The Covid-19 pandemic has seen demand for electric bicycles and new forms of transport soar as commuters struggle to find alternatives to crowded public trains and buses. In July, for the first time, electric scooters were legalised for use on British streets. In this article, Kane Simons considers the law of electric bikes, scooters and other personal transporters and the impact that their increased use will have on the field of personal injury.
E-bikes
Electric bicycles (or ‘e-bikes’) are bicycles with an electric motor that assists a rider’s pedal power. Recent improvements in technology – in particular, battery miniaturisation – have led to e-bikes becoming a viable and affordable form of transport.
Unlike other powered vehicles like mopeds and motorcycles, e-bikes do not require third party insurance or a driving licence to ride. They are permitted on roads and cycle lanes as per normal pedal bicycles.
The extra power provided by e-bikes makes them an attractive alternative to traditional bicycles. By having electrical assistance, distances seem shorter and hills seem flatter. This potentially allows the unfit, elderly or disabled to cycle when they might not have otherwise been able. More experienced cyclists can travel faster than before, commuters can arrive at their destination without breaking a sweat, and light cargo can be transported by bike with ease.
E-bikes are cheap to run (most cost pennies to charge) and as they do not cause any emissions at the point of use, are effectively pollution-free.
In order to be considered a legal e-bike, it must meet stringent criteria as set out in the Electrically Assisted Pedal Cycle (Amendment) Regulations 20151. Maximum powered speed is limited to 15.5 mph and the power of the motor is restricted to 250 watts. Riders have to be at least 14 years old. The biggest legal difference between an e-bike and a motorcycle is that an e-bike only offers electrical assistance; a rider still is required to pedal in order for the e-bike to move.
Although the Regulations create clear guidance for manufacturers, there are some grey areas. Innovations such as ‘boost buttons’, gyroscopes and throttles have led to e-bikes that do not sit easily within the bounds of the Regulations. Another issue is caused by the same e-bikes being sold around the world despite regulatory differences between countries; to comply with local guidelines, manufactures will often install artificial limits on power and speed which can easily be bypassed by consumers. For some e-bikes it is as simple as telling the bike (through its mobile app) that you live in the USA where speed is limited to 20mph instead of 15.5mph. There is also little to stop consumers from adding their own motor to a bicycle frame, creating their own non-compliant e-bike.
Despite these restrictions and difficulties, demand for e-bikes has continued to rise, fuelled by falling prices, rising petrol costs, environmental concerns, better cycling infrastructure and the Covid-19 pandemic.
Powered Light Electric Vehicles
If a vehicle is electrically powered but is not an e-bike (or a car, traditional motorcycle or mobility scooter2), it is what the Government refer to as a Powered Light Electric Vehicle (PLEV). This is a catch-all term for all manner of personal transports including electric scooters, Segways, hoverboards, electric unicycles and electric skateboards.
These vehicles have evolved over the last twenty years and have tested the limits of existing legislation, in particular the 1988 Act which provides definitions for classes of vehicles. There are no particular statutes dealing with PLEVs in general, but case law has clarified how they sit within the existing definitions.
One of the earliest of these cases was DPP v Saddington3. In 1999 Mr Saddington was charged with riding an unregistered and uninsured scooter on the road. The scooter he was riding was called a ‘Go-Ped’, an early incarnation of the modern electric standing scooter, albeit one powered by a small two-stroke engine mounted on the footboard. The issue for the Divisional Court was whether the Go-Ped was a motor vehicle ‘intended or adapted for use on the road’ for the purposes of section 185 of the 1988 Act. If it was such a motor vehicle, it would require insurance and registration, just like a normal motorcycle.
The Go-Ped was hardly a traditional road vehicle; it had no lights, no suspension and no indicators. It was also marketed as an executive toy rather than a means of road transport. It was not useful as an off-road vehicle as it required a flat surface in order to move. Despite this, the Court found on the facts that it was a vehicle likely to be used on the road (indeed, Mr Saddington was using it on the road) and therefore the rider’s conviction stood.
In the 2002 case of Winter v DPP4, the appellant was charged with riding a sit-down electric scooter on the streets of Soho without insurance. The scooter, known as a ‘City Bug’ had pedals and purported to be an e-bike for the purposes of the Regulations. The Court found that the pedals were effectively for show as they were not attached to a chain and could not easily move the scooter, which was extremely heavy. They therefore found that this was a motor vehicle for use on the road and Ms Winter’s appeal was dismissed.
