The Stadiums industry will enjoy great commercial bene t from the use of drones. It is also open to the risks associated with the misuse of drones by third parties. This article explores this question of managing liability in the current Australian legal framework.

1. Uses and Risks of Commercial Drones in Stadiums | 1
Remotely Piloted Aircraft, more commonly
called drones have gone from being used
by militaries and hobbyists around the
world to a key asset for businesses across
industries. A McKinsey report detailed the
surge in the value of drone activity from
$40 million in 2012 to $1 billion in 2017
just in the United States.
One of the big issues with the adoption of drones
commercially is the uncertain application of the
law. The Civil Aviation Safety Authority (CASA), has
introduced a number of regulations covering flight
operations, as well as requirements for licencing and
accreditation. There are also draft ISO standards just
released.
However, for a business, the big question is – if we
use drones and something goes wrong what is our
liability? And, more importantly, how do we minimise
and manage this liability? In some areas it can even
go further than this – what if someone else is using
drones, illegally or not in the vicinity of our business,
staff or customers. Do we have a duty to protect
people from these activities? None of these issues
have, as yet, been before
the courts in Australia.
This article explores this
question of managing
liability in the current
Australian legal
framework. In order to
work with specifics, we
have chosen to focus
on stadiums and sporting venues (“Stadiums”). This
industry will enjoy great commercial benefit from the
use of drones. It is also open to the risks associated
with the misuse of drones by third parties.
For a business,
the big question is
– if we use drones
and something
goes wrong what
is our liability?
Uses and Risks of Commercial
Drones in Stadiums
dronetechinstitute.com

2. Commercial uses for drones in Stadiums
There are many areas where Stadiums can use
drone technology:
Assistance with repair and maintenance of
assets - Heights and Confined Spaces
Crowd control and surveillance
Emergency force multiplier
Media of the event
(either themselves or selling the rights to third
parties who operate the drones)
As an integral part of the entertainment.
ie. example is a drone swarm rather than
fireworks http://fortune.com/2018/06/14/drone-
swarms-fireworks-china/.
In its base CASA Regulations prevent drones being
flown over a populated areas and within 30 metres
of people, which on the face of it prevent the use
of drones during Stadium events. However, CASA
can give approval to allow Stadium operators
to deviate from ‘standard operating conditions’,
part of this process includes ensuring drones are
certificated and that the operator is adequately
qualified to operate the drone. This process would
need to be navigated before the drones were used
commercially.
And then, a drone falls from the sky
Let’s consider a very specific adverse event. Let’s
imagine a crowded sporting stadium hosting an
AFL Grand Final. The Stadium operator is using a
drone to collect footage and photograph the event.
They have received CASA approval to use the
drones above the crowd. The drone pilot is not an
employee of the Stadium but an individual who is an
experienced pilot, licenced by CASA. He provides
drone pilot services to many organisations, he owns
the drone.
Ten minutes after “the bounce” the drone
inexplicably falls from the sky. It plummets into the
crowd, seriously injuring a patron – what happens
next? Who is liable?
1.
2.
3.
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5.
Duty of care
Under Australian law there is an established duty
relationship between venue occupiers and lawful
entrants (invitees). Where entry on the premises is
lawful, the relationship in itself, is generally sufficient
to establish, on the occupier’s part, a duty to take
reasonable care to avoid a foreseeable risk of harm
from occurring.
This means that should a Stadium use a drone, and
should it fall from the sky and injure a patron there
is a clear case for a damages claim against the
Stadium operator. The injured party would argue that
as an occupier of a premise, the Stadium owes them
a duty of care. Although this point is uncontentious,
the injured party would then need to convince a
court that the standard or level of duty of care they
are owed extends to protections against falling
drones. Finally, the injured party would need to
prove that there has been a breach of this duty of
care and they have suffered recognized loss as a
result.
The standard of care is determined on a case by
case basis, however the formulation as it relates
to occupiers which has been adopted by the High
Court of Australia in Australian Safeway Stores Pty
Ltd v Zaluzna (1987) 162 CLR 479 is:
“The touchstone of its existence [duty of care] is
that there be reasonable foreseeability of a real
risk of injury to the visitor or to the class of person
of which the visitor is a member.”
Uses and Risks of Commercial Drones in Stadiums | 2dronetechinstitute.com

