Transport revolution or urban menace? 

As e-scooters grow in popularity, William Balfry examines related fatalities and serious injury, what proposed regulation might look like and the impact on personal injury claims.

The controversy surrounding e-scooters continues to rage in the media and, at the time of writing, the outcome of pilot schemes across the country remains uncertain. Whilst the government is committed to a net-zero carbon future which extending the use of e-scooters could assist, there is also considerable concern about regulation and a potential increase in accidents and fatalities on the roads.

E-scooters differ from push bikes in that they are powered, have smaller wheels and a centre of gravity that is further forward. Will that translate to a greater propensity for injury and for more severe injury to be sustained, including head injury?

Quick fact check 

As it stands, only e-scooters licensed for public trials can currently be ridden on the roads, whereas private e-scooters remain illegal ridden anywhere else other than private property. Despite this, private e-scooters are ridden on roads and pavements everywhere.

The major problems seem to emanate from private e-scooter usage rather than the trials, where scooters have a fixed maximum speed of 15.5mph. Non-trial e-scooters, however, have no set maximum and some are capable of speeds up to 50mph.

Trials are currently expected to end in November 2022 but the Queen’s Speech indicated legislation may be brought forward.

Current government stance 

On 11 May, the government announced a new Transport Bill in the Queen’s Speech. Amongst other things, it was intended that the bill would create a low-speed, zero-emission vehicle category, otherwise known as e-scooters, and also lay down how they would be regulated. What isn't known at this stage is the extent of that regulation. Will helmets be mandatory or advisable only? What speed will they be allowed to travel and where? Will insurance be required or again just be advised?

Recently, the Parliamentary Advisory Council for Transport Safety (PACTS) released a full report on the safety of private e-scooters. Headline figures were an estimated 750,000 private scooters in use, compared to 23,000 involved in public trials. Eleven fatalities were recorded in 2021, with instability of the e-scooter causing the most risk to riders and a large number of single vehicle collisions without the involvement of another party.

PACTS recommends a maximum speed of 12.5mph, mandatory helmet wearing, an age limit of 16 years, use only on the road, not pavements, and potentially on cycle paths if adaptions are made. The Council also recommends rider training and third-party insurance.

Whether the government will follow through on all recommendations (there are many more) is uncertain. Will mandatory helmets put off potential users, for example? It is highly likely that only road (and cycle lane) usage will be permitted but will the police have the appetite to enforce this? Is the road infrastructure able to cope? How many people realise that bicycles are banned from pavements and when did you last see the police doing anything about that?

The government has reported on e-scooter injuries up to June 2021 in a useful factsheet. There is a great deal of data in the report which shows a huge year-on-year increase in accidents, of which 390 involved serious injuries. Focusing on injured pedestrians, 64 were seriously injured through accidents with e-scooters, compared to only 19 injured by cyclists.

“A study in Berlin looked at the injury patterns, with 42% of incidents injuring the lower limbs, 37% the upper limbs and 40% head injuries” 

Whilst studies on injury type are in their infancy here, in Europe there have been in-depth analysis of injury type. A study in Berlin looked at the injury patterns, with 42% of incidents injuring the lower limbs, 37% the upper limbs and 40% head injuries. In-patient admission was recorded as 25% of incidents, with surgery of some sort taking place in 23% of cases.

The data is confusing, however – another study for the Royal Society of Prevention of Accidents demonstrates that riding an e-scooter is five times safer than riding a bicycle, with collision rates at 0.66 per million miles travelled compared to 3.33 per million respectively. Of course, statistics can be misleading and, if the number of e-scooter riders increases considerably, so may accident frequency.

Claims liability and illegal use 

Although much will become clearer once regulations are in place, with the trials not ending until November 2022, it may be 2023 before we have any legislation in place. Until then, potential claimants are having accidents and insurers wait for the claims to arrive. The vast majority involve private scooters being used illegally, so can an insurer validly raise a defence of illegality, or ex turpi causa as it is more commonly known?

It is highly unlikely except in extreme circumstances that ex turpi will provide a complete defence just because a private e-scooter is being ridden on the road. Other factors, such as whether the rider was clearly visible (such as wearing hi-vis), the standard of riding, whether protective gear was worn and whether the rider was under the influence need to be looked at.

If a car driver is negligent and has knocked a rider off the e-scooter, the normal rules of negligence will apply; of course, contributory negligence may well come into play, perhaps a low percentage for not wearing a helmet, a high percentage for drunk scooter riding illegally on the road. Cases will need to go to court before we know the answers to these questions and a test case could occur.

What's next? 

The trials end in November and the Transport Bill will be presented over the course of the next parliamentary year, potentially even before the trials end. What is clear is that it is not just the trial data that needs to be reviewed by the government but all the data coming out of the private usage of e-scooters.

Behaviour tends to be far worse outside the trial, probably because users on the trial are more accountable, with driving licences required to use the scooter – a drink 'ride' offence on the scooter can be carried over to the main driving licence, for example.

Injuries appear more severe on private scooters and helmet usage is far lower. If the rules do not mandate the wearing of helmets, then insurers will face an increase in severe head injuries and fatal accident claims to handle. Despite the PACTS recommendations, it appears that mandating helmets may reduce take-up, so it’s quite likely this will not be made compulsory. Insurance to cover third-party risk is also likely to be optional rather than mandatory. If the use of cycle lanes is expanded, we could well see an increase in incidents involving e-scooter riders and cyclists, quite a different demographic.

The next year will certainly be interesting and personal injury practitioners would be wise to keep a sharp eye on developments.

William Balfry is a Chartered Legal Executive and senior associate at DWF. He is also an adviser to the CILEX personal injury specialist reference group (SRG).

For more information on the SRG’s work, or if you wish to join, visit our SRG web page or contact personalinjury@cilex.org.uk