANE

IMES

(May 26, 2021, 12:01 AM), https://www.brisbanetimes.com.

au/national/queensland/drone-delivery-service-wing-launches-less-noisy-drones-

to-more-suburbs-20210525-p57v3p.html [https://perma.cc/2TEX-UPKN].

476

Wing Submission No. 35, supra note 473, at 5–6.

477

Jackson Gothe-Snape, Google-Affiliated Drone Delivery Service Found to Be Ex-

ceeding Noise Limits, ABC N

EWS

, https://www.abc.net.au/news/2019-09-12/can

berra-delivery-drone-noise-levels-revealed/11503262 [https://perma.cc/T4B2-SG

V6] (Nov. 20, 2019, 12:10 AM).

368 JOURNAL OF AIR LAW AND COMMERCE [87

IX. PRIVACY AND SURVEILLANCE ISSUES

While the focus of regulations has been concerned with

safety, if delivery drones proliferate, the companies behind

them will be running substantial operations over private, resi-

dential areas. This may be a relevant factor where a bearing con-

dition sensing device indicates a drone needs to land

immediately, causing the drone to descend over someone’s

property while it continues to record footage. This could consti-

tute an interference with an individual’s privacy rights, espe-

cially where an operator manually begins to pilot the delivery

drone through the camera.

Unlike many other jurisdictions, the Privacy Act 1988

478

in Aus-

tralia does not provide an extensive framework to protect pri-

vacy. The House of Representatives Standing Committee report

noted the privacy law “is not intended to protect against intru-

sions into Australians’ private seclusion.”

479

Without any legal

remedy under Australian privacy law, the affected individual or

entity can only report the matter to CASA.

480

Surveillance prohibition legislation is also likely ineffective, as

other than drones not being the target of the legislation, “pri-

vate activities” expressly do not include any activity carried on

outside a building.

481

This would preclude the majority of RPA

activity from being captured by the legislation.

Criminal law may provide an indirect form of privacy protec-

tion. Certain drone operations may satisfy offenses in some juris-

dictions, for example under the offense of voyeurism. In the

United States, there are laws relating to trespass, privacy, and

stalking, in addition to state-specific laws regulating paparazzi

and anti-voyeurism. Some states such as Indiana and Florida

have enacted drone laws with voyeurism offenses.

482

Nonethe-

less, perhaps the more significant issue is that it is doubtful these

laws will apply to freight drones in the first place (given their

478

See generally Privacy Act 1988 (Cth) (Austl.).

479

USTL

. H.R. S

TANDING

OMM

. P

’

& L

EGAL

FFS

., E

YES IN THE

NQUIRY INTO

RONES AND THE

EGULATION OF

AFETY AND

RIVACY

35 para.

4.12 (2014).

480

Quinlivian, supra note 461, at 2.

481

Id. at 3 (referring to Surveillance Devices Act 1999 (Vic) s 3 (Austl.)).

482

See generally H

ODGKINSON

& J

OHNSTON

, supra note 12, at 33; see also Jessica

Schladebeck, Utah Couple Charged with Voyeurism for Allegedly Recording Unsuspecting

People with Drone, N.Y. D

AILY

EWS

(Feb. 16, 2017, 9:13 AM), https://www.nydaily

news.com/news/crime/couple-charged-voyeurism-recording-people-drone-arti

cle-1.2974236.

2022] PREDICTING BEARING FAULT 369

distinct purpose is delivery operations. In Australia especially,

given Australia’s relatively weak protection of privacy, the instal-

lation of bearing condition-sensing devices and accompanying

cameras on drones does not immediately raise any litigable

issues.

483

X. BREACH OF STATUTORY DUTY

The breach of a duty imposed by a statute can give rise to a

claim under the tort of breach of statutory duty.

484

This is advantageous for a plaintiff to argue as it is a strict

liability offense. However, the courts have generally restricted

this action to worker safety and similar matters so it may not be

regarded as valid.

485

Rather, as discussed above, a breach of stat-

utory duties may just be used as evidence in a claim of negli-

gence that a person has fallen short of the care expected of a

reasonable person compliant with regulations.

486

XI. DEFENSES

On top of the defenses discussed above in each cause of ac-

tion, certain state and territory civil liability legislations relating

to defenses apply because they are expressed to apply to “civil

liability of any kind.”

487

A. G

OOD

AMARITANS

In all jurisdictions, there are provisions that protect commu-

nity volunteers from liability.

488

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.

483

In Australia, voyeurism is an offence under state criminal codes. See, e.g.,

Criminal Code Act 1899 (Qld) s 227A (Austl.); Crimes Act 1900 (NSW) s 91J

(Austl.).

484

Stuart v Kirkland-Veenstra (2009) 237 CLR 215, 263 para. 140 (Austl.).

485

See Stewart, supra note 86, at 21.

486

O’Connor v SP Bray Ltd (1937) 56 CLR 464, 477 (Austl.).

487

Stewart, supra note 86, at 15.

488

Civil Law (Wrongs) Act 2002 (ACT) s 5 (Austl.); Civil Liability Act 2002 (NSW)

s 57 (Austl.); Personal Injuries (Liability and Damages) Act 2003 (NT) s 8 (Austl.);

Civil Liability Act 2003 (Qld) ss 26–27 (Austl.); Civil Liability Act 1936 (SA) s 74

(Austl.); Civil Liability Act 2002 (Tas) s 35B (Austl.); Wrongs Act 1958 (Vic) s 31B

(Austl.); Civil Liability Act 2002 (WA) s 5AD (Austl.).

