E-SCOOTERS AND E-SCOOTER LITIGATION
As an AEV law blog, we have covered a number of developments in automated vehicle law, and even remote driving. This article focuses on the ‘E’ in AEV. It summarises the history of the regulation of e-scooters, as well as some of the likely issues in e-scooter litigation.
The history of e-scooters and their classification
E-scooters are not a new concept. The American ‘Autoped’ of 1915 was used in this country, including by the suffragette Lady Florence Norman. In 1918 the Eveready Battery Company made an electric version.
Electric vehicles have been classed as motor vehicles ever since a bath chair, a type of three-wheeled carriage, powered by electricity was found to be a motor vehicle in Elieson v Parker (1917) 81 JP 265. E-scooters were classified as motor vehicles in a series of cases including DPP v King [2008] EWHC 447 (Admin).
E-scooter regulation and e-scooter trials
The law attaches conditions to the use of ‘motor vehicles’ (as so defined by s 185 of the Road Traffic Act 1988) on roads and other public places. Those conditions relate to matters of public financing of roads and to road safety, so include conditions as to vehicle and driver licensing and compulsory third-party insurance. Breaches of those statutory conditions of use are criminal offences (eg. RTA 1988 s 63(1) – the offence of using on a road a vehicle to which type approval requirements apply without certificates of conformity complying with s 54 to 58). So the user of a vehicle which the law defines as a “motor vehicle” must satisfy several conditions in order to use it lawfully on a road or other public place; if they do not do so, they will be behaving criminally. As the government says in its online guidance on ‘powered transporters’ (the phrase which it uses to describe e-scooters and other micro mobility vehicles), the position is that:
“For motor vehicles to use public roads lawfully, they must meet a number of different requirements. These include insurance; conformity with technical standards and standards of use; payment of vehicle tax, licensing, and registration; driver testing and licensing; and the use of relevant safety equipment.
“If the user of a powered transporter could meet these requirements, it might in principle be lawful for them to use public roads. However, it is likely that they will find it very difficult to comply with all of these requirements, meaning that it would be a criminal offence to use them on the road.”
The Government’s intention, as expressed in the last Monarch’s Speech to Parliament (the Queen’s Speech in May 2022), was that e-scooters would become their own category of vehicle:
The Transport Bill 2022-23 was postponed on 7 December 2022. It is unclear when it will return to Parliament (although an announcement of Bills for the 2023-24 parliamentary session is likely to be made before the King’s Speech of 7 November 2023). Until there is a new Transport Act, private e-scooters, outside a mandated trial, are likely to remain illegal to use on roads and other public places. At that point, there will be numerous options as to how the Government chooses to regulate the insurance of e-scooters.
Since 2020, the Government has regulated to allow trials of e-scooters in permitted areas. Full and provisional UK licence holders are allowed to use e-scooters during the trial. The rules for foreign licence holders are a little more complex.
According to the Government, e-scooters are currently classified as mopeds for the purposes of the Road Traffic Act 1988. However, the Government relaxed the regulations applying to mopeds for the purposes of the trials. There is no requirement to wear a helmet during the trial period – though in its guidance for users of e-scooter trials the government advises use of a helmet.
Some key issues likely to arise in e-scooter litigation
It seems to us that at least two key issues will foreseeably arise in e-scooter litigation.
1. Ex turpi causa (illegality)
Where the e-scooters themselves are ridden illegally, or once e-scooters become legal on roads, modified e-scooters, ex turpi causa (illegality) will come into play. The leading case is Patel v Mirza [2016] UKSC 42. In that case the Supreme Court refused to set a mechanical test for when illegality bars a claim, or to define an exhaustive set of relevant factors. As such, there will need to be a fine-grained assessment of, among other matters: (1) the purpose of the particular prohibition; (2) public policy considerations as to whether barring a claim will enhance such public policy; and (3) what would be a just and proportionate response to the illegality.