Perhaps the first case involving a truly modern PLEV was that of King v DPP5 from 2008. Mr King was charged with driving a ‘City Mantis’ on the road without insurance. Although the judgment gives little detail about the nature of the City Mantis, it appears to have been an early PLEV – a battery-powered folding mini-motorcycle that must have caused heads to turn in 2008. Reading the judgment, it seems that the police, the CPS and the Court were unfamiliar with this type of product and felt obliged to follow the statute and existing case law, which defined it as a motor vehicle for use on roads.
One of the most famous early PLEVs was the Segway, a stand-up scooter first sold in 2001 that was able to steer and remain upright through the use of internal gyroscopes. Segways did not look like any transport that came before them and classification was far from clear. As it was not obviously a road vehicle, a Mr Coates decided to ride his on the pavement in Barnsley. He was charged under section 72 of the ancient Highways Act 1835 for driving a carriage on the footway. He appealed his conviction but lost6. Again, the High Court found that the vehicle was intended for use on the road and therefore could not be driven on the pavement.
The case law shows that PLEVs fall between two stools. They cannot be driven on the road as they require insurance and registration. However, because they have a motor they cannot be driven on the pavement either. As insurance or plating of Segways and electric scooters is not viable (each make and model would have to be ‘type approved’ by regulators before use on the road, and even then it might be difficult to find an insurer willing to provide insurance) the result is that nearly all PLEVs cannot be used legally anywhere other than on private land.
Two-wheeled e-scooters – the most prevalent type of PLEV – also fit the definition of a motorcycle, meaning that a helmet7 and driving licence8 with Compulsory Basic Motorcycle Training (CBT) are required. These further regulatory barriers mean that it is almost impossible for scooters to be ridden legally on the road. And yet a glance around most urban environments in the UK tells us that PLEVs, in particular modern e-scooters, are commonplace. They can be bought cheaply at mainstream retailers and are particularly popular with young people. The gap between the law and the reality is stark.
Implications for Personal Injury
In one sense, the increased use of e-bikes has no real impact on personal injury claims at all. After all, they are just bicycles – slow and heavy bicycles with very limited speeds.
However, it is anticipated that going forward, the demographics of e-bikers will encompass new and inexperienced cyclists who may be less familiar with the rules of the road, proper positioning or cycling safety. These new cyclists are more likely to be involved in accidents. Further, e-bikes accelerate much faster than traditional bikes, meaning that all things being equal, resulting accidents and injuries are likely to be more severe.
PLEV users are likely to be even less familiar with their equipment and the rules of the road than e-cyclists. If you are cavalier about riding a scooter illegally, it might follow that you are equally cavalier about safety issues, for example wearing a helmet. Some PLEVs are particularly attractive to children, who might be less able to control them than adults. In fact, many transports, like hoverboards, are actively marketed to young people.
This may result in not only a higher volume of injuries, but more severe injuries than before.
The Effect of Illegality
With so many PLEVs and e-bikes potentially being ridden illegally, it is foreseeable that where a claimant is injured whilst riding one, a defendant might raise an ex turpi causa defence. The general rule on illegality is that a claimant ought not to benefit from pursuing a criminal enterprise. In that context, it is easy to foresee an insurer or the Motor Insurers’ Bureau (‘MIB’) refusing to compensate on the grounds that a rider is committing a criminal act.
Fortunately for claimants, in the context of road traffic accidents, the ex turpi causa defence is a difficult one to establish. In the Court of Appeal case of McCracken v Smith & Others9 for example, the claimant was riding pillion on an un-plated, unregistered, stolen, off-road motorcycle being driven dangerously in a cycle lane when it was struck by a car. The Court found that the fact that the claimant was travelling in breach of the law had nothing to do with the negligence of the driver who collided with him. The relationship between the claimant’s turpitude (his participation in the joint enterprise to ride the bike dangerously) and the negligence of the driver was not such as to debar the claim. However, the causal contribution of the dangerous riding of the bike (for which the claimant was responsible) was to be taken into account in the assessment of his contributory negligence. This approach was adopted again in a later case called Clark v Farley10.
While illegal riding does not debar a claimant from bringing a claim, it might expose the rider to a finding of contributory negligence as long as the defendant can demonstrate that it was something about the vehicle or the way that it was ridden that caused the accident. For example, a claimant who was driving an e-bike with a de-restricted speed limit would only be found contributorily negligent if she was travelling too fast at the time of the accident and that it was the speed of the e-bike that materially caused the collision.
