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By Caroline Elson

Jul 3rd, 2019

Transient defects on the Highway

Highway authorities can be reassured that they are not liable for transient defects on the highway, such as:

  • mud
  • vegetation
  • grit
  • spillages
  • moss
  • algae

REMEMBER - whilst a highway authority has the right to remove debris/substances this does not mean there is a ‘duty’ to do so.

BUT there are some exceptions, to include …

  • If the fabric of the highway is affected there could be a breach of duty e.g. tree roots can damage the surface of the highway.
  • Flooding - there is a positive duty to maintain drainage.
  • Snow and ice - section 41(1A) of the Highways Act states “A highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice”.

Spotlight on Caselaw

A failure to maintain or repair?


Drainage

Burnside v Emerson [1968]

This case concerned an accident caused by water on the highway as a consequence of a failure to maintain a system of drainage. The Court of Appeal held that this amounted to a failure to maintain the highway (note this judgment pre-dated the Highways Act 1980).

Department for Transport v Mott Macdonald Ltd (1) Amey Mouchel Ltd (2) and Cornwall County Council [2006]

It was held that the highway authority’s duty to maintain under the Highways Act 1980 section 41(1) included keeping drains clear where a dangerous accumulation of water on the surface was caused by blocked drains:

An effective drainage system is an intrinsic part of the design of a modern road, and like any other part of the road it needs to be properly maintained. It is difficult to see why a statutory duty to maintain the road should exclude it.

Vegetation/ Mud

Hereford and Worcester County Council v Newham [1975]

This case concerned a footpath with dense vegetation growing in and over its surface causing the surface to be out of repair. The Judge at trial stated;

I consider that a highway can only be said to be out of repair if the surface of it is defective or disturbed in some way. Not every defect in the surface would constitute being out of repair. The vegetation no doubt constitutes an obstruction, but it must also interfere with the surface of the path. If there had been merely branches and thorns overhanging from the sides of the footpath I should not consider that it was out of repair, but I understand the hedge was actually rooted in the surface of the path. With some hesitation I am of opinion that this did cause the paths to be out of repair.

Ali v Bradford Metropolitan District Council [2010]

The claimant slipped on steps which were part of a footpath, covered with mud, overgrown vegetation and rubbish. It was held that there was no obligation to remove obstructions such as mud and vegetation from the highway. The court said that to require highway authorities to inspect public footpaths to keep them free from obstructions would have substantial economic implications for local authorities.

Grit

Valentine v Transport for London and London Borough of Hounslow [2010]

The claimant’s husband died after his motorcycle skidded on an accumulation of surface grit and gravel. However the highway authority was held not to have breached its duty under the Highways Act 1980 s.41 by not removing grit. Specifically, the duty did not extend to a duty to remove surface-lying material. At trial the Judge stated that;

The duty imposed by section 41 is a duty to maintain the fabric of the road, including its substructure such as its drains. The removal of surface-lying material which creates a danger is not within the section. I do not overlook the fact that under a different section of the Act (s.150) a highway authority is under a duty to remove obstructions. But the existence of that separate duty underlines the fact that section 41 does not embrace such an obligation. Section 150 does not create a right of civil action for breach.

Fabric of Road

Thomas v Warwickshire County Council [2011]

The claimant fell off his bicycle when his wheel hit a 25 mm lump of concrete which had stuck to the surface of the road. It was held that the s.41 duty was engaged because the lump of concrete had become firmly bonded to the road and had thereby become part of the fabric of the road or road surface.

Moss

Rollinson v Dudley Metropolitan Borough Council [2015]

The claimant slipped on a patch of moss on the footpath outside his home. It was held that highway authority did not have a duty under the Highways Act.

The s.41(1) duty was to “repair” and “keep in repair” the highway. It included a duty to keep the drains and substructure of the highways clear and in good repair (Burnside). It did not include a duty to remove surface-lying material, accretions, obstructions or spillages, regardless of whether they were dangerous (Valentine). Patches of moss or algae cannot sensibly be said to have physically ‘bonded’ to the pathway or to have become part of the ‘fabric’ of the pathway such as to render it “out of repair”.

Surface Dressing Claims

Where a claim is brought as a result of skidding on loose gravel due to surface dressing works, this will not be a claim brought under section 41 as gravel is not part of the surface of the highway. In this situation a claimant is likely to bring a claim against the highway authority in negligence or nuisance on the basis that the highway authority or its contractors created the hazard. It is then a matter for the highway authority to take steps to join the contractor into the proceedings or to seek a recovery.


Summary

In respect of transient materials (which cannot be defined as having formed part of the fabric of the highway) a claim under s.41 is bound to fail as the surface of the road is not dangerously out of repair but there will be debate at the margin of the rule. By way of example, in Misell v Essex County Council [1994] the judgment confirms that the Council failed to provide adequate and effective drainage to ensure mud and water on the surface would drain away. Whilst the hazard was a transient material (mud), it was created as a result of drainage deficiencies and so the council was liable.

It is important to consider the underlying issues if any transient materials arise from a failure to maintain.

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