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The future of e-scooter personal injury claims

The environmental impact of e-scooters
The e-scooter trial has been extended in some areas until November 2022. Once the trial deadline passes, the government will start the number crunching: looking at the data on e-scooters in terms of safety, cost effectiveness, public health, and also, importantly, environmental impact.
The latter for example has proven increasingly controversial, with the Royal Society of Chemistry recently opining that unless an e-scooter replaces a car and is used daily for many years, its overall environmental impact will be a negative one. Given the demographic of the ‘typical’ e-scooter user, it does also seem rather unlikely that e-scooters are set to replace cars as opposed to, say, e-bikes, bicycles, or buses. Further, from a health perspective, e-scooters are not as beneficial as walking or cycling.

Do we know what the data will show?
It is difficult to answer that because one of the impediments to a proper analysis is that there are going to be two largely independent data pools: on the one hand data about the official, government-backed rental scheme; and on the other, data about the many thousands (or if some press reports are to be believed, millions) of illegal unauthorised e-scooters. The behaviour of the former is not necessarily going to tell us much about the latter.

It is unclear as to what extent the government will take into account ‘unofficial’ data, such as that collated by the Parliamentary Advisory Council for Transport Safety (PACTS) which, despite the misleading name, is an independent body. PACTS has been collecting data on all e-scooter  usage/injuries, lawful and unlawful, rather than just those involved in the scheme.

As ever with statistics then, it may well be a case of them being used selectively as a post-facto
justification for whatever decision is made.

Almost certainly we are going to see legislation allowing the use of private e-scooters on public roads. We know this much from the recent Queen’s speech in May 2022 during which Prince Charles announced the introduction of the proposed Transport Bill.

This is a big step in e-scooters going ‘mainstream’ because hitherto lawful use of e-scooters has been restricted to small-scale rental schemes and government trials, the idea being that better control could thereby be retained over a finite fleet of ‘public’ vehicles in terms of maintenance, insurance, and speed restrictions. But the Transport Bill seems set to change all of that, so interesting times are afoot.

The key challenge for the Transport Bill, against that background, will be how to retain and expand on what was good about the trial scheme, while at the same time filtering out the dangers and minimising the risks that come with private e-scooter ownership.

In the words of Baroness Vere, Parliamentary Under-Secretary of State in the Department for Transport: ‘Safety is also at the heart of our plans to create a regulatory framework for smaller, lighter, zero-emission vehicles, sometimes known as e-scooters. Their popularity is clear, and new rules are
needed to improve safety and crack down on illegal use while unlocking innovation and growth in this emerging multi-billion-pound industry.’

What are the risks of illegal use and private ownership?
First and foremost, the riskiest are the ‘souped up’ versions of e-scooters with their speed restrictions removed. Some models are said to be able to travel at 60mph. That is probably the most extreme example, and fundamentally changes the risk/benefit profile of the e-scooter. The stark  differences between the modified and unmodified versions of e-scooters are concerning and constitute one of the major differences between the e-scooter and analogous modes of transport. For example, you don’t tend to see modified e-bikes with cyclists travelling many times over the prescribed maximum limit. The fact that the cyclist still has to pedal to generate speed also creates an inherent check and balance against overspeeding.

Anecdotally, the injuries people are suffering with e-scooters are serious and the scope for ‘hit and runs’ much higher. This is incidentally one of the reasons the Motor Insurers’ Bureau is very exercised about the new Bill. If insurance is not compulsory, and/or depending on how e-scooters are classified, it could be inheriting a substantial new liability.

How will the Transport Bill tackle this?
This is the million-dollar question, and what the government will have to carefully consider come November 2022.

Baroness Vere recently explained that: ‘It is our intention that the Bill will create a low-speed, zero-emission vehicle category that is independent from the cycle and motor vehicle categories. New powers would allow the Government to decide the vehicles that fall into this new category in future
and how they should be regulated to make sure that they are safe to use. We hope that e-scooters will be the first of these vehicles.’

Within this category there will almost certainly be a speed cap as with the trials, to around 15.5mph, as well as restrictions on the other ‘variables’  which govern safety such as engine power, wheel size and visibility of lighting. The current models being used in the trial, for example, have lights which are visible at a distance of 300 metres.

It’s widely agreed, however, that helmets are unlikely to be compulsory, as is the case with pedal bikes now.


Illegality, telematics and product liability
At the moment, with the sharp divide between legal and illegal usage, one of the key questions is ex turpi causa (the illegality defence), namely: a defendant can plead that even though he may have been negligent in his own actions, a claimant is debarred from suing by reason of his own illegality. The leading cases are Clark v Farley and others [2018] EWHC 1007 (QB) and Kyriancou v Finch [2021]. In essence, case law suggests that if the illegal status of someone’s e-scooter is incidental to the claim, and merely part of the back-story, rather than  fundamentally connected to the occurrence of the defendant’s negligence, then a court is unlikely to debar a claim.

With the proposed legislation this will be less of an issue because private scooters will be legal on public roads, but it will still rear its head again when it comes to design modifications.

It will be interesting to see if there is a requirement for e-scooters to have telematics black-box data. If so, then as with driverless cars, many traditional personal injury claims will become more akin to product liability claims. What today would be a simple and inexpensive road traffic accident case against a driver, pleaded in negligence and resolved by reference to issues of fact and witness recollection, might tomorrow be a fiendishly technical and expensive case, pleaded under the Consumer Protection Act 1987, potentially against a manufacturer, and resolved by reference to expert evidence and black-box computer data.

It will also be interesting to see whether and to what extent local authorities will have to consider e-scooters when maintaining public roads. Certainly potholes which would cause a car no difficulty at all can pose a major hazard to the thin-wheeled e-scooter. One may, therefore, see an increase in such claims although how the court will seek to apply the industry standard to such claims, in circumstances where society as a whole is still feeling its way, is frankly anyone’s guess.

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