3. An existence of a duty of care by Stadiums would
then seem to turn on whether injury by drones within
the premise is deemed a real risk.
The risk to the public of a drone flying across a
crowd is, I would argue, foreseeable. The fact that
CASA require special approval, deeming it “special
operating provisions” indicate that it is considered a
foreseeable risk.
If the finding of the existence of the duty of care
is inevitable (or at least highly likely) in these
circumstances, then the question is how can the
duty of care be satisfied?
How can a Stadium satisfy it’s duty of
care?
No Australian court has yet considered what is
required by a Stadium (or any other commercial
drone operator) to establish that they have complied
with their duty of care.
However, in the same formulation from Safeway
Stores, the High Court reasoned that:
“The measure of the discharge of the duty
is what a reasonable man would, in the
circumstances, do by way of response to the
foreseeable risk.”
There are two options for what went wrong
in relation to the incident; human error or
technological/mechanical failure. I suggest, these
are the areas that we should be focused on as
foreseeable risks.
Applying the principals from Australian cases
dealing with occupier’s liability we recommend a
Stadium considering the commercial use of drone
technology take the following steps.
Uses and Risks of Commercial Drones in Stadiums | 3dronetechinstitute.com

4. Consider the benefits/risks
of drones
These should be thoroughly
considered and documented.
Drone experts should be briefed
to consider and document
potential uses of drones in
the Stadium and set out the
risks and their likelihood. The
Institute for Drone Technology
™ provide these services and
are recognised leaders in the
industry. This review should be
considered at the appropriate
level within the Stadium
operators organisation before
any decisions are made (or any
drones used).
Who is flying the drones?
In our example it is a CASA
Registered pilot who is
contracting to the Stadium. In
these circumstances the Stadium
should carry out some due
diligence on this operator and
should have a formal agreement
with them. This agreement should
set out where the risk and liability
falls and the pilot’s obligation of
competency and care. Where
the pilot is an employee of
the Stadium operator then this
will require an employment
agreement and policies in
place which indicate that all
“human error” risks have been
considered and mitigated.
Uses and Risks of Commercial Drones in Stadiums | 4dronetechinstitute.com
Operations on flying days
CASA Regulations and approvals
must be complied with, and
there needs to be a systematic
approach to recording this. This
is where Dronesafe ™ can provide
a solution. Dronesafe™’s product
is a structured and consistent
step-by-step pre- and post-flight
checklist for drone pilots to
ensure safe and effective usage
while also providing an audit
trail of all flights. The use of this
system would be a relevant factor
for a court when considering the
satisfaction (or otherwise) of the
Stadium’s duty of care.
Fitness of the Drone
If the cause of the accident was
drone failure (as opposed to pilot
failure) then the courts would
want to know how the Stadium
had ensured the drone was fit
to fly. In the incident the drone
was owned by the pilot. In the
Stadium’s agreement with the
pilot there should be warranties
about the maintenance and
reliability of the drones used.
Management systems The
Dronesafe ® system also deals
with aspects of this – battery
charging for example.
Policies and Procedures
A court would expect the Stadium
to have well documented
Policies and Procedures relating
to drone use. These would
come out of the The Institute of
Drone Technology ™ ‘s discovery
workshop at 1 above. The
Stadium’s OHS Policy would
also need to be considered and
updated in light of commercial
drone usage. This is, of course,
another area of potential liability
for the Stadium.
Staff training
Policies and Procedures are no
use sitting in a bottom drawer.
Once drafted there would need
to be structured staff training
relating to drones and their
risks. The Institute of Drone
Technology ™ is also an expert in
training in the drone industry and
would be able to assist with this.
In addition to these steps, we would also recommend a review of
insurance policies to ensure misadventure through drone is covered.

