E-scooters: where are we now?

E-scooters are here to stay. However, the United Kingdom is behind the pace in respect of the legal framework that applies to them.

Tens of thousands of e-scooters were sold ahead of Christmas in 2021. The number of e-scooters on the roads continues to rise yet their use remains unregulated.  

The current legal framework

The use of e-scooters is prohibited on public land and is only permitted on private land with the landowner’s permission or on public roads or cycle lanes where there is a government approved rental trial.

In 2020, the Department for Transport introduced changes to allow e scooter hire schemes across England and by September 2021, 11 operators ran trials of e scooters in over 50 towns and cities, which involved the operation of around 20,000 e scooters.

The top permitted speed of an e-scooter is 15.5mph but the Guide Dogs charity recently commissioned independent testing that tragically showed a pedestrian hit by an e-scooter at 15.5mph could suffer a fatal injury.

Many people remain unaware that e-scooters cannot be legally used on public land and can only be used on private land with the landowner’s permission, or alternatively where there’s an approved rental trial. 

Government plans

Transport Secretary Grant Shapps first announced in April 2022 in front of the Transport Committee the government's controversial plans to legalise the use of privately-owned e-scooters on public roads.

In 2021, 11 people died involving accidents with e-scooters; though Mr Shapps, perhaps selectively, highlighted only that the rental schemes had no deaths associated with them. This may be due to the fact rental scooters are made to a specific standard and can be monitored more carefully than those which are privately-owned. 

Police concerns

Chief Superintendent Simon Ovens of the Metropolitan Police has voiced the concern that e-scooters are “notoriously dangerous” and “absolute death traps”.

Margaret Winchcomb, Senior Research and Policy Officer for the Parliamentary Advisory Council for Transport Safety recently complied a 93-page report entitled, ‘The Safety of Private E-scooters in the UK’. In the report, it was acknowledged that “hundreds of thousands of private e-scooters are being used illegally on public roads in the UK. An estimated 750,000 private e-scooters were said to be in use.

There were numerous recommendations in the report which may give some insight into the proposed legislation:

•       Maximum possible speed of 12.5mph (20km/h)

•       Maximum continuous rated motor power of 250 W

•       Anti-tampering mechanisms should be included in construction. Tampering should be prohibited by law

•       Minimum front wheel size of 12 inches (30.5cm) and minimum rear wheel size of 10 inches (25.5cm)

•       Two independently controlled braking devices, one acting on the front wheel and one acting on the rear wheel

•       Lighting to be mandatory at all times

•       Maximum unladen weight of 20kg

•       An audible warning device to be mandatory

•       Helmet wearing to be mandatory

•       Riding on the footway (pavement) or footpath to be prohibited

•       Rider age limit of at least 16 years

•       Carrying of a passenger to be prohibited

•       Drink driving, dangerous or careless riding, and handheld mobile phone use to be prohibited

•       In-person rider training and third-party insurance are recommended.

The report included data including the distribution of causalities involving an e-scooter. As is apparent, the number of those seriously injured in incidents involving e-scooters is not insignificant. This is against the backdrop of e-scooter usage likely to increase exponentially in years to come. 

38 per cent of casualties in 2021 suffered a serious injury. Pedestrians made up 14.6 per cent of the data set. 10 to 29-year-olds made up over 50 per cent.

The current insurance position

Although they are regarded as motor vehicles under current UK law, it is highly likely specific legislation will be introduced to govern the insurance position. The Motor Insurers’ Bureau may also seek to exclude compensating innocent victims of uninsured e-scooter incidents given the scale of the problem. In addition, this will only be of benefit for victims injured on a road or other public place.

An innocent victim of an e-scooter incident on private land could be left without a solution if involved in an accident involving an e-scooter, particularly given the likely implementation, in the near future, of the Motor Vehicles (Compulsory Insurance) Bill which will have the effect of excluding e-scooters from the compulsory insurance required.

The aim of this legislation is to narrow the definition of forms of transport that require compulsory insurance after a Judgment from the Court of Justice in the case of Damijan Vnuk  v  Zavarovalnica Trigalev (C-162/13). The Court of Justice of the European Union held that compulsory insurance, as required by the Motor Insurance Directive, applied to any use of a vehicle consistent with its normal function. 

There was no specific mention of the obligation to insure on private land but member states took the view that it was the inevitable conclusion. This was because vehicles, as part of their normal function are driven on private land.

Proposed legislative framework

During the Queen’s Speech on 10 May 2022, the government announced their plans to legalise the public use of privately-owned e-scooters as part of a new Transport Bill.

A government spokesperson stated: "While riding a privately owned e-scooter on public land is currently illegal, we are considering how best to design future regulations and our Transport Bill will help us to take the steps we need to make e-scooters safer and support innovation. Safety will always be our top priority and our trials are helping us to better understand the benefits of properly regulated, safety-tested e-scooters and their impact on public space".

We will need to wait to see what the proposed legislation includes. However, it is clear that consideration needs to be given to the types of e-scooters that can be used, whether helmets must be worn, the requirement for insurance, and enforcement measures for the police.

David Withers is a partner and Richard Biggs is a Senior Associate at Irwin Mitchell irwinmitchell.com

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