Lime e-scooters' locking wheels were a nuisance, but were they a criminal nuisance?
Friday, 15 March 2019
Lime e-scooter rider Ashley Jones says the company should be investigated to determine if it posed a criminal threat to public safety.
Auckland Council temporarily suspended Lime's licence on February 22 following a string of 155 unexpected braking incidents that appear to go back as far as October in which 19 people were injured after the wheels of the Lime scooters they were riding unexpectedly locked.
Lime, which launched in October, blamed a 'firmware', or software, glitch, but some of those injured want an investigation into whether Lime breached any public safety laws, including the criminal nuisance law under the Crimes Act.
Ashley Jones is clear what Lime should have done after he broke his shoulder when thrown from a Lime scooter on Auckland's Nelson Street on January 18 when its wheels locked.
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'They should have recalled the whole fleet straight away, and they should have investigated them, and whether there was a fault with them.'
Jones said that while there was still a likelihood of Lime scooters unexpectedly braking on users, Lime should not have allowed its scooters to remain on the streets.
He had immediately told Lime of the unexpected braking incident.
Lime's director of government affairs Mitchell Price said safety was the company's top priority.
'There was, for Auckland, a very small number which resulted in an injury,' he said. 'Where someone was injured, those scooters were taken off the street.'
But Price said Lime did not recognise there was a fleet-wide problem until the week Auckland Council suspended its licence.
Auckland Council would not immediately reveal the exact dates of the first and last of the 155 unexpected braking incidents, and is considering whether it is able to keep that information secret under the Local Government Official Information and Meetings Act.
But council spokeswoman Joanna Glasswell said the first incident was in October and the most recent one was before the suspension in February.
'The brake was engaging at the time when scooters were going downhill, or hitting a pothole, or crack in the surface, which confused the firmware that it was time to brake,' Price said.
The problem was fixed, and Lime scooters returned to Auckland streets.
Lime collects feedback from users, but Price said the first Lime knew of the accidents caused by wheel-locking was through the media.
He said many Lime users did not provide feedback on accidents.
Companies can be found to have broken the law, if their products and services knowingly pose a threat to public safety.
The law sometimes used is criminal nuisance under the Crimes Act.
The sentence can be up to one year in prison.
The Consumer Guarantees Act puts a legal duty on people hiring goods to the public for those goods to be of 'acceptable quality' and safe.
Professor Warren Brookbanks from AUT said criminal nuisance was not often prosecuted.
It has previously been used to prosecute offences such as unfenced pools, spreading sexually transmitted disease, stray animals, pointing a laser at aircraft or renting out substandard car trailers.
Police did not investigate Lime's actions during the five months during which the unexpected braking occured.
A police spokesman said criminal nuisance was one of a number of options to consider such instances.
'We are not aware of any need to invoke those provisions of the Crimes Act to date,' she said.
WorkSafe said it was not its jurisdiction, and the Transport Agency (NZTA) said it was not responsible as Limes were not used on state highways.
NZTA suggested Auckland Council as the roading authority under the Land Transport Act.
Auckland Council said its involvement with e-scooters was to issue mobile trading licences.
'We are confident that [the] council is complying with all of its legal obligations in that respect.'
The Ministry of Building Innovation and Employment said it did not take prosecutions under the Crimes Act, and Auckland Council had taken the lead in the safety of Lime.
Wellington businessman Chris Parkin said he was not surprised no agency was interested.
In 2004 he took a private prosecution for criminal nuisance against Tararua District Council after a motorbike crash.
Parkin's bike skidded when he hit loose gravel on a recently-sealed patch of road. There was no warning sign.
The bike was badly-damaged, and Parkin, then a Wellington City councillor, was left with bruising and a stiff shoulder, and a burning sense of annoyance.
'I didn't think people should disregard their duty,' he said.
He took the case because authorities were not interested.
'In effect, criminal nuisance drops off the radar because nobody is interested enough, and individuals don't have the resources to take private prosecutions,' he said.
THE TIMELIME:
October 15: Lime scooters launches in Auckland and Christchurch. Auckland Council said the first unexpected braking incident happened in this month.
November 2018: Chris St Bruno landed in hospital after a Lime scooter he was on unexpectedly braked.
January 10: Lime licence and trial extended by Auckland Council. Lime launched in Dunedin.
January 14: Lime temporarily suspends its fleet in Switzerland after unexpected braking threw riders.
January 18: Ashley Jones left grazed and injured when a Lime unexpectedly braked.
January 19: A man was thrown from a Lime, breaking his collar bone. He then complained to Auckland Council.
February 1: Stuff reporter John Anthony writes about being thrown from a Lime when it unexpectedly braked.
February 3: Tamsyn Rutherford was thrown from a Lime in Cornwall Park, Auckland.
February 14: Stuff reports that Lime was aware of the glitch causing unexpected braking.
February 22: Auckland Council suspends Lime's licence. At this point, there had been 155 unexpected braking incidents resulting in 19 injuries. Dates for the incidents are not made public.
March 6: Auckland Council allows Lime back onto the footpaths, but has to 'immediately escalate (at the latest within 24 hours) to Auckland Council and Auckland Transport any further serious or significant safety incidences leading to injury involving Lime scooters'.