370 JOURNAL OF AIR LAW AND COMMERCE [87

B. I

NTOXICATION

In NSW, a statutory defense is available where persons are in-

toxicated at the time of their injury. The provision applies to

“civil liability of any kind for personal injury damages.”

489

In other states, there is a presumption of contributory negli-

gence where a plaintiff is intoxicated; those provisions apply to

claims for personal injury

490

or to proceedings for recovery of

damages.

491

C. I

LLEGALITY

Some state and territory provisions allow a type of illegality

defense,

492

which limits the recovery of damages in civil claims

by persons if they were engaged in criminal conduct at the time

of injury.

XII. CONCLUSION

In today’s age of robots, automation, and innovation, the ris-

ing wave of new use cases for drones has also generated new

scenarios involving a range of technical, operational, and legal

issues. Drone delivery shows particular promise in transforming

the freight and retail sector by expanding the reach or sales of

local businesses, lowering costs for consumers, and reducing

greenhouse emissions and accidents on the road. However,

there is a concern that accidents from the sky will emerge in

their place. With equipment failure currently accounting for the

majority of drone incidents, motor bearing issues present signifi-

cant risks for operators and manufacturers as bearing failures

are the most common cause of motor failure. Currently, there is

a continuous danger that the attrition of the drone bearing may

cause a catastrophic failure, leading the aircraft to fall to the

ground and cause bodily injury, damage to goods, or trespass to

property. While this issue has received some attention in the en-

489

Civil Liability Act 2002 (NSW) s 47 (Austl.).

490

Civil Law (Wrongs) Act 2002 (ACT) ss 93, 95 (Austl.).

491

Civil Liability Act 2002 (WA) s 5L(1) (Austl.); Personal Injuries (Liability and

Damages) Act 2003 (NT) ss 14–17 (Austl.); Civil Liability Act 1936 (SA) ss 46–48

(Austl.); Civil Liability Act 2002 (Tas) s 5 (Austl.). In Queensland and Victoria, the

provision applies only in the case of a breach of duty. Civil Liability Act 2003 (Qld)

ss 46–49 (Austl.); Wrongs Act 1958 (Vic) s 14G (Austl.).

492

Civil Law (Wrongs) Act 2002 (ACT) ss 93–94(1) (Austl.); Civil Liability Act

2002 (NSW) ss 51, 54 (Austl.); Personal Injuries (Liabilities and Damages) Act 2003

(NT) s 10(1) (Austl.); Civil Liability Act 1936 (SA) s 43(1) (Austl.); Civil Liability

Act 2002 (Tas) ss 5A–6 (Austl.).

2022] PREDICTING BEARING FAULT 371

gineering field, so far it has remained unaddressed in the legal

scholarship. This Article has sought to address this research gap

by investigating how a drone bearing condition monitoring sys-

tem can mitigate against liability for freight drones. It has been

argued that there is a strong legal rationale for the installation

of such a device.

First, in relation to safety regulations of freight drones, a relia-

ble drone bearing monitoring system will greatly assist an opera-

tor in proving satisfactory compliance. The device enables the

provision of essential information to CASA and regulatory au-

thorities in relation to job-safety assessments, noise regulations,

insurance requirements, future airworthiness regulations, and

the like. Assuming the system records data accurately, the infor-

mation can be adduced to indicate compliance with regulations.

Moreover, this data can be a useful data point for insurers to

assist in determining fault in the event of insurance claims, and

there is potential for the device to be seen as a “black box” of

sorts that can provide crucial evidence of what went wrong in an

incident.

Second, a drone motor bearing condition monitoring system

provides an answer to strict liability offenses where the only way

to avoid liability is to prevent the offense from occurring in the

first place. Where these “no fault” liability regimes operate, such

as in cases of Damage by Aircraft legislation or product liability

under the ACL, physical prevention of the harm materializing

will remain the best way to minimize legal risks. It is submitted

that a bearing condition monitoring mechanism achieves just

that.

Third, in the case of the common law, broadly speaking,

where operators and manufacturers make efforts to build safe-

guards and minimize risks, the law will in some cases respond by

regarding them as not at fault. The greatest use arises from

fault-based torts such as negligence, where the bearing monitor-

ing device can be supplied as evidence of reduced fault by the

operator or manufacturer, showing that they have taken active

steps to minimize the materialization of a known risk. For other

offenses, such as trespassory torts and nuisance, though the

bearing monitoring device will not reduce legal liability, it can

potentially minimize the damage of an interference by reducing

the velocity of landing. Otherwise, preemptively flagging before

the bearing reaches a stage of catastrophic failure helps prevent

exposure to liability in the first place.

372 JOURNAL OF AIR LAW AND COMMERCE [87

A specific framework that is tailored for RPAs will enable the

many economic, societal, and environmental benefits of drone

innovation to be fully realized. However, until amendments are

made, strict liability regimes that apply to RPAs will ensure that

some legal risks remain significant. In this context, it is argued

that there are both strong engineering and legal motivations to

install drone bearing monitoring technology on delivery drones

to mitigate some of these continuing risks.