No liability for sap falling on the public highway

The Claimant’s claim in JL v Powys County Council (Merthyr Tydfil County Court) arose out of an accident which occurred while she was walking along the pavement at The Watton, Brecon, in October 2020. The Claimant alleged that she slipped on sap from aphids on lime trees which lined the pavement along The Watton, which is constructed of Yorkstone paving slabs. The Claimant alleged that the pavement should have been paved with tarmac or other material and should have been gritted and cleaned.

The Claimant’s primary allegation was that the Defendant Local Authority caused and/or permitted the existence or continuation of, or otherwise failed to abate, a nuisance upon the highway. It was asserted that the Defendant Local Authority were, at all material times, aware of the presence of sap on the pavement, and had a reasonable opportunity and the means to abate it but failed to do so adequately or at all.

In the alternative, despite the fact that the Claimant’s accident occurred on the public/adopted highway, the Claimant relied upon the provisions of the Occupiers’ Liability Act 1957. The Claimant, quite rightly, accepted that this was not a case which would fall within the remit of Section 41 of the Highways Act 1980. Surface materials such as sap, moss or algae do not give rise to any duty pursuant to Section 41: Valentine v TFL [2010] EWCA Civ 1358 and Rollinson v Dudley MBC [2015] EWHC 3330 (QB), where the Court held that patches of moss or algae could not 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’.

The circumstances of the Claimant’s accident

No admissions were made as to the circumstances of the Claimant’s accident and the Claimant was put to strict proof.

The Claimant’s evidence was that she was delivering a present to a friend along The Watton at the time of her accident. The Claimant stated that after visiting her friend, she started walking back to her car and, as she went to turn, she slipped on the pavement. Her left leg went from under her. The Claimant’s evidence was that she could not see anything on the pavement at the time but that it was “really slippery”.

The Claimant notified the Defendant Local Authority of her accident immediately afterwards. The Claimant’s accident occurred around 12:30pm. The Defendant Local Authority were contacted by the Claimant at approximately 13:50pm and the site was inspected by them at approximately 14:30pm on the same date. The records indicated that, upon attendance, the Defendant Local Authority’s highways staff applied sand to the surface of the pavement “to provide better grip until footway cleaning could be carried out”.

A Claim Notification Form was subsequently submitted on behalf of the Claimant on 4 October 2020. The Claimant remained consistent in her account of the accident.

Evidence

A letter of complaint was sent to the Defendant Local Authority by the Claimant’s friend following the accident making four points:

(1) That there were Lime trees on The Watton;

(2) That aphids feed on the leaves of the trees exuding a sticky sap which falls and sticks to the pavement;

(3) There were paving slabs on the pavement;

(4) The surface of the slabs became slippery if it rained due to “honeydew”.

The Claimant gave evidence that her friend had also told her that there had been protracted exchanges between local residents and the Defendant Local Authority about the complaints which had been made and accidents that had occurred as a result of the condition of the pavements and their ‘dangerous condition’ which was linked to the lime trees. The Claimant did not, however, adduce any evidence from her friend about this.

In support of her claim, the Claimant relied upon a series of complaints about the problem relating to the presence of sap on the pavement, which had been received by the Defendant Local Authority prior to the date of the Claimant’s accident. The fact of complaints having been made was admitted. The Defendant Local Authority’s records indicated the following in relation to the period prior to the Claimant’s accident:

• A complaint was received on 8 July 2020 that the pavement was “extremely slippery” as it had not been cleaned and that the paving slabs were dangerous. It was reported that someone had slipped on the paving slabs and that “within 10 minutes a man slipped over with his bike”.
• On 25 August 2020, a complaint was received which reported that every year the pavement along The Watton became “very slippery when wet” from the sap off the trees and that the pavement “needs scrubbing again”.
• On 2 September 2020, a complaint was received which reported that a lady had fallen after she “felt her feet go from under her”. It was reported that the pavement was “very slippery from tree sap on lime trees”.
• On 30 September 2020, a further complaint was received when it was reported that a resident had fallen on the pavement due to “debris off trees”.
• On 7 October 2020, a complaint was received which reported “It was great to see that some of the pavement has been cleaned on The Watton. However … under the tree is still black with sap and dirt which becomes extremely slippery when it rains. It is very dangerous as I have reported before. It really needs to be cleaned as soon as possible to stop people falling on it”.

