The Claimant was walking on a path through a public park in Abram, Wigan, owned by the Defendant, Wigan Council ("the Council"), when she tripped over an exposed tree root growing through the path. The Claimant fell and sustained injury for which she brought proceedings against the Council under the Highways Act 1980.
At first instance, the trial judge found that although the tree root and the state of the path was in a dangerous and defective condition at the material time, and that path was a highway, it was not a "highway maintainable at public expense" within the meaning of s.36 (2) Highways Act 1980 because it had not been constructed by a highway authority but by the Council's predecessors, Abram UDC in the early 1930's. Accordingly, the Claimant had no cause of action against the Council and her claim failed.
The Claimant's appeal
It should be noted that the Claimant did not bring the claim under the Occupiers' Liability Act 1957 ("OLA") as it was agreed between both the Claimant and the Council that the path was a highway and therefore there could be no liability under the OLA (McGeown v Northern Ireland Housing Executive  1 AC 233). It was common ground that the path was in a dangerous or defective condition. The issue in contention was whether the path was a highway maintainable at public expense within the meaning of s.36 (2) Highways Act 1980, which says that a highway maintainable at public expense includes 'a highway constructed by a highway authority otherwise than on behalf of some other person who is not a highway authority'.
The Council argued that it was not a "highway authority" within the meaning of s.36 (2) (a) because:
- Whilst Abram UDC was a highway authority, it did not construct the path acting in the capacity of a highway authority but in some other capacity e.g. parks, and so, was not performing the function of a highway authority.
- When the path was built there was no intention to dedicate it as a highway, so it was not constructed as a highway and cannot have been a highway constructed by a highway authority.
- Even if Abram UDC was acting as a highway authority and intended to construct a highway, it did so before the 1980 Act and therefore could not have constructed a highway maintainable at public expense. Accordingly, the 1980 Act only applied to highways constructed after 1980, otherwise it would mean the Court accepting that the Act was retrospective.
Allowing the Claimant's appeal, Waksman J dismissed all three of the Council's arguments:
- In respect of the Council's first argument, the court followed Sedley LJ (obiter) in Gulliksen v Pembrokeshire County Council  QB 123 at paragraph 18 where he confirmed that a Council is a “single body corporate”. This meant that if a council has a highway authority function, it is a highway authority constructing the highway regardless of what capacity it is acting in.
- Insofar as the second argument was concerned, Justice Waksman confirmed that the intention at the time of construction did not matter. If it became a highway later on by dedication or consistent usage (through at least 20 years' usage, pursuant to s.31(1)) and if constructed by a highway authority, it was “a highway constructed by a highway authority” and fitted within s.36(2)(a). To accept otherwise would mean that a highway authority could make a highway, not dedicate it for a period of time and then commit to making it a highway that was not "maintainable at public expense"; whereby no duty of care was owed.
- The final argument was dismissed on the basis that the Highways Act 1980 did not have retrospective effect but rather it imposes a future duty for councils to maintain highways constructed by highway authorities regardless of when they were constructed.
Waksman J concluded there was "no reason in statutory language, principle or case law, why the path here cannot fall under s. 36 (2) (a) because it only became a highway after long usage and was not constructed as such at the outset".
He also remained of the view that, "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 s36 (2) (a). I can see no reason of language or logic for an additional ‘capacity' requirement."
Waksman J concluded “for all of those reasons I reject the council's argument based on the capacity in which Abram was acting at the time… As it appears to be common ground that if s.36 (2) (a) applies, there has been a failure to maintain, it would follow that Ms Barlow must succeed on liability.”
- The judgment acts as a reminder that there are two questions which should be asked:
- Did the accident occur on a highway?
- Was the highway constructed by a highway authority/local authority with a highway authority function?
If the answer to both questions is yes, the highway will be classed as a "highway maintainable at public expense." It does not matter when the path was constructed, nor the intention of the council at the time of construction. Thus the Highways Act will apply, and the McGeown defence will not.
- The McGeown defence will still apply to public rights of way that are not highways maintainable at public expense, such as those not on the official plan. Local authorities need to review whether such paths are actually highways.
- Whilst this decision may, at first blush, cause concern to local authorities, in that there may be many more paths which now require proactive highways inspections, there are matters to be considered carefully before that conclusion should be reached. Local authorities should ensure that that they have a correct database of highways that are "maintainable at public expense" i.e. paths that are constructed by a local authority and are accepted to be highways.
- It is recommended that councils revisit those paths previously assumed to be simply rights of way, and give consideration to whether the path was constructed by a local authority with a highway authority function. As such, it is vital that there is an accurate record of who actually built the highway.
- Application for permission to appeal this decision has now been granted and the hearing is due to take place in May 2020.