E-scooters: risks and regulations

The briefest Google search on ‘e-scooter accidents UK’ yields over 1 million results, which may be unsurprising given their prevalence on streets and pavements across the country. Almost inevitably, perhaps, the top result is a link to a ‘no win, no fee’ legal firm purporting to specialise in e-scooter claims.

Despite the government’s enthusiasm for trials of fleets of hired scooters in over 30 defined city and town areas, any other use of a scooter on roads or a public place remains illegal. The public doesn’t seem to be getting clear messaging about the law on scooter use – or maybe no-one cares? The prohibition seems to bother few riders, although London Mayor Sadiq Khan issued the following statement at the end of July:

“The use of privately-owned e-scooters on public roads (including pavements) is unlawful and the Metropolitan Police Service (MPS) and City of London Police have been enforcing this in London.

Penalties can include a £300 fixed penalty notice for no insurance, and six penalty points on a rider’s driving licence, as well as seizure of the e-scooter. So far this year, the MPS and City of London Police have seized over 2,050 e-scooters, and the MPS has been publicising its enforcement activity and results to further deter unlawful e-scooter use and ensure the safety of all Londoners.”

It has been estimated that there are as many as 150,000 privately-owned e-scooters in London, so the Met’s admittedly successful seizure operations represent, at best, 1.5% of those. Further and by way of comparison, the most recent data from TfL confirms that only 1,200 hire scooters are currently available across the city – which is less than 1% of the estimated privately-owned equipment.

Insurance arrangements are polarised: the hire fleets are required to be insured to the full extent required by the Road Traffic Act (ie unlimited liability for personal injuries and at least £1.2m for property damage) but cover for using a privately-owned scooter on the road – which is illegal – is likely to be non-existent. One provider of cover for pedal cyclists comments succinctly on its website that “We don’t provide electric scooter insurance yet, we have to wait for the law to change.”

Mr Khan also commented that “The overall future legal basis and requirements for the use of e-scooters following the trial is a national issue and therefore the responsibility of the DfT.” But so far, its view on the regulatory framework for e-scooters could be summarised (perhaps a little unfairly) as, in essence, ‘wait and see’. Our sense is that DfT’s default position is likely to be to aim to permit scooter use more widely, as was recommended by the Commons Transport Committee in October 2020: “The Department for Transport’s focus must be on developing and implementing a sensible and proportionate regulatory framework for legal e-scooter use, drawing on lessons from other countries.”

The various trial schemes are being monitored by external consultants commissioned by DfT. Detailed analysis of the data captured by the schemes will inform the shape of the future regulation of e-scooters. The trials are due to end in March 2022, although if the deadline is further extended – noting that the TfL trial will end in June 2022 – that would mean that decisions about the necessary regulation might not be taken within government until well into the second half of next year.

Given that a law firm tops the Google search results, it seems unimaginable that there would be no case law on scooter accidents before then. ‘Nature abhors a vacuum’ etc. and claims are already out there and being progressed today. Issues such as duties of care, illegality (ex turpi causa) and contributory negligence (of a rider) will be teased out in these cases and it seems very likely that, in addition to car drivers and their insurers, parties such as highway authorities and scooter manufacturers could easily  be drawn into claims.

In the next few weeks we will be actively blogging about all facets of e-scooter use, risk and insurance. Those insights will set the scene for a roundtable discussion about e-scooters that we’ll be arranging in early October. Please keep an eye on the website and the blog for new content and further details of the event.

Alistair Kinley at BLM
Alistair Kinley, Director of Policy and Government Affairs at BLM

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