Does the duty to maintain the highway under section 41 of the Highways Act 1980 extend to the removal of moss, algae and other equivalent substances from the footpaths and carriageway? This was the question which came before Haddon-Cave J in Rollinson v Dudley MBC (2015) EWHC 3330 (QB). The answer - a resounding 'no'.
Mr Rollinson was walking along a short footpath near to his home in Dudley. There were intermittent areas of moss or algae on the pavement. He slipped and fell on a patch of moss and suffered modest injuries to his back. He brought a claim against the Council and, at first instance before HHJ Simon Brown QC, was successful. HHJ Brown QC held that where a plant such as moss puts down roots "it becomes part of the surface" which it is the authority's duty, therefore, to maintain.
On appeal, Haddon-Cave J rejected judge Brown QC's reasoning. Having considered all of the authorities he held that:
(1) Moss or algae is by its nature a transient rather than permanent substance.
(2) Neither substance can be said to amount to or comprise 'disturbance or damage' to the highway.
(3) Neither substance became part of the 'fabric' of the highway, whether or not it put down a shallow root structure.
The Court distinguished the earlier decision of the Court of Appeal in Hereford and Worcester CC v Newham (1975) 1 WLR 901 where it had been held that heavy hawthorn bushes rooted in a path had damaged the highway and caused them to be out of repair. Haddon-Cave J considered that moss and algae was 'qualitatively and quantatively different. It did not obstruct passage along the highway. It had not physically disrupted or damaged the surface of the path.
Haddon-Cave J did not stop at distinguishing previous authority. He regarded the judge's overall conclusion as 'absurd'. He considered that it would be 'impossible' to perform the duty in practice if "a highway authortiy would be obliged to consider removing or preventing the propagation of every patch of moss or algae on every road, pavement, and pathway in the country in order to avoid being in breach of its duty to repair". He noted that "this would not be practical or sensible, let alone affordable".
Finally, the judgment of Haddon-Cave J carries a highly unusual, cautionary 'post-script' about HHJ Simon Brown QC's post-trial conduct. The author of this blog can do no better than reproduce it in full:
"The judge published three articles about this case in the July, August and September 2015 editions of the New Law Journal entitled 'Mind the Slips and Trips (Pt 1-3). In my view, it is inapprorpriate for a judge to publish articles in relation to his or her own judgments whilst they are under appeal".