News Category 3
The Root of the Issue: Highway Authority Has No Duty to Remove Moss and Algae From Its Footpaths - Jack Harding, 1 Chancery Lane
05/03/16. Does the duty to maintain the highway under section 41 of the Highways Act 1980 extend to the removal of moss, algae and other equivalent substances from the footpaths and carriageway? This was the question which came before Haddon-Cave J in Rollinson v Dudley MBC (2015) EWHC 3330 (QB). The answer - a resounding 'no'.
Mr Rollinson was walking along a short footpath near to his home in Dudley. There were intermittent areas of moss or algae on the pavement. He slipped and fell on a patch of moss and suffered modest injuries to his back. He brought a claim against the Council and, at first instance before HHJ Simon Brown QC, was successful. HHJ Brown QC held that where a plant such as moss puts down roots "it becomes part of the surface" which it is the authority's duty, therefore, to maintain.
On appeal, Haddon-Cave J rejected judge Brown QC's reasoning. Having considered all of the authorities he held that:
(1) Moss or algae is by its nature a transient rather than permanent substance.
(2) Neither substance can be said to amount to or comprise 'disturbance or damage' to the highway.
(3) Neither substance became part of the 'fabric' of the highway, whether or not it put down a shallow root structure.
The Court distinguished the earlier decision of the Court of Appeal in Hereford and Worcester CC v Newham (1975) 1 WLR 901 where it had been held that heavy hawthorn bushes rooted in a path had damaged the highway and caused them to be out of repair. Haddon-Cave J considered that moss and algae was 'qualitatively and quantatively different. It did not obstruct passage along the highway. It had not physically disrupted or damaged the surface of the path.
Haddon-Cave J did not stop at distinguishing previous authority. He regarded the judge's overall conclusion as 'absurd'. He considered that it would be 'impossible' to perform the duty in practice if "a highway authortiy would be 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". He noted that "thiswould not be practical or sensible, let alone affordable".
Finally, the judgment of Haddon-Cave J carries a highly unusual, cautionary 'post-script' about HHJ Simon Brown QC's post-trial conduct. The author of this blog can do no better than reproduce it in full:
"The judge published three articles about this case in the July, August and September 2015 editions of the New Law Journal entitled 'Mind the Slips and Trips (Pt 1-3). In my view, it is inapprorpriate for a judge to publish articles in relation to his or her own judgments whilst they are under appeal".
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Loss of Earnings After Leaving the Military: Murphy -v- Ministry of Defence - Gordon Exall, Zenith Chambers & Hardwicke
01/03/16. In Murphy -v- Ministry of Defence [2016] EWHC 3 (QB) HH Judge Coe QC (sitting as a judge of the High Court) considered damages for loss of earnings in the case of a 21 year old soldier who suffered injuries that caused him to leave the army. The sum of £10,000 was awarded for loss of congenial employment for a 21 year old soldier who left the army as a result of an injury.
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Damages were awarded (largely) on the basis of the difference between the claimant’s earnings had he stayed in the army and his earnings (less some expenses) as a result of now working in civilian life.
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There was no further award for loss of earnings for the time after the claimant would have retired from the army in any event.
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The court rejected the argument that there should...
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Part 36 Offer: Derisory or Genuine? - Ian Miller, 1 Chancery Lane
24/02/16. The case of Jockey Club Racecourse Ltd v Willmott Dixon Construction Ltd [2016] EWHC 167 deals with two interesting questions: (1) does a Part 36 offer have to reflect an available outcome in the litigation to be valid? (2) when is it a genuine attempt to settle liability?
The case concerned a defective roof at the racecourse at Epsom. The claimant offered to settle the issue of liability on the basis that the defendant would “accept liability to pay 95% of our client’s claim for damages to be assessed.” The issues of liability were ultimately resolved by consent wholly in the claimant’s favour. The claim was pleaded at in excess of £5m.
The judge endorsed the remarks of...
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Mild Traumatic Brain Injuries - Dr Linda Monaci
22/02/16. A road traffic accident, or any event which involves trauma to the head, may result in a brain injury which can cause cognitive, emotional and physical symptoms. The severity of a brain injury is usually graded as mild, moderate or severe and this can help provide guidance on recovery and the rehabilitation required. Only a minority of individuals still experience cognitive and emotional symptoms a year after a mild brain injury. To date, there are disagreements about the conceptual framework in which persistent symptoms after a mild head injury should be considered and consequently treated. Some experts regard these symptoms as due to the neuronal and pathogenic process associated with a traumatic brain injury; others regard these symptoms as merely co-occurring after a brain injury, triggered by the same event, but produced by different mechanisms. To complicate matters, there are also cases in which a very minor blow to the head can cause persistent cognitive and emotional symptoms, although arguably any brain injury is very unlikely. Given the secondary gains involved in a compensation claim, it is always necessary to consider symptom magnification and/or cognitive underperformance as potential contributing factors to an individual’s presentation...
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Reforms to Civil Litigation - Stephanie Prior, Osbornes Solicitors LLP
21/02/16. It has been an interesting few years there has been so much to think about personal injury and clinical negligence litigation. Firstly the fixed costs in fast track work have become more significant in most people’s practice. The nature of business has changed most firms and fixed costs have meant that firms have to adapt to a new model to ensure that work is carried out in a profitable manner.
Clients have to be advised that they will have to pay some money out of the damages that they win, this can come as a shock to clients who are of the view that they would like to see the entire amount of their damages paid into their bank account. This is also very difficult for clients who...
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![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
