Drone pilot who crashed into paraglider in New Zealand comes before the Court. Here's how it went down...
Published: 14 September 2022.
On 15 February 2018, Mr Pitman was flying his DJI Phantom 3 at Karioitahi Beach which is located in the southwest of the Auckland region, on the west coast of New Zealand’s North Island. The airspace above Karioitahi Beach is uncontrolled. Pitman had been there twice before.
Before taking off he checked the Airshare website and satisfied himself that the airspace above the beach was not controlled airspace, and there were no potential hazards shown in the immediate area where he planned to fly.
Turns out, the beach and its surrounds are popular for paragliding and commonly used by local paragliding schools for training. Pitman was apparently not aware that Karioitahi Beach was popular with paragliders.
When Pitman arrived at the beach, he set himself up away from other people and approximately 200m south of the launching spot used by paragliders. He did not see any paragliders initially, and those he saw later were in the distance further north of his position. He launched his drone and flew it without incident for 20 to 25 minutes before changing the battery. It was around this time that he saw a paraglider through his remote pilot operator’s screen display fly past his position heading south. Mr Pitman then turned his mind to the possibility that paragliders might be operating near his position.
The drone’ was moving south, but with the camera facing north. At the relevant time, Mr Pitman was looking at the camera operator screen and suddenly saw the image on the screen “spinning in circles”. His drone had collided with a paraglider, piloted by a student pilot, and had become entangled in the brake lines.
The paraglider was able to land, but the drone having become entangled in one of the brake lines, made steering difficult. The paraglider was unhurt but left shaken by the experience.
A complaint was made to New Zealand’s Civil Aviation Authority (CAA) about the collision and the manner of Pitman’s flying on the day.
Two charges were brought by the Director of Civil Aviation against Mr Pitman, namely:
- Operating the drone in a manner that caused unnecessary endangerment to the paraglider contrary to s 44 of the Civil Aviation Act 1990 (the Act). The type of offending against s 44 is broad and captures a wide range of activities. In the context of this case, what is required under s 44 is proof that: (a) the defendant operated the drone and (b) whether the way in which he did so caused danger that was otherwise unnecessary judged from an objective standpoint; and
- Pitman failed to give way to and keep clear of a manned aircraft, namely the paraglider as required by Civil Aviation Rule 101.213(a).
Both charges are strict liability offences [that is, the offending act itself is enough and no intention element is required; compare it to a speeding offence – it doesn’t matter if you didn’t mean to do it, if you are found to do it, then the offence is proven].
The defence raised by Mr Pitman at trial was absence of fault. Pitman submitted that what occurred was an accident – an unintended and unforeseeable mishap – and, that his actions on the day were without fault. [This might be comparable with the ‘honest mistake of fact’ defence in Australia, but that’s a yarn for another camp fire].
The Court found that there was no dispute that Pitman was the operator of the drone which collided with the paraglider. The collision was clearly the result of a failure to give way on the part of Pitman. The Court was also satisfied that the collision did cause unnecessary and avoidable danger.
The trial issue was whether Pitman was totally without fault. A significant part of Pitman’s defence rested on the reliance he placed on Airshare and the information provided by the website, including the fact that the map of the airspace over Karioitahi Beach on Airshare failed to warn of competing users like paragliders. Pitman also pointed to a lack of warning signs at the beach itself alerting people to the possibility of paragliders, or signs prohibiting drone use to reinforce the submissions that Pitman had no reason to consider that he should not fly his drone there or keep an eye out in particular for paragliders.
The Court found these defence arguments ultimately irrelevant for two reasons.
First, the prosecution did not suggest Pitman was not allowed to fly his drone at the beach. He could fly a drone there. The issue at the heart of this trial is the way in which he operated his drone.
Second, Airshare is not the authoritative source for safe flying practices by drone operators. The website itself makes clear that the drone operator has a responsibility to read, understand and operate any drones in accordance with the Civil Aviation Regulations (CARs). Had Pitman consulted the CARs, which is what is expected of a reasonable and prudent pilot, he would have been informed by Part 71 of Visual Navigation Charts (VNCs) and their importance. The VNC covering Karioitahi Beach warns of hang gliders and paragliders using the airspace.
The Court found that the fact that the Airshare map failed to warn of paragliders using the same area, does not alter, remove or modify the crucial obligation incumbent on any pilot. That obligation is to maintain situational awareness; to maintain observation of the surrounding airspace in which the aircraft is operating for other aircraft and to keep clear.
Even if Pitman was not aware that paragliders were in his general vicinity before launching his drone on the first occasion, he did see two in the distance at some point. He later became aware of one’s presence when the paraglider flew past his position towards the southern end of the beach. A reasonable person would have then contemplated the possibility that other paragliders might also be nearby. From that precise moment he should have appreciated his flying might pose a hazard to others in the air sharing the same airspace as his drone.
