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Who is liable for e-scooter injuries?

Opinion

E-scooters are causing a rising toll of injuries and even deaths, but who is legally liable for damages or compensation? The University of Adelaide’s Mark Giancaspro and David Brown examine the murky fine print.

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The rental e-scooter craze is sweeping the globe, with millions of the vehicles dotting pavements in more than 600 cities. Studies predict there will be 4.6 million shared e-scooters in operation worldwide by 2024.

While e-scooters have been praised as a greener form of transport, they have also caused scores of injuries and even deaths. Australia’s e-scooter fleet is comparatively small at around 10,000 units, yet major hospitals in Melbourne, Brisbane and Perth are reporting “daily” presentations with e-scooter related traumas to both riders and pedestrians.

Worse, according to media reports at least seven Australians have been killed through falls or collisions since their introduction in 2018, including a 15-year-old Queensland boy last week.

Although the National Transport Commission recommended in 2020 that e-scooters be limited to a speed of 10 km/hr on footpaths and 25km/hr on roads or bike lanes, most states have allowed higher speeds on footpaths.

Many riders also shun the helmet requirement imposed by the e-scooter terms of use and the Australian Road Rules. It therefore seems that more carnage is on the horizon.

We need a uniform regulatory framework balancing the risks and benefits of e-scooters, and clarifying avenues for compensation.

Who’s liable for e-scooter injuries?

The Australian Road Rules empower the states to prohibit e-scooters on public roads and footpaths. Most states have banned them by default, but many local councils have authorised temporary trials, which are still in effect.

Obviously, if you crash due to your own misuse or recklessness, you are personally responsible for your injuries or those you cause to others.

But if the accident is caused by a fault with the e-scooter, that might be different. Some of the e-scooter companies, such as Neuron, state that they exclude liability for injury except where it’s caused by their negligence.

Where you’ve crashed due to uneven pavement or damaged road, the disrepair will generally need to be known or otherwise significant to prove the local council breached its duty of care to you. You would then seek compensation through the council’s public liability insurer. You would likely have to try to do the same if you trip over a dormant e-scooter that has been dumped in random locations, as they often are.

Third parties who are injured by an e-scooter rider are in a difficult position. This is because only parties to a contract can incur rights and obligations under the contract. E-scooter contracts are between the user and the respective company, so those who are struck by e-scooters, or trip over a dormant one, have no contractual rights against the company.

An injured third party would have to sue the rider directly. But attaining the rider’s personal details could be difficult if they drive off or are evasive, and they will likely be unable to pay compensation.

Complicating matters is the fact minors also ride e-scooters. Lime and Neuron forbid minors from using their vehicles, but Beam allows people under 16 to ride with parental consent. E-scooters are colourful, funky, and marketed in a manner appealing to young and likely inexperienced riders.

Each of the e-scooter companies’ terms warn that breaching the terms of use, such as riding as an unauthorised minor, can void insurance entitlements, meaning many unwary parents or caregivers may be left to foot hefty medical and legal bills.

Excluding liability through the fine print

When a user downloads and accesses the relevant app to activate an e-scooter, they agree to the terms of service. The law states that you’re bound by the terms you sign (physically or digitally), even if you don’t read them – and most people don’t.

Australia’s biggest e-scooter companies – Lime, Beam, and Neuron – all have lengthy user agreements, each containing exclusion clauses. These clauses restrict or exclude the companies’ liability if you’re injured while using them.

But are they watertight?

It depends on wording. Beam’s agreement, for example, states that the company isn’t liable to users “for any death, disability or personal injury […] howsoever caused” arising directly or indirectly in connection with use of its e-scooters. Such statements, though broad, are generally sufficient to exclude negligence liability. The reference to “indirect” injury also implies a user being injured by a third party (such as an errant rider, driver, or pedestrian) would have no recourse against the company.

However, the courts have also said that where liability can arise on two or more different bases – such as negligence and breach of contract – then you need to use more specific wording in your exclusion clause. Lime, Beam, and Neuron all mention negligence, so they would likely be covered.

Insurance as a panacea?

Compulsory third-party insurance is required with motor vehicle registration in Australia. But this isn’t so with e-scooters, as they’re not classified as registrable vehicles. Extending the compulsory third-party insurance scheme to e-scooters might help resolve some of the liability questions that linger.

However, the South Australian Government has observed this isn’t possible because e-scooters don’t meet national standards that govern registrable vehicles.

While some home and contents insurance policies may offer some coverage for e-scooter injuries, this hasn’t been tested and young victims almost certainly won’t have this insurance.

Workplace insurance might also apply if the accident occurred on the way to, or during, work. Again, this will depend on the relevant policy and whether the rider was obeying all road rules and the e-scooter’s terms of use.

If a rider is hit by a car, the driver’s compulsory third party insurance would cover any resulting injury or death.

The e-scooter companies have started introducing third party liability insurance schemes which might protect riders from claims brought by, for example, injured pedestrians. However, the policies generally have numerous exclusions, such as where riders breach the terms of use (for example for not wearing a helmet or being underage).

The need for a unified approach

Multiple stakeholders are involved in rental e-scooter arrangements. From a regulatory perspective, state and local governments have a duty to consider and protect all members of the community when they allow and control e-scooter trials. The chosen approach can also impact redress mechanisms for those injured by e-scooters.

At the moment, there’s different approaches across Australia. So it’s essential that all levels of government work together to craft a uniform regulatory framework.

Additional safety measures can help curb the injury and death count, such as more precise “geofencing” to restrict e-scooters to certain areas and remote deactivation for breach of safety rules. Ensuring only those with a driver’s licence are authorised to ride e-scooters could also help, and this could be implemented by linking e-scooter app sign-up to state government licence databases.

In the meantime, law enforcement is critical to ensure riders are riding e-scooters in a safe and legal manner.

Mark Giancaspro, Lecturer in Law, University of Adelaide and David Brown, Co-Director, Bankruptcy and Insolvency Scholarship Unit, University of Adelaide

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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