The instructions in this article are aimed at English-speaking aviation regions
Helicopter Landing Sites and Duty of Care
Helipaddy believes that safety and noise are two of the greatest challenges for off-airfield landings at unlicensed private locations (defined as helicopter Landing Sites or HLS’s by the UK’s Civil Aviation Authority). As such, the Helipaddy landing site database is designed to help both pilots and landing site owners address these issues.
The regulators deal with aircraft and licensed landing sites but not with private unlicensed HLS’s, unless they are being used for commercial transport in which case they must have an up-to-date survey. Thus most HLS’s remain unregulated and are governed by the law of the territory in which they are located. This is usually English law, even for many locations outside England. The main part of law that applies is that of tort, in particular trespass and the duty of care. Owners of landing sites that accept helicopters (or indeed any visitors, even on foot or by car, for that matter) will need to be familiar with these areas of law. Most private unlicensed HLS operators are hotels and will be fully aware of these obligations as regards their buildings but possibly less so as regards their landing sites.
English tort law concerns the compensation for harm to people’s rights to health and safety, a clean environment, property, their economic interests, or their reputations and forms one of the three main pillars of the law of obligations between volunteering parties.
Trespass to land involves the “unjustifiable interference with land which is in the immediate and exclusive possession of another”; it is both a tort and, in certain circumstances, a crime. It is not necessary to prove that harm was suffered to bring a claim. While most trespasses to land are intentional, the courts have decided that it could also be committed negligently – accidental trespass also incurs liability. The airspace above the land is excluded as long as you are flying at a reasonable height.
Duty of care is sometimes owed by the HLS to the pilot to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability of negligence is imposed upon the HLS to compensate the victim for any losses they incur, even if they are strangers with no contract. The duty of care cannot be delegated to a third party or insured away under English law.
There are usually 5 elements required to exist to prove negligence and these are Duty, Breach of Duty, Cause in Fact, Proximate Cause, Damages. Helipaddy recommends all site owners to familiarise themselves with these elements and keep a risk assessment of the HLS maintained. The UK’s Health and Safety Executive provides some guidance on how to assess risk in terms of the likelihood and consequence of incidents.
Duty – arises when the law recognizes a relationship between the site owner and the pilot requiring the HLS owner to act in a certain manner toward the pilot. A judge will usually find that a duty exists if a reasonable person would find that a duty exists under a particular set of circumstances. If the HLS owner didn’t know the pilot was arriving (so was trespassing), it is possible a court would be less likely to find that the HLS owner owed a duty.
Breach of Duty – it’s not enough for a pilot to prove that the HLS owner owed him or her or a duty; the pilot must also prove that the HLS owner breached his or her duty to the pilot. A HLS owner breaches such a duty by failing to exercise reasonable care in fulfilling the duty and is decided by a jury as a question of fact.
Cause in Fact – under the traditional rules in negligence cases, a pilot must prove that the HLS owner’s actions were the actual cause of the pilot’s injury. This is often referred to as “but-for” causation, meaning that, but for the HLS owner’s actions, the pilot’s injury would not have occurred.
Proximate Cause – a HLS owner in a negligence case is only responsible for those harms that the HLS owner could have foreseen through his or her actions. If a HLS owner has caused damages that are outside of the scope of the risks that the HLS owner could have foreseen, then the pilot cannot prove that the HLS owner’s actions were the proximate cause of the pilot’s damages.
Damages – the pilot in a negligence case must prove a legally recognized harm, usually in the form of physical injury to a person or to property. It’s not enough that the HLS owner failed to exercise reasonable care. The failure to exercise reasonable care must result in actual damages to a person to whom the HLS owner owed a duty of care.
Many HLS’s insist on combinations of prior permission (PPR), insurance indemnities and landing fees. However, none of these directly assist an HLS in proving that proper care was taken and, in the case of PPR and fees, possibly increase the liability for the HLS owner. Helipaddy recommend that HLS owners take legal advice before implementing landing fees and/or PPR rules.
