Queensland laws should be changed to better protect riders, pedestrians and motorists, writes Partner, Jeremy Roche.
A surge in e-Scooter related injuries and Australia’s first fatality from a crash highlights the urgent need for tougher e-Scooter compensation laws so that riders, pedestrians and motorists, have clear recourse for a personal injury compensation claim in the event of an e-scooter accident.
In May, a 50-year-old man suffered critical head and facial injuries after crashing his e-scooter at South Bank. He later died in hospital from a heart attack, triggering a call by the Pedestrian Council of Australia chairman Harold Scruby for e-scooters to be banned.
The death followed the release of statistics showing that in the first two months e-scooters were introduced to Brisbane, more than 120 people made trips to the hospital with an injury.
Injuries included head trauma, upper and lower limb fractures, sprained/strained limbs and serious contrusions/abrasions and in about 10 per cent of cases, surgery was required.
The Chair of the Royal Australasian College of Surgeons (RACS) Trauma Committee Dr John Crozier urged that public awareness of the dangers associated with e-scooters was needed.
The legal fraternity has also voiced their concerns about e-scooters. As it stands there is legal ambiguity around e-scooter compensation laws which leave Queenslanders at risk of not being covered by personal injury insurance, should they suffer an e-scooter related injury.
This is illustrated in a shocking case earlier this year when a woman (pictured) seriously injured in an e-scooter accident was offered a pittance of $250 in compensation with some discount vouchers, in exchange for a confidentiality agreement to settle her claim.
Injured riders, pedestrians or motorists involved in an e-scooter crash must be compensated for the hurt, distress and costs they have suffered. Further, Queensland’s taxpayers should not have to carry the hospital treatment costs of riders.
What’s wrong with current e-scooter laws?
As it stands, a legal provision to class e-scooters as a “personal mobility device” has allowed manufacturers to dodge registration and Compulsory Third Party insurance cover.
The Qld Transport act was amended in December 2018 to take in e-scooter use.
E-scooter riders aren’t allowed to drive on roads with speed limits over 50 kilometres per hour, and must keep to the left, of a road or footpath, to avoid being a traffic hazard.
These laws are not detailed enough – they are vague, subjective and fail to identify reckless behaviour by a rider. The laws also fail to quantify the precise speed or sufficient distance needed to allow for safe stopping and are open to legal challenge.
If you are a pedestrian and an e-scooter rider hits you, can you sue?
A compensation lawyer could potentially make a claim against the e-scooter manufacturer, lessor and, or the council, however councils have added protections under the Civil Liability Act that make claims against the council difficult to win.
The manufacturer or lessor would likely argue the accident was caused by the negligence of the rider and nothing to do with them.
If an e-scooter is covered by a public liability insurance policy, there is potentially a public liability claim that an injured pedestrian can make against the rider and the e-Scooter company, and its insurer.
But depending on the policy, it may be the case that an insurer can also blame the rider to avoid paying the claim out.
If no public liability insurance applies or the accident takes place on a road, pedestrians who have been hit by an e-scooter have little recourse for compensation because the devices are not registered like a car and not covered by Comprehensive Third Party insurance.
Ordinarily, if a pedestrian is hit by a motorcycle or a car, they can make a claim under laws in QLD and NSW for damages including pain and suffering, medical costs, carer costs, income loss and medical aids.
Without an insurer to sue, an injured pedestrian can be left seriously out of pocket with no legal recourse against a negligent rider, who can’t afford to pay damages.
There is no point suing the e-scooter rider personally – they usually can’t afford to pay the compensation required, and if they can, they go bankrupt or take other action to avoid paying debt.
Can an e-scooter rider sue for compensation?
An e-scooter rider may be able to lodge a claim against an e-scooter manufacturer in response to a product fault, however injuries caused by the general use of an e-scooter may not be covered.
A manufacturer may, as part of its terms and conditions of use, reserve the right to hold the rider personally responsible for any damage involved in the use of an e-scooter, including personal injury or injury to a pedestrian.
What needs to happen?
The laws should be changed to ensure all pedestrians who have been injured by an e-scooter can claim personal injury compensation.
The government needs to step in and regulate e-scooters so that public liability insurance is mandatory and steps have been taken so that the e-scooter company can’t pass the buck onto a rider and say it’s their fault not ours – similar to a CTP claim.
E-scooter companies and/or its insurers should not be able to “pass the buck” regarding liability onto the scooter rider and absolve the e-scooter company of liability.
Every citizen should be protected from a situation where they suffer injury or death as a result of an e-scooter accident and have limited to no recourse to compensation for their injuries, despite being an innocent party and suffering injury or death as a result of the negligence of another.
The government should tightly regulate the use of motorised e-scooters and ensure that riders and members of the public are covered by a policy of insurance in the event that they are injured as a result of an e-scooter accident.
The government should consider whether we need to change CTP laws with respect to e-scooters so that claims can be made under the motor vehicle compensation acts – after all, scooters can be driven by riders with no licence, on roads up to 50km/hr, and accidents are continually reported in the media.
The government should also ensure proper education of the public about the rules surrounding e-scooter use. Citizens understand the rules for bicycles but are usually at a loss to explain rules surrounding e-scooters or e-scooter safety.
How can local councils grapple with the situation?
In the wake of a fatal or other injury to a rider or a pedestrian, e-scooters would be a detriment to local tourism but of greater concern is the effect of such a collision on the victim and their loved ones.
Without fair compensation, victims have little chance to regain their health or quality of life.
Given the number of accidents occurring, and the fatality, it is appropriate to consider the consequences of someone being injured before tragedy strikes.