Mr Craig Rollinson v Dudley Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Haddon-Cave |
| Judgment Date | 17 November 2015 |
| Neutral Citation | [2015] EWHC 3330 (QB) |
| Date | 17 November 2015 |
| Court | Queen's Bench Division |
| Docket Number | Case No: A23YP544 |
[2015] EWHC 3330 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
IN THE BIRMINGHAM COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Haddon-Cave
Case No: A23YP544
Mark Thomas (instructed by FCB Mandy Bowler LLP) for the Claimant/Respondent
Jack McCracken (instructed by Weightmans LLP) for the Defendant/Appellant
Hearing dates: 23rd October 2015
Introduction
On the morning of 26th November 2012, the Respondent, Mr Craig Rollinson, slipped on a patch of moss on the footpath outside his home in Dudley. He brought a claim for damages for personal injury against the Appellant, Dudley Metropolitan Borough Council ("the Council"). He claimed that the Council owed a statutory duty to keep the footpath free from moss and algae under Section 41 of the Highways Act 1980 and was in breach of duty.
By his judgment dated 21st May 2015, HHJ Simon Brown QC held that the Council was liable to Mr Rollinson for breach of its duty under s.41 of the Highways Act 1980 for failing to remove the moss. The Council appeals against that decision.
This appeal raises an important question as to whether local councils are under a duty to keep all roads, pavements and footpaths throughout England and Wales free from moss and algae. The existence of such a duty would have serious logistical and budgetary implications for all councils.
The Facts
Mr Rollinson is 55 years old. He lives at 42 Lormond Road in Dudley. Lormond Road is in a leafy residential suburb of Dudley. Dudley is a large town in the West Midlands. 42 Lomond Road is one of four bungalows in the road which have been adapted for the elderly or infirm. Mr Rollinson suffers from a back condition and other health problems and is registered as disabled. He has lived at No. 42 since 2011.
Lomond Road is adjoined by a number of footpaths on which the public are permitted to pass and repass, without let or hindrance. It was accepted that the public have been permitted to pass and repass over these footpaths for a period exceeding 20 years. In these circumstances, it was common ground that both Lomond Road and the adjoining footpaths were "highways" and maintainable at public expense pursuant to s.36(2) of the Highways Act 1980.
On the morning of 26th November 2012, Mr Rollinson decided to go out. He shut his front door and began walking down a short footpath. The footpath broadened out to form the pavement by the road where his car was parked. The footpath had a slight downward incline. The surface of the path was bitumen. Photographs produced at the trial showed that there were intermittent areas or patches of moss or algae on the path and pavement area. Unfortunately, Mr Rollinson slipped and fell on a patch of what he referred to as "moss", injuring himself. Fortunately, Mr Rollinson only suffered bruises from which he soon recovered. He brought a claim against the Council as described. The agreed damages were in the region of £2,500.
The Decision under appeal
HHJ Simon Brown QC held that the Council owed a duty under s.41(1) of the Highways Act 1980 to use its resources to remove moss from the highways which constituted a danger to users of the highway and that the Council was in breach of its duty in this case and liable in damages. The reasoning of the Judge on the central issue of the scope of the statutory duty was only briefly stated. After citing some of the relevant authorities, the Judge said:
"7. In my judgment, where there is moss, a green plant with roots, albeit not true roots as in other plants [ sic]. It puts down roots into the surface beneath it and adheres to it; it thus becomes part of the surface. Therefore, it became part of this particular roadway. It is in that category which has bonded with the road that Wilkie J [in Thomas (infra)] was referring to. Therefore, in my judgment, s.41 is engaged and the highway is to be maintained to keep the surface in repair."
