E-scooters: Love? Hate? It’s Time to Legislate

E-scooters, much like Marmite, split opinions. Well, it seems our Parisian friends have spoken, and the answer is non! Not to Marmite, although one suspects the answer might be the same, but to e-scooters. 

On 2 April 2023, the inhabitants of Paris were asked for their view and, with almost 90% of the vote, e-scooters will be banned from the streets of Paris from 1 September 2023, with Paris thus becoming the first European capital so to do. Road safety campaigners heralded the victory as overwhelming, whilst rental operators have criticised the referendum, pointing to the fact that just 4% of the city’s residents took part.

However, it seems the French are not alone in Europe in their disquiet about all things e-scooter. With April comes the Easter school holiday and my biannual pilgrimage to worship at the altar of the in-laws in the Czech Republic. Seeking refuge from what is the now all-too-familiar monsoon weather that accompanies our ‘Easter holiday’, I happened across an interesting article on Prague Morning. It seems in Brno, the Czechs have introduced parking regulations that allow for operators to be fined for disobeying the law and, from 2024, owners of e-scooters capable of exceeding 25 kph will be required to carry liability insurance and display a registration plate. Welcome news, it would seem, to 63% of Czechs polled on the subject.  

Back in Blighty, on 15 December 2022, the UK Department for Transport (“DfT”) published the independent evaluation of the e-scooter trials report, which looked at 14.5 million rental e-scooter trips, encapsulating 32 trials across 55 areas, which ran from July 2020 to December 2021. At around about the same time, HHJ Luba KC was adjourning what is thought to be the first case in England & Wales involving a claim by an e-scooter rider against a local authority and asking counsel for Ms Giovanna Drago and Barnet LBC respectively for their final written submissions. More on that later. 

The independent report (which can be read here) sets out statistics that highlight a number of significant findings for those of us who practise within the field of personal injury:

• 5% of e-scooter riders had experienced a collision within the previous 12 months;
• a provisional casualty rate estimated 13 casualties per million miles, about three times higher than the rate for pedal cycles;
• 70% of users who had suffered an injury did not receive any form of medical attention; and
• 15% of users who were injured needed to visit A&E.

It should be remembered that the above is based only upon data captured from official rental companies. When one considers the increasing rate of private ownership (the Parliamentary Advisory Council for Transport Safety estimated the figure to be as high as 750,000 in March 2022: see here), a casualty rate three times that of pedal cycles presents a significant opportunity for claimant firms and a significant headache for defendant insurers. 

The DfT has said it welcomes the report, sees the identified strengths and limitations of the trial as providing valuable knowledge and will use the lessons learned to inform future policy. 

What, then, of current policy? At present, e-scooters, are classified as ‘powered transporters’ and are therefore legally defined as motor vehicles under the Road Traffic Act 1988. As such, an owner should be expected to hold a valid driving licence and have valid insurance. Under section 72 of the Highway Act 1835, a ‘powered transporter’ cannot be used on the pavement and are prohibited from using cycle paths, cycle tracks or bridleways. 

However, under the exceptions provided for the trials, rented e-scooter riders are allowed to use the same road space as pedal cycles and electrically assisted pedal cycles (e-bikes). Therefore, we presently have a system whereby two e-scooter riders, one using a rental e-scooter and the other on their own e-scooter, can be using the same cycle path, going at the same speed, with one rider illegal and uninsured and the other legal and likely insured through a fleet policy. The legal fallout of a collision with a pedestrian, a car, or a pothole is unclear and will seemingly take a different route depending on which rider collided with you, your car, or your pothole.

Disappointingly, the Highway Code, despite a specific update on the hierarchy of road users in January 2022, offers no assistance. From a practical perspective, it is difficult to see any rational argument that someone travelling at 10 mph on an e-scooter is any less vulnerable than the same person riding a pedal bike or e-bike.

Moreover, with the ability to purchase an e-scooter legally and easily from the same outlets as pedal bikes and e-bikes, it is not hard to have sympathy for riders who find themselves faced with the defence of illegality to a claim for damages when they are injured after colliding with a pothole, as in the case of the unsuspecting Ms Drago.  

What, then, of Drago v Barnet LBC? Much like an Easter week in Prague, it was a bit of a damp squib. The Sunday Times reported on 10 March 2023 that, much like many a hopeful claimant, Ms Drago was unable to properly identify the defect that had caused her injury and the claim was dismissed. It would appear from the limited report available that the fact that Ms Drago was unaware that she was riding her e-scooter illegally did not need to be addressed.

In October 2022, the UK government said it wanted to enact legislation in the current parliamentary session, i.e. before spring 2023. However, that was before Mr Sunak became Prime Minister and, since he took over, there has been no further announcement. From the perspective of this observer, the government needs to legislate and legislate quickly. Unlike our Parisian friends, I do not envisage a referendum on e-scooters finding its way to the top of Mr Sunak’s five-point plan any time soon and, with an ever increasing number of people utilising this relatively cheap and arguably greener form of transport, including a certain member of chambers known to use them to wind their way to court, it seems that they are here to stay. This observer cannot envisage too many County Court judges dismissing claims purely on the basis of ‘illegality’. Should the act of riding a private e-scooter prevent a claimant from succeeding where all the same facts would allow a rider on a rental e-scooter to succeed? The answer surely must be no, but we will have to wait and see.