Like many technologies before them, drones have made the jump from military origins to commercial and consumer markets. Goldman Sachs forecasts a $100bn market opportunity for drones, with the construction industry identified as a major professional market (approx. $11.1bn). However, whilst this disruptive technology presents many potential benefits, the scope for disputes will also no doubt increase.
Rise of the Drone
Whilst the construction industry has not always been an early adopter of new technologies, drones are increasingly becoming a common sight on buildings sites across the world. For example, they can be used to inspect hard to reach areas, such as chimneys, roofs and towers, improving site safety and allowing risks to be identified from afar. Drones are being used on a daily basis to map and survey sites; they can be used to create a precise plan of the work completed, and the extent of the work outstanding, via survey maps and high-resolution aerial photographs. This real time data can be built into 3D models to create an exact replica of the reality on site and shared with a client. Whilst the use of this information in quantifying delay claims is yet to be utilised in the English courts, it has the potential to completely revolutionise this area of dispute.
Drones can also be used in conjunction with plant on site. It is reported that Komatsu are combining the use of drones with diggers at their facility in County Durham. The drone ‘guides’ the digger to ensure that a precise ground level is excavated by the human operator, removing the scope for human error.
The use of drones is beginning to alter the principles of building design. Structures are no longer viewed as permanent, as a drone can be programmed both to construct and deconstruct, as well as to measure and monitor progress and design on site. Buildings could increase or decrease in size depending on demand. This also has the potential to address environmental pressures on the industry. UKGBC reports that in 2014 120Mt of waste was generated from construction, demolition and excavation. The efficiencies of using drones, not only in the construction process, but also in the deconstruction of buildings, could work towards addressing this waste and have a positive impact on the environment.
Potential legal and insurance issues
Whilst the above all appears to be extremely positive there are several legal issues to bear in mind when using a drone on site.
As mentioned above, daily surveys of site progress can in theory revolutionise delay disputes, as the reality on site will be known. Drone-mapping can provide real time aerial images of sites, which together can be used to identify the cause(s) of any delay to the project, and potentially to avoid costly and long-running disputes.
In addition, where designers and contractors on site rely on a survey taken by a drone, complex liability issues may arise. When a defect emerges in a structure produced using a drone survey, where the drone survey has, for example, been processed off site by a technology company then used by the designer or a contractor to create what turns out to have been an inaccurate model with their 3D printer, the parties will inevitably explore potential issues with the design and functionality of the drone as well as the role of other elements within the design and construction process. The question of whether the liability rests with the main parties (ie designer or contractor), or with the drone manufacturer, survey operator, data processor or 3D printing contractor, will add layers of complexity and potentially complex factual investigations to this type of dispute.
Technology such as drones will also be prone to cyber-attacks – if this occurs, who will bear responsibility for any resulting defects or delays? Responsibility will often depend on the terms of the contracts in place between the parties involved and it is therefore imperative that this risk is expressly addressed. Identifiable risks such as this should also be addressed in the professional indemnity insurance policies of both the drone operator and anyone relying upon the output of the drone’s work. The parties may need to consider specific cyber risk insurance.
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.