E-scooters

Introduction

You can barely move for e-scooters at present.  Whether they are on your local streets being trialled by various Councils across the land or being ridden (illegally) by the growing number of private owners; whether they are heralded or lambasted on your local paper or news feed; headlining stories of environmental salvation or children mown down in the park; cluttering your legal inbox or forming webinar topics: micro-mobility is having a moment.

E-scooters are part of a growing trend towards “micro-mobility”: small modes of transport designed to carry one or two people, often for the first and last mile of a journey (from the station to the office, from home to school, to the local shops, for example).  It is easy to see why: with Sustrans statistics suggesting that 20% of British journeys are under 1 mile (a roughly 5 minute cycle) and 66% under 5 miles (a 25 minute cycle) city planners and those desperate to ease congestion and meet environmental targets see this is a mode of transport with a future.  In the Netherlands where cycling is admirably integrated into society as long as a decade ago 40% of all journeys by children under 17 were cycled and 23% of journeys by the over 65s were too[1].  These are figures the UK can at present only dream of.

Privately owned e-scooters

The first thing to note is all e-scooters are not the same.  Privately owned e-scooters remain (almost certainly) illegal for use on public roads. They are deemed to be a “powered transporter” which essentially is a catch all term for new and emerging forms of transport for which there is, as yet, no clear legislative plan – electric bicycles are the only exception to the rule. In a helpful fact sheet[2] the Department of Transport reminds us that e-scooters are a powered transporter and, as such, are motor vehicles pursuant to the Road Traffic Act 1988 with Winter v DPP[3] being the case where an e-scooter was confirmed by the High Court as requiring compulsory insurance.

Of course, this means in simple terms they cannot be used on any public space other than a road and to be used legally on a road they must meet a number of different requirements. These include insurance; conformity with technical standards and standards of use; payment of vehicle tax, licensing, and registration; driver testing and licensing; and the use of relevant safety equipment.

Therefore advice routinely given has been, and remains, that private e-scooters cannot lawfully be used in public spaces. 

However, intriguingly but logically, paragraph 4.3 states

“If the user of a powered transporter could meet these requirements, it might in principle be lawful for them to use public roads. However, it is likely that they will find it very difficult to comply with all of these requirements, meaning that it would be a criminal offence to use them on the road.”

The Department for Transport has committed to considering a legislative framework specific to e-scooters but so far, there is no sign of this and so no sign of easy expanded private use in the near future.  In the meantime it is quite possible to imagine the industry coming up with its own solutions: if ready insurance were available for private use, perhaps tagged to driving licences as in the current public trials, and with clearly certified technical standards it might be that that legal private use becomes a de facto reality.

However, with criminal prosecutions for those who are “caught” in the wrong it is a difficult to advise this as a sensible way to progress. 

It is also worth noting that designers and manufacturers may be able to push for change.  If they have designs which are capable of meeting the construction requirements they can submit the vehicle to the Driver and Vehicle Standards Agency for Motorcycle Single Vehicle Approval.  If the vehicle passes, then it can be registered and used on the road, but other conditions which apply to any other vehicle with the same number of wheels will apply to the powered transporter.  In short, this means the manufacture and design of e-scooters sits alongside motorbikes and mopeds as two-wheeled vehicles.

There is also a warning for those seeking to make money from e-scooters.   While you can sell an e-scooter with no more than an official suggestion that it is sensible to warn the purchaser of its limited legal use, if you engage in the hiring or leasing of an e-scooter it could render you liable to prosecution for “causing or permitting” the use of vehicles in breach of the statutory requirement (for example sections 87 and 143, Road Traffic Act 1988). 

