The E-Scooter Boom – Welcome Court Guidance

Using a private scooter in public can lead to fines up to £300, 6 penalty points on your licence, and seizure of the vehicle. Only one person is allowed per scooter. Transport Secretary Heidi Alexander recently said that regulations for speed limits and safety requirements would be introduced "as soon as parliamentary time becomes available." 

Government accident statistics for 2024 show that around 34% of e-scooter accidents resulted in serious injury or death, over half of which involved privately owned e-scooters.Injuries are of course caused to pedestrians and indeed motorists by e scooter riders, but the riders themselves can be injured, often severally, and in some instances it may not be their fault.

This then raises the question as to whether or not someone who is injured as a result of a defect in the highway, whilst riding a privately owned e-scooter illegally, should be able to benefit from the civil law of negligence to sue for damages.

A recent case D.R. v Newham Council heard by DJ Campbell in the Clerkenwell and Shoreditch County Court thankfully offers welcome judicial guidance. 

The claimant sustained relatively modest injuries when he encountered a pothole while riding his privately owned e-scooter on a public carriageway. Liability was defended on two principal grounds; firstly, that he was illegally riding a private e-scooter on a public carriageway; and, secondly, the statutory defence under section 58 of the Highways Act.

That first ground focused on the legal maxim “ex turpi causa non oritur actio” which roughly translated means “no action arises from a dishonourable cause”.  The leading case law on the defence of illegality remains Patel v Mirza, which introduced a “trio of considerations” for applying the doctrine of illegality.

DJ Campbell commented on the previous case of O’Brien v Ringway Hounslow Highways (2024) 12 WLUK 699 and although that involved riding on the pavement, he pointed out that even riding on a public road was contrary to the statutory regulations which were there primarily to protect road users. Consequently, the distinction didn’t warrant a different approach.

The DJ commented that the law would be incoherent if this claim were permitted to proceed, noting that there were other illegalities which were also relevant (DR had no insurance and no licence to ride the e-scooter). The judge concluded there was therefore a prima facie reason to allow the defence of illegality. However, it was also necessary to consider a further aspect of the ex turpi concept. Would denying the claimant’s claim be disproportionate to his illegal conduct?

There was general agreement that the value of DR’s claim was around £10,000. DJ Campbell commented that if the claimant had suffered life-changing injuries it may have been disproportionate to allow the defence of illegality. On the facts before the Court, however, the illegality defence was allowed and the claim was struck out.

The judge didn’t rule on the section 58 defence ground as he didn’t need to.

Forbes Comment:

This is a welcome and important judgment for local authorities who have seen a general increase in highway claims, even without considering claims from those driving illegally. However, the judge’s comments that the claimant may have succeeded if the injuries had been more severe on the basis of disproportionality offers a note of caution which some might see as rather illogical. It is somewhat strange that the effect of illegality lessens depending on the severity of the injury.

Of course, local authorities remain under a duty to maintain highways in as safe a condition as possible irrespective of their usage, and the best way to avoid highway claims of any kind is to ensure a robust and efficient system of inspection and maintenance. That way even if the illegality defence fails, the Section 58 statutory defence should succeed.