Paths, highways and occupiers' liability: important Court of Appeal decision
The recent Court of Appeal decision in Barlow v Wigan MBC (2020) held that for a highway to be considered a highway maintainable at public expense, it must be constructed by an authority acting in its capacity as a highway authority and must have been constructed by the highway authority after 1959. If a claimant is allowed to be on the land for reasons other than the existence of a highway, it was suggested (obiter) that the rule in McGeown v. Northern Ireland Housing Executive  does not apply.
Katrina Boyd and Anisha Chudasama explain the key findings and comment on the potential implications for local authorities.
The claimant fell and sustained injury when walking along a path in Abram Park, Wigan. The parties agreed that the defect upon which she fell (an exposed tree root) was a danger.
The following facts were agreed:
- The land was purchased by the Council’s predecessor, Abram UBC (nothing turned on that) on 10 November 1920 with the intention of building a public park;
- The park was constructed some time in the early 1930s;
- The paths were constructed some time prior to 1959 and so prior to the commencement of the Highways Act 1959;
- The Council or the Council’s predecessor built both the park and the paths;
- The Council’s records did not list the relevant path as a public right of way.
The Council had persuaded the claimant that the pathway was also a public right of way, such that the rule in McGeown v Northern Ireland Housing Executive  applied (this stated that if a claimant suffers an injury due to the presence of a dangerous defect on a highway not maintainable at public expense and the defect arises from a lack of action as opposed to a positive act, then no liability attaches), and there was no duty under the Occupier’s Liability Act. The claimant’s only possible action was, therefore, under the Highways Act 1980.
Prior to the appeal hearing, the Council accepted that it was the highway authority in respect of the area. The only question, therefore, was whether the pathway upon which the claimant fell was a highway maintainable at the public expense, such that the Highways Act 1980 applied. In considering this question, the court would need to apply Section 36 of the 1980 Act, which provides:
"(1) All such highways as immediately before the commencement of this Act were highways maintainable at the public expense for the purposes of the Highways Act 1959 continue to be so maintainable… for the purposes of this Act.
(2) … The following highways (not falling within subsection (1) above) shall for the purposes of this Act be highways maintainable at the public expense:-
(a) a highway constructed by a highway authority, otherwise than on behalf of some other person who is not a highway authority…"
First instance decision
At first instance, Platts J found no evidence that the Council was a highway authority for the purposes of section 36(2) (a), because at the time of construction, the local authority did not intend for the path to be a highway. He did not believe that s.36(2)(a) could apply to a path which subsequently became a highway, by way of usage. As such, the claimant’s claim failed.
High Court appeal
Before the High Court appeal was heard, the Council conceded that Abram UDC had been a highway authority at all material times, but argued that it did not construct the path in its capacity as a highway authority. Further, the Council had had no intention to dedicate the path as a highway. For those reasons, the Council said, s36(2)(a) could not apply.
The claimant argued that the path was constructed by Abram UDC, who was a highway authority. That meant that the path, which all agreed was a highway, was a ‘highway constructed by a highway authority’ so as to fit within s36(2)(a).
Waksman J found that, provided that the relevant local authority at the time of constructing a path was, among other things, a highway authority, then that was sufficient for s.36(2)(a) to apply.
The appeal was allowed.
Court of Appeal
Acting as a highway authority?
The Court of Appeal found that Waksman J was wrong in his interpretation of s36 (2)(a). A local authority is a ‘single body corporate’ for the purposes of the law of contract, but it is not indivisible for all purposes. The correct interpretation of s36(2)(a) was that set out by Neuberger J in Gulliksen v Pembrokeshire County Council CA :
“the notion of ‘a highway constructed by a highway authority’ means ‘a highway constructed as a highway by a highway authority in its capacity as such’ (emphasis added)
In this case, the path was not constructed by an authority exercising highway functions. At the time of construction, the local authority were acting in their capacity as an urban district council in creating a park. S36(2) did not apply.
Highway maintainable at public expense? S.36 (1) and deemed date of dedication
The court turned their minds to section 36(1) of the 1980 Act.
The claimant had contended that the path was dedicated as a highway before 1949 which meant that, by operation of ss 47 and 49 National Parks and Access to the Countryside Act 1949, it became “maintainable by the inhabitants at large” and was converted into a highway maintainable at public expense by s38(2)(a) of the Highways Act 1959. This would meet the requirements of section 36(1).
The Court of Appeal considered also the creation of a highway, either by statute or by dedication and acceptance. Dedication may be express, deemed by the operation of s.31 of the 1980 Act; or inferred at common law.
There was no evidence before the court that there had been any express dedication. S.31 might have applied but the court did not have sufficient evidence of 20 years’ uninterrupted use in order to test that.
The Court of Appeal found, however, that there was sufficient evidence of inferred dedication at common law, which requires evidence of unobstructed and continuous use over a long period, but not necessarily over 20 years. Bean LJ at paragraph 63 said:
"What the evidence does clearly establish is that the park was opened in the early 1930s; the Path and other paths were laid out soon afterwards; and that ever since that time (about 80 years before Ms Barlow’s accident) the public have been allowed to walk on the paths without restriction or interruption of any kind even on one day a year. This is in my view ample evidence to support the implication or presumption of dedication at common law. There is no evidence of any alternative explanation."
Since an argument around retrospective application had also been advanced by the Council, Bean LJ confirmed that the act of dedication, in such cases, is deemed to have occurred at the beginning of the period of continuous user, not at the end. In this case, this meant that the path was deemed dedicated since the mid-1930s, and it became maintainable at the public expense from the commencement of the Highways Act 1959.
The Council was therefore liable on the basis that the path had become a highway maintainable through deemed dedication, due to the public having had continuous use of the path for sufficient time. Immediately before the commencement of the Highways Act 1980, the path was, by dedication, a highway maintainable at the public expense for the purposes of the Highways Act 1959. Under s. 36(1) of the Highways Act 1980, therefore, the path continued to be so maintainable.
Do your homework
- Be careful about arguing that a highway is not maintainable at public expense if the path in question has had uninterrupted usage over a long period of time. Consider whether the path was dedicated a 'highway' before December 1949 (i.e. uninterrupted and/ or unrestricted public use of the path prior to December 1949 up until the present date).
- Update your database of highways that are "maintainable at public expense". It is recommended that local authorities revisit those paths previously assumed to be simply rights of way, and give consideration to whether the path was constructed by a local authority exercising a highway authority function, or whether the path had uninterrupted and/ or unrestricted public use prior to 16 December 1949.
- Consideration then ought to be given to the current system of inspection and/ or maintenance and re-assessed if necessary whilst remembering that the obligation on occupiers is to take reasonable care for the safety of visitors.
- Check your parks for paths where McGeown may soon no longer apply and a duty of care may be owed.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.