E-scooters – product liability issues to consider?

E-scooters have attracted considerable press attention throughout the pandemic. Some see them as a clean transport solution to urban congestion and that is certainly among the reasons for the UK government introducing the current e-scooter hire scheme trials. On the downside, one source has estimated that e-scooters will be involved in up to 200,000 accidents this year (Nextbase, in July 2021) and others report they are used as getaway vehicles for criminals (perhaps displacing thefts/mugging by moped riders?). As well as these risks, there is also potential for new product liability litigation arising from defective scooters.

As colleagues have already noted on this blog, it’s illegal to ride e-scooters other than on private land or within the strict conditions of the authorised trials. Despite this, high street and online outlets sell a range of e-scooters, some for less than £100. Retailers normally remind customers in writing of the restriction on legal use, although given the widespread use of privately-owned scooters on roads and pavements, the ban appears to be “more honour’d in the breach than in the observance” (but there can be little doubt that Hamlet wasn’t thinking of e-scooters).

Given the popularity of e-scooters, manufacturers, suppliers and their insurers will no doubt be wary of the risks of product liability claims. There have already been recalls and claims in the USA, including some class actions. For example, e-scooter start-up Lime recently had to warn customers about a technical problem in its firmware that could cause sudden braking, which was addressed by releasing a series of updates to the firmware. Lime also previously had to recall a number of e-scooters because of manufacturing defects which could result in either the battery smouldering (or, in some cases, catching fire) or the baseboards breaking (if ridden off a curb at high speed).

If a defect (or fault) in the e-scooter causes personal injury or damage to property then consumers may be able to pursue product liability claims. For example, a purchaser may be able to pursue a claim for breach of contract against a retailer (for failing to supply goods of satisfactory quality or fit for purpose). Similarly, any individual (regardless of whether they purchased the e-scooter or not) may be able to pursue a claim under the Consumer Protection Act 1987 (CPA) against producers, importers and own branders (on the basis that there is a defect in the product which caused the loss).

Like any other vehicle, e-scooters require regular maintenance and there could be scope for claims against, for example, hire companies if an injury was caused as a result of a failure to properly maintain some or all models in a fleet of hire scooters.

As with product liability claims generally, the key issues will be determining whether there was (i) a defect (or fault) in the e-scooter which (ii) caused the damage. That said, it is worth noting that the CPA provides a defence if it can be shown that the defect did not exist in the product at the time it was supplied. This could be potentially relevant to e-scooter claims because an e-scooter may change throughout its lifespan, including via an update to its firmware. In this respect, the law has been slow to adapt to the modern world where products are routinely updated and evolve over time.

Indeed, such changes may not even be introduced by the producer but instead by the user, via hacking. For example, it has been reported that some users have been modifying e-scooters to get around the speed limit (15.5mph) by, for example, disabling power restrictions or by changing the wheel size. Such behaviour will of course have an impact in the event of a claim by that person and may provide defendants with a complete defence.

But where claims succeed there will be recovery actions to consider. For example, a retailer may be strictly liable (in contract) to a claimant but may be able to pursue a recovery/contribution for any amounts paid out from its own supplier or from the manufacturer.

The issues and themes outlined above have yet to surface in litigated products claims in the UK involving e-scooters. It is probably inevitable that they will reach the courts over the medium term and that claims will not be restricted to these aspects but will bring in the other topics – illegality, contributory negligence, highway maintenance etc – that my colleagues have addressed in recent posts here.

We are holding an online event to discuss e-scooter risks, regulation and practical claims issues on Monday, 11 October from 14:30 to 16:00. To reserve your place, click here.

You can keep up to date on all matters relating to e-scooters via our dedicated hub here.

Daniel West, Partner, BLM

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