Public Trials of e-scooters

As a non-rider it is essentially nigh on impossible to tell whether an e-scooter is privately owned or part of the vast number of trials  currently ongoing in city centres across the country.  Bright livery can help.  Most recently, on 7 June 2021, London joined the 50-plus cities already taking part, with boroughs including Canary Wharf, Ealing, Hammersmith, Kensington and Chelsea, and Richmond.  Other trials are taking place in locations such as Bristol, Oxford, Newcastle, Bournemouth, Middlesbrough, Hartlepool and Cambridge.  Some updated data can readily be found on the ZAG website[4] with the current trials extended to 31 March 2022.

From a legal perspective, the trials allow for e-scooter use to be tightly regulated.  For example:

• the trials require riders to hold a provisional driving licence (and therefore cannot be used by anyone under the age of 16)
• companies providing the trials must have insurance in place
• geolocation allows e-scooters to be used or parked in specific locations, and can limit speeds in pedestrianized areas
• the trial city can adjust the requirements depending on its own requirements: London has set a top speed of 12 mph in contrast to the 15.5 mph in other cities and has a reduced speed to 8 mph in certain areas.
• Chelmsford requires users to undergo an online training course before riding an e-scooter
• restrictions can be put on the times during which the e-scooters can be used; when a curfew was employed by Nevron in Newcastle between 11pm and 5am there was an immediate and significant reduction in complaints of “irresponsible driving”
• alcohol and use remains a problem but Voi has introduced a sobriety test: if failed, the potential user is offered a link to a taxi instead.

These trials and controls raise interesting public law questions about use, privacy and management of the public space. 

Accidents

With the increase in e-scooter use has come an increase in serious injuries.  At present almost every accident warrants a news feed report.  It is worth noting that until June 2020 there had been only one known e-scooter fatality -  Emily Hartridge died in July 2019 when her (illegally used private) e-scooter collided with a lorry at a roundabout – a classic “cycle” accident with which all injury lawyers are familiar.  The Inquest found her accident was rider error and scooter fault (deflated tyre).  While tragic, this accident fits the paradigm of a vulnerable road user collision.

What is changing is the nature of the accidents as e-scooter use is rolled out.  We are all becoming  familiar with the sudden apprehension of a black-clad “pedestrian” bearing down on us with uncommon speed.  Part of the changes are those of perception: we have a sense of the speed of a pedestrian and that is challenged when the upright person comes towards us smoothly and at some speed!  In our travelling mind’s eye we accommodate cycles, mopeds, mobility scooters, cars, pedestrians and children on scooters.  Upright scooting adults will take some adjusting to.

Examples of the new accident landscape are starting to emerge:

• 19 July 2021 a 3 year old girl in a Lambeth park was left with “life changing” injuries after being struck by an e-scooter. The rider apologised but left with no details exchanged. 
• 15 July 2021, a man was rushed to a major trauma centre after falling from an e-scooter he was riding in Twickenham. The accident did not include any other vehicles.
• April 2021 a 3-year old broke both collar bones when he was struck by an e-scooter rider on the pavement. The boy was walking along holding his grandmother’s hand.  The female riders fell off too, apologised but sped off. No exchange of details
• September 2020 a 55 year old rider was killed when his e-scooter hit a parked car in Swansea
• June 2020 an e-scooter rider lost control of his vehicle going downhill, collided with a parked car and died from head injuries 9 days later, despite wearing a helmet

To date the Met have seized 268 e-scooters and issued 604 warnings to riders – often for speed which have been recorded as reaching 70mph

Liabilities

The short accident bullet points show some potential claims litigators may be faced with.  The first issue may be identity.  Even if the user of an e-scooter has been riding as part of a legal and logged trial, unless those involved in the accident provide details or the injured party is able to identify the make and serial number of the scooter it will be impossible to identify the other driver.  Serial numbers on scooters are not as readily visible as number plates on cars. Claimants may consider bringing disclosure applications against the trial companies themselves to obtain the identity of the rider, but some details will be needed.  Even with precise location and time of accident challenges to disclosure could be made.

The second is liability.  If the e-scooter is riding in an illegal location then this may not be a problem but if it is a legitimate use on a legitimate pathway then there will be the usual arguments of negligence, contributory negligence and causative potency.

