Injury involving an e-scooter?
Ongoing Issues
Since the first trial of e-scooters in Australia in 2021, the media has been littered with stories of people suffering injury as a result of their foray into riding e-scooters, and/or pedestrian encounters with e-scooter riders. The ABC recently reported that “A study by the Royal Melbourne Hospital found 256 patients were admitted to the Royal Melbourne Hospital with e-scooter injuries in the 12 months up to January 2023. The total number of patients across the state injured by e-scooters is likely to be much higher, doctors believe. Facial fractures, upper limb injuries and brain injuries were among the most common presentations as up to a third of riders didn’t wear a helmet.”
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.
Insurance?
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?
Insurance under the Transport Accident Scheme
Whilst e-scooters are not required to be registered in Victoria, people riding a high-powered e-scooter (for example, capable of travelling faster than 25 kph) may be eligible to make a TAC claim if they are injured in an accident as these may be considered to be an ‘unregistered motor vehicle’ under Victorian road law. Because you cannot hold a licence for this class of motor vehicle however, the TAC will not be able to pay you for any lost income for up to 18 months after an accident.
As to whether a pedestrian struck by a person riding a high-powered e-scooter may recover damages via the TAC as a result of this remains to be seen; this is an evolving situation.
The vast majority of e-scooters, however, would not fall under the TAC scheme (unless of course the rider was involved in a transport accident with another motor vehicle).
Insurance provided under the e-scooter agreement
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.
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.
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;
- Childcare;
- Medical expenses.
What Should I do if Injured on or by an e-scooter?
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 and we will assist you to navigate the legal issues and advise of your rights.
