An illegal e-scooter rider hit a pothole and is now trying to claim damages from the council in the first case of its kind.
Giovanna Drago broke her left knee when her new Xiaomi Mi Pro 2 e-scooter hit a pothole in Barnet, north London, in October 2020, and took 20 months to recover from her injuries.
The 22-year-old told Central London County Court she had no chance to avoid the hole because it was dark and hard to spot, and is now suing the London Borough of Barnet for failing to maintain the road.
She is claiming £30,000 compensation for her injuries, despite admitting to driving the private scooter illegally.
The council says she should get nothing because she had caused her own injury by venturing out onto the roads when it was illegal to do so, with only scooters rented from an "authorised hire scheme" legitimately allowed on public roads.
Although at least one other case involving an illegally used e-scooter has been filed at UK courts, Mrs Drago's is the first to go before a judge and will set a precedent for future claims.
The court heard Mrs Drago, of New Southgate, London, was unaware she was breaking the law when she took the scooter on the road and had only ridden it twice before her crash.
She was wearing a safety helmet but no knee pads when she went over the handlebars, but had been travelling at a moderate speed, she told Judge Jan Luba KC during a two-day trial this week.
"Because it was dark I couldn't see the hole," she said.
After her fall, Mrs Drago had to wear a knee brace and crutches for six weeks. Most of her symptoms cleared up within 20 months; however, her injuries left a 12cm scar, along with pain around it and "clicking, swelling and muscle wasting" around the knee.
Council: 'Injury caused by unlawful act'
The London Borough of Barnet is denying all blame for her injuries, insisting its staff did their utmost to keep the road safe and clear from hazards, and that Mrs Drago shouldn't be compensated for her lawbreaking.
Geoffrey Mott, for Barnet, pointed out that using privately owned e-scooters on public roads was "currently illegal", citing the Government's "guidance for powered transporters".
"Those riders using an authorised hire scheme are required... to possess an 'O' category on their own provisional or full driving licence," he told Judge Luba.
On top of that, Mrs Drago had bought her £558 scooter from an Amazon supplier which routinely warns customers about legal restrictions barring taking a private scooter on the road, he argued.
Even if the council were at fault in failing to maintain the road, which Mr Mott disputed, a damages payout "should be precluded because the injury was the consequence of her own unlawful acts".
"While the injury may not have happened but for the breach of duty on the part of the council - if so found - it was caused by the criminal act of Mrs Drago," he argued.
Offending was minimal, claimant argues
Dr Joanna Kerr, Mrs Drago's barrister, accepted the illegality of riding on the road but argued that her client's offending was minimal, and so she should still be compensated if the council are held at fault.
But Mr Mott said safety officers had regularly monitored the stretch of road where the scooter rider came to grief, carrying out the last scheduled inspection just three months before her spill.
There was no pothole or similar hazard on the road at that time, he told the judge, and when the council did finally receive a complaint about a pothole in January 2021, the surface was repaired "within hours".
If the hole was there, it was "capable of being seen by anyone travelling at a relatively low speed and ought to have been seen by Mrs Drago if she had been exercising reasonable care and attention", said the barrister.
"Mrs Drago's wrongdoing has clearly caused her own loss," he added.
"Allowing her claim would be inconsistent with the Government's policy to restrict e-scooters to protect riders and the public."
The case was adjourned to another day for the lawyers' final submissions after two days in court.