A risk management policy is a useful tool for an HLS to manage the exposure to negligence. The level of detail in a risk assessment should be proportionate to the risk and appropriate to the nature of the situation. Insignificant risks can usually be ignored, as can risks arising from routine activities associated with life in general. The risk assessment should only include what you could reasonably be expected to know – you are not expected to anticipate unforeseeable risks. A good example might be the effect of a tall building on wind. There have been cases where the failure to carry out a proper risk assessment could indirectly cause an injury and, if the litigating pilot could prove this, they would succeed in establishing liability. A risk assessment should be seen as an active and living document whereby risks are regularly considered and safeguards implemented. HLS owners will appreciate the need for pilots to have appropriate levels of information and the preventive and protective measures should reflect the risks that pilots are taking by coming to the landing site.
Here are some examples of hazards and their associated risks but, in reality, every HLS is very different. Each hazard and the associated check should be signed and dated and the overall assessment should be approved by the owner to ensure that the hazards have been identified. The risk is defined by estimating the likelihood and the consequences.
The British Helicopter Association provide some technical guidance on how to set up a good landing area and this is summarised as follows in respect of non-commercial flights:
- As a rough guide allow 2 tennis courts per helicopter, assuming there is a safe and noise friendly approach in to the site. 1 acre is equivalent to 16 tennis courts or 8 helicopters.
- Provided the intended helicopter landing site is not within a congested area (an area in relation to a city, town or settlement which is substantially used for residential, industrial, commercial or recreational purposes) or close to an open air assembly of 1000 or more people it is only necessary for the landowner to grant permission to the helicopter operator to use the site
- Responsibility for the safety of helicopter-flying operations lies wholly with the helicopter operator
- Privately operated helicopters, although not bound by law to conform, are nevertheless advised to exercise caution when using unlicensed sites at night. It is recommended that owners adopt the same standards as for public transport operations.
- In the UK helicopters are required to operate from licensed sites only if they are conducting scheduled services or if they are being used for ab initio pilot training. All other flights, apart from training flights, do not attract the legal requirement to operate from licensed heliports.
- Sites used in conjunction with special events at which less than 100 movements are anticipated, even though not requiring a licence, should nevertheless be notified to the CAA and may be inspected on the day of the event by Flight Operations Inspectors. Whether licensed or not, sites should only be selected which take full account of the performance requirements of all helicopter types likely to operate the site.
- For all single-engine types the recommended take-off profile starts from a low hover, is accelerated close to the ground until the safe climb speed (about 40/50 kts) is reached, at which stage the aircraft is climbed away maintaining this speed. The distance varies with aircraft type and wind conditions. The first one third of the take-off distance should be at least 30 metres wide and the surface must be relatively firm and flat and free from all obstacles. The remaining two thirds of the Take-off Distance Available, may contain insignificant or frangible obstacles within it, such that the aircraft, in the event of failure of the power unit, can force land without hazard to the occupants of the helicopter and without endangering persons or property on the surface. It is assumed that in the event of a power unit failure occurring from the time the aircraft moves away from the hover until it reaches 100 feet, that the ensuing forced landing will be made without any significant changes in aircraft direction being attempted.
- The ground should be firm and substantially level and free from loose articles. Helicopter downwash is proportional to the weight and size of the machine producing it. The effect on nearby structures and people can be considerable. The area downwind of the helicopter is worst affected. In any case it is recommended that, whilst the helicopter is manoeuvring in a low hover, no object should be permitted closer than 1.5 x Rotor Diameter or 30 metres from the centre line of the helicopter, whichever is the greater.
- It is strongly recommended that the touchdown/liftoff area should be located 30 metres or more away from buildings to avoid downwash and noise
- In general an ad hoc helicopter site will not attract the need for planning consent unless it is intended for use on more than 28 days in any calendar year. However, if any permanent structure is erected in connection with its use as a helicopter site, such as a hangar or hard standing, or if individual local council policies so demand, it may be necessary to obtain planning consent. For those sites intended for irregular, periodic use and for sites in congested areas it is also necessary that the local police are informed of any intended flying activity.