The Judge also went on to dismiss the Council's allegation of contributory negligence on the part of Mr Rollinson as follows:
"11. In my judgment, it would have been a counsel of perfection to expect a disabled person on a path which is substantially covered with moss, to try to find a particular route to avoid the moss on this particular occasion. In my judgment, I accept Mr Rollinson's evidence that it really was not feasible for him to do so. He could, he thought, have gone closer to a hedge, but that would have been prickly and there was no real alternative but to walk through the area of moss. Of course, it is patchy but it's very difficult to see from the photographs where those patches were. There certainly was not a clear pathway through from what I can see from the photographs and therefore, in my judgment, there has been no contributory negligence on his part. "
The Grounds of Appeal
The Council raised three grounds of appeal. First, the Council challenged the Judge's finding that its statutory duty under Section 41(1) of the Highways Act 1980 to keep the fabric of the highway in repair extended to removing moss and algae from the highway. Second, the Council contended that there was no evidence on which the Judge could find that the moss was rooted in the surface of the highway and the Judge illegitimately used his own personal knowledge of gardening to reach this conclusion. Third, the Council contended that the Judge erred in failing to make a finding of contributory negligence against Mr Rollinson.
The Legislation
Section 41 of the Highways Act 1980 provides as follows:
"41. Duty to maintain highways maintainable at public expense
(1) The authority who are for the time being the highway authority for a highway maintainable at public expense are under a duty……to maintain the highway."
The interpretation section of the Highways Act 1980, Section 329 provides ""maintenance" includes repair, and "maintain" and "maintainable" are to be construed accordingly". Section 58 of the Highways Act 1980 provides a limited defence to the absolute duty under s.41(1): highways authority will not be liable if it proves that it took "… such care as is all the circumstances was reasonably required to secure that part of the highway to which the action relates was not dangerous for traffic."
The absolute duty under s.41(1) to keep the highway under repair is to be contrasted with the relative duty under s.41(1A) to ensure that snow or ice does not pose a danger to users of the highway. Following the decision in Goodes ( infra), the following amendment to the Highways Act 1980 was made by s.111 of the Railways and Transport Safety Act 2003 specifically to cater for snow and ice:
"41(1A) In particular, a highway authority are under a duty to ensure, so far as reasonably practicable, that safe passage along a highway is not endangered by snow or ice."
The Authorities
Section 41(1) has been the subject of extensive consideration by the authorities in a variety of contexts.
(a) Snow and ice
In Goodes v. East Sussex County Council [2000] 1 WLR 1356, the Respondent was injured in a car accident when the car he was driving skidded on black ice early in the morning. He claimed against the local council for breach of s.41(1) of the Highways Act 1980. The Supreme Court held that a highway authority's duty under s.41(1) to "maintain the highway" was an absolute duty to keep the fabric of the highway in such good repair was to render its physical condition safe for ordinary traffic to pass at all seasons of the year, but that duty did not extend to prevent the formation of ice or removing accumulations of snow on the road.
In his comprehensive analysis of the history of the highways legislation, Lord Hoffmann in Goodes explained that the precursor to s.41(1) of the Highways Act 1980, namely s.44(1) of the Highways Act 1959, was not a code which "sprang forth fully formed from the legislative head" but was built upon centuries of highways law. He explained that the historical duty to maintain the highway, whether imposed upon the inhabitants at large at common law or transferred to highway authorities by particular 19th Century statutes, was not considered to include a duty to remove ice or snow ( ibid, p. 1363A). Special statutory provisions were directed to keeping the highways free of dirt, ice and snow, which demonstrated that the general duty to maintain the highways was confined to keeping the fabric of the highways in repair ( ibid, p.1363E-F).
Lord Hoffman said that it was not easy to fathom why the draftsman had defined "maintain" to include "repair" but postulated that this may have been because the draftsman wanted to make it clear that the duty to maintain did not merely include maintaining a road in its existing condition but included putting it is an appropriate state of repair (p.1365G). He rejected the argument that the law of 1959 should 'move with the times' and be treated as including a duty to remove snow and ice. He said that it would be impossible to impose such an absolute duty:
"No highway authority could avoid being from time to time in breach of its duty, which would apply not merely to fast carriage roads but to all highways, including pavements and footpaths. … There would be no question ordering the highway authority to comply with its duty. In the present case, the highway would have been properly maintained except for the period when the ice formed at dawn and when it melted an hour or two later." (p. 1366C-D)
Thus, somewhat counter-intuitively,...
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Rollinson v Dudley Metropolitan Borough Council
...Number: ([2015] EWHC 3330 (QB) Case No: A23YP544 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION IN THE BIRMINGHAM COUNTY COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/11/2015 Before : Mr Justice HADDON-CAVE --------------------Between : Mr CRAIG ROLLINSON - and DUDLEY......