Following the Claimant’s accident, two more complaints were received (in addition to the complaint raised by the Claimant):

• On 30 October 2020, there was a complaint indicating that the pavements on both sides of The Watton were very slippery under the trees.
• On 9 November 2020, a complaint was received which recorded that the pavement was “treacherous”. It was reported that someone had slipped on the pavement when leaving their house and that there was an “ongoing issue” with the surface of the pavement.

The Defendant Local Authority’s Senior Highways Manager gave evidence that the lime trees along The Watton commemorated the battle of Rorke’s Drift and had been in place for 55 years. The Yorkstone paving slabs had been present since 1994 and were laid at the request of Brecon Town Council and the Brecon Beacons National Park. It was acknowledged that concerns were expressed by the Defendant Local Authority at the time of installation about the suitability of the Yorkstone slabs, but only in relation to the future maintenance costs of the same. In any event, the Town Council had insisted on the Yorkstone slabs being installed. The same paving slabs had also been used in other parts of the county and were said to be popular in town centres.

It was acknowledged by the Defendant Local Authority that the combination of the Yorkstone paving slabs and the lime trees did lead to a problem with sap forming on the pavements of The Watton, making them slippery, as documented. However, their position was that this did not become a real problem until late 2019/2020. Further, whilst there were numerous complaints received by the Defendant Local Authority leading up to October 2020, the number of complaints received was not regarded as that significant as compared to the number of pedestrians who would have been using the footway in this period, The Watton being a very busy area. Evidence was obtained from the Defendant Local Authority that when complaints were received they were dealt with, and, whilst not always immediately, the Defendant Local Authority’s officers had been out to the location on many occasions taking steps to sweep/clean the pavement prior to the Claimant’s accident.

Monthly inspections of the pavement were undertaken by the Defendant Local Authority’s Highways Department, with a walked inspection having been carried out on 16 October 2020 prior to the Claimant’s accident. In addition, monthly safety inspections of The Watton had been carried out between April and September 2020, and the evidence indicated that none of these safety inspections identified any issues with sap on the pavements or of the pavements being slippery.

In addition to the monthly inspection regime was the reactive system, which was adopted in response to the complaints received. As a result, prior to the Claimant’s accident, the pavements along The Watton were cleaned/scrubbed on 24, 25 and 26 August 2020, 3 September 2020 and 7, 8, 9, 12, 13 and 19 October 2020. Further, to try and reduce the problems caused by the sap, the Senior Highways Manager gave evidence that additional steps were taken to deal with the complaints regarding the sap, which included:

(1) Responding to complaints as and when they were received by arranging for the pavement to be cleaned.

(2) Arranging for the lime trees to be pollarded every 3 years instead of every 5 years.

(3) The application of amacite to kill any remaining algae and mould on the paving slabs (it was accepted that this was not a fool-proof method for resolving the problem).

Steps 2 and 3, however, were implemented after the Claimant’s accident.

It was accepted by the Senior Highways Manager that the Defendant Local Authority were restricted by the resources which were available at the material time. The position taken by the Senior Highways Manager was that there was nothing more they could do above and beyond what was being done at the time to resolve the problem of the sap. The estimated cost of replacing the slabs (with tarmac) along The Watton alone was £50,000.00 and the cost for that area, including other locations, would be “extortionate”.

Liability

The allegations of negligence/breach of duty were vigorously denied. In relation to the allegations under the Occupiers Liability Act, it was asserted that it was trite law that a Highways Authority cannot be the occupier of a public highway. The success of the Claimant’s claim, therefore, depended on the allegations of nuisance.

Any nuisance is a public nuisance where it materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. The sphere of the nuisance may be described generally as "the neighbourhood"; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross section of the class has been so affected. In general, a public nuisance is proved by the cumulative effect which it is shown to have had on the people living within its sphere of influence. In other words, a normal and legitimate way of proving a public nuisance is to prove a sufficiently large collection of private nuisances.

In this case, the lime trees and Yorkstone paving slabs were in place for decades without serious consequences. There was no evidence that the Yorkstone slabs, in and of themselves, were dangerous for pedestrians, and they are used in many contexts by the Defendant Local Authority and are commonly used for pavements across the country, suggesting they are perfectly suitable for high street paving.

