A Regulation 28 prevention of future deaths report is being sent to the Secretary of State for Transport following the death of 41-year-old father-of-four Daniel Isaacs in May 2024. Mr Isaacs was not wearing a helmet when he lost control of a privately owned e-scooter whilst travelling along a public road. He collided with the road surface and sustained a fatal head injury.
During the inquest which concluded in December 2024, the coroner, Mr Nathanael Hartley, expressed concern that there is no requirement for riders of e-scooters to wear helmets and that, “…due to the expectation of their use on the road, and their vulnerability, there is a risk of death to riders of electric scooters and bicycles not wearing protective headwear who are involved in collisions, even at lower speeds”.
The Secretary of State for Transport must respond by 18 February 2025.
The Electric Scooter Trials and Traffic Signs (Coronavirus) Regulations and General Directions 2020 came into force on 4 July 2020 and amended UK law to enable rental e-scooter trials to take place in various locations across the country.
Current Government guidance under the rental e-scooter pilot scheme is that “…you should wear a cycle helmet when using an e-scooter. Helmets are recommended but are not a legal requirement.” The same recommendation about helmet use is made for cyclists within the Highway Code but, again, wearing a helmet whilst cycling is not a legal requirement.
Personal injury practitioners know only too well the impact that a failure to wear a helmet can have on a claimant’s injuries and subsequent damages. It is not clear from the Regulation 28 report relating to Mr Isaacs death what area of his head sustained the impact, but this is an important consideration when assessing the implications of a claimant’s failure to wear a helmet. It must be shown that a helmet would have either prevented or lessened the injury. If the front of the head is impacted, for example, this is an area where a helmet offers little protection and so is unlikely to make a difference. Medical expert opinion is often required in these cases.
The rules implemented by the Government under the pilot scheme only relate to rental e-scooters used as part of the trials. 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 (plus MOT, tax and licensing) when ridden on a public road, which is not currently possible. As a result, it is a criminal offence to ride a privately owned e-scooter anywhere other than on private land.
The inquest into Mr Isaacs’ death also heard that his e-scooter was not meant to be ridden in public, however the reality is that privately owned e-scooters are frequently being ridden in public even though it is a criminal offence to do so. Ex turpi causa defences should be put forward in cases involving the use of privately owned e-scooters on public land. A claimant should not benefit from pursuing a criminal enterprise, however there is a distinct lack of judicial guidance around this issue so there is scepticism as to whether ex turpi causa will be successful on these types of cases.
Despite their illegality, privately owned e-scooter use on roads and other public spaces has increased. E-scooters offer users an affordable way to travel around without having to invest thousands in expensive electric vehicles which may explain their recent rise in popularity.
The Parliamentary Advisory Counsel for Transport Safety has conducted research into the safety of private e-scooters in the UK. They found that since 2019 there have been a total of 45 deaths involving privately owned e-scooters; 1 in 2019, 2 in 2020, 13 in 2021, 14 in 2022, 6 in 2023 and 8 in 2024. By comparison, there have been a total of four deaths involving rental e-scooters under the pilot scheme. This suggests that the controls and regulations adopted under the pilot scheme make e-scooters safer to use.
The original deadline for the end of the rental e-scooter pilot scheme was 30 November 2021 but this has been extended four times and the new deadline for the end of the scheme is now May 2026. Government guidance suggests that the extension will enable the Department for Transport to “…build on current learning across all areas including usage, safety, and environmental impacts, and to explore changing travel patterns since the coronavirus pandemic and as e-scooters become more embedded in public life”.
It remains to be seen what actions will be taken by the Department for Transport at the end of the rental e-scooter pilot scheme but it is clear more needs to be done to control the use of privately owned e-scooters as they are becoming a more frequent feature on our roads.
One line of thinking is that private e-scooters should be legalised and therefore subject to various controls and regulations in the same way that rental e-scooters are under the test pilot. Other jurisdictions, such as France, Germany, Belgium and Austria, have successfully legalised the use of privately owned e-scooters, so it would come as no surprise to see the UK adopt legalisation in the near future.
Katie Flatman - Solicitor
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