In the case of a PLEV, a rider will not be contributorily negligent just for riding it in a road. After all, such vehicles can (in theory at least) be ridden on the road if plated and insured. To find someone contributorily negligent in this situation would be akin to finding a driver of a car contributorily negligent in the case of an accident simply for not having insurance.
Insurance
The law has been clear since Saddington and the resulting case law that PLEVs are ‘motor vehicles’ for the purposes of the 1988 Act and therefore require a policy of insurance when ridden in public. It also follows, that if they are not insured and the rider causes an accident, liability to pay damages falls under the remit of the MIB under the Uninsured Driver’s Agreement11. On the face of it, a pedestrian struck and injured by an e-scooter on the street ought to direct her claim against the MIB.
A series of recent European and domestic cases has emerged over the last few years that dramatically expands the definition of ‘use of a motor vehicle’ and the need for insurance. The Slovenian case of Vnuk12 and the English cases of MIB v Lewis13 and Pilling v UK Insurance14 seem to establish now that as long as an accident is caused by the ‘use of a motor vehicle’, the motor insurer is liable, even if the use occurs off-road or on private land.
What emerges is a dramatic expansion in the circumstances in which an insurer (or in the case of a PLEV accident, the MIB) is liable to compensate. As long as the accident is caused by the use of the PLEV, the insurer or MIB will be liable to pay. It is easy to foresee the possibility of all sorts of injury claims being brought. For example, if a child rides his hoverboard into a sibling, the MIB could be a viable defendant even if the accident happens in a private garden. The MIB could also be a valid source of compensation where e-bikes are being ridden in a non-compliant fashion. The floodgates have been opened and there can be little doubt that insurers and the MIB do not wish to be liable in such a broad range of circumstances.
One potential forthcoming change is that the European Parliament has proposed an amendment to the Motor Insurance Directive15, primarily to narrow the liabilities of insurers following Vnuk. The proposals also involve redefining ‘motor vehicle’, restricting it to vehicles over 25kg, that can travel more than 25kph and operate ‘in traffic’. PLEVs would specifically be excluded from the definition. The implications could be profound if these changes are implemented – the primary change being that it would be left to member states to legislate as to the legality and use of PLEVs. The reasoning behind the amendments is clear:
“According to the case law of the Court of Justice of the European Union, in principle all existing and new motor vehicles fall within the scope of Directive 2009/103/EC. However, particularly with new types of vehicles, such as electric bicycles, electric scooters and Segways, this does not seem to be absolutely necessary. They are much smaller and have a lower maximum speed, so their damage/injury potential is not so great. The undifferentiated application of compulsory insurance seems disproportionate, especially given the need to promote the development of new alternative modes of transport, which occupy less public road space and are more environmentally friendly. This Directive should therefore apply only to those vehicles which under Union law have to satisfy safety requirements as a condition for approval. Of course, accidents may also occur when such vehicles are used, so that Member States should be free to adopt or maintain at national level rules which also provide for liability insurance for vehicles which are not subject to type approval16.”
In order to be implemented into domestic law, the 1988 Act would have to be updated to reflect the content of the Directive. The amendment to the Directive is not likely to take place before 2021, by which time the withdrawal agreement with the EU might be fully negotiated and alignment with European law might not be required. There is little to suggest that further departure from the Directive will take place, at least in the medium term.
A potential long-term consequence of both the proposed amendment and of Brexit is that e-scooters and PLEVs will, in due course, be able to be used on British streets without the need for insurance. In the meantime, the UK government has shown a willingness to broaden the scope of PLEV usage.
If an injury arises out of use of an e-bike, there is no automatic recourse against an insurer or the MIB, much like if a claimant was struck by a normal cyclist. Riders may well be covered by their home insurance policy, but this is uncommon.
E-scooter Pilot
On the 4th of July 2020 urgent secondary legislation, the Electric Scooter Trials and Traffic Signs (Coronavirus) Regulations and General Directions 2020, came into force that introduced rental e-scooters into the marketplace. The plan is to trial various schemes in UK cities in 2020 in order to deal with the limits on public transport caused by Covid-19.
