E-SCOOTERS: What on Earth are we doing?

The UK have  been running trials of E-Scooters in various parts of the island for nearly a year, and London finally followed suit this week in four boroughs, with Canary Wharf to follow a bit later. We have taken a peculiar route to this process, though in comparison with much of the rest of the world, in that:

1. We are making a massive song and dance about it; and 
2. We have decided to treat what is essentially a very small and light form of transport (some are calling it “micromobility”) in the same way we think about cars in terms of conditions of use – this has led to a convoluted and delayed introduction.  

I refer to the chicken and egg analogy, and I can’t quite work out which of the above caused the other, but let’s consider point number (2) for a moment:

Look at these photos.

If you were choosing which group the e-scooter fits into, would it be the modes of transport to its left or right? For my part, I think it is pretty obvious to the eye. However, we have decided to put it into the motor traffic category. 

It is not illegal to buy or sell an e-scooter, and as a result, there is no requirement to limit speed or include other important safety features. It is illegal, however, to ride them anywhere, other than on private land. This is because the scooter is caught by the Road Traffic Act 1988 and classified in the same way that cars and motorcycles are. Amendments have been made to the Road Traffic Act to enable e-scooters to be legally used on the roads, but only if used as part of the authorised UK hire-scheme trials. 

To use a hire-scheme machine, just as with a car, you have to be at least 16 years of age and hold a full or provisional driver’s license to operate the vehicle. The thinking is that if you are deemed fit to operate a motor vehicle on the roads, you should be able to use an e-scooter safely. 

If, like me, you think that is odd, to say the least, consider this - the UK  have done so despite the fact that the scooter is: 

1. tiny in comparison to cars and incapable of causing the sort of damage to other people that a car can; and
2. It would be very simple to limit the scooter’s speed, similar to what the UK have done with e-bikes. We know that would be simple because that is exactly what we have done with the machines being used in the hire scheme trials – 15.5mph for all those being trialled outside of London and 12.5mph for the London machines. The scooter, in fact, would be generally slower than the bike and e-bike, as the bicycle has no limit on speed and whilst the e-bike motor shuts off at 15.5mph, it is possible to pedal most of them faster than that.

Exactly why the UK have done this, I can’t elucidate further here, but I can say his has significantly complicated the introduction of this alternative mode of transport. Before I do that, it is important to consider a few stats.

Injury Risks

We do not have any robust evidence around the rate of incidence or severity of injuries that have occurred as a result of e-scooter use in the UK. A figure of 70 injuries[1] has been used but with no qualitative information about the rate of incidents per trip/mile, type or severity of injuries or the circumstances in which the injuries occurred. 

I only know of two incidents in the UK where the media have reported serious injuries:

1. Emily Hartidge, who died tragically in July 2019 whilst riding a privately owned and maintained e-scooter; and
2. A 3-year-old boy suffered fractures to his collarbone in May 2021 when hit from behind by someone operating an e-scooter on the pavement.

No question, these are serious events and tragic in the case of Emily Hartridge but appear extremely rare in terms of injuries per trip/mile. The coroners also found in Emily’s case that excessive speed coupled with an under-inflated tyre were the principal causes of the incident. Such a situation, of course, can and does occur far too often with other forms of transport. If private sale e-scooters were limited in line with e-bikes, that would surely deal with the excessive speed risk.

The incident in Feltham resulted from someone using an e-scooter on a pavement that we can all agree is unacceptable. LIME and other providers of the scooter hire schemes can take measures to reduce the risk of this happening (they track machines by GPS and can ban users from accessing the hire scheme App if they are found to flout the recommended riding standards). The fact is that people do silly things when using all kinds of transport, I would contend strongly that such behaviour is very much the ‘thin end of the wedge’. This is undoubtedly the case with cycling conduct; the vast majority are safe and considerate of other vulnerable road users, and there is no reason to assume the same will not be the case with scooters.

We do have some information coming out of the US.[2] on injuries, but it is not granular enough yet to draw meaningful conclusions. The indication, however, is that:

• Over a third of incidents were caused by excessive speed. 
• Only 10% involved collision with motor traffic
• More than a third suffered head trauma (that is twice the rate of head trauma than in cycling-related incidents)

If this is indeed the intention, the current and future riders of e-scooters will be using them instead of cars - either diving or as passengers in taxis, etc. - that has to be the preferable situation. Of course, there will be incidents, but injuries are going to be less frequent and less severe than those involving a motor vehicle.[3] It is important to remember serious injury and death in cycle vs pedestrian cases is extremely rare, and cycles are a far better comparator for e-scooters.

 

Potential Problems for the rollout of E-Scooters

Having said all of the above, some bumps in the road for e-scooters have to be sorted out. Whenever we are considering modes of transport to make a move away from our over-reliance on the motor vehicle, we have to consider three crucial factors:

• Impact on Climate change 
•  Danger to Vulnerable Road Users
•  Congestion in our cities and towns 

Clearly, walking/running and traditional cycling are the ultimate alternative travel solutions against the above criteria, with e-bikes coming in closely behind.

With e-scooters, the green credentials of the machines have been the subject of some debate. They have a relatively short life-cycle, and so the overall carbon footprint has been said to leave much to be desired – being perhaps even worse than the latest model petrol and diesel cars. LIME says that the life-cycle of its machines is much longer than the critics say it is. In any event, one would have to think that the providers of the hire schemes and manufacturers will be working on this as an absolute priority to ensure their business model survives in the face of green regulations.

