Zurich Insurance have recently succeeded in having a claim involving use of a private e-scooter struck out for illegality. This Judgement will be heartening to many members, but the Judge’s comments about proportionality should be borne in mind.
The claim, D.R. v Newham Council, concerned injuries sustained when the claimant unexpectedly dropped into a pothole while riding a privately owned e-scooter on a public carriageway. Liability was defended on two principle grounds; firstly, the illegal riding of a private e-scooter on a public carriageway and, secondly, the statutory defence available under section 58 of the Highways Act. The case was heard by DJ Campbell in the Clerkenwell and Shoreditch County Court.
The leading case law on the defence of illegality (ex turpi causa) 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 as being informative of his approach. Although O’Brien was factually distinguishable — the claimant in that case was riding on the pavement, whereas D.R. was not — the key principle adopted by the Court was that riding a private e‑scooter on a public highway is itself a breach of statutory regulations. The nature and purpose of those regulations was central to the Judge’s reasoning: they exist primarily to protect road users. As Judge Brownhill observed in O’Brien, allowing such a claim to proceed would undermine the regulatory scheme.
DJ Campbell considered this in his Judgement, finding that the law would be incoherent if this claim were permitted to proceed, that there were other illegalities which were also relevant (no insurance and no licence to ride the e-scooter), and that these elements provided a prima facie reason to allow the defence.
He then moved onto the question of whether denying the claimant’s claim would be proportionate to their illegal conduct, commenting that the damages which would have been owed would have been valued at or around £10,000. Importantly, 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 did not comment on whether the section 58 Highways Act defence would have succeeded.
Why this matters
We welcome this common-sense judgement and the reassurance it provides for local authority defendants. Following O’Brien, there had been understandable concern about the ease with which that decision could be distinguished in cases where the illegal rider was not riding on the pavement. This decision provides helpful support for the position that private e-scooters are a hazard when ridden on any public land, whether on the road or pavement.
This Judgement may signify an overall hardening of attitudes to the increasing presence of e-scooters on our streets. For local authorities, this judgment matters because it strengthens the ability of highway authorities to resist liability where claims arise directly from unlawful activity. It provides judicial support for the argument that the courts should not facilitate claims which undermine carefully constructed regulatory schemes designed to protect the public.
Health warning
That said, a note of caution remains appropriate. DJ Campbell makes it clear that proportionality was a key feature and, had this been a claim of higher value, the illegality defence may well have failed. The very nature of an e-scooter leaves its rider vulnerable to serious injury in the event of an accident: 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.
Crucially, this Judgement in no way removes or dilutes the responsibility of highways authorities and motorists to consider the safety of all road users when maintaining the carriageway or when driving. Each case will continue to turn on its facts.
Practical actions for local authorities
This Judgement demonstrates that although private e-scooter use is unlawful, there is clearly appetite for the Courts to award significant damages in cases where it would be considered disproportionate to strike out the claim. The practical implication of this is that, essentially, local authorities will be left with the highest-value liabilities proving the most difficult to defend. These cases will turn on ‘traditional’ defences such as that which is available under Section 58 of the Highways Act, meaning that strong record-keeping, well-evidenced inspection procedures and timely action to resolve defects remain the most important tools in a member’s artillery.
A new Bill is currently working its way through the House of Commons which will legalise the use of private e-scooters on public roads, but what this will look like in practice remains to be seen. Whatever the changes in the legislative landscape, the reality is that e-scooters will continue to be a significant presence on our highways for the foreseeable future. The fact of illegality is not enough to exempt highways authorities from their obligations to consider e-scooters alongside other vulnerable road users. Due to design features such as small wheelbase, e-scooters are particularly vulnerable to destabilisation when faced with even a relatively minor defect. Local authorities may wish to review their inspection frequencies and defect intervention levels with this in mind.
The decision also highlights the importance of public awareness around the illegality and risks of private e-scooter use. Many readers will know from interactions with friends and family that the news that a brand new e-scooter purchased for Christmas is, in fact, illegal to ride on the public highway can be met with complete surprise. ALARM members may wish to consider communication and awareness campaigns to highlight the danger and illegality of riding an e-scooter.
