The controversy over the issue of whether electric bicycles are motor vehicles and hence would be subject to the Law of Compensation to Victims 1975 (hereinafter: the Road Accident Law) of road accidents has come this week to an end by the Supreme Court which decided by a majority opinion of two Judges, Yitzhak Amit and David Minz, against the dissenting judgement of Justice Daphna Barak Erez.
According to this judgement, the Road Accident Law sets a social arrangement which aims at compensating anybody who suffers bodily injury in a road accident. The compensation is granted by the commercial insurance company which covers motor vehicles and in certain cases the compensation is given by the Carnit Fund for compensating road accident victims (where the Insurer is unknown or the insurance is non-existent).
In recent years there has been an increase in the use of electric bicycles which are considered to be a transportation tool which is cheap and “green” and very popular.
- In 2010 the regulation defined the electric bicycles as “bicycles with an assisting engine” and the regulations set the technical requirements concerning the engine power (not more than 250 watts) and also cessation of the engine at 25 km per hour. These are considered within standard electric bicycles. However, in many cases changes are being made to the engine of the bicycles and the judgement refers to same as non-standard electric bicycles.
- In view of the fact that electric bicycles are involved in many accidents, the question of the applicability of the Road Accident Law has become very important. If the electric bicycle would be considered as a motor vehicle, there will be a duty of insurance and also the law limits the amount of compensation being based on a no-fault system.
- Currently, it is not possible to purchase a mandatory insurance policy for standard electric bicycles and it is not possible to sell such insurance for non-standard bicycles which are illegal, which will lead the policy to being an illegal contract.
- The Court decided that the definition of the law of a motor vehicle is not suitable to encompass the electric bicycle, hence the result would be that a person who rides such a bicycle will be considered as a pedestrian and in case of an accident with a car, he will be entitled to compensation from the Insurer of the car. On the other hand, when such a rider injures a pedestrian the latter will not enjoy compensation under the law and hence may sometimes remain without any compensation if the wrongdoer disappears or if he cannot recover from him his damage.
- As mentioned earlier, where a car involved in a road accident lacks insurance, the compensation will be made by Carmit Fund however, this arrangement would not apply to absence of insurance of the rider who causes bodily injury to a pedestrian as the Fund does not apply to those cases.
- The Supreme Court reviewed the contradictory judgements of the lower instances of the Magistrate’s Court and the District Court and reached its decision based on the definition of a motor vehicle.
- The Supreme Court joined three appeals in which the same issue arises.
The fact of the Asulin appeal was that, Mr. Asulin rode an electric bicycle and was hit by a car driven by the Respondent and insured by Hachara. The accident led to the rider’s death.
The Estate of Mr. Asulin argues in the claim that electric bicycles are motor vehicles and therefore the deceased should be considered as a person riding a motor vehicle without insurance. And therefore, in view of the absence of the mandatory insurance, there is no cause of action under the Road Accident Law.
Accordingly, the Estate amended this claim and added the Carmit Fund and the State. The cause of action against the State was that it failed to regulate the law or regulation which should apply to electric bicycles.
- The District Court determined (Judge Saab) that electric bicycles are a motor vehicle and therefore there is no case against the Insurer and hence the claim should be dealt with between the Estate, the Carmit Fund and the State of Israel.
- The Court reviewed the arguments of the parties and the issue of the proper legal policy concerning this issue in view of the impact of the decision on persons riding these bicycles.
- The State argued that electric bicycles which are non-standard maybe considered as motor vehicles if the change carried out leads to the rider not having to __________ and the use is based only on mechanical power of the bicycle.
Carmit argued that electric bicycles are activated by both mechanical power and the physical power activated by the rider which is the main motive.
Carmit argues that the Road Accident Law which is aimed at clear social objects, should not be turned into an enforcement tool in order to avoid riders changing the characteristics of their bicycle which should be left to the penal law.
- The Court referred to the definition of vehicle, motor vehicle and road accident, which is caused by the use of a motor vehicle for transportation purposes. In addition, the majority judges related to the standard definition of bicycles with an attachment engine, and reached the conclusion that the proper legal policy leads to the fact that electric bicycles of both kinds are not motor vehicles and therefore, are not subject to the Road Accident Law.
- Although the intuitive feeling of anyone who is injured by an electric bicycle is a motor vehicle, this intuition however can only be a starting point for the interpretation of the law which should be based on plain language of the definition and on the object of the law and policy considerations of public policy.
- There are various Bills for the amendment of the Road Accident Law which may solve the problem, however, they have not yet been legislated. The Court calls for a clear definition by the legislator concerning these vehicles.
- The Court related to electric scooters concerning which there is uncertainty whether they are for transportation purposes, however, electric bicycles are undisputedly aimed at serving as a form of transportation.
- In respect of the risk involved, the electric bicycles are different from regular bicycles, however, the risk is less than that of a car. The velocity is not the yardstick and the legal definition places emphasis on the main object of the vehicle to be used as transportation.
In view of the fact that electric bicycles are not registered and do not bear a licence plate, when imposing a duty of insurance, one is faced with practical difficulties. This is an anonymous vehicle which the Insurers will avoid from covering but on the other hand the premium would be very high. This would lead to a market malfunction and as a result its use would decrease after considering all the above mentioned objects and policies. The majority judges determined that the electric bicycles would not be considered as motor vehicles, a conclusion which stands in line with an arrangement concerning these vehicles in other countries, in Europe, Australia, etc.
The Court applies the above conclusion to the standard electric bicycles and as to the non-standard bicycles, which, by an illegal and forbidden act, were turned into bicycles with a greater power engine, the Court determined that this illegal act would not turn the bicycle into a motor vehicle.
- The Court called for the legislator to intervene and regulate this issue.
- Judge Daphna Barak Erez’s decision in her minority judgement that the electric bicycles are very popular and where the legislation left this issue without a clear answer, the Court should solve this problem. Also, the relevant public policy considerations should lead to regarding this vehicle as being subject to the Road Accident Law in order to afford remedy to those who are injured thereby.
Oded Cederboim, Adv.