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E-scooters: where are we now?

A pedestrian does not have to walk very far in a public place before they spot an e-scooter. The take-up has increased drastically over the last year. They are now ridden all over the country, regardless of whether the area in question is participating in the Government pilot scheme. 

There have been, as we have written about previously, some tragic incidents involving death and serious injuries. 

Unfortunately, the Government has failed to keep pace with this new mode of transport. That is leaving innocent victims potentially without remedy.

E-scooters collisions - what are your rights?

If you are injured by an e-scooter in an area which is participating in a pilot, there will be insurance which covers third party liability. At present, innocent third parties could rely upon statutory protection (Section 151 of the Road Traffic Act 1988) to force the insurer to indemnify even if the rider had been, for example, “drink riding”, voiding his insurance coverage. 

Alternatively, an innocent victim could present their claim to the Motor Insurers’ Bureau (MIB) which would, under the current law, be liable to satisfy any unsatisfied judgment.

If you are injured by an e-scooter in an area which is not participating in a pilot, you could present, an innocent victim could present their claim to the MIB.

The law and complications

There are, however, some complications:

  • Brexit: The Government has indicated that it intends to dilute innocent victims’ rights to seek damages (compensation) when injured as a result of another’s intentional acts or negligence.  
    In summary, the Government intends to remove the ability of a third party to recover damages from an insurer or the MIB if they are injured in any place which is not a public place or road. This includes, for example, private land.
    Innocent victims’ rights were (and still are until the new legislation is brought into force) protected by European Union laws.
    The Government also intends to narrow the definition of vehicles subjected to compulsory motor insurance. It is unknown whether this will include e-scooters but we anticipate that it will be included.

  • MIB: The MIB often take a stance on unique points on behalf of the insurance industry. As its obligation is to indemnify flow from European Union law, it is highly likely that it will oppose any obligation to satisfy an unsatisfied judgment.
    At best, this would cause substantial delay. At worst, it would mean that an innocent victim is left without a remedy (i.e. damages).
    The higher courts have the power to depart from retained European Union law. This means that even though based on the current law the MIB has to indemnify, it could appeal the decision to the higher courts.

  • Future insurance: At present, we do not know whether Parliament will grant innocent victims of e-scooters the same protection that innocent victims of road traffic collisions have.
    Even if an insurer can void a policy, Section 151 of the Road Traffic Act 1988 requires the insurer to meet any judgment which an innocent party obtains against the rider/driver.
    If that statutory protection does not extend to e-scooters, insurers are highly likely to try to void policies meaning that the insurance which is there to protect innocent victims becomes redundant for that very purpose.

  • International cases: After Brexit, UK-based citizens have been left with no direct cause of action against an insurer if an incident arose in a European Union member state. This means that an innocent victim would have to try to pursue the rider of an e-scooter directly and then force indemnification through the courts and overseas. This is likely to be difficult, slow and expensive, with no guarantee that the Judgment would ever be satisfied.

Significant consequences of e-scooter collisions

We have already started to see the significant consequences of e-scooter incidents. It is now time for the Government to accept the reality that riders are using e-scooters outside of the permitted pilot areas and to ensure that innocent victims have certainty and protection. A life-changing injury without remedy can be one of the gravest miscarriages of justice that can happen.

Find out more about Irwin Mitchell's expertise in helping people following road accidents at our dedicated serious injury section.

A life-changing injury without remedy can be one of the gravest miscarriages of justice that can happen”