Currently, electric scooters can be used legally on private land with the permission of the landowner. In theory, they may also be used on public roads, but only if the following stringent requirements are met:
- they are insured
- they conform with technical standards (e.g. visible rear lights, number plates and signalling ability)
- they have vehicle tax
- the user has a driving license
- they are registered
- relevant safety equipment is used (e.g. helmets)
However, as the Department for Transport has previously stated, “it is difficult to comply with all these requirements” in practice. Their use has therefore been effectively illegal on public roads and footpaths… until now.
A government consultation, set to launch this month, may suggest the legalisation of e-scooter use on public roads and cycle lanes, and propose regulation to ensure their safe use. It is likely to be followed by trials in cities and, if successful, eventual nationwide roll-out.
Proposals include equipping e-scooters with ‘speed inhibitors’ to cap their speed at 15.5-mph, compulsory use of helmets, and compulsory insurance.
This regulation must be watertight to avoid the chaos that has been reported in France. Since July 2019, regulation has been introduced in the country so that ‘trottinettes’ cannot be left on pavements, but must be parked according to regular standards, as is the case for motorbikes. They must also keep to a 12-mph speed limit. However, these regulations do not circumvent the daily 170 altercations caused by e-scooters across Paris (as projections based on data from three Paris hospitals suggest). Similar chaos has been seen in the US, where 11 e-scooter related deaths have been recorded, since 2018.
How similar will the law of e-scooters be to that of bikes?
In terms of road accident liability, cyclists can be found contributory negligent if they are involved in a collision without wearing a helmet, as seen in the case of Smith v Finch [2009]. This reduction in damages was discussed in the case of Froom in relation to the failure to wear a seatbelt, but the formula can also be applied to cyclists who fail to wear or fasten their helmet (Capps v Miller [1989]). There is to be a:
- 25% reduction if the claimant would not have been injured at all, if a helmet had been worn
- 15% reduction if the injuries would have been “a good deal less severe”, if a helmet had been worn
- 0% if the claimant would have been injured at least to the same extent, if a helmet had been worn
The law in this area has been clearly established over time, so it will be interesting to see whether the law on e-scooters diverges. If it is decided that the users of e-scooters must wear helmets, it is likely that this precedent on contributory negligence will apply.
The legalisation of e-scooters also has the potential to lead to the legalisation of other forms of ‘powered transporters’ (as they are currently classified) which are banned from public use, such as Segways and hoverboards. This could go one of two ways: either the government will define the e-scooter as akin to a bicycle, and other ‘powered transporters’ will be too different to fall under this category, or the e-scooter will be defined in a separate powered transport category, which could open the door to further legalisation of these transports.
What does this mean for insurers?
E-scooters may require continuous insurance, but it is more likely that insurance will only need to be activated once the e-scooter is actually in use, as most will be hired like Boris bikes or next bikes.
If e-scooters are defined as bicycles, then they may be covered under some household policies, but it is possible that users will have to purchase their own policies for e-scooter use on the roads. The door is open for InsurTechs to seize this market, as the policies required are likely to be differentiated.
It will be very interesting to see how the government will decide upon these issues. Insurers should watch this space.
