Courtroom battle looms over e-scooters

A judicial review is in the pipeline to challenging Auckland Transport's decision to allow e-scooters on the city's crowded footpaths.

Dale Mcgeorge

This comes as Auckland Council last week almost doubled the number of e-scooters permitted on Auckland streets and footpaths – from 1875 to 3200. Four other companies – Beam, Flamingo, Jump and Neon – have been granted six-month licences to operate while two others, Lime and Wave, were declined and must be off the streets by today.

But a tight-knit team of high-powered lawyers, who spoke to LawNews on condition of anonymity, is keen to test the lawfulness of Auckland Transport and Auckland Council’s approval of the controversial scooters which, since their introduction late last year, have been directly involved in one death and more than 3300 injuries, some of them critical.

A second death involving an e-scooter was later found to have been from natural causes.

Among other things, the group is questioning the way e-scooters have been licensed.

“They have licensed these scooters by a bizarre interpretation of the regulation that's all about hawking and marketing on street corners,” says a source familiar with the planned lawsuit.

“What they’ve said is ‘these people are hawking and marketing their scooters by dropping them on the road and offering them to the public. And we’re going to give them an exemption from the rule that prohibits that kind of hawking’.”

The group’s primary concern is the danger e-scooters pose to the health and safety of pedestrians, especially those who have difficulty walking, hearing or seeing.

“This is crazy stuff, letting these scooters be used,” the source says. “People are getting killed on them and the politicians in Auckland city haven't done anything about it.

“They’ve allowed these cowboys from California to ride into town and put them on the street without any prior evaluation and then said, ‘we’re going to give them a trial’.

“But the trial has been going on for ages. They have a duty to protect the health of the public and it's ridiculous that pedestrians are being put at risk.”

To date, e-scooter injuries include 359 fractures or dislocations, 46 concussions and 44 dental issues. And one Auckland rider has been charged with careless use of a vehicle causing injury after an accident in Fanshawe St in June where the victim was struck by an e-scooter as she stepped off a bus onto the footpath. She was left bleeding and wedged against the wheel of the bus after the collision.

The defendant was given interim name suppression and remanded without plea.

New research by Auckland University reveals e-scooter injuries in the city have cost the health system more than $1 million in less than a year with 30% of those injured needing to be admitted to hospital and requiring inpatient care.

Nationwide, ACC claims for e-scooter injuries total $4.4 million.

Those preparing the judicial review application say AT sees the scooters as a way of reducing traffic congestion in the city.

“They have the idea that the more people they get on scooters, the less they will drive cars, so it’s all good news,” the source says.

“But it’s a completely superficial argument. They probably did need a trial to find out whether people were going to get hurt but they’ve got all the evidence in the world now and it's unbelievable what’s going on.

“The city doesn’t need the scooters, given all the improvements in public transport in Auckland.”

The group believes regulating the scooters could be problematic.

“We don’t think they can be regulated. This is why cities like Paris and San Francisco have banned them on the footpaths. How on earth can [anyone] regulate individual scooter riders misbehaving on the footpath? It’s inconceivable that you could have regulation.

“The only way you could do it, which they’re thinking of doing in London, is to make the scooter owners register them. But that’s when you have an individually-owned scooter, not when you're just using a credit card to [hire] somebody else’s scooter.

“The whole thing’s a mess.”

Dr Claire Dale, a research fellow at the Auckland Business School, is another with serious misgivings.

“The city’s pavements are becoming a battleground between e-scooter riders and pedestrians,” she says.

“It’s a battle the pedestrians cannot win. Auckland pavements will not be age-friendly so long as they are ruled by e-scooters. I am disappointed and a bit distressed at the approach AT is taking.

“We had assurances from Lime that it was educating its customers re safety. That did not happen. With nearly twice as many e-scooters now on the footpath, all pedestrians will be taking a risk every time they venture out.

“I do not understand the cavalier attitude of AT towards pedestrians when other cities in the world have taken care to keep pedestrians safe.”

Some of the worst accidents have involved a 26-year-old Dunedin woman who fractured her skull when her e-scooter tangled with a truck and a 27-year-old Auckland man who broke his jaw after being thrown over his e-scooter’s handlebars.

The chequered track record of e-scooters does not surprise Dale. LawNews asked her why she believes this situation has come about.

What are the key issues that concern you in terms of public consultation, planning, safety and regulation?