Such schemes are already popular in the US and mainland Europe. They work in a similar manner to London’s Santander Cycles or Manchester’s Mobikes17: the e-scooters are scattered over a city’s pavements and available for rent for a fee. They are unlocked using mobile phones linked to a user account and payment card. When the user is finished, she can leave the scooter on the pavement, ready for the next user. The idea is to reduce reliance on cars (or, during the pandemic, buses and other public transport). The government has suggested that e-scooters have a similar road presence and speed to e-bikes and therefore have comparable, minor safety concerns. Users will be able to ride the scooters on the road or on cycle lanes, just like a bicycle or e-bike, but will not be able to take them onto pavements or shared-use cycling and walking paths.
Although interest from local authorities and existing international e-scooter businesses has been strong, many groups are against the trials on the grounds that e-scooters do not promote a healthy lifestyle when compared to cycling and walking. Groups advocating for the blind have raised concern that fast-travelling and silent vehicles would cause difficulty for the partially sighted. Others are concerned that the scooters will create a tripping hazard when left on the pavement. Perhaps the biggest concern comes from those who worry that the prevalence of rental e-scooters would embolden others to use their own personal e-scooters without an appropriate licence or insurance.
E-scooter rental schemes are currently legal under the framework of EU law but in the UK domestic statutes required amending, primarily to remove of the need to wear helmets or have undergone motorcycle training.
The proposals define e-scooters very narrowly, with a stand-up, two-wheeled design that is now the standard internationally. The speed of the scooters will be limited to 15.5mph, power is limited to 500 watts, with the speed and direction controlled using handlebars and hand controls. Power and weight limits are far more than e-bikes, a concession seemingly made to rental companies who would prefer the inclusion of larger batteries so that the scooters can be used for longer without charging.
In the short term, the government has not proposed removal of mandatory third-party insurance nor the requirement of a driving licence. Allowing rental schemes rather than privately owned e-scooters allows these issues to be bypassed. For example, users may have to declare that they have a driving licence or provisional driving licence when signing up to the scheme. The cost of third-party insurance will be baked into the rental cost, with responsibility for the insurance falling on the rental company.
Arguably, the restrictive nature of the pilot, in particular the need to have a driving licence, creates an arbitrary barrier for many who would otherwise benefit from access to an e-scooter. However, if the pilot is successful, we might see an expansion of rental schemes across British cities in the short term, potentially paving the way for the legalisation of privately-owned PLEVs on UK roads without the need for a driving licence or third-party insurance.
Conclusions
The search for sustainable and cheap forms of travel paves the way for the dramatic increase in the use of e-bikes and PLEVs (in particular, e-scooters) on UK streets in the coming years. This is embraced by local and national governments, who wish to see a reduction in both traffic and greenhouse emissions. Although some progress has been made towards this goal, to fully allow the use of such vehicles would require significant reform of the 1988 Act and either departure from the current Motor Insurance Directive or from EU regulatory alignment altogether. It remains to be seen to what extent the Government is willing to remove the regulatory hurdles to widespread, legal use of e-scooters or to what extent it will seek to depart from European law. Insurance in particular creates a thorny problem for both the Government and those who might seek to bring a claim against the rider of such a vehicle.
If reforms can be carried out successfully, the result will be an increased use of new electric forms of transport and a significant change to the caseload of many road traffic accident lawyers.
Kane Simons
18 St John Street Chambers
July 2020
NOTES:
1. Updating the Electrically Assisted Pedal Cycle Regulations 1983.
2. These are separately defined in the Road Traffic Act 1988.
3. [2000] EWHC Admin 409
4. [2002] EWHC Admin 1524
5. [2008] EWHC Admin 447
6. Coates v CPS [2011] EWHC Admin 2032
7. See section 4(3) of the Motor Cycles (Protective Headgear) Regulations 1998
8. See the Motor Vehicles (Driving Licences) Regulations 1999
9. [2015] EWCA Civ 380
10. [2018] EWHC 1007
11. Or possibly also the Untraced Drivers’ Agreement.
12. Damijan Vnuk v Zavarovalnica Trigalev (C-162/13)
13. [2019] EWCA Civ 909
14. [2019] UKSC 16
15. (2009/103/EC)
16. Draft Proposal for the amendment of the Motor Insurance Directive. See https://www.europarl.europa.eu/doceo/document/A-8-2019-0035_EN.html
17. A dockless bike rental scheme which ended suddenly after many of the bikes ended up in Manchester’s canals.
Kane Simons is a member of the Civil and Personal Injury Department at 18 St John Street Chambers. Kane practises in serious personal injury, with a speciality in accidents involving cyclists and motorcyclists. For more information, please click the links above or contact a member of the civil clerking team on 0161 278 8261 or via email civil@18sjs.com