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Beware legal pitfalls of city E-scooter influx

Opinion

E-scooters may be a handy way to zip around the CBD, but any pedestrian hit or injured by a wayward rider might encounter potholes on the path to legal action, says Morry Bailes.

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After nearly being taken out by a Lime scooter rider inexpertly weaving through the pedestrian thoroughfare of Moonta Street, Chinatown – carrying what appeared to be a huge bag of linen over his shoulder – I started to muse about the wisdom of sharing our city walkways with mounted, motorised missiles.

For the record, my shoulder was painful for the rest of the day, but the rider managed to right his see-sawing E-scooter, avoiding plunging headlong into a group of innocent diners, and continued on his maniacal way.

The federal election got in the way of my putting fingers to keyboard on this subject, but in the intervening period a man in Brisbane sadly died after falling from a hired E-scooter down steps beside the Brisbane River late at night.

In Brisbane’s six months trialling the Lime E-scooter, 80 people have been treated at hospitals – 12 necessitating surgery.

It’s irrefutable then, as with any motorised transport, that E-scooters are a danger to both those who use them, and those who share public areas with them.

Against a backdrop of an entire medical profession telling us to be less sedentary and more active, particularly if we are office workers, it is beyond me to reason why mini motorised transport around the city is in any sense required.

Setting aside my personal antipathy, what happens in law if I get cleaned up properly next time, or a user smashes themselves up or dies, as has happened and will obviously happen again?

So ‘electric personal transporters’ are now allowed by virtue of our traffic laws to ride on footpaths, except for Rundle Mall and Hindley Street after 6pm, and they generally cannot use roadways [oddly there goes the seemingly logical use of bike lanes].

They do not require a licensed driver and can be ‘driven’ if you are 13 years and over.

With the greatest love and respect to my son who just turned 13, God help us all should he be unleashed in the CBD.

Once you have got past the question of “What could possibly go wrong?”, you, like me, may then want to know who is going to pay for your damages claim when you’re ironed out by some lunatic on the now Ride and Beam scooters that took Lime’s place.

As to Lime, they were speed limited, but more than one person has said they could get above 20km per hour, in excess of their intended speed, so let me assure you they can pack a punch.

The answer is, that so long as the company has public liability insurance, a scooter – unlike a car – is exempt from the requirement to be registered or carry compulsory third party insurance.

The obvious first issue here is that if the rider does not stop, as happened in my case, there is no license plate by which to identify the vehicle.

In making a claim, that is plainly an evidentiary hurdle. It would also be for SAPOL, if it were required to investigate.

Moreover, turning to the websites of both current operators, the terms and condition purport to release the operators from any liability for injury or death arising from the use of the E-scooters.

If that is indeed the case, you therefore may have to sue the user, who may be unknown, personally uninsured, a minor, impecunious, or a foreign visitor.

In relation to the insurance arrangements there may be a more expansive explanation, but on the surface there are some obvious concerns and questions.

The general law requires the operator of an E-scooter to report to police an accident within 90 minutes, but do operators know that and how many reports to police have actually been made?

Responsible users of E-scooters are not a problem. Someone who decides it’s a lazy way to transport a load of linen in what looked like a table cloth who is unable to control their ride, is.

As are intoxicated or drugged people, inexperienced and very young users, and indeed anyone who for any reason has difficulty maintaining control.

Without being overly dramatic I see both practical and legal problems with our newly embraced mode of CBD travel.

I may be old fashioned, but how about you use your legs.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, immediate past president of the Law Council of Australia, and a past president of the Law Society of South Australia.

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