Wynne v Basildon Borough Council
Basildon County Court
On 20 June 2011 the claimant was walking along a path adjacent to and at the back of a block of flats in Basildon. On the other side of the path was a busy dual carriageway. One end of the path connected to a footbridge which ran over the dual carriageway as well as feeding into other paths and roads on housing estates. The other end of the path led into the centre of Basildon.
The claimant was walking towards the centre of town when he tripped due to the difference in levels between an area of flagged stones and a tarmac area. The difference had formed as a result of the tarmac degrading and sinking. The claimant alleged he suffered a soft tissue injury to his ankle.
He brought a claim for personal injury against the defendant under the Occupiers Liability Act 1957 and in negligence. The defendant acknowledged that it owned the land but alleged that the path was in fact a public right of way. Applying McGeown v Northern Ireland Housing Executive  the defendant contended that it owed no duty to the claimant under the Act.
McGeown v Northern Ireland Housing Executive 
The claimant in this case tripped over a hole in a footpath passing through a housing estate. The defendant housing authority owned the land but the public had acquired a right of way over three footpaths which crossed over the land.
The House of Lords firstly confirmed that the owner of land over which a public right of way passes is under no liability for negligent nonfeasance (liability for no action taken) towards members of the public using it. The liability of the landowner is limited to acts of positive misfeasance (liability for a positive wrong action) and nothing else.
Secondly, in this case and in most cases concerning a public right of way, the person using the right of way will not in fact be a "visitor" for the purposes of the Occupiers' Liability Act 1957. For the purposes of the Occupiers' Liability Act 1957, a person is a "visitor" if, at common law, he would be regarded as an invitee or licensee or be treated as such. This will include a person lawfully using premises provided for the use of the public for example a public park, a shopping centre or somebody entering with lawful authority (for example a policeman with a search warrant). Merely crossing land in pursuance of a public or private right of way will not deem a person to be a "visitor" as there is no permission required by the occupier to be there if the land is a right of way.
Essex County Council
At a very late stage the claimant sought to amend his Particulars of Claim to join Essex County Council as a second defendant and adjourn the trial. The claimant's amended pleadings alleged that either Essex County Council or the defendant was the highways authority and accordingly they had breached their duties under the Highways Act 1980. The application was heard on the morning of the trial.
District Judge Molineaux dismissed both the claimant's application and the claim:
- The claimant's claim against the defendant as highways authority was misconceived; it could not be the highways authority. It was not necessary for Essex County Council to be a party to the proceedings to decide on the claim against the defendant (under the Occupiers' Liability Act 1954 and in negligence).
- It was conceded by the claimant that if the area was considered public right of way then the applicable law was McGeown.
- The question the judge had to determine was whether the area where the claimant was walking was a public right of way. The judge considered the following factual findings relevant:
The area was paved and adjacent to flats but there was fencing separating the flats from the paved area. The area was open and accessible to the public from the footbridge over the dual carriageway. Once over the footbridge you could access the housing estates or make your way to the town centre along the path in question. There were no signs to restrict access and area was open and free to use by all. The defendant's witnesses provided evidence that the area had been used by the public from at least 1970.The claimant himself was going to the town centre. It was not seriously challenged by the claimant that the area was not used by members of the public.
- The judge did not accept the claimant's submission that the path fell within the curtilage of the block of flats as there was a fence around the flats.
- The claimant also sought to argue that the defendant had not shown that the path was dedicated. Whilst that may have been the case, that did not mean that it was not a public right of way and that was the question to be answered.
- Evidence that a reactive repair to the area was undertaken by the defendant some time after the incident was not relevant to the question which the judge had to consider; it was not a case under the Highways Act 1980.
- On the evidence it was clear that there were no restrictions to pedestrians and it was possible to infer it was a public right of way. McGeown therefore applied and the defendant owed no duty to the claimant.
The District Judge indicated her sympathy for the claimant in the circumstances. Nevertheless she felt bound by the House of Lords decision in McGeown and unable to make an alternative finding.
Much time was spent exploring the defendant's post incident reactive repair and whether an assumed duty could be inferred from those actions, akin to the positive duty set out under the Highways Act 1980. Correctly, the District Judge felt on balance she could not go this far.
For defendants, comfort should be taken that McGeown remains good law. On similar facts defendants should avoid assuming that a duty will be owed either under the Occupiers' Liability Act 1957 or the Highways Act 1980. McGeown shows that there is a lacuna which can be useful for a defendant and provide a complete defence to a claim.
From a practical perspective, it assisted that the defendant here was able to provide good evidence from three witnesses on the use of the area from the 1970s through to the present day (including visiting the site after the event and noting how many members of the public passed through). The District Judge, whilst clearly sympathetic to the claimant, was unable to distinguish McGeown and accordingly dismissed the claim.
For further information please contact Mark Whittaker or Rachel Coppenhall, Solicitor on 020 7645 9557.