Bébhinn Murphy explores the first reported e-scooter case to consider the defence of illegality, with input from Oliver Rudd, who has experience of dealing with e-scooter cases on behalf of insurers and was led by Stephen Worthington KC in Clark v Farley [2018] PIQR P15 (HC), a case involving the illegality defence in the context of joint enterprise.
Introduction
In central London at least, the humble pavement, once the preserve of the pedestrian can at times feel like a veritable superhighway, with all manner of bikes, trikes, rickshaws and e-scooters, commonly seen trespassing upon this previously preserved ground.
Along with the advent of public e-scooter schemes in operation since 2020, with prescribed maximum speeds and specifications (see The Electric Scooter Trials and Traffic Signs (Coronavirus) Regulations and General Directions 2020), there would also appear to be an increase in the number of private owned e-scooters commonly seen on the streets without such restrictions.
What is perhaps surprising is the limited number of reported cases in which the civil courts have so far considered accidents involving private e-scooters and specifically, their approach to the complete defence of illegality in such claims.
To the authors’ knowledge, the first and only reported case to date specifically addressing this issue is that of O’Brien v Ringway Hounslow Highways [2024] 12 WLUK 699.
Facts
The claimant sought damages for personal injury against the defendant highway authority for breach of its duty to maintain or repair the highway under the Highways Act s.41 and in negligence, after falling from his privately owned e-scooter. There was a pothole where the carriageway met the kerb, and it was alleged by the claimant that the accident occurred when the front wheel of his e-scooter went into the pothole as he was in the process of descending from the pavement to the roadway. During the period between the accident and reporting it, the claimant had allegedly returned to the scene to take photographs and to measure the pothole, which he described as 90mm deep. The local authority denied breach of duty and negligence and pleaded a s.58 defence. They also relied on the defence of illegality (or ex turpi causa) in that it was illegal for the claimant to ride a private e-scooter on the pavement or road without insurance or a driving licence. The claimant gave oral evidence as did two witnesses on behalf of the defendant regarding the defendant’s policy of inspection.
Decision of HHJ Brownhill
The judge held that she was not satisfied that this part of the highway was dangerous and/or that it posed a real source of danger at the time of the accident such that the defendant was required to take action to guard against it. As such, she held that the claimant had not proved a breach of duty, and even if she was wrong, that the defendant had successfully made out its s.58 defence.
However, the real point of interest was consideration of the illegality/ex turpi defence.
Attempting to first identify the illegality alleged, the judge found it had been illegal to use his e-scooter on the public road and/or on the pavement in the way he was doing. He had no valid driving licence, having been disqualified from driving, and no insurance. Further he did not comply with the other requirements for use of a powered transporter or motor vehicle on the public highway.
The judge also noted that the claimant rode his e-scooter on the pavement and was not simply crossing the pavement. Via consideration of the Highways Act 1835 (s.72), the Road Traffic Act 1988 (s.34 and s.189), the Road Traffic Offenders Act 1988 (s.51 and Schedule 3) concerning fixed penalty notices, it was held that what he had been doing was illegal and would have been illegal even had he been riding an e-scooter from an authorised scheme.
She went onto hold that the claimant’s conduct was enough to justify consideration of the illegality defence and had it not been for her earlier determinations, there would have been public policy reasons for allowing that defence to proceed in view of the significant implications of private e-scooter use in public places (per Patel v Mirza [2016] UKSC 42, [2017] A.C. 467, paras 97-98, 101, 103, 105, 108, 110).
In relation to causation, albeit the lack of compliance with legal requirements under the RTA (including having no insurance, no MOT etc.) was not causative of the accident, the judge held that his act of illegally riding the e-scooter on the pavement was. As such, the causation element of the defence was made out. At paragraph 121, she held as follows:
The judge then went on to consider proportionality between the claimant’s wrongdoing and the defendant’s conduct, and took into account that the claimant’s claim was a modest one, and certainly not a catastrophic claim involving ongoing care. That being so, the court took the view that had it been necessary, denial of the claim on the basis of illegality would have been a proportionate response to the illegality, as a deterrent to illegal conduct, even though the claimant’s wrongdoing was clearly towards the lower end of the scale.
Discussion
This is no doubt a useful tool in the armoury of any defendant facing a similar such claim, however it is suggested this judgment should be viewed with an element of caution.
In March of this year, HHJ Tindal, sitting as a Judge of the High Court, gave judgment in Dormer v Wilson [2025] EWHC 523 (KB) which, along with many other issues dealt with in this judgment, includes a majestical discussion on the illegality defence in a different context, namely one of alleged joint enterprise (see paragraphs 51-60). This consideration of the authorities and issues raises in Dormer puts in stark terms some of the difficulties in raising this sort of defence.
This includes consideration of illegality in the context of strict liability liability offences, such as those potentially relevant to an e-scooter rider under the Road Traffic Act 1980. Indeed, HHJ Tindal expressly highlighted in Dormer, and as was noted in McCracken v Smith [2015] EWCA Civ 380 at [43], the illegality defence cannot arise unless the claimant is aware of their own illegality (see Les Laboratoires Servier v Apotex Inc [2014] UKSC 55; [2014] 3 W.L.R. 1257, discussion at §59).
One can readily see this could well become an issue in the context of such e-scooter cases, with a claimant pleading ignorance to the fact they were not permitted to ride their private e-scooter on a highway or footpath. Indeed, in O’Brien the claimant gave evidence that he had not undertaken any checks when purchasing his e-scooter to see if it was legal to ride on the road or pavements, and did not know that there were such restrictions.
It must also not be forgotten that O’Brien may be easy to distinguish if the index accident took place on a highway as opposed to a pavement and involved a private e-scooter. Further, the fact that O’Brien was a very low value claim should also be borne in mind.
Ultimately, however one may object to the ubiquitous presence of private e-scooters being ridden on pavements and highways up and down the country, it must never be forgotten that breach of even the criminal law is not sufficient by itself to mount a successful defence to a claim on the basis of illegality. This is exemplified by judgment of Males J who set out in Wallett v Vickers [2018] EWHC 3088 at para 38:
‘…careless driving is a criminal offence but nobody would suggest that careless driving by the claimant prevents the recovery of damages (reduced as appropriate on account of contributory negligence) in a road traffic case where both drivers are partly to blame…’
It is certainly the writers’ view that any balancing exercise involved in a consideration of the illegality defence in this context, is perhaps far more likely, and should perhaps be more properly reflected in a reduction in damages on account of contributory negligence as opposed to a complete dismissal of such a claim.
