Rich v Pembrokeshire County Council

For the purposes of a highway authority’s duty under Highways Act 1980, a highway may be out of repair where an adherent substance has effectively become part of its surface and makes it unsafe for ordinary traffic. Such material is distinct from a transient covering such as snow or ice, or a non-adherent substance such as oil. Whether the substance forms part of the highway’s fabric is ordinarily a question of fact. A second appeal will not be permitted merely because the authority seeks clarification of the consequences for other highways, where the proposed appeal concerns the application of established principles to the particular facts.

Paul Rich was injured when he slipped on algae covering a tidal slipway at Pembroke Dock. The District Judge found that the algae caused the fall, rejected contributory fault and awarded damages of £4,250 against Pembrokeshire County Council.

His Honour Judge Graham Jones QC dismissed the Council’s appeal. The Council sought permission for a second appeal, arguing that the duty under section 41 of the Highways Act 1980 did not include removing algae and that the decision in Goodes v East Sussex County Council [2000] 1 WLR 1356 had not been properly applied. The central issue was whether the algae constituted part of the fabric or surface of the slipway, rather than a transient covering.

1. Application dismissed. The Council failed to show that the proposed second appeal raised an important point of principle or practice, or any other compelling reason for the Court of Appeal to hear it.
2. The governing question under section 41 of the Highways Act 1980 was whether, on the facts found, the Council had failed to keep the fabric of the slipway in repair so that it was reasonably passable for ordinary traffic without danger caused by its physical condition.
3. The distinction drawn in Goodes v East Sussex County Council [2000] 1 WLR 1356 between defects in the highway’s fabric and transient snow or ice did not prevent the lower courts from finding that the algae here had become so adherent that, for practical purposes, they were rooted in or attached to the surface. The algae could therefore be treated as having become the surface of the highway.
4. The comparison with a coating of tarmacadam was logically compelling. An organic coating superimposed by natural elements could, like an inert coating laid by the authority, become part of the highway’s fabric. The necessary consequence was a duty to remove the algae, not a duty to maintain the algae.
5. The issue remained fact-sensitive. The Court did not decide that the same conclusion would follow for every slipway. The Council’s section 58 defence had been rejected below and was not reopened.

• Court of Appeal (Civil Division): refused permission for a second appeal and dismissed the application.
• Haverfordwest County Court: His Honour Judge Graham Jones QC dismissed the Council’s appeal from the District Judge’s award.
• District Judge: awarded Mr Rich £4,250 damages for personal injury plus costs.