Are councils under a duty to remove moss from the highway? Sarah Wilkinson reports on a High Court ruling.
In Rollinson v Dudley MBC  EWHC 3330 (QB) the High Court was asked to determine whether councils are under a duty to keep all roads, pavements and footpaths free from moss and algae.
In November 2012, Mr Rollinson, slipped on a patch of moss on the footpath outside his home in Dudley. He brought a claim for personal injury, 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.
At first instance, the Court held that the council was liable to Mr Rollinson for failing to remove the moss. The council appealed the decision.
The council raised three grounds of appeal:
- 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.
- 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.
- the council contended that the Judge erred in failing to make a finding of contributory negligence against Mr Rollinson.
The Judge considered a number of well-trodden authorities from which he derived the following principles and themes:
1. the s.41(1) duty to maintain the highway is properly to be understood as being to "repair" and "keep in repair" the highway.
2. the duty does not include a duty to remove surface-lying material, accretions, obstructions or spillages, whether or not dangerous.
3. the duty does include a duty to keep the drains and substructure of the highways clear and in good repair.
4. the question of whether or not a particular problem, defect, contaminant or accretion will render a road, pavement or pathway out of "repair" such as to engage s.41(1) will depend upon the precise nature thereof but relevant considerations will include:
- whether it is permanent or transient,
- whether it amounts to, or comprises, material disturbance or damage to the road, pavement or pathway or the surface thereof, and
- whether it can be said to have become part of the fabric of the road, pavement or pathway.
Mr Justice Haddon-Cave described the first instance decision that the scope of a highway authority's absolute duty under s.41 extended to the removal of "moss" as absurd. He found for the council stating that "moss or algae is, by its nature, to be regarded as transient rather than permanent; (b) the presence of moss or algae cannot be said to amount to, or comprise, material 'disturbance or damage' to a road, pavement or pathway or the surface thereof; and (c) moss or algae cannot be said to have become part of the 'fabric' of the road, pavement or pathway."
For the avoidance of doubt, it was confirmed that his decision applied equally to moss, algae and lichen on the highway, with Mr Justice Haddon-Cave clearly stating that there is no duty under s.41(1) of the Highways Act 1980 to ensure that highways are clear of moss, algae, lichen or similar vegetation.
Local authorities will undoubtedly breathe a sigh of relief at this decision. If the first instance decision had stood, we would have been left with an absurd situation whereby every highway authority would have been 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". Moss is ever-present in this country and therefore the performance of such a duty would have been impossible, posing serious practical and financial issues for all highway authorities.