5. Uses and Risks of Commercial Drones in Stadiums | 5dronetechinstitute.com
What about drones that are in the area, but
not flown by (or on behalf of) the Stadium?
With large, relatively open spaces, Stadiums
have proven highly alluring to recreational drone
operators who revel at the chance to capture
footage of a grand final or a summer music concert
from new heights. CASA Regulations state that
drones cannot be flown within 30 metres of
people or over a populated area. There have been
numerous cases where hobbyists have been fined
by CASA for overflying these areas. This year a man
found to have breached these rules by flying his
drone over Suncorp Stadium during an Ed Sheeran
concert was fined $1,000.
In this incident nobody was harmed but the question
is what if this third-party drone, that was breaking
the law at the time, had fallen and injured someone
inside Suncorp Stadium, could Suncorp be liable?
In Adeels Palace v Moubarak (2009) 239 CLR 420
Mr Moubarak and Mr Najem were shot by a gunman
within at Adeels Palace (a nightclub) during a New
Year’s Eve party. The court ruled that a duty of care
by a venue can extend to protecting patrons against
violent and illicit acts of others within the venue.
The ruling in Adeels is a clear precedent for holding
licensed venues responsible for injury incurred
due to third party acts on the premises. Whether
this would extend to stadiums and drones is yet
to be seen. However, it is worth noting that many
of the features and statutory obligations which the
court referenced in Adeels also applies in the case
of Stadiums. Stadiums also have an obligation to
ensure a safe space for spectators, this involves
minimizing anti-social behavior, evicting violent or
troublesome patrons and conducting bag checks. It
is possible the courts could extent this to protecting
patrons from drones that are being misused.
Would the courts consider that a Stadium should
have counter drone technology to protect patrons?
Should they have security patrolling the outside of
the Stadium to shut down illegal drone operations
when they occur? Once again, all these measures
are things that The Institute for Drone Technology ™
is expert in and we could advise Stadium operators.
These issues should be considered thoroughly and
carefully.

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Is there strict liability for drones?
There is a risk that drones can fall under the
definition of aircraft, which would mean damage or
injury by them may fall under the Damage by Aircraft
Act 1999 (“the Act”).
The question of whether drones fall under the
definition of aircraft is yet to be tested by the courts.
The only guidance we have from the statute states
that an aircraft does not include model aircraft.
‘Model Aircraft’ is not defined in the 1999 act but
a definition exists within the Civil Aviation Safety
Regulations 1998 as:
“[A]n aircraft that is used for sport or recreation,
and cannot carry a person”
Since stadiums would be using drones outside this
defined purpose, there is a chance the courts deem
drones in these situations as aircraft.
Section 7 of the Act specifically states that an
employee that uses an aircraft in the course of his
or her employment (irrespective of whether the
employee is authorized), for the purposes of the 1999
Act, the Stadium is taken to have been ‘used’ the
aircraft.
In the incident set out in this article the operator
of the drone was a consultant, not an employee.
The question is – could using this structure protect
the Stadium from strict liability? Once again, this
requires careful examination of the relationship
and consideration of circumstances where parties
“identified as contractors” are actually found to be
employees. These issues need to be considered and
reflected in formal agreements between the Stadium
and any drone pilot.
It may be that the first case to come to court in
Australia will not just argue breach of duty of care,
but in the alternative will allege there is strict liability
in relation to drones under the Act.
Drones are poised to provide incredible
opportunities for Stadiums, but this is not without risk.
In order to adequately mitigate the risks, we suggest
the first step is to engage with the experts at The
Institute for Drone Technology ™.
Every day new things happen in this space, a
business operating drones needs to keep up to date
and make sure that all the steps above are constantly
updated in light of changes to laws, court cases and
movements in technology.
Want to know where to start?
The Institute for Drone Technology™ is a drone consultancy,
a RTO (no 45181) and approved CASA training provider.