Over the past few years, E-Scooters have become a popular form of transport. They seem to have come from nowhere, and are now everywhere. Teenagers are zipping off to school, adults are taking them to the train station to avoid costly parking, and many people hire them on weekends to go for a cruise along the coastline. They are convenient because they require no effort from the rider. Some even have a seat. They are rechargeable, capable of going very fast and have a long range. Quite simply, they are great fun and convenient.
Unfortunately, like anything, there is a small minority of riders doing the wrong thing. This usually involves going way too fast in the wrong places such as around blind corners, in front of shop entrances, or past pedestrians. Some people don’t realize, or perhaps care, that the faster you go, the less margin there is for error. Being young and really good at Grand Theft Auto on your PS4 does not make your reflexes infallible.
There is also a shared delusion among many riders that helmets are unnecessary, like there is something inherently safe to e-Scooting. I recently saw a young person go racing past me on an E-scooter with no helmet, but wearing a snugly fit surgical mask. This person seemed to believe that there was a real risk of catching COVID from the sea breeze blasting off the Indian ocean, but no risk of falling off a tiny platform of plastic while going 30kmh. I laughed at the irony, but the victims of the E-Scooter accidents don’t find any of it funny.
This was certainly the case with an elderly grandmother on 13 July 2022. She took two steps out of a nail salon on Albany Highway when she was hit by an E-scooter going at a high speed; certainly well in excess of the 10kmh speed limit. She had to be taken to hospital in an ambulance where she received treatment for broken collar bones. The CCTV footage is quite confronting as it shows the woman to be flung several meters, and then not get up. Had it been a toddler hit by the scooter racing along the footpath, it could have easily caused a death.
On 26 June 2022, an eight-year-old girl by the name of Lilli was hit by a man riding an e-scooter estimated to be going in excess of 40kmh. She was sent flying through the air and suffered injuries to her forehead, cheek, nose and bottom lip requiring a two night stay in hospital. At the time, she was walking along a beachside path with her parents in North Coogee on a warm Sunday afternoon. Such a place should be safe from traffic collisions. The rider was weaving around pedestrians at a terrific speed and seemingly didn’t see the girl until it was too late.
The culprit was questioned by police but later released without charge. Should the man who injured Lilli have been charged with assault, or some sort of traffic offence? Should the rider who put the elderly woman in hospital have been charged? Are there even appropriate charges available to the police?
This is a difficult question to answer because, as a society, we don’t like to criminally charge people over accidents. However, the more serious the consequence, the less relevant the “accident” element becomes. Had the elderly woman been a toddler, and that toddler killed, we can be sure the community would expect the rider to spend time in prison. Death is not a remote possibility when it comes to E-scooters. On 4 May 2022, Kim Rowe, father of 3, died after colliding with a cyclist when taking a blind corner too fast. He had left work after a long shift and was undoubtedly eager to get home. That eagerness caused him to go a bit too fast for safe travel and he paid the price. Fortunately, the cyclist did not suffer any major injuries.
Perhaps we should be treating e-scooters like any other vehicle? We certainly have no issues with charging people with Dangerous Driving causing bodily harm. It stands to reason that if you are riding an e-scooter at 30kmh in an area designated to be safe at 10kmh you are driving dangerously. If that speed causes bodily harm, then you fit the description of the offence. So why didn’t the rider who bowled over little Lilli get charged with at least, Dangerous Driving causing Bodily Harm?
The charge of Dangerous Driving causing Bodily Harm is defined at section 59A of the Road Traffic Act 1974 and states: “If a motor vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person and the driver was, at the time of the incident, driving the motor vehicle in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person, the driver commits an offence.” The Road Traffic (Administration) Act 2008 defines a motor vehicle as “means a self-propelled vehicle that is not operated on rails and does not include a power assisted pedal cycle.”
At a cursory glance, it would appear that an E-scooter, being self-propelled by an electric motor, constitutes a motor vehicle. Furthermore, E-scooters are required to remain under 10kmh on footpaths, and under 25kmh on cycle paths. Therefore, excessive speed can be defined in terms of a speed limit. So why would Lilli’s crash not result in a charge?
Currently, despite how clearly E-scooters meet the definition of a motor vehicle, they are generally dealt with under recent regulations relating to what are now called “eRideables” which came into effect on 4 December 2021. These rules cover various electrically propelled small vehicles such as E-scooters, and electric skateboards. They are defined as, “a small electric rideable device with at least one wheel, Is less than 125cm long, 70cm wide and 135cm high Is 25kg or less and not capable of traveling faster than 25kmh. Based on that definition, it would appear that an E-scooter capable of traveling over 25kmh would be considered an ordinary vehicle under the Road Traffic Act. The current regulations make it illegal to ride such a vehicle on a public path or road.
Given the allegation that the rider who hit Lilli was traveling at an estimated 40kmh, the police could have tested the scooter to determine its maximum speed. Alternatively, they could have quickly looked up the model and found out from the manufacturer’s website its maximum speed. If that speed exceeded 25kmh as alleged, then it was open to them to charge him under the Road Traffic Act as the E-scooter was not covered under the eRideable laws.
However, even if the police cannot charge an E-scooter rider under the Road Traffic Act, can the negligent rider be charged with common assault? To answer this question you need to look at the necessary elements of assault, and the defense of “accident”.
It is easy to imagine a situation where someone would deliberately ram another person with an E-scooter. Perhaps a disgruntled ex-lover sees their former partner on the street and makes the knee-jerk decision to smash into them at full speed. It would be easy to establish malicious intent. An assault charge would be sure to follow.
However, what many people don’t know is that you do not need “intent” to be charged with assault. The two elements required to establish an assault is that either force or a threat of force against another person is present, and secondly, that consent for this force is not communicated or implied. For example, in a game of rugby the players consent to being tackled by participating in the game. The player essentially consents to the force and therefore there is no assault.
In an assault, the force applied does not need to be directly caused by the person and can include force from a device controlled by the accused or through heat, light or gas among other things that has been caused by an action of the accused. Hitting someone at great speeds with an E-scooter is the application of a harmful force, through a device, against another person without their consent. It is therefore an assault, so the only way out of it would be to argue the defense of “accident’
In a criminal trial, one of the defenses available to an accused is that the event, or incident, subject to the criminal charge occurred as an accident. Section 23B of the Criminal Code Act 1913 states that “A person is not criminally responsible for an event which occurs by accident.” However, an event cannot be an “accident” if it was intended or foreseen by the accused. This is the subjective component specific to the accused. The objective component as discussed in the case of Kaporonovski v The Queen (1973) defined an event as an accident if it was not in fact foreseen, and was not reasonably foreseeable by an ordinary person.
This is the important part. The reason why most people feel angry about the elderly lady being bowled over by the E-scooter as she stepped out onto a footpath from a nail salon is that it was totally and obviously foreseeable. Any ordinary person would agree that it was highly likely that people would emerge from the shops along that footpath. The defense of Accident would not stand up in a criminal trial.
For that reason, the writer believes that the law needs to catch up to the technology. E-rideables do not have a third-party insurance scheme like other motor vehicles, and very serious injuries, even death can be the result from collisions. If the law does not quickly adapt to deal with these issues, we may see such a wave of community resentment whereby there are calls for making e-Scooters illegal. That would ruin the fun for everyone.