Drago v LB Barnet, Central London County Court March 2023
The first e-scooter rider to sue a local authority has lost her claim for £30,000 after she failed to prove that a pothole caused her fall in 2020. Giovanna Drago was riding her Xiaomi Mi Pro 2 e-scooter when she says she could not avoid the “large and dangerous” hole in the road because it was dusk and difficult to see.
The e-scooter had headlights, while Ms Drago was travelling at a “moderate” speed and was wearing a safety helmet at the time of the incident. Defending the claim, the local authority argued that Ms Drago did not have any evidence that the photograph of a pothole she showed in court was the one she claimed to have hit. The local authority also argued that Ms Drago should not be compensated because she was riding the e-scooter illegally.
Giving judgment, the judge found in favour of the local authority and said that he was not required to rule on the point of whether Ms Drago’s unlawful behaviour would have resulted in her forfeiting any right to compensation.
The current regulatory framework classes e-scooters as “motor vehicles intended for use on the road” in accordance with the provisions of s185 of the Road Traffic Act 1988. Accordingly, they require insurance when ridden on a public road. Only rental e-scooters under the pilot scheme (The Electric Scooter Trials and Traffic Signs (Coronavirus) Regulations and General Directions 2020) are likely to have insurance, which means that it is a criminal offence to ride a privately owned e-scooter anywhere other than on private land.
It is interesting that the local authority raised the defence of ex turpi causa, i.e. that the claimant should not benefit from pursuing a criminal enterprise. It would have been helpful had the court come to a decision on ex turpi causa because there is currently no definitive case law to indicate judicial thinking around this issue. The comments of J Males in the case of Wallett v Vickers  EWHC 3088 suggests that the judiciary may not be willing to find in favour of ex turpi causa defences: “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.”
Despite the comments of J Males, it is worth putting forward such a defence given it is public knowledge that it is illegal to ride e-scooters on public roads therefore the courts may want to treat these cases differently. This could be particularly so in situations where e-scooters have been ridden recklessly or where the e-scooter has been customised or engineered to make it more powerful. It would be prudent to find out as much information from the claimant relating to the type of e-scooter being ridden such as make/model, retailer/importer, power output and maximum speed, lights (if the incident happened at night) and any customisation or engineering of the e-scooter.
Allegations of contributory negligence against the e-scooter rider should also be made where possible. However, it is unlikely that the courts will make findings of contributory negligence against e-scooter riders for simply riding them, in the same way that uninsured drivers are not automatically found to be contributory negligent for not having valid insurance. The pilot scheme suggests that e-scooter riders will have to follow the Highway Code in the same way that cyclists do and so findings of contributory negligence can be made subject to causation.
Katie Flatman, Solicitor, Complex Injury Claims Team
Katie Flatman, Solicitor
The service you deliver is integral to the success of your business. With the right technology, we can help you to heighten your customer experience, improve underwriting performance, and streamline processes.