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Radcliffe v Devon County Council, Exeter County Court, 1 March 2013

6 September 2013
The issues

Section 41 Highways Act 1980 – Section 58 Highways Act 1980 – moss – transient defects

The facts

On 23 October 2009 at approximately 9.30 Mrs Radcliffe was descending a set of tiled steps in Dartmouth known as Chapel Steps, with her husband, step daughter, and son in law, when she slipped on what she alleged to be moss. Mrs Radcliffe sustained a fracture as result of the fall. Mrs Radcliffe’s husband and son in law also slipped on the steps on that day, but did not fall.

Mrs Radcliffe brought her claim as a breach of section 41 of the Highways Act 1980 in that the steps were in a dangerous state and very slippery due to a failure to maintain.

The decision

The judge was satisfied that there was an inspection manual in existence in relation to the highway dealing with the removal of moss. There was a safety inspection on 17 September 2009, one month before the accident, when no defects were found. Photographs of the steps were produced in evidence which showed a build up of moss on top of the tiles, and between the tiles. A significant amount of leaf debris was also present.

The highway inspector conceded at trial that in parts there was an excessive build up of moss. Maintenance had involved two sprays a year, but during 2009 there had only been one spray. It was accepted that action should have been taken.

The judge held that the leaves and foliage were not part of the highway, as it was transient. Some of the moss was on top of the tiles and not bound to the highway and there were also areas where the moss was sufficiently entrenched and therefore the case of Thomas v Warwickshire County Council would apply. The moss was rooted to the highway. The judge held that Section 41 does cover elements of the growth, and therefore there had been a breach of section 41. Section 58 could not succeed. There was no explanation as to why no biannual spray occurred. The judge held that the inspection simply failed.

The accident must have been caused by the failure to maintain in order for the claim to be successful. Mrs Radcliffe told the court that she could have fallen on leaves. The judge considered the fact that given the presence of the moss, it was difficult to see why no accidents had occurred since 1999. It was illogical that three people would fall in one day but not on other days. The judge found that this pointed to a transient feature rather than the moss. The claim therefore failed on causation.

Claim dismissed.

Comments

With thanks to Ben Hicks of 1 Chancery Lane who represented the defendant.

For further information please email Lorna Herring on lorna.herring@brownejacobson.com or Ben Hicks on BHicks@1chancerylane.com

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