(a) Joint enterprise to dangerous driving of a ‘trials’ motorbike (that had been stolen, and stored at the Claimant’s home) in a bicycle lane was not found to fall within ex turpi where the claim was against a negligent third party (as opposed to the other party to the joint enterprise which was said would have been a clear application of the ex turpi principle): McCracken v Smith [2015] EWCA Civ 380;
(b) A pillion passenger on an unroadworthy motorbike in a dangerous condition ridden dangerously on a strip known as the “Mad Mile”, but not in circumstances where he was found to have known it was going to be ridden dangerously and therefore joint enterprise was rejected, was not ex turpi even against the rider of the motorbike the Claimant was riding as a passenger on: Clark v Farley [2018] EWHC 1007; and
(c) A driver’s claim succeeded against another driver where both were accelerating against each other in circumstances of dangerous driving (70-80mph on 40mph dual carriageway in order to be the first to reach the point at which it became a single carriageway) because there was no joint enterprise on the facts, with McCracken treated as binding authority that dangerous driving alone will not bar a claim under the doctrine of ex turpi unless there is joint enterprise: Wallett v Vickers [2018] EWHC 3088.
Notwithstanding those hurdles, however, ex turpi has been held to apply to a road traffic accident compensation claim, to bar a particular head of loss.
The High Court in the credit hire case of Ali v HSF Logistics Polska SP Zoo [2023] EWHC 2159 (Martin Spencer J) held that ex turpi can operate in conjunction with another principle (causation) to bar a claim for a particular type of damage. The High Court on appeal from the County Court considered whether a claim for hire charges premised upon loss of use of the damaged vehicle after the accident was barred by the failure of the vehicle owner to have their car MOT tested, where it was not evidenced that the owner would have had the car so tested even if the accident had not occurred. The trial judge below had refused to apply ex turpi on the basis of disproportionality (Patel point (3), above) but had dismissed the claim for lack of causation of the car being kept out of use by the accident. The appellant argued that this was to reintroduce the illegality argument, which the judge had rejected on the proportionality ground. Dismissing the appeal, Mr Justice Martin Spencer held (relying upon 1998 dicta of Clarke LJ in Hewison v Meridian Shipping [2002] EWCA Civ 1821; [2003] ICR 766) that “there is a form of illegality relating not to the whole action but to the loss or damage claimed and which is not the result of an application of public policy”.
2. Contributory negligence
If helmets end up being not required but advised, what level if any of contributory negligence would arise. This may depend on the situation. For example, if the accident happens at such speed that a helmet would be ineffective in any event, contributory negligence would not bite: Smith v Finch [2009] EWHC 53 (QB). It is likely to be for a defendant to prove that a helmet would have made a difference to a claimant’s injuries: Phethean-Hubble v Coles [2012] EWCA Civ 349. What about if a claimant has worn a helmet, but without facial protection, and, arguably predictably, falls forward? Would the “powerful public interest” in maintaining the Froom v Butcher [1976] 1 QB 286 formula of contributory negligence reductions continue to apply (Stanton v Collinson [2010] EWCA Civ 81 [2010] RTR 26, 284 at 294 [26], Hughes LJ) or might smaller electric vehicles such as e-scooters alter the approach?
Conclusion
This article traces the history of e-scooters, their classification as motor vehicles, and their regulation, both present and future. It seeks to anticipate the legal issues that may emerge both before and following the legalisation of e-scooters in the upcoming Transport Bill. These include considerations such as ex turpi causa (illegality) in cases involving illegally ridden or modified e-scooters, the impact of helmet usage on contributory negligence, and questions surrounding insurance coverage.
Alex Glassbrook and Paul Erdunast
Alex Glassbrook and Paul Erdunast are both Temple Garden Chambers barristers on chambers’ AEV law team and are delighted to deal with any e-scooter case queries as well as other points relating to new vehicle technologies, including data, equality and other issues.
Alex is the Honorary Senior Research Fellow in Road Transport Law at Imperial College London. His new book, ‘Advanced, Automated and Electric Vehicle Law’, will be published by Bloomsbury Professional on 16 November 2023.
Paul is the current co-editor with Alex Glassbrook of the chapter on Driverless Cars in Bingham’s Personal Injury and Motor Claims Cases. He has drafted advice on matters relating to smart roads, and has contributed responses to the Law Commission consultations on automated vehicles and remote driving, both alone and with other members of TGC.
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