First thoughts on highway maintenance and the use of e-scooters

E-scooters have been presented as an answer to modern transport challenges and an ally in the battle to improve air-quality. However, since trials commenced on 4 July 2020 across 32 trial areas there has been a good deal of debate as to whether the benefits of e-scooter use are outweighed by their safety risks, with the title of the Transport Committee’s report last year offering a neat summary: E-scooters: pavement nuisance or transport innovation? One facet of their use and rapid adoption has had limited focus to date, that being the considerations for highway authorities in England & Wales and whether or not the demands of the technology necessitate a rethink of highways law and national guidance?

A recap on the trials

DfT’s focus in the trial period has been on encouraging the use of e-scooters as an alternative to public transport. A natural consequence of this is increased e-scooter use in congested areas, typically towns and city centres which are generally subject to heavy traffic. These settings in turn present an increased risk for highway authorities of civil claims and of regulatory scrutiny, with the potential that maintenance of the highway could be a relevant issue, directly or indirectly, in the event of accidents and claims.

For the purposes of the trials, e-scooter use is permitted only on carriageways and cycle-lanes. Use on footways and byways is prohibited and is also an offence under section 72 of the Highways Act 1835 and section 34 of the Road Traffic Act 1988 (not that escooters would have been envisaged by the legislators involved).

E-scooters and highway infrastructure

Highways have not, historically, been maintained with an eye on the use of e-scooters. Their wheels are typically 15 – 25 cm in diameter and most incorporating pneumatic tyres. The comparatively small wheel size suggests they could be more likely to be disrupted by defects in the surface of the highway. Their riders are unrestrained, vulnerable road users and the use of helmets is recommended but not compulsory. Add to these factors the maximum speed limit in the trials of 15½ mph and the safety risks to e-scooter riders are therefore significant.

The duty to maintain the adopted highway is set out at section 41 of the Highways Act 1980. In the event that it is proved that a highway is in disrepair, it is a defence under section 58 of the Act to demonstrate that the highway authority has taken “such care as is in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic”. Section 58 points to a number of specific considerations in that regard which can be summarised as:

  • the character of the highway and the nature of the traffic using it;
  • the standard of maintenance appropriate for such traffic;
  • the standard of repairs expected;
  • whether the danger was known;
  • whether warning signs or notice of the danger had been given.

All of these serve as a useful reminder that the maintenance of highways is an ever-evolving area of risk, with the legal obligations on highway authorities drafted in a sufficiently broad manner to accommodate the use of new and developing technologies (here again it is rather doubtful that the Highways Act 1980 was drafted with e-scooters in mind).

For more specific guidance, highway authorities are reliant upon national codes of practice. Following the implementation in October 2018 of the national code of practice Well-managed Highways Infrastructure, highway authorities have been encouraged to adopt a flexible risk-based approach in the management of highway maintenance, taking into account local needs and priorities but balanced against the question of affordability.

Identifying and managing the new highway risk

For those highway authorities participating in e-scooter trials, it seems reasonable to consider that they will have conducted an assessment of e-scooter use within their highways networks in order to identify areas of use or likely use and to determine what standards of maintenance are required for those parts of their network. That will necessitate a review and update of existing risk assessments and also training for those involved in inspection and repair.  It is critical that these matters are properly documented and decisions recorded.  It is equally vital that these are matters which are kept under continuous review during the trials. For example, material on the TfL website about the scooter trial in the capital states that “highway inspections and defects are managed in accordance with the new TfL highway maintenance contracts [which] define the type and frequency of highway safety inspections and provide the risk-based approach by which contractors are required to identify and assess defects”.

As we move into autumn another consideration arises: the British weather. Section 41(1A) of the Highways Act 1980 Act imposes “a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice”. This duty is commonly satisfied by the creation, implementation and operation of a suitably-resourced Winter Maintenance policy.  Whilst many will question the sensibility of use of an e-scooter during inclement weather conditions it is important to remember that the duty of reasonable practicability applies to all lawful uses of the highway. Careful consideration should therefore be given to e-scooter use within the highways network at all times of the year.

Although there may be no escaping the personal safety risk in riding an e-scooter during the national trials, it does not at all follow from that that use of e-scooters cannot be properly risk-managed by an authority as an element of its approach to managing the highway infrastructure.

For more information on e-scooters, please see our dedicated hub here.

Paul Tarne, Partner and Head of Public Sector at BLM

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