26 March 2021

No longer a futuristic novelty, the current market leading models of e-scooters can reach speeds in excess of 30mph and have become a common sight on the pavements of many towns and cities across the globe.

Background

The first electric scooter (e-scooter) made available for purchase by consumers was produced by Peugeot in 1996. Whilst a revolutionary innovation at the time, early models were hindered by poor battery life and a cumbersome design. However, in recent years, advances in technology have allowed a slicker, more efficient, class of e-scooter to emerge, which could become an alternative for short car journeys and a useful tool in the quest to reduce CO2 emissions. No longer a futuristic novelty, the current market leading models of e-scooters can reach speeds in excess of 30mph and have become a common sight on the pavements of many towns and cities across the globe.

The new, viable e-scooters rose in popularity across the USA before demand surged in Europe. However, as the demand for e-scooters rose, so too did the incidence of accidents where use of the e-scooter played a part, including several fatalities.

Incidence of Accidents

A study by the University of California San Francisco (UCSF), published in early 2020, found that the e-scooter accident rate rose from 6 per 100,000 people in 2014, to 19 per 100,000 in 2018, and found a 222% increase in scooter-related injuries and hospital admissions across the USA. Hospital visits for injuries from e-scooters soared by 365% and users between the ages of 18 and 34 were the most commonly injured. Another study in Texas in 2018 found that there were 20 individuals injured per 100,000 e-scooter trips.

Comparatively UK accident statistics for 2019 found the casualty rate from road traffic accidents per billion passenger miles to be 195 for cars, 5,051 for motorbikes and 4,891 for cycles. Using the UK accident statistics and a distance of 10 miles for the average cycle journey, the UK accident statistics translate roughly to 0.195 for cars, 5.051 for motorbikes and 4.891 for cycles per 100,000 trips. From this very approximate comparison, one can see the incidence of injury from the use of e-scooters in the period in 2018 in the USA of 20 per 100,000 trips far exceeds the incidence of injury in 2019 in the UK from travel in cars, motorbikes and pedal cycles.

Injuries

The UCSF study carried out an analysis of the types of injuries sustained in e-scooter incidents in 2018: 32% were head injuries; 32% lower limb extremity; 26% upper limb extremity; and 10% torso. Only 5% of those injured who attended hospital had been wearing helmets.

Information from hospitals in London has recorded injuries to e-scooter riders being similar to those found from high-speed cycle accidents to include severe traumatic brain injuries.
A study in the US by the Insurance Institute for Highway Safety found most e-scooter injuries occur on pavements, with riders citing potholes and signposts as the most common reason for accidents. Statistics from one hospital in Washington found that of the 103 e-scooter riders who sought medical attention in an 8-month period in 2019, 58% had been injured riding on the pavement with 40% of those surveyed injured whilst taking their first ride.

However, it is not only e-scooter users who are suffering injuries, there has been a high incidence of injuries to pedestrians by e-scooters. Pedestrians most prone to injuries include those with vision and/ or hearing impairment, young children, the elderly and those distracted by mobile devices. Neurosurgeons have observed similar injury patterns in pedestrians hit by e-scooters as seen to pedestrians hit by motorbikes.
Between January 2018 and August 2019, 11 deaths were linked to scooters in Paris, Barcelona, Brussels, Stockholm and London. By late 2019, governments were playing catch up to put in place a regulatory framework to govern the use of the e-scooters in their countries.

Regulatory Position

It is currently legal to purchase an e-scooter in the UK. However, it is not legal to use that e-scooter on a public road or pavement. Under section185(1)(c) of the Road Traffic Act 1988 (RTA 1988), an e-scooter is classified as a motor vehicle and subject to the same legal requirements for road use as other vehicles, including insurance, a driving licence, number plates, and registration. As e-scooters cannot be registered as a motor vehicle with the DVLA, they cannot currently meet these requirements to be used on public roads.
Future of Transport - Regulatory Review

On 16 March 2020 the UK Department for Transport launched its ‘Future of Transport Regulatory Review’. A key aspect of this review was to consider whether micro-mobility vehicles, such as e-scooters, should legally be allowed on public roads and, if so, what vehicle and user requirements would be appropriate to ensure public safety. In carrying out this review, the UK Government aimed to strike a balance between maximising benefits offered by more environmentally friendly modes of transport and keeping road users and pedestrians safe.

The UK Government concluded that comparative data on accidents per mile travelled would be required to allow a comparison with other modes of transport to inform an appropriate regulatory framework.

Future of Transport - Trials

In May 2020, the UK Government consulted on urgent legislation to allow trials of rental e-scooters to be rolled out in specified areas across the country. On 4 July 2020, the necessary changes to legislation came into force to allow the trials to commence, which they did with almost immediate effect. Those trials remain ongoing and are not scheduled to conclude until October 2021.

If the trials do prove to be successful and e-scooters are to be legalised for use on public roads, then a robust regulatory framework will require to be put in place that protects both users of e-scooters and the public.

Similarities can be drawn between e-scooters and two categories of vehicle which are currently allowed to be used on the road – electrically assisted pedal bikes (e-bikes) and mopeds. E-bikes are pedal powered, but also have an element of power assistance that cuts out at 15.5mph, whereas mopeds are two or three wheeled vehicles with maximum power of 50cc’s and a maximum design speed of 28mph. It is recognised that the regulation of a vehicle should be proportionate to the risk that it presents. Accordingly, as mopeds are bigger, faster, and more powerful than e-bikes, they are subject to greater regulation. Manufacturers of e-scooters argue that as they are similar in size and power to e-bikes, they should be regulated in the same way.

