Rollinson v Dudley Metropolitan Borough Council

The statutory duty to maintain a highway under section 41(1) of the Highways Act 1980 concerns repair and keeping the highway in repair. It does not require removal of surface-lying material, accretions, obstructions or spillages, even where they are dangerous. The duty may extend to the highway’s drains and substructure. Whether a defect engages the duty depends on its nature, including whether it is permanent, causes material disturbance or damage, or has become part of the highway’s fabric. Moss, algae and lichen are transient surface vegetation and do not ordinarily make a highway out of repair.

Mr Craig Rollinson claimed damages after slipping on moss on a footpath outside his home. The trial judge held that Dudley Metropolitan Borough Council owed a duty under section 41(1) of the Highways Act 1980 to remove moss which endangered highway users and was liable for the resulting injury. The Council appealed on statutory construction, evidential findings concerning the moss, and contributory negligence. The central issues were whether moss formed part of the highway’s fabric and whether the claimant should bear part of the responsibility for the accident.

1. The appeal was allowed. The Council’s duty under section 41(1) of the Highways Act 1980 did not extend to preventing or removing moss, algae or lichen from the surface of a highway.
2. The duty to maintain a highway is properly understood as a duty to repair and keep in repair. It does not include removal of surface-lying material, accretions, obstructions or spillages, whether dangerous or not. It does include keeping the highway’s drains and substructure clear and in good repair.
3. Whether a particular defect engages section 41(1) depends on its precise nature. Relevant considerations include whether it is permanent or transient, whether it materially disturbs or damages the highway or its surface, and whether it has become part of the highway’s fabric.
4. Moss and algae were transient. Their presence did not amount to material disturbance or damage, and they had not become part of the fabric of the pathway. The mature rooted vegetation in Hereford and Worcester County Council v Newham and the bonded concrete in Thomas v Warwickshire County Council were materially different. Imposing an absolute duty to remove ubiquitous moss from every highway would be impractical and irrational.
5. The judge’s factual reasoning about the moss did not establish that it had become part of the highway’s fabric. The judge was entitled to rely on ordinary personal knowledge that moss has some shallow root structure, but not to treat that fact as determinative.
6. Alternatively, the judge should have apportioned 50% contributory negligence to Mr Rollinson because he knew that the moss was dangerous and clear strips were visible on both sides of the path. Ground 1 was, however, determinative of the appeal.

• High Court (Queen's Bench Division): Allowed the Council’s appeal from the judgment of HHJ Simon Brown QC dated 21 May 2015, which had found the Council liable under section 41(1) of the Highways Act 1980.