I was riding my trusty old Blackbird in one of England’s National Parks. I went for a bit of an explore and found myself riding on some very basic and beaten-up unclassified roads. I wasn’t overly concerned – I had ridden trials as a young man, albeit a while ago.
Anyway, as I passed into an area of shade and started braking for a corner, my bike shot out from underneath me. I picked myself up, feeling a bit battered and realised the road surface was largely moss and it had shredded under the gentle braking. I was not tearing around – I won’t see 70 again and I was bimbling and was left with some nasty bruises, made worse by some medication I am on.
I sent the local council the repair bill and said that if they paid for the bike, I would not claim for the injury. I got a computer-generated letter back telling me about various cases but in the end, was politely told to get lost.
A few local solicitors have said I may have a case but they want between £250 and £1000 to ‘research’ the law for me. Forgive me, but I thought you solicitors were supposed to know the law, so I am not keen on paying up to £1000 to be told yes or no. Can you give me a yes or no?
I can and you will not like the answer; it is a no. Your case is this: The highway authority is obliged to keep the roads reasonably safe for all types of traffic that might use them, including you on your motorbike.
So far, not controversial – that has been established law for many years. The problem is that the duty has been restricted to “maintaining the fabric of the road” following the seminal case of Goodes V East Sussex County Council  which is one of the cases referred to in the letter that you got back from the Council.
The duty of the highway authority is to repair and keep in repair the highway, but the duty does not include one to remove surface-lying materials, whether or not they are dangerous.
If what is on the highway forms or formed part of the highway, for example gravel that has been given up by the road as the bitumen breaks down, that will form part of the fabric of the highway. However, moss never formed part of the fabric of the highway. It simply sat on top of the highway, and as a matter of what was then the House of Lords and is now the Supreme Court, its Judgment in Goodes v East Sussex binds every court in the land, and it will not change.
Exactly the same point involving moss, admittedly on the pavement rather than on the highway, was considered in an appeal decision at the High Court. Here, an elderly gentleman slipped on moss and while the Senior County Court Judge who gave the first decision in favour of the injured disabled slipper, the High Court allowed the appeal in unusually strong terms, describing the decision of the earlier circuit judge as “absurd”. The High Court decision binds all lower courts and, as your case is going to be a small claim in the county court, as a matter of law you will lose your case.
If you commence it in the Small Claims Court, the local authority may make a payment of a few thousand pounds to reflect the costs that they would otherwise lose in defending the case but I certainly would not be spending any money on a Solicitor to tell you what the law is. This is not an area of law which the average high-street Solicitor will ever some across in their practice. If they do not know the answer off the top of their heads, they are going to have to spend a good few hours going through the law and understanding the principles. They do not have to work for nothing to answer your question. However, I do know the answer off the top of my head and unfortunately, it is an answer I suspect you are not going to particularly like.
RiDE September 2020