The Claimant tripped on an exposed tree root on a public path that ran through a local park owned by Wigan Council (the “Path”). The park was constructed in the 1930’s by the Council’s predecessor, Abram Urban District Council.
It was accepted that the Path had become a highway through at least 20 years’ usage pursuant to s.31(1) Highways Act 1980 (the “Act”) but the Council argued it was not maintainable at the public expense (“MPE”) as there had been no express dedication at the time the Path was constructed and there was no evidence the Council’s predecessor had intended it to be a highway.
HHJ Platts dismissed the Claimant’s case at first instance and found the highway was not MPE in accordance with s.36(2)(a) of the Act.
It was found by the Judge at first instance, and was common ground on appeal, that the Path was in a dangerous or defective condition, but the key question was whether the Path was also one that was MPE.
On 19th June 2019 the Claimant successfully appealed that decision on the basis that (as the Council had already accepted the Path was a highway) intention was not necessary as the Path had been constructed by a highway authority and this satisfied s.36(2)(a).
At para. 16 of the Judgement, Waksman J, made clear that once it is recognised that the relevant highway may have become dedicated through usage after its initial construction, there is nothing in the wording of s.36(2)(a) to limit the way in which it later became a highway.
On this basis, therefore, provided the relevant local authority at the time was, among other things, a highway authority, then that is sufficient for its construction of the way to attract the operation of s.36(2)(a) [see para.33]. Waksman J found that there was no reason in statutory language, principle or case law why the Path could not be MPE simply because it only became a highway after long usage and had not been constructed as such at the outset
The duty to maintain a highway under s.41 of the Act is owed only in respect of those highways MPE.
In the light of this decision, the two key questions that parties must satisfy themselves in relation to any potential liability is:
- Did the accident occur on a highway at the time of the accident? and
- Was the highway constructed by a highway authority?
If the answers to the above are both affirmative, the highway will be classed as MPE irrespective of when it was constructed and irrespective of the intention at the time it was constructed.
The risk for highway authorities is that there might be highways that were constructed by them (or their predecessor) which they might not have realised are highways and consequently MPE.
The Claim was never put on the basis that the Council was liable under the Occupiers’ Liability Act 1957 (“OLA”) as the Council admitted the Path was a highway. Presumably, this was to argue no duty was owed by the occupier in respect of non-feasance as the occupier only owes a duty of care to visitors (see McGeown v Northern Ireland Housing Directive). However, it is clear that this approach has backfired somewhat.
Are paths through parks actually highways? As the McGeown decision now appears somewhat eroded by this decision (McGeown will still apply to public rights of way that are not MPE – think PROWS in the country that are not on the official plan and therefore not MPE – see Countryside and Rights of Way Act 2000), local authorities should carefully investigate all paths to ascertain whether they are a highway or not, and if the former, whether they could be deemed a highway MPE.
In order to potentially limit the impact of this decision, local authorities need to carefully ascertain whether such paths are, actually, highways. It may have been preferable for the Council to admit to owing a duty under the OLA and then argue a reactive system was sufficient to keep the Claimant reasonably safe in the circumstances.
At first glance, the headlines of this decision appear to create a potentially large burden on local authorities to maintain additional paths it previously had not considered highways MPE. On careful consideration, however, it has highlighted the importance of the need for an accurate list of highways MPE under s.36(6) of the Act and to carefully revisit any areas that fall outside of this list which may now qualify as a highway and were built by a highway authority. In particular, if a local authority has a highway authority function, then it is to be classed as constructing any highway under that function, irrespective of the project itself (e.g. a path through a public park).
It also highlights the importance of the need to maintain an accurate record as to who actually built the highway. The duty under s.36(2)(a) is only applicable if the highway authority constructed the highway. If this was constructed by someone else, there can be no s.41 duty. However, if the highway was constructed by another department within the local authority, but the authority was also the highway authority at the material time, then it will be MPE on the basis the local authority is to be seen as one legal entity.
Finally, this may also be a warning for highway authorities to not be so quick to admit that a highway exists in areas where it may remain arguable that they are not – such as in a park.
If you would like to know more about this matter, please speak to your contact at Plexus:
Tom Silson, Partner
T: 0161 245 7973 | E: firstname.lastname@example.org
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