Paul Hergott’s latest column on e-scooters

Hergott: E-scooters, injuries and legal implications

Lawyer Paul Hergott continues to discuss e-scooters in his latest column

This week I discuss legal implications of injuries caused by e-scooter use.

Studies I shared last week indicate that serious injuries are sustained in approximately one of every 5,000 e-scooter uses. And about one in every 22 are pedestrians hit by an e-scooter.

I was not intending to be alarmist. It’s straight forward math to calculate the huge number of e-scooter uses per pedestrian casualty. But it’s a certainty that over time serious injuries will occur.

The statistics were not based on skinned knees. They were based on attendances at hospitals where 19 per cent had fractures over multiple areas of their bodies and 15 per cent had evidence suggestive of a traumatic brain injury.

I understand from news reports that e-scooter use is currently restricted to designated pathways in Kelowna. But that’s not what I’m seeing.

During a short trip through downtown Kelowna on the weekend I saw several e-scooters in operation on streets and sidewalks, include two scootering against traffic along Bernard and then zipping up onto the sidewalk at Water Street.

Does the value of e-scooters outweigh the public safety risk? I don’t know. Regardless of that debate, people are going to get hurt. Including innocent pedestrians.

Those casually picking up an e-scooter do not have the benefit of all the warnings you find in owner’s manuals. Nor do they benefit from the statistic that approximately one-third of those suffering serious injuries on e-scooters are first time users.

And they are unlikely to put their minds to legal implications if their e-scooter use causes someone else to be seriously hurt.

Any time I’ve rented a car, a sales pitch is made for increased liability insurance because the rental agreement comes with only the minimum amount for the jurisdiction.

Liability insurance is not raised at all when you rent an OGO Scooters e-scooter.

But of course you must click on a button that affirms you have read and agree to an “Acknowledgement of Risk and Release of Liability”. Those familiar with my column know how much I despise unfair releases.

It makes sense that you should not be able to make a claim if you are hurt because of your own carelessness. But the release goes beyond that to things only within the control of OGO Scooters and the manufacture. It includes: “….without limitation, claims for injury or death resulting from an alleged defect in the design, manufacture, marketing, sale, distribution and/or maintenance of the eScooter”.

Of interest, the “How to Ride” instructions on the OGO App contain incorrect instructions about how to stop the thing. It says to “Press down throttle with right thumb to accelerate” in the “How to Start” window, and “Press down throttle with right thumb to slow down…” in the “How to Stop” section.

But you agree not to claim against them if you hurt yourself following those instructions. Or a throttle sticks. Or whatever else might go wrong because of defects in design, manufacture or maintenance.

And there is no insurance coverage if you collide with and injure a pedestrian.

Or get in the way of a car whose driver swerves to save you but hits someone else.

I hope we would all agree that if you collide with and injure an innocent pedestrian, you should be responsible to compensate the victim for their injuries, harms and losses. Not made up ones. Real ones. Like the expense of care. And time away from work. And feeling pain and discomfort.

If you do that driving a car, your ICBC liability insurance kicks in. Your victim doesn’t have to chase you down for compensation. Instead, they deal with ICBC.

Home and rental insurance policies often include liability coverage. I’ve looked at my own home insurance. My policy covers me and my family for operation of an electric bicycle (as long as it is incapable of exceeding 32 km per hour). And “electric vehicles for children not capable of exceeding a maximum speed of 10 km per hour”.

But coverage does not appear to be included for the use of the adult e-scooters that have hit Kelowna streets. And not everyone has house or rental insurance policies.

In my view, e-scooter rentals should be mandated to include liability insurance for the rider so that a victim has an insurance company to turn to for compensation of losses.

And their release should not be permitted to include a bar from claiming against the e-scooter provider for their own negligence in design, maintenance and instruction.

Missed last week’s column?

Hergott: Concerns with e-scooters

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