Legal Update: Hover with caution

Whatever you may consider it to be, we now know that, like many other products before it, if incautiously used or if badly made, not only can it cause a variety of harms but it can also be fatal.

Hoverboards have demonstrated they present a risk and, depending on the harm caused, a compensation claim of one type or another could arise. As with any new technology, early adopters often find ways to develop more widespread alternative uses. Redress via product liability insurance may not be the right solution - certainly not for harm caused by the use of a properly functioning hoverboard, as opposed to harm arising from a defect in its manufacture. There is even the possibility that compulsory motor insurance will be required.

Over the last few months, print and social media have been peppered with images of celebrities riding hoverboards and other rideables, sometimes with unfortunate consequences. Such coverage has led to the hoverboard becoming an increasingly common feature of the high street, prompting the authorities to take a view on the legality of the gadget.

This October, the Crown Prosecution Service issued a statement saying that hoverboards are illegal on the streets of the UK. The rationale is that they essentially fall in the same category as Segways, meaning that they are motor vehicles, so cannot be ridden on pavements. And following a 2011 ruling on Segways, they are not licenced vehicles, so cannot be used on public roads either.

They are only legal to use on land that is private property, and only with the landowner's permission. Since parks are public areas, these are likely to be off limits as well.

Furthermore, the insurance position for such ‘vehicles' is uncertain and could change significantly in the next year or two. Following the European Court of Justice ruling in Damijan Vnuk v Zavarovalnica Triglav, compulsory motor insurance must cover any accident caused by the use of any motor vehicle, not just one registered for road use, which is being used in a way that is consistent with its normal function.

On the face of it, and without further amendment to the Motor Insurance Directive, the use anywhere of any motorised vehicle would have to be covered by MID-compliant insurance. Thus, even something as specialist and limited as a hoverboard being used on private land might have to be covered by ‘conventional' motor insurance which, in the UK, would have to meet the requirement of the Road Traffic Act 1988.

The European Commission and member states have now held exploratory discussions about the implications of the Vnuk decision - albeit focusing more on motor sports and industrial/commercial vehicles rather than on hoverboards. The UK government is expected to publish, perhaps in the first quarter of 2016, a consultation paper seeking the insurance industry's ideas for responding to Vnuk. It may also consider lists of the types of esoteric vehicles which would fall outside the legal requirement for compulsory motor insurance.

Ultimately, the MID gives national governments the power to exclude certain types of vehicles from their compulsory insurance legislation. It remains to be seen whether hoverboards will be among any vehicles that might be excluded in the UK. And of course it will not just be hoverboards that will be caught by this sort of development, but also anything else properly classified as a motor vehicle. Until then however, whether as a user or as an insurer, hoverboards should be treated with caution.

By Nick Rogers, partner and head of motor at BLM