Pitman maintained that he was fully aware of the importance of keeping a clear line of sight of his drone, and he did always so. However, his evidence was rejected. Had he maintained actual line of sight at all times, the expansive clear sky overhead of his position on the beach, and the good weather at the time means he should have seen the paraglider.
Pitman himself admitted in Court that “…perhaps there was at times I could have looked at the screen a little too much, but before the crash, I just remembering reference checking consistently so yeah to the best of my knowledge I was spending a fair, like equal time between the two”.
The prosecution called expert evidence from Ms Jayne Marsh who is the Manager of Rotorua Airport. Prior to this role she worked for an Unmanned Aircraft Operator Certified Organisation Interpine Group Ltd. She is an experienced aviator with remotely piloted aircraft. Ms Marsh accepted that a single operator might look down at the screen occasionally when filming, but her evidence here was: “Yes, as long as you keep looking is the main thing, and that actually is surprisingly hard to do…yes you should be doing, be closer to be you look, look, look, look and then you just cross check your instruments and then you look again. So, be 90% looking and 10% down here.”
If Pitman was overly reliant on flying the drone by first-person view (FPV) (as opposed to watching the craft in the air), it would best explain why he did not see the paraglider. Pitman would have been flying south, using a camera facing north to look in the opposite direction of his travel. It would have been akin to steering a car in a forward direction by reference only to the rear vision mirror, which bears all the hallmarks of fault. Using FPV would also explain why Pitman was unable to see the surrounding airspace in which his aircraft was operating.
The Court’s view was that spending equal time between FPV and keeping actual sight of the drone demonstrates an unacceptable level of discipline. It is this behaviour that falls well below the standard of care and skill reasonably expected of a prudent and skilful pilot.
The Court concluded that Pitman’s over-reliance on FPV to fly his drone on the day, and his corresponding failure to maintain visual line of sight, resulted in him failing to remain clear of the paraglider. This caused unnecessary danger to paraglider. Mr Pitman was therefore at fault and the defence case must fail. As a result, the Court was satisfied that the prosecution has proven the two charges against Pitman to the required standard.
The matter was then adjourned to a later date for sentencing.
The first charge of operating a drone in a manner that caused unnecessary endangerment to the paraglider contrary to s 44 of the Civil Aviation Act 1990 carries the maximum penalty of up to 12 months’ imprisonment or a $10,000 fine.
The second charge of failing to give way to and keep clear of a manned aircraft namely, the paraglider, as required by Civil Aviation Rule 101.213(a) carries an infringement of up to $2,000, but no conviction.
Pitman applied to the court for a discharge without conviction. That is, the court can discharge an offender without a conviction provided the court is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending. [Note: similar provisions exist in Australia where you can be found guilty of an offence that carries a conviction, but no conviction is recorded, I’ve run a few of these]. This application was opposed by the Civil Aviation Authority.
Only the first charge of operating a drone in a manner that caused unnecessary endangerment to the paraglider carried a potential conviction so only that charge needed to be considered in relation to the discharge.
The court reiterated that the principal obligation incumbent on any pilot is to maintain situational awareness. In other words, it is important for any pilot to maintain observation of the surrounding airspace in which their aircraft is operating looking out for other aircraft and other users of airspace so as to keep clear and avoid one another. The Court found that Pitman failed to do this. The Court’s view at trial was that the collision was clearly the result of Pitman’s failure on your part to keep a look out. The Court was also satisfied that the collision did cause unnecessary and avoidable danger.
The Court took into account Pitman’s having previous good character (provided by Pitman by way of character references). The Court also accepted that Pitman was remorseful (provided by Pitman by way of affidavit). The Court considered Pitman’s remorse to be genuine and evident from the very time the accident occurred. Pitman approached the paraglider immediately after the incident and made an offer to address any loss the paraglider might have suffered as a result of the collision. Pitman gave over his details to the paraglider. The Court also took into account that the likelihood of Pitman re-offending in the future is low. When all of the circumstances and features are taken into account, the Court’s view was that while the offending charge is serious, the gravity of Pitman’s offending was somewhere in the area of low to moderate.
Pitman raised three consequences of a conviction to try to persuade the Court why he should not be convicted:
First, Pitman’s career prospects. Pitman has considerable prospects as a screenwriter and/or director. A conviction may have adverse consequences to his future career prospects.
Second, future travel plans. Pitman argued that a conviction might affect his international travel and work aspirations. The Court found that most cases around adverse travel issues deal with the risk of removal rather than travelling.