In terms of danger, what I say above about the rate of incidence and severity compared with motor vehicles stands. Still, the UK need to think carefully about the safety of pedestrians, particularly those with physical or sensory impairments, on pavements and at crossings. National campaigns to encourage users not to use pathways and to give precedence to pedestrians at all times will be essential. 

As for congestion, the complaints about e-scooters and e-bikes being left in the pedestrian thoroughfares as a hazard are real, although I don’t believe as prolific as the media would have us believe. Again, LIME are thinking about this, and the app will prompt you to leave in a designated parking area. I suspect that should go even further and not allow you to lock the machine until you are in a spot the app deems appropriate. Sustrans UK , a charity that aims to make cycling and walking easier for all, are concerned that the introduction of e-scooters should not impact people opting for walking or cycling as their preferred means of transport. I certainly agree that; walking and cycling are the far greener and healthier alternatives. I believe it will be difficult to control without some form of segregation between bicycles and scooters, which I think would be unworkable whilst space generally is at such a premium.

 

Practical Implications

The main issue around how the UK population use e-scooters concerns insurance, both for personal accident cover and third party cover, if an incident/collision is the scooter user’s fault wholly or in part. 

As things stand, unlike in the case of bicycles and e-bikes, there is a mandatory insurance in place for e-scooters used as part of the hire scheme trials. The scheme provider provides this insurance. With LIME in London, the insurance is underwritten by Allianz and so protected by the Financial Services Compensation Scheme or “FSCS” (so if for any reason Allianz went out of business and was unable to meet claims, the FSCS would cover the compensation). 

Providing the user adheres to the terms and conditions of use (make sure you read the small print), Allianz will make personal accident payments of just over £45k for permanent disablement or death. There are various terms to that, notably only available to over 18’s & must only be related to “road accident” – I query whether that would include injuries caused by going over a pothole, which will be a significant factor over time for scooter riders.

It should be noted that such a payment does not prevent users from seeking a claim for damages in negligence against any liable 3rd Party, and the payment will be in addition to those damages.

A real source of comfort is that the scheme provides third party liability cover, which is:

• Unlimited for injury and death; and
• Up to £5m for property only damage

The above cover is the only happy consequence of treating the e-scooter as a motor vehicle. On the relatively rare occasion that a person injures a pedestrian on a bike, many cyclists are members of national cyclist organisations such as Cycling UK [6] and get third party liability insurance cover as part of a suite of membership benefits for a modest annual fee. If the rider is not a member of any such organisation, there is often no insurance available for the pedestrian to seek damages under injuries and losses sustained in a collision. Occasionally it may be possible to seek damages from a Home Contents insurer, but that is relatively rare and getting rarer. 

Whilst a happy consequence, it is not in my view one that will continue beyond the end of the hire scheme trials, for the reasons I state below when dealing with what may happen in the future. 

For now, though, the insurance position is taken care of, and it is clear that if you want to use an e-scooter, far better to do so as part of a hire scheme trial than a private sale. If anything does go wrong, you and other vulnerable road users at least have insurance protection available.

 

The Future

There is much more food for thought for the future of these machines on our roads and cycle lanes. My personal view is that once the trials are concluded, now due to be Spring 2022, it is very likely they will be introduced widely, and it is naive to think any differently. I also believe that basis, and it will be very difficult to stop significant private sales of these machines and prevent people from using them.

For it to work in terms of modal shift, however, we must either:

1. Stop drawing a distinction between e- scooters on one hand & e-bikes and bicycles on the other. To do so, we have to stop classing e-scooters as a vehicle under RTA 1988, and we have to legislate against sales of machines that exceed 15.5 mph. We do not feature the enhanced safety that trial scooters have – dual hand brakes/integrated front and rear lights etc.
2. Continue to treat them as ostensible motor vehicles & only allow use as part of hire schemes. This seems to me to be unrealistic and very difficult to enforce. 

I believe the clear preference should be for option (1). The negative result of this is that the insurance protection now enjoyed will fall away. E-scooters will be on all fours with bicycles in this regard, and hire scheme providers will no longer be obliged to set up the insurance. However, the UK must NOT fall into the trap of making this issue confusing to the extent we start making insurance on e-bikes, bicycles, etc., compulsory. This impedes mass participation in alternative modes of transport, if we make it too difficult or expensive to use them, we will never make the shift away from cars that we all need.

Instead, we have to encourage people to take out insurance because it is beneficial for all, without forcing people to take it out. The UK are doing that increasingly well with cycling in national organisations like Cycling UK, and there are bike insurers such as Yellow Jersey, Pedalsure and others who may be convinced (if they are not already) to move into the e-scooter market. 

 

If you would like any further information or advice about the topic discussed in this blog, please contact Grant Incles or our Medical Negligence and Personal Injury team.

ABOUT THE AUTHOR

Grant is a specialist in life-changing and fatal injury cases and is able to advise Claimants and their families regardless of how those injuries were sustained thanks to wide experience across road traffic collisions, employers and public liability, criminal injuries and clinical negligence.

He joined the partnership at Kingsley Napley in April 2021 having led the Serious Cycling Injuries team at Leigh Day for five years. Prior to that Grant spent almost seven years with Stewarts Law working only on cases of the utmost severity, and Irwin Mitchell before that in the Clinical Negligence and Neurotrauma team in London.

He is prominent for his expertise in Cycling-related injuries and his knowledge of such cases in the context of road traffic collisions and breaches of the Highways Act 1980 (“pothole cases”) is extensive.