In fact, the regulations for the e-scooter trials are a hybrid of the regulations for e-bikes and for mopeds. In a similar vein to mopeds, a driving licence is required. However, vehicle licensing and registration is not required which accords with the position on e-bikes. The regulations for the e-scooter trials can be summarised as follows:

• Maximum power of 500W and a maximum speed of 15.5 mph/25kph (the same as e-bikes). This is partly to ensure e-scooters can climb hills and inclines.
• No requirement that e-scooters should not have a seat.
• Use to be allowed by both full and provisional licence holders (this has added consequence that minimum age is 16).
• Helmets recommended but not mandatory.
• E-scooters to be allowed on roads and cycle lanes and tracks, but not on pavements.
• E-scooters to be exempted from vehicle licencing and registration, but scooters used in the trials to be fitted with a unique identifier to aid enforcement.
• Registration plates are not required as they are considered unsuitable for e-scooter design.

If the use of e-scooters is to be legalised on a UK wide scale, one would expect a regulatory framework to be put in place which largely mirrors what has been put in place for the trials. However, one condition which could be relaxed is the requirement for users to possess a driving licence.

During the trials, rental e-scooters continue to be classed as motor vehicles under the RTA 1988, which means that riders still require to hold a full or provisional driving licence. Removal of this requirement would have required primary legislation to be amended which would have delayed the beginning of the trial. The House of Commons Transport Committee voiced concerns that the requirement for a driving licence would hinder uptake and was not necessary. If the requirement for a driving licence was removed then it could be replaced with a minimum age requirement, or specific training that must be completed.

Success of UK Trials

Regardless of the regulatory framework in place during the UK trials, the schemes have garnered negative press attention due to the reported misuse of the e-scooters posing risk to both users and pedestrians alike. When the first trial commenced in Middlesbrough in July 2020, complaints were received within days of underage users nipping through the town’s shopping malls causing near misses with pedestrians and two teenagers took the e-scooters for a spin on a nearby 70mph dual carriageway. As a result, a second trial in Hartlepool was postponed.

Despite these early teething problems, the trials have continued to roll out across the UK with one leading Stockholm-based provider, Voi, securing a trial in Cambridge, Northampton and in the West Midlands. It was announced at the end of 2020 that a trial was to commence early this year in 5 boroughs of London. Voi has paid for police patrols to carry out spot checks on e-scooter users and has introduced number plates to help track rental users and their behaviour. The company also has ‘ambassadors’ in the trial areas who teach people how to ride the scooters as well as reminding them of the rules for their use.

The Future - Legal Implications

1. Criminal implications

Outwith the rental scheme, it remains illegal to use privately owned e-scooters on public roads or pavements. Riders who breach this law run the risk of a £300 fixed penalty notice and 6 points on their driving licence. During a week-long crackdown in London in 2019, 100 people were caught illegally riding electric scooters. Most were given a warning; however, 10 offenders were issued with a fine and had their scooters seized because they were travelling too fast or ignored a red light.

In December 2019, a 28-year-old man became the first person in the UK to be charged with drink driving on an e-scooter when he crashed into a moped in London whilst under the influence of alcohol, causing injury to both the driver of the moped and pillion passenger. The individual was disqualified from driving for 16 months and ordered to pay £3,367.96 in compensation to those he had injured.

From the criminal perspective, if the use of e-scooters on public roads is to be legalised then, similar to e-bikes, it is likely that they will be excluded from the blanket motor vehicle regulatory requirements which apply to other motor vehicles under the RTA 1988. However, it is unlikely the regulations that are put in place would match those for e-bikes exactly, as although they are similar in nature, there are distinct differences in the modes of transport. It is more likely that a regulatory framework somewhere between what is required for e-bikes and mopeds would be applied. Any decision will be informed by the data collected from the e-scooter trials and driven by the need to ensure that public safety is paramount.

2. Civil Cases

Whilst the safety measures being put in place by e-scooter providers such as Voi, are likely to be effective in driving down the incidence of injury from the use of e-scooters, incidents resulting in injury will not be eliminated.

A number of firms of personal injury solicitors are now advertising their services to those injured by e-scooters, so, if e-scooters are legalised for use in the UK, we may anticipate the opening of the floodgates to a barrage of claims for compensation for personal injury arising from the use of e-scooters. Such claims could be a prominent feature of the civil litigation landscape over coming years.
Insurance

In the current UK trials, the e-scooters are covered by insurance provided by the operator of the trial. However, there has been some discussion in relation to the insurance requirements for e-scooters in anticipation of a wider roll out.

The fundamental question is: Should they be treated like e-bikes for which no insurance is required, or like mopeds which requires mandatory insurance to ride them on UK roads? The consensus appears to be that, although e-scooters are more similar to e-bikes than to mopeds, they pose a greater risk of injury than e-bikes and thus third-party insurance cover should be mandatory.

The legal implications of e-scooters from both a civil and criminal perspective is evidently an extremely topical subject matter in which there are likely to be significant developments over the next couple of years.

For more information. please contact:

Lindsay MacNeill, Associate: lmn@bto.co.uk / 0141 221 8012
Joanne Farrell, Senior Associate: jfa@bto.co.uk / 0141 221 8012