E-scooters — the future of commuter transport?

COVID-19 has accelerated the introduction of e-scooter trials on UK roads. Although there is a stipulation to wear masks whilst on public transport many commuters are reverting to cars in the belief that this is a safer alternative. 

With around 60% of car trips below 3km, the greener credentials of e-scooters appear to have been rapidly embraced. Following a brief consultation, an e-scooter trial legal framework has been published but with a lack of suitable infrastructure and some concerns over safety, does the framework go far enough?

The guidance for local areas and rental operators for the e-scooter trial was published on 30 June 2020. Some of the key aspects are:

• Legal changes will come into force on 4 July 2020
• Will be treated as motor vehicles
• Will be subject to a 15.5mph speed restriction
• Automatic vehicle lights where possible
• Will be allowed on roads, in cycle lanes and on tracks, but not in pedestrianised areas
• Full or provisional driving licence required
• Exempt from vehicle registration and excise duty
• Require insurance
• Privately owned scooters will not be legalised
• Training may be required but is not mandatory
• There is no legal requirement for riders to use a helmet

Interestingly, EPAC (Electrically Power Assisted Cycles) will in due course be categorised in the same way as e-scooters and ultimately, the guidance provided gives a real indication of what we can expect from the consultation outcome on the ‘Future of Transport Regulatory Review’ to which Weightmans have responded, highlighting the legal and insurance implications.

The introduction of a legal framework is undoubtedly a step in the right direction to ensure a “code of conduct” to protect the user, other road users and pedestrians. However, does this go far enough? How will local authorities, police and DVLA govern, regulate and enforce?

There are still a number of questions to be answered in key areas:

Insurance

How will compulsory insurance work? It seems likely that the rental fleet provider will be required to provide this insurance which is similar to schemes already operating in Paris, for example. The full practicalities are yet to be confirmed - a minimum of third party cover only is required (what will the indemnity levels be?) and almost certainly, driving an e-scooter without insurance (or even outside of the guidance) will lead to the Motor Insurers’ Bureau being called upon to compensate pedestrians, cyclists, other e-scooter users and motorists.

Public liability

Any local authority considering participation in the trial rental scheme will potentially be introducing a new highway user to its network of maintainable highways. Consideration may need to be given to standards of repair and inspection regimes for the purposes of duties under the Highways Act 1980. E-scooters have smaller wheels than bicycles and so could be more vulnerable to potholes. There is also the potential problem of discarded and ’dockless’ scooters, particularly around popular docking zones such as those near busy train stations. This is an issue that can present a risk to pedestrians using the highway.

Regulation

It appears local authorities will be required to regulate and this may be at significant cost in terms of road infrastructure changes and personnel. For those who do not comply with the framework, who will enforce and will the policy of insurance cover those who injure pedestrians whilst travelling in a pedestrianised zone?

Criminal law

E-scooters will almost certainly fall into the definition of a ‘motor vehicle’ for the purposes of the Road Traffic Act 1988, with riders involved in serious/fatal collisions, therefore, facing offences in line with those faced by other motorists. These offences include death by dangerous driving which carries an immediate custodial sentence, with a maximum of 14 years’ imprisonment, an unlimited fine and obligatory disqualification. Of the 32 injury collisions involving e-scooters in 2019 registered by the Met Police, one-third involved pedestrians. It is, therefore, vital drivers know the severe penalties and where necessary they have appropriate and early representation.

Safety

E-scooter riders suffer much higher rates of head injury than pedal cyclists, with a high incidence of first-time users suffering falls. It is, therefore, surprising that helmet use is not mandatory and that no specific training is required, given that e-scooters are more unstable than a bicycle.

The success of such a trial will be heavily dependent on the safety outcomes, interaction with, and effect on other road users, the public perception of e-scooters and the nature of journey and take-up of such a scheme. As indicated, there are a number of issues that will no doubt be resolved/answered in time and as always the devil is in the detail for all road users, local authorities, insurers and fleet providers. Ultimately, the safety of all road users is the key aspect and if this can be done with an environmental impact then this can only be a positive step.

Weightmans have been heralding this change in transport for some time. There is an opportunity for the key stakeholders to shape the legal landscape, particularly when it comes to the inevitable claims and technical insurance issues that will arise. We have, therefore, created a team of experts who will handle the initial legal challenges.