The Ballarat Trial
With Ballarat being the first regional location to commence a 12-month trial of the shared electric or “e-scooter” in December 2021, it took as little as 3 days for issues to arise. According to The Ballarat Courier, problems are emerging placing pedestrians and road users at risk.
Following a rider crashing through a shop window while riding and e-scooter, The Ballarat Courier, on 22 December 2021, reported that Ballarat Health services are “collecting data” during the trial period.
The trial works by allowing riders to book and use the e-scooters through the “Neuron Mobility App”. Payment is dictated by which option you select. A Driver’s Licence is not required.
The trial proposes to restrict the e-scooters to bicycle lanes, bicycle paths, separated and shared paths and roads with a maximum speed of 50kph (the e-scooters however are limited to travel at 20kph). Riders breaching certain rules can face fines.
Use of the e-scooters requires you to agree to “Terms of Service” and “Riding Rules” and failure to do so will likely cause the attached insurance to become invalid, but more on that below.
Various reports have already emerged of people suffering injury as a result of their foray into riding e-scooters. The Ballarat Courier recently reported that in other countries there have tragically been deaths.
For our team at Fortitude Legal, as personal injury lawyers, we see injuries ranging from minor to catastrophic every day. We see injuries occurring as a result of accidents involving cars, trucks, trains, trams and buses. When you are injured in a “transport accident” as defined by the Transport Accident Act however, you may be entitled to compensation including loss of earnings, medical expenses and in some instances, lump sum compensation which can be significant. This insurance is paid from motorists’ registration.
There has been much debate in recent years regarding the coverage for cyclists under the transport accident scheme and whilst coverage for cyclists is still limited, our Principal Lawyer, Tom Burgoyne, was instrumental in having the law changed to expand the protection for cyclists injured on the roads, colloquially known as “Rory’s Law”.
E-scooters are not included in the definition of “transport accident”. What this means is that if a person sustains injury as either the rider of the e-scooter or a third party, they are not covered under the transport accident scheme (unless the accident also involves a vehicle that is covered by the Transport Accident Act).
So, if you are injured as a result of the use of an e-scooter, whether as a rider or otherwise, where does that leave you?
Whilst e-scooters have attached, an insurance policy for personal accidents and personal liability (i.e.: injury to others), we have had a look behind the policy’s terms and hold concerns about the value of the insurance and exposure to people injured as a result of the use of an e-scooter. Of course, only time will tell.
The company behind the e-scooters website states that their insurance includes “both personal accident and third-party liability cover to both Neuron riders and the broader community”.
However, as with any insurance policy, there are exclusions to coverage dictated basically by the driver’s use of the e-scooter. Those exclusions are contained in the “General Exclusions”, “Terms of Service” and “Riding Rules”. In short, if the rider is in breach of matters included within those sections of the insurance, or any other relevant laws and bylaws applicable in the area in which they are riding, they will likely face an argument by the insurer that there is no coverage.
Suffice to say, the exclusions are broad and include but are not limited to instances where the rider:
- fails to wear a helmet while riding;
- is under 16 years of age or 75 years or older;
- is under the influence of alcohol or other drug while riding;
- rides with deliberate recklessness;
- rides with a passenger;
- rides the e-scooter for commercial use;
- rides an e-scooter not under their own account;
- is carrying more than 10kg in total;
- is not wearing covered footwear;
- is carrying items that are considered to impede their ability to safely operate the e-scooter;
- is using headphones, earphones, earbuds, a headset or other listening device while riding; or
- is riding in adverse weather conditions.
Whilst they are arguably choices made by the rider, the potential lack of insurance not only impacts them personally, but anyone they may injure when riding the e-scooter, for they may not be insured for third-party liability.
Curiously, the terms suggest that a rider “should give consideration to obtaining [their] own insurance”. In some instances, a person may be covered under their Home & Contents insurance policy if they negligently cause injury to another, but once again, that is not always the case.
On the upside, there is at least a policy of insurance attached to these e-scooters and providing no exclusion clause is activated, the Policy provides cover to a person injured including but not limited to:
- Weekly injury benefits where a person is suffering from temporary total or partial disablement affecting their ability to work;
- Death and capital benefits for permanent injuries;
- Benefits for broken bones;
- Cover for personal legal liability should you injure a third party and they lodge a claim against you for their injury or property damage, including legal costs (subject to conditions);
- Accommodation and transport expenses;
- Medical expenses;
…and various other expenses.
According to the City of Ballarat website riders are “covered” by Neuron Mobility’s third-party rider liability insurance that “protects and reassure[s] riders as well as the wider community”. Only time will tell whether Neuron’s insurer seeks to rely on the exclusion clauses when claims are made.
If you or someone you know has sustained injury and/or financial loss connected with an e-scooter where you were not at fault, please call us for a no obligation chat.