Drone Tort Law: Establishing The Boundaries Of The Tort Of Nuisance

In reference to Francis Newark’s, it is evident that the tort of nuisance has been subjected to significant criticism through its ill formed origins and lack of boundaries. The criticism of this tort lies in its limited scope, which struggles to stand up to the test of time in providing environmental protection in a modern age categorized by the rise of environmental regulatory bodies. Chief Justice Sir William Erle emphasizes the difficulties when encountering the tort of nuisance due to its unstable doctrinal identity in relation to its own history which also cast doubt on its scope. The standing that the tort of nuisance has not ben properly defined nor articulated has provided a basis for whether it should step aside and give way to legislative control of activities more generally such as the proliferation of drones.

Technological and social developments have made modern life more complex and have thus created ways for dealing with ‘ancient’ problems. In Gearty’s article he stressed that the tort of nuisance was ‘confused and confusing,’ suffered from a ‘poverty of principle’, had lost ‘all sense of that for which it stands’, lacked definition, any sense of direction and ‘any coherent goals or purpose.’ Equally, A Mullis states that ‘private nuisance suffers from a lack of doctrinal clarity’ and that the tort ‘has yet to be united under a coherent thread of general principle.’ It is evident that there has been a shift from the common law tort of nuisance to legislative control of activities which can make way for new regulation. It is clear from Chief Erle and Newark’s sentiments that the history of the tort of nuisance is perceived as vague and unclear, whereas legislature creates enforceable rules that seek to minimise problems arising in the first place. As outlined by Francis Newark, nuisance law today is ill suited to address modern forms of interference e.g. pollution, and drones as the cases of nuisance brought before the courts are unlike neighbour disagreements previously envisioned.

In a period where Parliament has enacted a body of regulatory law for the purpose of environmental protection there is uncertainty about the place of common law solutions to modern issues such as drones. Currently, the tort of nuisance does not address ‘modern forms of interference with the right of property owner’s.’ This is evident through the question of whether a drone crosses boundaries of nuisance through hovering over one’s property, capturing images without consent and whether destruction of drones are acceptable. The question courts and lawmakers should be addressing is whether existing trespass, nuisance, and privacy laws provide adequate legal remedies. The introduction of drones extends beyond the reach of the traditional common law tort of nuisance designed to protect property rights as a drone has the versatility to operate at different altitudes in consideration of the physical proximity which is a key element of the tort of nuisance. This may undermine any reliance on the current tort scheme to provide relief on controversies involving drones. As drones begin to occupy the sky, there will be an increase in individuals looking for assistance from current tort law and where the tort of nuisance falls short of providing reparation, public pressure will mount to create legislative control.

Public tort is argued to be regarded as a public action rather than a tort as it is an action by public authorities to charge criminally or abate and therefore should be controlled by legislation. As public tort charges individuals criminally, there is a call for public nuisance to be determined within the parameters of legislature, not courts when targeting social harms. As a public action, the proper institution to determine the parameters of public nuisance liability is the legislature, not courts based on a claim of common law authority. There is the belief that public nuisance as an instrument for social reform litigation conflicts with broadly shared principles about the proper assignment of roles among different legal institutions in our society.

The limitations of the tort of nuisance as a primitive regulatory tool to deal with technological and social developments has called upon legislative control of activities. The complexities of modern life such as drones requires legislative control that can be addressed by means of regulation. The current system of case by case treatment of conflicts using vague standards, has meant that legislature should be introduced to create enforceable regulations that seek to diminish modern forms of interference.