Local Government, Section 41 Highways Act 1980, personal injury
The Council was not liable for an accident caused by a patch of moss on the highway; the highway was not out of repair under section 41 of the…
Craig Rollinson v Dudley MBC - Birmingham High Court, Mr Justice Haddon-Cave
27 November 2015
The Council was not liable for an accident caused by a patch of moss on the highway; the highway was not out of repair under section 41 of the Highways Act 1980.
The claimant slipped on a patch of moss on the publicly maintainable highway outside his home. He succeeded with his claim at first instance; the trial judge held that since moss put down roots in the surface beneath the highway, “it thus becomes part of the surface”. He relied on the decision in Thomas v Warwickshire County Council  in which it was held that a lump of concrete that had become permanently bonded to the highway was part of the highway surface. The judge also made no finding of contributory negligence. The council appealed.
Mr Justice Haddon-Cave allowed the appeal and described the judge’s conclusion that the absolute duty under section 41 extended to removal of moss was “absurd”. Moss was by its very nature transient rather than permanent and it could not be said to amount to material disturbance or damage to the highway. He rejected the analogy with the Thomas case; “moss or algae cannot sensibly be said to have physically ‘bonded’ to the pathway or to have become part of the ‘fabric’ of the pathway such as to render it ‘out of repair’”. Further, the claimant was aware of the moss, considered it to be dangerous and accepted that he could have avoided it. Accordingly, the trial judge’s conclusion on contributory negligence was ‘plainly wrong’ and a 50% reduction was appropriate (had the claim succeeded).
This is a sensible decision that is in line with existing case law on transient hazards on the highway. Pleasingly the High Court judge was alive to the ramifications of extending the section 41 duty in this way, describing the performance of such a duty by local authorities as “plainly impossible”, and “not practical or sensible, let alone affordable”.
Weightmans LLP acted for the Council in this case.