Brisbane was the first Australian city to trial electric scooter sharing services such as Lime and Neuron. Commonly referred to as “e-scooters”, these vehicles have now become ubiquitous in the Brisbane CBD and inner-city suburbs. If you are in a rush and need to travel a short distance, an e-scooter sharing service can offer an option that is arguably more accessible than the CityCycle bike hire service, at times faster than public transport and often cheaper than a taxi or Uber service.
THE RIDING RULES
In Australia, the rules governing the use of e-scooters vary among states and territories:-
- In New South Wales and South Australia, use of e-scooters or “powered foot scooters” are only permitted on private property, though there are exceptions in cities such as Adelaide, where e-scooters have been trialled.
- Western Australia, Tasmania, Victoria and the Northern Territory are more lenient, allowing e-scooters below 200-watts to be ridden in some public places, with speed capped at 10km/h.
- The ACT caps speeds at 10km/h when crossing a road, 15km/h on footpaths and 25km/h on shared paths, the bicycle side of separated paths and bicycle paths. They are not allowed on roads or bicycle lanes.
- In Queensland, you must be at least 16 years old to ride unsupervised or at least 12 to ride with adult supervision. The maximum permitted speed is 25km/h.
- In Queensland e-scooters can be used in the following public places:-
- Shared pathways.
- Roads in limited circumstances, such as crossing a road or avoiding an obstruction on a path for up to 50m.
- Local streets, with such streets being defined as roads with a speed limit of 50km/h or less, with no dividing line or median strip and, in the case of one-way roads, only have a single lane.
- Bike-only pathways and green streets, but not on on-road bike lanes.
Use of a helmet is mandatory, though some jurisdictions do not mandate helmet use if the e-scooter is used on private property. Use of a helmet is mandatory, though some jurisdictions do not mandate helmet use if the e-scooter is used on private property. Queensland is not among these jurisdictions and helmet wearing is required, unless you have medical reasons, have a physical characteristic that makes it unreasonable for you to wear one, or are part of a religious group where a headdress customarily worn and that headdress that makes it impractical to wear a helmet.
This is not an exhaustive list of all the rules and restrictions on e-scooters. Rules relating to the operation of sharing services vary at the local level and the regulatory environment is in a state of flux as cities grapple with safety concerns, managing transport congestion and accommodating for demand for e-scooters.
The safety risks
The risk of injury from e-scooters is an emergent concern, with the National Transport Commission (“NTC”) acknowledging that there is very little published research on the topic. Submissions to the NTC from the Royal Australian College of Surgeons (RACS) and Lime, in particular, provided some insight into the injuries sustained from e-scooter usage. Generally, injuries sustained are minor, though there is the potential for serious injury or death to occur from e-scooter use.
Even with limited research, the risk and prevalence of serious injury can at least be seen anecdotally. While e-scooter sharing services are able to program speed limits into their devices, some manufacturers sell e-scooters claiming to reach speeds of 100km/h. Last year, a 50-year-old man died in hospital after crashing off a Lime scooter in Brisbane. More recently, a Brisbane resident was crossing a street with her young son and was hit by an electric scooter, breaking her kneecap. With riders having to share a pathway with pedestrians, as opposed to using their own dedicated lanes, the risk of a collision with pedestrians are only increased.
There also appears to be a culture of carelessness developing among e-scooter users. Emergency Medicine Australasia noted police having difficulties with enforcing regulations and observed a number of unsafe behaviours by riders in Brisbane:-
“However, personal observations from daytime walks around Brisbane’s CBD have revealed helmetless‐scooters, scooter‐less helmets, riders wearing helmets as fashion accessories (over a wrist), an unhelmeted child riding a scooter being chased by another child on foot wearing a helmet, helmets worn but undone and riders doubling (to date no more than two on a scooter). Helmets are difficult to maintain with the scooter and this is referred to in the industry as ‘helmet churn’. The scheme conveniently ignores the issue that a helmet, if provided, may or may not fit. Users can provide their own helmet, but again, one cannot rely on locating a scooter. Police have been struggling to enforce the relaxed regulations.”
At least in the writer’s experience, a cyclist would not be given the same leniency, particularly with the wearing of helmets. Given the speed that e-scooters travel at and the fact that users often have to navigate footpaths congested with pedestrians, there is perhaps a need for a shift in public attitudes to encourage more responsible use of these vehicles.
Public liability and compensation can be limited
Depending on the circumstances leading to injury, a claim for compensation could potentially be made against an e-scooter manufacturer, the lessor (such as e-scooter sharing services), the relevant local council, the owner of the property the e-scooter was being used on or the rider. A claim may also be made against the “at fault” party’s third-party or public liability insurer, if there is an insurance policy that covers that particular incident.