Given that London, Paris and Los Angeles introduced e-scooters in advance of Auckland, and chose to ensure pedestrians were still safe on footpaths by confining e-scooters to roadways, Auckland could have taken guidance from their research and decision-making. It is also worth noting those cities are still having major problems with safety for pedestrians as well as e-scooter riders.

Are e-scooter companies exerting undue influence over AT and, if so, why?

The e-scooter companies certainly are not paying their fair contribution toward the ACC costs caused by e-scooter accidents. Perhaps they are exerting influence over AT. I don’t know. I do know AT had not done the necessary research before the e-scooters were introduced.

Given the improvements to public transport in Auckland, does the city need e-scooters? If so, how should they be regulated and what restrictions should be placed on their operation?

The e-scooters could work well if they had to drive on the roads, obey the road rules and the riders wore helmets. That would avoid the current mayhem and hazards on the pavements for pedestrians.

Given the plethora of health and safety regulations, can AT be held legally accountable for the problems e-scooters are causing?

We can hold AT responsible for being irresponsible and not demonstrating due care and diligence, and we can hold the e-scooter companies responsible for the accidents. We do need central government to act on this matter to ensure both organisations are legally accountable.

To what extent are you reluctant to venture onto the streets of Auckland because of e-scooters?

I am nervous walking the streets because the silent e-scooters are often travelling at speed and I am nervous that I will fall as they race past.

I no longer feel safe walking the streets of my city.

Bizarre situation

Dale’s assessment of the situation has won plaudits from eminent Auckland barrister and former High Court Judge Sir David Williams QC.

In a recent letter to The New Zealand Herald Sir David congratulated Dale on her "incisive analysis of the current bizarre situation where scooters are allowed to be ridden on footpaths and to be dumped elsewhere.

“It is ridiculous Auckland Transport has not issued regulations preventing the use of scooters on footpaths,” he said.

 

“As Dale points out, it seems not to care for pedestrians. No consideration has been given to the rights of pedestrians, especially elderly pedestrians. Nor has it taken into account the cost of dealing with scooter injuries.”

 

Sir David says the “aggressive off-shore scooter promoters” know they need not care about the injuries likely to be caused by the scooters because ACC will cover the cost.

“As Dale points out, many overseas cities, including Los Angeles and Paris, have prohibited scooters from footpaths. It is time to follow suit. The whole scooter saga is a fiasco.”

Sir David, who cycles to keep fit, is also upset that e-scooter users get preferential treatment over cyclists.

“I’m a cyclist and I’m not allowed to cycle on the footpath but these lunatics on scooters are,” he told LawNews. “And they’re knocking people around and causing immense physical harm.

“I’ve got to take my chances with the traffic on the road. Why should we have a motorised form of transport on the footpath when cyclists have to be, for the most part, with the cars on the road?"

All of which raises another highly contentious question.

E-scooters may be powered by a motor but, by and large, they do not fall within the classification of a 'motor vehicle' under the Land Transport Act 1998, according to Auckland barrister Fiona McGeorge.

She says the NZ Transport Agency has declared an e-scooter is not a motor vehicle so long as it is comprised primarily of a footboard, two or three wheels and a long steering handle, with wheels no bigger than 355mm in diameter, and has a motor with a maximum power output that does not exceed 300 watts.

A Lime e-scooter’s motor is 250 watts so it is not classified as a motor vehicle.

McGeorge says this means people cannot be charged with drunk driving in relation to a Lime scooter.

“Having ridden one of the Lime scooters recently, [I think] it wouldn't take a lot for a bump in the road or footpath to send you flying so we strongly advise against drunk Lime-ing.”

Just how many Aucklanders use e-scooters while intoxicated is anyone’s guess but it has become an issue in some other parts of the world.

Over the course of one weekend this year, Danish police arrested 28 people in Copenhagen for riding e-scooters while under the influence of alcohol or drugs.

They faced fines of almost $500 each.

As the debate in New Zealand intensifies, many citizens are taking their concerns to the government in the hope it will remedy the situation.

A coalition of 14 organisations including Grey Power, Alzheimers NZ and Living Streets Aotearoa has launched a nationwide petition to have e-scooters banned from the country's footpaths.

Spokesperson Dr Chris Teo-Sherrell says for many people on foot, especially those with disabilities, using the footpath is a necessity and their main connection to the community.

“If e-scooters and other personal transport devices are allowed on footpaths, these people, as well as able-bodied pedestrians, will be put at higher risk of injury and feel less safe.” 

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