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E-scooters — small wheels, big headache?

Following the e-scooter trials in July, find out why it is an exciting time for the micromobility movement.

With the introduction of the e-scooter trials across the UK from 4 July 2020 and trailblazing providers vying for a position with local authorities, it is an exciting time for the micromobility movement. With a potential shift in travel habits and the environmental benefits of reduced carbon emissions, there are obvious advantages. However, whilst many local authorities are keen to be early adopters, there is an important issue for them to consider with e-scooters that has not been present before with cyclists, cars or motorbikes using the public highway.

Small wheels and potholes

We are accustomed to seeing press reports about potholes and the problems they can cause for motorists. However, with most e-scooters used as part of the trials having a wheel size ranging between 9-11.5 inches in diameter and travelling at up to 15.5km/h, there is potential for less significant highway defects to present a risk. Given that there is no mandatory requirement for e-scooter riders to wear helmets and with e-scooter riders suffering higher rates of head injury than pedal cyclists, the risk exposure for highway authorities and their insurers could be significant.

Inspection frequency or maintenance standards?

Under s41 Highways Act 1980 (“the Act”), highway authorities have a duty to maintain the public highway. This duty is generally discharged through a maintenance and inspection regime and suitably trained highway inspectors inspecting the public highway for defects that require repair. There will generally only be a breach of s41 if a highway defect is such that a reasonable person would regard the defect as amounting to a real source of danger for the expected user of the highway.

In simple terms, the frequency of inspection will depend, amongst other things, on the type of highway, its location, its use and the nature and level of expected ‘traffic’. Unless an e-scooter regime significantly altered the highway profile, arguably there is no immediate reason why the use of the highway by e-scooters means the highway should be inspected more frequently.

However, with the introduction of a new highway user (the e-scooter) at the highway authority’s ‘invitation’, the authority will have to factor this into its assessment of risk when undertaking inspections. The duty under s41 is for the highway to be maintained so that it is “reasonably passable for the ordinary traffic of the neighbourhood without danger caused by its physical condition” (Jones v Rhondda Cynon Taff CBC [2008]). In areas where the scheme is adopted, this “ordinary traffic” would include the rider of an e-scooter. 

Risk management

It will be prudent for those local authorities that adopt the trials to ensure that their highway inspectors are properly briefed, both generally in relation to the scheme and how the authority believes this may impact maintenance inspections pursuant to a risk-based approach.

The most obvious risk management strategy is to ensure that all local authorities implementing the trial make their inspectors aware of:

  • the e-scooter trial
  • the highways it relates to in the relevant area
  • the physical profile and characteristics of an e-scooter, e.g. general size, wheel dimensions, speed etc.
  • if appropriate, where on the highway/carriageway the e-scooters are expected to be
  • if possible, the sort of ‘new’ defects that might be a danger to e-scooters as opposed to other highway users.

Future claims….? 

E-scooter trials are in their infancy and we are not currently aware of any claims or other specific problems that highway authorities have encountered from a liability perspective. It follows that there is an element of horizon scanning here, although this is invariably a worthwhile exercise when one is considering the issue of risk. Once the button is pushed on an e-scooter trial, there will be a new highway user and there is obvious merit in analysing what this means in terms of risk. 

Highway authorities should of course bring their own experience and expertise to bear on these issues, underscored by their knowledge of their own highway network. As ever, it will be important that any steps taken from a risk management perspective are documented so that they can be evidenced at a later date, if necessary.

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