E-scooters – who pays compensation when someone is injured?

3 years ago, Polaris sounded the alarm that legalising the use of electric scooters and bicycles on footpaths was a recipe for disaster for our most vulnerable road users. Like other groups passionate about the safety of road users, we were concerned about injured people being caught in an insurance blackspot because of the hasty rollout of e-scooters in our public spaces; no access to TAC compensation and limited access to other forms of compensation like suing the rider or a public liability claim.

Following heavy lobbying and a lack of consideration for walkers and e-scooter riders, local councils have continued trials of e-scooters across Melbourne.

Our client Julia Miller is one of the casualties: on 1 April 2022 she was struck from behind by an electronic scooter on a footpath and seriously injured while she was holidaying in Melbourne.

You can listen to Julia’s story here.

And Julia now faces a long legal battle to be properly compensated for her injuries as a result of the e-scooter crash.

When different road users are travelling at different speeds in different vehicles, it creates a potential risk, especially to pedestrians who are most vulnerable. Doctors in the United States, dealing with up to 1500 injuries per month caused by electric scooters, have stated that getting hit by someone at this speed is the equivalent of being hit with a baseball bat.

In addition to the physical risks associated with vehicles using footpaths and shared spaces, collisions involving the use of electric scooters create a significant problem of insurance and legal protections for walkers and riders.

If you’re injured in a crash involving an electric scooter on a footpath, who foots the bill?

When local councils first allowed a trial of e-scooter hire in Melbourne, there was no insurance protection for riders or walkers.

The user terms for Lime stated that the rider had full liability for damage, loss, claims and lawyers’ costs for damage or injury to the rider or a third person, even in the case of a mechanical failure.

As a result of concerns raised about protection for injured riders and walkers, e-sooter hire companies were required to put in place, insurance coverage to deal with injuries arising from the riding of e-scooters around Melbourne.

However, the insurance they’ve offered is not worth the paper it is written on.

The insurance policy is written without pedestrians or walkers in mind.

For instance, the e-scooter companies’ insurance can be voided (meaning that they don’t have to pay) if the rider of the scooter was not wearing a helmet, or if they infringed the road rules.

Think about that for a minute.

Imagine that your right to sue a negligent car driver was voided because that driver wasn’t wearing a seatbelt but you were wearing your seatbelt. This does not happen for TAC claims involving a car (or bus, truck etc) drivers.

This insurance black spot was designed by e-scooter companies and signed off by councils (who have protections under the law from claims in relation to bad policy decisions just like this).

By contrast, in Victoria, if you or someone else is injured in a motor vehicle accident, TAC insurance steps in and can pay compensation and benefits for:

• wage loss;
• medical bills and expenses;
• lump sum payment for permanent impairment,

no matter who was at fault, and even if the person who caused the crash can’t be identified.

The TAC doesn’t cover vehicles that can’t be registered; meaning that there might be no coverage if someone on a scooter hits you, or if you fall off a scooter.

This creates the intolerable situation where if you’re hit and injured by a motorbike (or other registerable vehicle) you’re fully covered for benefits and compensation under TAC claim, but if you’re struck by an e-scooter, you face a very difficult path to insurance, compensation and accountability.

As a result, e-scooters continue to expose riders and pedestrians to unacceptable risks of injury and death which are not covered by insurance such as CTP motor vehicle accident insurance (TAC insurance).

So, what are the legal options if you’ve been injured following an e-scooter collision?

1. Bring a claim against the e-scooter company and argue that they have a liability in spite of their junk insurance policy;
2. Make a claim for compensation directly against the rider (who may have insurance or assets against which a claim can be made)
3. Investigate a claim against another responsible party – for instance, a claim against a council in circumstances where a poorly designed or maintained footpath was a cause of the collision.

None of these avenues are straightforward.

In the meantime, e-scooters continue to expose riders and pedestrians to unacceptable risks of injury and death which are not covered by motor vehicle accident insurance in the form of a TAC claim and instead, must rely on junk insurance that can be very easily voided by a careless rider.

If local councils and e-scooter companies decide to continue to put e-scooters on footpaths and roads, they should be required to put in place TAC-style compensation scheme which properly covers riders and walkers for the medical bills, income loss and pain and suffering (lump sum payouts) in the case of a collision causing an injury.

It’s important that you get legal advice after any injury caused by a road accident including e-scooter crashes, to make sure that you’re not missing out on any potential compensation and benefits that can help you get back on track.

If you or someone you know has been injured as a result of a scooter or bicycle or other vehicle on a footpath, we can assist you with any questions you may have about your options. Feel free to get in touch with a Polaris lawyer. It costs you nothing to find out where you stand.