Third, Pitman expressed that a conviction would have an adverse effect on his mental health. Pitman referred to suffering from anxiety, panic attacks and a general disorder for which he received treatment. He provided a letter from his counsellor with whom he had been involved with since December 2017. The Court acknowledged that adverse impacts on a person’s mental health as a result of being convicted of a criminal offence are common. However, the Court was unpersuaded by the evidence that the fact of a conviction, in and of itself, is likely to have such an impact on Pitman’s mental health so as to warrant a discharge without conviction.
In summing up, the Court decided that, when the consequences raised by Pitman were measured against the low to moderate gravity assessment of the offence, the Court found that Pitman did not establish that a convcton was disproportionate to the offence. As a result, Pitman’s application to discharge without a conviction was declined.
In terms of the penalty, the Court considered the maximum fee attached to the infringement charge of $2,000. The Court then discounted that to reflect Pitman’s good character, remorse and future prospects. Consequently, the Court allowed a 50% fine reduction. The end sentence therefore was a fine of $1,000, apportioned between the two charges equally.
Pitman then appealed the Judge’s decision to decline his application for a discharge without conviction. Pitman’s appeal was based on three grounds, that the Judge erred (was incorrect):
- in assessing the gravity of the offending;
- assessing whether the consequences of conviction were out of all proportion to the gravity of the offending; and
- by not exercising his discretion to discharge Mr Pitman without a conviction.
The Court is allowed to discharge an offender without conviction provided the court is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
Pitman raised two other drone cases to support his appeal for a discharge without conviction. One case related to a defendant flying a drone in a forest fire in controlled airspace where helicopters were operating, the defendant was discharged without conviction. The Court said this case was not really comparable because in that case, the intrusion into controlled airspace was very close to the boundaries and posed no actual risk to any aircraft meaning that the gravity of the offending in that case was considered by the Judge to be very low.
The other case raised by Pitman also involved a drone pilot taking photographs of an ongoing forest fire. In that case, the pilot operated their drone within 50 metres of one of the helicopters fighting the fire, which forced the helicopters to land and suspended the firefighting operation for two hours. Around ten additional hectares were burned as a result, and flying time worth $8,000 to $10,000 was lost due to the grounding. In this case an application for a discgharge with no conviction was rejected. In that case the drone flying in that case had put helicopter pilots at a genuine risk of a catastrophic collision. The offending in that case, which did not involve an actual collision, was nevertheless described as “at least moderately serious”, and so a discharge was rejected and conviction upheld.
Pitman argued that his offending was at the low end of the scale because it was an isolated area, the offence was momentary inattention, and there was no active and obvious endangerment. Pitman also argued that the lack of clear directives on flying drones generally, there being no relevant signs at the beach warning of paragliders also as in his favour to not be convicted. Pitman argued that in consideration of all of these factors, the Judge was wrong in assessing the gravity of the offending as low to moderate, instead the gravity of the offending should have been assessed as no more than low.
The CAA argued that the Judge was correct to assess the offending as moderately serious. It emphasised that the paraglider could have been seriously injured or killed. The CAA also argued that Pitman’s offending was not a a “momentary lapse of attention” and rather that Mr Pitman was flying the drone in an unsafe manner throughout the day, with ongoing and unsafe reliance on the camera operator screen for the drone, rather than watching the drone directly in the sky overhead.
The Court agreed that the offending was not a momentary lapse of attention. While there was no suggestion that Pitman was deliberately flying his drone in an area he knew to be popular with paragliders, or actively and knowingly continuing to fly his drone in an area close to paragliders, the Judge nonetheless found that that the gravity of the offending was not low. Pitman’s over reliance on the remote pilot station screen was relevant. The Judge classified the gravity of the offending as moderate (though more at the upper end of that categorisation, rather than the lower).
The Court then considered Pitman’s mitigating factors which caused the Judge to categorise the gravity of the offending overall as low (rather than low to moderate).
As to the effect of a conviction on Pitman’s employment prospects, while the Court accepted a likely impact on employment prospects, the Court was still not persuaded that any such effect is out of all proportion to the gravity of the offending.
Finally, in relation to the effect of a conviction on Pitman’s mental health, the fact that there were pre-existing issues indidcaed that Pitman’s mental health issues were not been caused themselves by the proceedings or a conviction.
The Court dismissed Pitman’s appeal and maintained the conviction.
While each case is decided on its own facts, there are some key learnings in this case which help to guide all operators on what the Court may consider to be important or relevant, and what things the Court might not find persuasive. We note that this is a New Zealand case, so it is generally not binding in Australian Courts but could be persuasive in assisting an Australian Courts in making a decision. Also, obviously the laws are different in NZ, although there are clearly some similarities. This summary is a combination of three court events, the trial available here, the sentencing available here, and the appeal available here.
The Drone Lawyer
14 September 2022
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