NO:  B2/2000/3528

Neutral Citation Number: [2001] EWCA Civ 410
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HAVERFORDWEST COUNTY COURT
(HIS HONOUR JUDGE GRAHAM JONES)
                                                                         Royal Courts of Justice  
                                  Strand  
                                  London WC2
 
                             Tuesday, 13th March 2001
B e f o r e :

SIR MARTIN NOURSE

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PAUL RICH

‑ v ‑

PEMBROKESHIRE COUNTY COUNCIL

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
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MR MARK SPACKMAN (instructed by Douglas Jones Mercer, 147 St Helen's Road, Swansea SA1 4DB) appeared on behalf of the Applicant

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J U D G M E N T
1.	SIR MARTIN NOURSE: The defendants in the action, Pembrokeshire County Council, seek permission to appeal against an order of His Honour Judge Graham Jones QC made in the Haverfordwest County Court on 6th November 2000, whereby he dismissed their appeal against the order of District Judge Llewellyn made on 21st July 2000 awarding the claimant, Paul Dugid Rich, damages of £4,250 for personal injury plus costs. The application being for permission to bring a second appeal, it must be shown that it would raise an important point of principle or practice, or that there is some other compelling reason for this Court to hear it.
2.	The circumstances in which the claim was brought are concisely stated in Judge Graham Jones' judgment at pages 2 and 3 as follows:
“At Hobbs Point at Pembroke Dock there is a slipway that runs down into the tidal waters of the Cleddan Estuary. On 15th June 1997 Mr Rich and his wife were on the slipway in the course of launching their dinghy, for the purpose of taking them out to their boat which was moored in the estuary. Mr Rich slipped and fell, injuring his left shoulder.
The learned District Judge found that Mr Rich's fall was caused by the presence of algae on the surface of the slipway. The slipway, or substantial parts of it, were covered in algae, he found, which made those parts slippery. The District Judge acquitted Mr Rich of any fault. The District Judge found that there was what he described as a serious infestation of algae on the slipway. The presence of the algae was, he said, 'Part and parcel of the propensities of the slipway, having regard to its character and situation.' By that he meant, of course, that the presence of the algae was caused by the tide flowing over the slipway twice each day and that the surface of the slipway, made up of granite sets, was such as to accommodate the presence of the algae.” 
3.	The grounds on which permission to appeal is sought are that Judge Graham Jones wrongly held that the duty imposed on the Council by section 41 of the Highways Act 1980 to maintain the slipway included a duty to remove algae from it and that he wrongly failed to apply the decision of the House of Lords in Goodes v East Sussex County Council [2000] 1 WLR 1356 where it was held that a highway authority's duty to maintain a highway under section 41 was to keep its fabric in such good repair as to render its physical condition safe for ordinary traffic to pass at all seasons of the year, but that it did not include the duty to prevent the formation of ice or move the accumulation of snow on the road. I should add that in both courts below the defence afforded to the Council by section 58 of the 1980 Act was rejected on the facts. It is not sought to reopen that point in this Court.
4.	In refusing permission to appeal on consideration of the papers, Laws LJ said:
“Although the decision of the House of Lords in Goodes fell to be carefully considered Judge Jones's decision and that of the District Judge before him was essentially one of fact. There is nothing here to justify a second appeal.” 
5.	Both the District Judge and Judge Graham Jones distinguished the decision in Goodes on the facts. The District Judge delivered an ex tempore judgment at the end of what he described as a long and hard day. Judge Graham Jones took time to consider his judgment. In addition to referring to Goodes, he made extensive reference to the judgment of Lord Denning MR in Haden v Kent County Council [1978] QB 343, which was specifically approved and adopted by both Lord Hoffmann and Lord Clyde in Goodes. I read the decisive passage of Judge Graham Jones' judgment starting at page 12F of the transcript:
“While there is no evidence in the present case that the algae became rooted in the surface of the slipway, it seems to me that they became so adherent to the existing surface that for all practical purposes they are to be regarded as rooted in it, or attached to it as if they were so rooted. I appreciate that bush roots going into the surface of a highway may be said to damage the existing surface, whereas something equally adherent but without roots which actually penetrate the existing surface may be said not to damage that surface. In my judgment, however, the algae do affect the surface of the highway, because in effect they become the surface of the highway.
If the Council had laid, let us say, a coating of tarmacadam over parts of the surface of the slipway, that would be something superimposed upon the surface of the slipway, the surface itself underneath the tarmacadam remaining in good condition. Such a coating of tarmacadam could be removed manually and the original stone set surface restored. Yet no‑one would say that in the areas where the tarmacadam was laid the surface of the stone sets remained the surface of the highway. The surface of the highway in those areas where the tarmacadam had been laid would be the surface of the tarmacadam. If the surface of the tarmacadam became potholed or sufficiently broken down, or if it became slippery, the highway would be out of repair. Why should the legal position be different if the elements not the Council superimpose an organic rather than an inert substance? The coating equally becomes the surface of the highway. It becomes, it seems to me, part of the fabric of the highway. It is different in kind from a transient covering such as snow or ice, or a non‑adherent substance like oil. If the highway with the surface coating of algae is not reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition, the highway, in my judgment, is out of repair, and the Council in breach of duty.” 
6.	The judge's reference to a transient covering of snow or ice was clearly made with Goodes in mind and his reference to a non‑adherent substance like oil was, I think, made with an earlier decision of the House of Lords in mind, namely, Latimer v AEC Limited [1953] AC 643. The crucial holdings in that closely reasoned passage in the learned judge's judgment are, first, that the algae became so adherent to the existing surface that for all practical purposes they were to be regarded as rooted in it or attached to it as if they were so rooted; secondly, that the algae did affect the surface of the highway because in effect they became the surface of the highway. In my view, on the facts found by the District Judge, those holdings were fully open to Judge Graham Jones. Moreover, I find the logic of his comparison between an inert substance superimposed by the Council and an organic substance superimposed by the elements to be compelling.
7.	Mr Spackman, for the Council, submits that an appeal in this case would raise an important point of principle regarding the scope of a housing authority's duty under section 41. He says that this decision has caused the Council some considerable concern, since they have other comparable slipways under their control and they wish to have the position clarified. I do not see the matter as a point of principle. I agree with Laws LJ's' view that Judge Graham Jones' decision and that of the District Judge before him were essentially decisions of fact. On an appeal the question would be whether, on the facts found by the District Judge, he and Judge Graham Jones were entitled to hold that the presence of the algae on the slipway constituted a failure by the Council to keep the fabric of the slipway in repair. That is not an important point of principle; indeed, it is not a point of principle at all.
8.	Mr Spackman has put in written submissions and has also made brief oral submissions this morning. Perhaps his most telling point was that the algae could not become the surface of the slipway because that would mean that the Council came under a duty to maintain the algae. If that was the result of the decisions below, I would agree with him that it would be quite nonsensical. But the answer to the point is that the algae become the surface of the slipway with the result that the slipway needs to be maintained by the removal of the algae. I think that that was a holding which the Judge and the District Judge were entitled to make. In the end the decision appears to me to be one made on the facts of this case in relation to these algae on this slipway.
9.	For my part, I would not think that the Council's fear that the decision will govern other slipways is necessarily well‑founded. Whether that be right or wrong, for the reasons I have given I am not able to hold that they have passed the high test which has now to be passed before they can be given permission to bring a second appeal. That means that this application must be dismissed.
(Application dismissed)