O’Brien v Ringway Hounslow Highways (2024), 12 WLUK 699
The issue of illegality in respect of private e- scooters has not yet been properly tested in the courts. Currently, privately owned e-scooters are classified as motor vehicles under the RTA 1988. They require registration, insurance and compliance with technical standards. They cannot be insured for use on public land, and they can only be used legally on private land and with the landowner's permission. This has led to significant problems as e scooter riders and third parties are injured following accidents on public land.
O'Brien v Ringway Hounslow Highways is a recently reported highways case that explores the issues of private e-scooter use and illegality. The Claimant was riding a private e -scooter when the front wheel went into a pothole as he was in the process of descending from the pavement to the roadside. A breach of the duty to maintain/repair the highway under s 41 of the Highways Act 1980 and negligence was pleaded. The Claimant alleged that the pothole was 90mm deep. Liability was denied and the defence of illegality ( or ex turpi causa) was raised.
It was held that there was no breach of statutory duty. In addition, the Judge found that it had been illegal to use the e scooter on the pavement, having no driving licence/ insurance and that he did not comply with other requirements for use of powered transporter/motor vehicle on the public highway. The Claimant was riding his e scooter on the pavement and not just crossing the pavement, and the Judge made a point that what he was doing was illegal and this would have been illegal even if he was riding a rental e scooter from an authorised scheme. The Judge referred to a range of statutory offences restricting the use of e-scooters on the pavement and found this conduct was enough to justify consideration of the illegality defence, although the court noted that a breach of the criminal law alone is not of itself an indication of a successful defence based on illegality. Had it not been for the finding that there was no breach of statutory duty, there would have been public policy reasons for allowing the illegality defence.
On the question of causation, normally Claimants will robustly deny that any failure to have insurance or road tax is causally relevant. In this case, the finding was that the illegality of riding along the pavement and transitioning onto the road was causative of the accident. This is a key distinguishing factor in this case.
It is also noteworthy that the court took the view that denial of the claim on the basis of illegality would have been a proportionate response as this was a very modest value claim and the Judge was alive to the implications of private e-scooter use in public places and noted the Defendant's submission that the unlawful use of e-scooters was "the scourge of the high street nationally". Thus public policy considerations were engaged.
The Judge's remarks were obiter, but it supports the robust position that insurers are taking in respect of illegal private e scooters. Illegality in these instances should always be raised/pleaded at the outset. Case law on illegality has held that the Claimant must be aware of their illegal activity (see McCracken v Smith 2015 EWCA Civ 380). Sadly it is too easy for a Claimant to say that he /she was not aware that private e scooters are illegal to use on private roads. Unless the activity involved a number of illegal elements and they were causative of the accident, it is more likely that an ex turpi causa defence will be more successful in contributory arguments as opposed to a complete dismissal of the claim.
The UK government has recently announced a further extension to the trials of the rental e-scooters from May 2026 to May 2028. The scheme was first launched in July 2020, and it has been extended 5 times. The Department for Transport reports that the extended timeline will help fill remaining " evidence gaps" and support further learning on e –scooter safety, infrastructure and impact on local communities. Whilst there has been mixed reactions to the latest extension to the rental e scooters, the continuing lack of regulation, lack of public awareness on the limitations of private e-scooter use and challenges with enforcement will no doubt continue to increase private e scooter usage on our roads.
The lack of regulations on e –scooters has been an ongoing source of frustration for insurers as accidents and injuries continue to soar. The MIB has been picking up the bill for some of these claims in the meantime but they are also running out of patience. Our government acknowledge that this is a significant area of concern which needs to be addressed, but other more important priorities are taking up legislative time instead. Until then, insurers and lawyers must stay alert to the implications of illegality defences.
Please contact Petty Abrams or Angela Hanmore for more information.