Cars, motorbikes and mopeds, being registered vehicles, are subject to compulsory third-party insurance in Queensland. Public liability coverage for bicycles is also regular feature in home and contents insurance policies. However, in the case of e-scooters, there is no mandatory injury insurance scheme and public liability insurance policies do not appear to be easily accessible, or accessible at all, for individuals.
This has some important implications for e-scooters. As is often the case with motor vehicle accidents, blame usually falls on the careless or reckless driving of the rider. However, an e-scooter rider is very unlikely to have any insurance to cover any injuries caused. If, for example, there is a mechanical fault in the vehicle or if the design or poor maintenance of a road created a unsafe driving environment, fault could potentially be placed on a party other than the rider, though these cases are comparatively less common. In the absence of an insurer, the at fault rider will have to front the costs of any compensation payable. If a serious injury is caused, compared to a large company or local council, a rider may be significantly less capable of covering the cost of compensation.
Even if sharing services could be held liable for an injury arising from the use of their e-scooters, user agreements are often worded in manner to limit its liability or shift liability back on to its users.
Lime’s Australian User Agreement & Terms of Service reads as follows:-
“1.6. Compliance with Laws: You agree to follow all laws, rules, regulations, and/or ordinances pertaining to the use, riding and/or operation of the Products, including those pertaining to the Products in the area where You are operating the Products, including, without limitation, helmet laws. Please carefully review any applicable Additional Terms in this respect.
You are solely responsible and liable for any violation of any laws, rules, regulations, and/or ordinances while using the Services, including improper riding and/or parking, and you agree that you are solely responsible and liable for any and all consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, costs and expenses, penalties, lawyers’ fees, judgments, fees (including impounding fees charged by any local government) and/or disbursements of any kind, or nature whatsoever, whether foreseeable or unforeseeable, and whether known or unknown, as a result of your use of any of the Services.
[…]
5.5 Release: To the extent permitted by law, You release Us from all claims (including claims under statute that can be waived by You and negligence claims) arising out of Your use of the Product.”
Neuron’s Australian Terms of Service similarly reads as follows:-
14. Insurance and loss
14.1 Your safety and peace of mind is important to us, however any insurance held by Neuron may not cover you for any injury, harm, damage or loss you may suffer in the event of an accident (or otherwise related to your use of the Services) and you should give consideration to obtaining your own insurance.
14.2 You acknowledge that any use of the Services that is in breach of these Terms of Service or is otherwise in breach of any local authority, regional authority or government rules may void all insurance, accident or liability coverages (where permitted by law) and makes you responsible for all loss or damage to, or connected with, your use of the Service, to the extent that such loss or damage is connected to such prohibited use.
[…]
- Limited liability and warranty; assumption of risk and waiver
[…]
17.3 YOU ACKNOWLEDGE THAT WHILE OPERATING THE DEVICES, ACCIDENTS, PERSONAL INJURY, DEATH AND OTHER HARM CAN HAPPEN, INCLUDING AS A RESULT OF FALLING, COLLISIONS, ENCOUNTERING HIDDEN OBSTACLES AND VARYING TERRAIN AND AGGRAVATION OF EXISTING HEALTH CONDITIONS. YOU ACKNOWLEDGE THAT YOU HAVE BEEN WARNED ABOUT THESE POSSIBILITIES, AND THAT YOU ASSUME ALL RISK IN RELATION TO THE OPERATION OF THE DEVICES AND YOUR USE OF IT. THIS PROVISION WILL CONSTITUTE A “RISK WARNING” FOR THE PURPOSES OF ANY APPLICABLE LAW AND MAY OPERATE TO EXCLUDE OR LIMIT ANY RIGHTS YOU MIGHT OTHERWISE HAVE AGAINST THE NEURON ENTITIES IN RELATION TO THE SUPPLY OF THE SERVICES.
17.4 TO THE FULLEST EXTENT PERMITTED BY LAW, YOU RELEASE US FROM ALL CLAIMS (INCLUDING CLAIMS UNDER STATUTE THAT CAN BE WAIVED BY YOU AND NEGLIGENCE CLAIMS) ARISING OUT OF, OR IN ANY WAY RELATED TO, YOUR USE OF THE DEVICES AND SERVICES.”
Naturally, this can be bad news for riders and injured persons and there is an insurance gap in the e-scooter sector that could leave victims with insufficient compensation or no compensation at all.
As the sector evolves, third party and public liability insurance products may enter the market and become widely adopted by services such as Lime and Neuron, however at present, insurance covering injuries suffered by or caused by riders is not the norm. If e-scooters are going to be a permanent feature in Queensland, regulation over and access to insurance products must continue to evolve to meet demand for these vehicles and address safety concerns, lest we shift towards New South Wales’ and South Australia’s more prohibitive stance on e-scooter usage.
For e-Scooters or e-Bike Injuries compensation claims, please contact our nearest office: Brisbane, Gold Coast, Sydney, Melbourne.
