By Jonathan Holsgrove
Rollinson v Dudley Metropolitan Borough Council  All ER (D) 72 (Dec)
With Christmas just around the corner practitioners would be forgiven if their thoughts were on when snow will arrive this festive season. Apart from festive snow and ice what liability is there for other accumulations that cause trips and falls? Mr. Justice Haddon-Cave has had this particular issue to deal with and provides some practical guidance.
In November 2012 the Claimant slipped and fell outside his home. The cause of the slip was the accumulation of moss on the footpath. The Claimant issued proceedings against the Defendant for breach of their duty under s41 of the Highways Act 1980. The claim succeeded at first instance and the Defendant appealed against that decision.
The Defendant’s appeal was on the basis that the judge had fallen into error by finding that the duty under s41 extended to removing moss and algae from the highway. Submissions were made that consideration should be given to:
- If moss became part of the surface / fabric of the highway.
- Was there any analogy to be drawn between the moss and concrete bonded to the highway?
- Was moss permanent?
- If the authority attempted to remove the moss was a relevant consideration when interpreting the Highways Act?
- If the Judge had erred in considering that Dudley MBC’s duty extended to the removal of moss.
The appeal would be allowed. Moss was transient and the presence of it alone did not damage the surface of the pathway. There was a distinction to be drawn between patches of moss and more mature urban undergrowth that could render a footpath out of repair. Bushes and trees that cause physical damage by entwining themselves in the surface of the footpath can blight pavements, moss by its nature does not. Even if moss did have a root system it did not damage the surface in the same way.
The judge had fallen into error. He was wrong in his findings as to the permanency and impact of moss. Simply because the local authority had cleared it in the past was not a relevant factor when considering the statutory test. To impose a duty on authorities to remove moss from every road, pavement and pathway would not be practical or sensible let alone affordable.
Practitioners will need to consider in future claims if a slip is caused by the presence of vegetation on the highway if that vegetation has damaged the highway itself for a claim to be successful.