Sponsor segment - The overlooked risk of e-scooters

Friday 3 July 2020

In response to the COVID-19 pandemic the Department for Transport (DfT) is delivering a green restart of local transport, which includes bringing forward e-scooter trials.

The DfT has issued guidance to allow local authorities to apply to be part of an e-scooter 12-month trial, where hired e-scooters can be used on the public highway. Currently e-scooters can only be ridden on private land.

The trial timescale is due to be fast tracked, with legislation relaxing in time for the first trials to start on 4 July 2020. Traffic Regulation Orders will be amended using the COVID-19 expedited emergency process.

What is proposed?

  • Only rental e-scooters are subject to the rule relaxation.
  • The e-scooter must have a maximum mass of 55kg, a maximum continuous power rating of 500W and a top speed of no more than 15.5mph.
  • The e-scooter must be covered by a motor vehicle insurance policy and users need at least a provisional driving licence. 
  • The use of helmets is strongly recommended but not compulsory.
  • The trials will allow the use of e-scooters on public roads, cycle lanes and cycle tracks.

How will it work?

Councils and highway authorities in particular, should not rush into trials without considering the potential liability risks. Highway authorities have an obligation to keep the highways safe.

The DfT clearly envisages the number of e-scooters on the road to increase substantially, although realistically, many e-scooter owners already use the highways illegally.

Guidelines detailing who is responsible for what should be drawn up between hire companies and authorities. Hirers should have appropriate disclaimers for their users.

Users will need to have a motor insurance policy to cover their use. As the trial is limited to registered hire companies, hire companies will most likely provide insurance as part of their hire package.

What are the risks?

  • An e-scooter presents a unique physical profile. It has smaller wheels than a bike, which are more susceptible to surface imperfections. Scooters are already used by children, but at much lower speed. The e-scooter plus adult, could be a dangerous combination.
  • There is the potential speed of an e-scooter. A benign defect can present a greater danger when moving at 15mph. Should a user lose control at such speed, an adult, plus a 55kg e-scooter, would make a potent weapon. As this is a new form of transport, riders are likely to be inexperienced.
  • If an e-scooter is out of control, a user will find it difficult to stay on. There is less to cling onto than a bike and the user will be standing up rather than seated. There is also an imbalanced weight distribution, with a heavy motor and battery at the rear.
  • The profile of the user must be considered. Using an e-scooter for a short hire may be considered a fun activity rather than functional transport. The user may be prepared to take more risks as they are not the e-scooter. Also hire can form an activity, for example, on a stag do, with the potential impact of alcohol and risky behaviour.
  • It is difficult to see how enforcement against privately owned e-scooters (which cannot be ridden legally on the highway) will work in practice. Policing of their use should be the same as for cyclists. Provided the e-scooter is not being ridden dangerously or on the pavement, little action will be taken. It may be difficult to ascertain whether an e-scooter is hired or privately owned.
  • There is concern about where e-scooters can be kept. If stored on pavement hire stands, they could present a tripping hazard for partially sighted people, as well as pedestrians avoiding others to socially distance. This should be risk assessed.
  • E-scooters are expensive equipment. A highway surface could cause damage to an e-scooter part, such as the motor or battery. A traditional bike will not usually have such expensive individual parts.
  • There is a unique class of risk presented by e-scooters. This needs to be not only in the context of harm to the rider (or damage to the e-scooter) but also other road users. Highway authorities should ensure inspectors include e-scooters in their risk based approach as they decide whether a highway defect requires further investigation or intervention.
  • Authorities also have no more than an obligation to encourage the helmet use, although some hirers may insist on this.
  • There is a road use risk, although right of way will be governed by existing traffic law. There are concerns about pedestrians, in particular the disabled or partially sighted, as the e-scooter makes little noise and goes faster than bikes are ridden. The e-scooter top speed is 15.5mph and will probably be used at that speed for a prolonged period.

Although this new mode of transport has much to offer, highways authorities need to consider the potential for harm to road users, as well as their potential liability and claims defensibility.

Highways authorities should ensure their inspectors assess the risks by and to e-scooters, and are evidenced, during inspections. The DfT has indicated that key areas for evaluating the success of the trials will include the safety of riders and their effect on and interaction with other road users.

John Roberts, Partner, BLM (john.roberts@blmlaw.com)

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