It was also asserted on behalf of the Defendant Local Authority that the sap was neither present by means of an act of the Defendant Local Authority or by any omission to discharge a legal duty on its part (there being no statutory or common law duty in respect of the same).

It was submitted that were the Court to determine local authorities are responsible for natural biological hazards on the highway, the cost to local authorities across the country and to the taxpayer would be extortionate, as defensive actions such as the removal of trees/pavements costing very large sums indeed would doubtless follow such decisions. The impact on public amenity and the environment would also be disproportionate.

Trial

The Claimant’s claim proceeded to Trial in April 2025.

The Claimant’s claim was dismissed at Trial.

In relation to causation, the Judge noted that the only witness for the Claimant was the Claimant herself. The Claimant stated in evidence that she did not know what she had slipped on; that she took a photograph the following day and did not touch the area concerned and did not see any sap; she just saw a darker patch on the pavement; she was not looking for “sap” as she had no reason to think it was sap at that time. The Claimant said that she was not particularly in a rush and had waited for a gap in the traffic, and as she went to walk to the car it was as if her feet were tackled from under her.

The Claimant was found to be an honest witness who did not seek to embellish her evidence. However, whilst the consensus was that the lime trees exuded a sticky sap, there was no direct evidence of aphid sap and whether it became slippery on the pavement. The letter from the Claimant’s friend following the Claimant’s accident only stated that the pavement became slippery when wet, but the letter, which did not carry the same weight as a witness statement, was the best information the Judge had. The Judge stated that the other complaints which the Defendant Local Authority had received about The Watton stated that the pavement was slippery, but there was no evidence the Judge could rely on to substantiate it was due to sap except by anecdotal evidence.

In giving her evidence to the Court, the Claimant accepted that she did not establish what the black mark on the floor might be. Counsel for the Claimant suggested that a Google Streetview image from August 2024 suggested there were dark patches under the trees caused by sap or aphids. Whilst there were clearly dark patches on that image, the Streetview image from August 2022 did not appear to show any patches; the Streetview image for March 2021 showed the trees pollarded and the road was wet, so it was of little use. A Streetview image of the area from September 2018 showed no dark patches.

Whilst there were photographs of the pavement provided by the Claimant, the Judge found that they could not draw any conclusions by comparing the images. Overall, the Judge found that the Court did not have sufficient evidence that the Claimant slipped due to sap from the trees or insects, only that they did slip. There was not enough evidence to say what they had slipped on. The Claimant had assumed it was sap.

In any event, the Judge went on to state that even if the Claimant’s accident was caused by sap, they would not have found the Defendant Local Authority had created any trap by negligence or in nuisance. The evidence of the Defendant Local Authority’s Senior Highways Manager that he had been aware of the complaints which had been made was noted, and that the Defendant Local Authority had accelerated the pollarding of the lime trees in response. It was also noted that other streets in the area had lime trees and the same slabs, and there had been no similar reports of slipping.

The Judge also heeded the position of the Defendant Local Authority that it was likely that Brecon Town Council would object to the Yorkstone paving slabs being removed, in any event.

In all the circumstances, the Judge accepted the Defendant Local Authority’s evidence that there was nothing inherently dangerous about the Yorkstone paving slabs, or the trees, and they existed together elsewhere without similar difficulty.

Comment

Whilst the Claimant’s claim ultimately failed on causation, the decision of the Court in this case was supportive of the position which had been taken by Dolmans on behalf of the Defendant Local Authority throughout the Claimant’s claim. Detailed investigations were carried out, and valuable evidence was obtained from the Defendant Local Authority’s witnesses with regards to the history of the planting of the lime trees along The Watton and the installation of the Yorkstone paving slabs, and the steps which had been taken by the Defendant Local Authority to respond to all of the complaints which had been received prior to the Claimant’s accident to try and resolve the issues raised. It was accepted that the Defendant Local Authority were restricted, to a certain extent, by the resources which were available to them at the material time and the stance which was likely to be taken by the Town Council in relation to any proposed changes to the area was also a very relevant factor and limitation as to what could be achieved by the Defendant Local Authority. Overall, the Court accepted that there was nothing more that the Defendant Local Authority could do above and beyond what was being done at the material time.

Judith Blades is an Associate at Dolmans Solicitors.