Helmets may also be an issue, clothing in general.  Trial scooters often have a PPE requirement which may assist.  Arguments of perspicacity may also arise.  Use of lighting after dark can be an issue also.

We can continue to expect accidents between e-scooters and cars to be the cause of the majority of serious injuries:

• June 2021 a 20 year old in Wolverhampton was killed when his e-scooter collided with a car
• 12 June 2021 a teenager riding a privately owned e-scooter collided with a car in Portsmouth and died
• 18 July 2021 a 16 year old scooter rider was killed in Bromley after a hit and run collision with a car. The driver has since been arrested

Other avenues of liability to investigate may be claims under the Highways Act 1980 or product liability claims against the scooter-manufacturers or suppliers themselves under the Consumer Protection Act 1987. 

Defendants facing claims from private e-scooter riders may consider a defence of illegality.  Practitioners will want to reflect on the leading case of Patel v Mirza [2016] UKSC 42, the key points of which can be summarised as requiring an understanding of:

• The underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by a denial of the claim
• Any other relevant public policy on which the denial of a claim may have an impact
• Whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts 

A couple of practical hints and tips if you are bringing or defending an e-scooter claim:

• Gather evidence
  • Who was riding?
  • What was the type of scooter?
  • Who owned it?
  • Was it a private or a trial scooter?
    • Was there insurance?
  • How much (or little!) experience did the rider have?
  • Was the rider intoxicated?
• Consider obtaining early expert evidence
• Consider all potential defendants: Highways authority, negligent driver, manufacturer/supplier

At present the lack of insurance is proving a significant chilling effect on the success of potential claims but the fact that an e-scooter is a vehicle means that MIB are increasingly called on to fill the legislative and evidential gaps.

A bulletin from MIB[5] expressed its concern thus:

As it stands there has been no announcement on insurance requirements should e-scooters become legal.​ The government’s failure to implement relevant EU law since 2014 has left the MIB  bearing the costs for compensating victims who are hit by e-scooters. These claims are effectively funded by premium paying motorists and result – completely unfairly – in increased motor insurance premiums for all decent road users. This situation continues after the transition period ends, as this EU law requirement remains in UK law until the government legislates to remove it. So far, they have not committed to doing so.

The MIB believes there are potentially catastrophic consequences for legalising e-scooters beyond these trials without the requirement for some form of compulsory insurance. There is a high risk of accidents – presenting a dangerous threat to the safety and security of pedestrians, children and other innocent road users. This increases the likelihood of victims enduring life-threatening and life changing consequences with no hope of compensation for the victims. This also poses a major risk to e-scooter users without insurance, who could be forced to pay out thousands of pounds in liability if they have an accident.

Conclusion

Insurance will remain a significant determinant of how and what form future litigation takes – as always the ability to meet any claim for damages is key.  Whether there remains a bespoke civil litigation claim, a whiplash type tariff scheme or MIB style determination will unfold in due course. It’s early days, and there is little hint as to how litigation is going to shape up: which defendants are likely to be on the radar and what causes of action will be employed? Clearly, if you are thinking of bringing an e-scooter claim, early investigations are crucial to identify all potential avenues.

Whether you view e-scooters as the scourge of our high streets or the future of transport, for the moment at least, they are here to stay, and lawyers need to be ready for them!  

Disclaimer

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[1] City Cycling (2012) eds Pucher, J. & Buehler, R. http://mitpress.mit.edu/books/city-cycling-0

[2] https://www.gov.uk/government/publications/powered-transporters/information-sheet-guidance-on-powered-transporters

[3] Winter v DPP - [2002] EWHC 1524 (Admin)

[4] https://mindthezag.com/places/where-are-the-uks-e-scooter-trials/

[5] https://www.mib.org.uk/media-centre/news/2020/august/mib-statement-on-the-use-of-e-scooters-mail-on-sunday-9-august-2020/