E-scooters: defence arguments and issues to consider

The popularity of e-scooters has grown rapidly in nearly all parts of the country despite most scooter riding remaining illegal. However, last summer, in response to the COVID-19 pandemic, the government brought forward plans to authorise limited e-scooter trials and the first few started in Teesside. One year on and official trials are being held in more than thirty cities and towns in England & Wales, including London as of early June. This blog looks at some key points in defending claims made by riders.

The legal framework

The legal framework governing the trials (see E-scooter trials: guidance for local areas and rental operators – DfT, 1 July 2020) requires that that they must be organised by a local authority working in conjunction with a provider of e-scooters (of defined specifications) that are made available for hire. Within the trials, riding hired scooters is subject to strict limitations: 

  • riders must be at least 16 years old and must hold a provisional or full driving licence
  • the scooters can be ridden on roads and cycle lanes in the defined trial area only
  • riding on pavements is not permitted
  • upper limits on speed, weight and power are in place (respectively: 15½ mph, 55kg and 500 watts)
  • full motor insurance is mandatory and will be pre-arranged by the e-scooter provider 
  • helmets for riders are not mandatory but are recommended 

Despite the trials, riding privately owned e-scooters on public roads and footways remains illegal and riders doing so run the risks of the scooter being seized, a £300 fine and six penalty points on their licence.

It is highly likely that injured e-scooter riders will bring claims against drivers; indeed one source reports ten fatal cases due to scooter use during the last two years. Any defendants in personal injury claims are likely to raise an illegality defence, known as ex turpi causa. The essence of this is that the injured e-scooter rider should not be able to pursue a claim based on riding an e-scooter illegally (ie other than as permitted by the trials).

Illegality: ie ex turpi causa

Looking at the relevant case law, there do not appear to be any authorities on ex turpi and e-scooters (perhaps unsurprisingly) so it remains to be seen whether such a defence would succeed. As it is a complete defence to a claim, the ex turpi defence is a difficult one to establish and the wrongful acts may instead be relevant for the purposes of contributory negligence.

For example, in McCracken v Smith & Others [2015], the underlying illegal behaviour was the claimant riding pillion, without a helmet, on single-seat, unregistered, stolen, off-road motorcycle being driven dangerously on the road when it was struck by a car. The court found that the claimant breaking the law in those ways had no connection to the negligence of the driver who collided with him. The ex turpi defence was not made out: the relationship between the claimant’s illegality (or turpitude) and the negligence of the other driver was not such as to bar his claim. However, the causal contribution of the dangerous riding of the bike (for which the claimant was jointly responsible) and the other risks he ran would be taken into account in assessing contributory negligence. On the facts, that was found to be 45%.

A similar approach was adopted in Clark v Farley & MIB [2018]. Here again it was held that the ex turpi defence was not made out against a 16 year old pillion passenger injured on an uninsured off-road motorcycle. In this case, the claimant’s conduct merited a finding of 40% contributory negligence.

In Kyriacou v Finch [2021] the claimant was riding a motorbike at over 50 mph, without a licence, down a single carriageway towards a junction, overtaking a van. Toxicology reports suggested he may have had cannabis in his system. The defendant was driving the other way at around 14 mph and was turning right at the junction. He admitted he cut the corner but said he would not have turned had he seen the motorbike. This was enough to establish primary liability against the driver as but for these breaches, the accident would not have occurred. The claimant, however, was driving at close to twice the speed limit and performing an inherently dangerous manoeuvre in overtaking near a junction. The defendant’s failings were momentary whereas the claimant’s were over a sustained period and of much greater magnitude. The judge found that a “huge proportion” of the blame lay with the claimant and assessed contributory negligence at 80%.

Contributory negligence

As explained above, this may be raised alongside ex turpi, very possibly in the alternative. The level of negligence on the part of both driver and rider will need to be considered on a case-by-case basis.

While illegal riding alone may not bar a claimant from bringing a claim, defendants may have additional contributory negligence arguments if we can demonstrate that there was something about the e-scooter or the way that it was ridden that caused the accident, in addition to the causative effect of the negligence of the other road user. For example, had the facts of Kyriacou (above) involved riding an extreme sports e-scooter (some of which are easily capable of 50mph) rather than a motorbike it is possible that the same level of contributory negligence might attach.

There may be other features which prompt defendants to explore this issue further, such as:  

  • Safety helmet – very often e-scooter riders don’t wear a helmet and so if the ex turpi defence fails there could be an argument for a finding of contributory negligence on this aspect. Over time, it might become a standardised percentage (as in the case of seat belts) but each case will be fact-specific, much as with pedal cycles at present. That said, it is arguable that e-scooter riders bear a higher level of responsibility than a cyclist not wearing a helmet because riders are in a standing position. Early evidence from some European and US studies suggests a higher presence of head injury in scooter accidents and the point may need to be further explored.
  • Visibility – there might be prima facie grounds for arguing contributory negligence if it appears that the defendant driver might have seen the scooter rider had either high viz clothing or on-board lighting been used. Each case will necessarily be fact-specific and expert evidence is likely to be required.
  • Intoxication – is likely to be a relevant consideration if the rider exceeded the legal alcohol limit or was impaired due to drug consumption.
  • Minority – the extent to which children as pedestrians can be contributorily negligent is a difficult and controversial question. Children under 16 are not permitted to hire trial scooters or (as for everyone else) to ride privately-owned scooters on the road. Unfortunately, some children will ride despite these bans and some will be injured in circumstances in which they may bear some responsibility for their own harm. As ever in children claims, defendants will need to take a sensitive approach if seeking to raise the point.

Summary

E-scooter claims are already being presented and defended and, as far as we are aware, there has been no judicial determination as yet. The issues of duty of care owed to and by riders will be tested, as will the application of ex turpi and issues of contrib. The resolution of these claims and the success or otherwise of defendants’ arguments will be highly fact-dependent and each case will require careful and sensitive management as well as a detailed analysis of the factual and expert evidence.

For more information on e-scooters, please see our dedicated hub here.


Claire Collins, Partner, BLM
claire.collins@blmlaw.com

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