Highways – Highway maintainable at public expense – Path – Section 36(2)(a) of Highways Act 1980 – Public path made to provide access to and across park amenities – Appellant tripping over tree root on path – Whether footpath maintainable at public expense – Whether breach of statutory duty under section 41 of 1980 Act – Appeal allowed – Cross-appeal dismissed
The appellant appealed from a decision of a county court judge whereby he held, after a trial on liability, that a public path in Abram Park, Wigan, was not a highway maintainable at the public expense within the meaning of section 36(2)(a) of the Highways Act 1980. As a result, the appellant, who tripped on an exposed tree root on the path, had no cause of action against the respondent council and her claim for damages failed. Had the path been such a highway, the respondent would have owed her a duty to maintain it pursuant to section 41 of the 1980 Act. It was found by the judge, and common ground on the appeal, that the path was in a dangerous or defective condition.
The land used to develop the park had been purchased in November 1920 by the predecessor in title to the respondent with the intention of constructing a public park. The park was constructed some time in the early 1930s and the path was present before 1959. The path had been made in order to provide access to and across the amenities built within the park, and while the public at large might have enjoyed unfettered access, the judge stated that he could not conclude or infer that there was an intention to dedicate the path as or part of a highway as at the time of its construction. The judge held that the path became a highway by reason of at least 20 years’ usage pursuant to section 31 of the Act.
The appellant contended that section 36(2)(a) did not require proof of intent to create a highway at the time of construction, and that it was enough that (i) the path was constructed; (ii) at the time of the accident it had become a highway; and (iii) it had been constructed by a highway authority. The respondent cross-appealed against a finding that section 36(2)(a) could apply to highways constructed before the 1980 Act came into force.
Held: The appeal was allowed. The cross-appeal was dismissed.
(1) It was common ground that the path had the attribute of a highway to the extent that the public had the right of passage and repassage along it, and not simply as invitees or licensees. However, in addition, it had also to be dedicated as such, either expressly or impliedly, in the sense of being presumed by long usage. The construction placed upon section 36(2)(a) by the judge in effect was that the only kind of dedication which would be compliant with it was an express dedication at the time when the highway was first created. The problem with that was that if a highway authority created a relevant public way but did not dedicate it as a highway for, say, six months, it would fall outside section 36(2)(a). There would be no duty to maintain under section 41. The appellant’s alternative interpretation did not do violence to the language of section 36(2)(a). The fact that the path only became a highway later did not mean that it was not constructed by the relevant highway authority. There was no reason in statutory language, principle or case law that the path could not fall under section 36(2)(a) because it only became a highway after long usage and was not constructed as such at the outset: McGeown v Northern Ireland Housing Executive [1995] 1 AC 233 and Young v Merthyr Tydfil [2009] PIQR 23 considered.
(2) If it was necessary always to ensure that the local authority which constructed the relevant highway had been acting as highway authority at the time, as the respondent contended, that might not always be an easy task. Moreover, there would not always be a distinction between the local authority acting in two different particular capacities (ie housing and highway) but rather one between a particular capacity (highway) and the local authority’s general capacity as creating amenities on land which it owned. Any investigation into the particular “hat” which the local authority was wearing at the time was susceptible to uncertainty and arbitrariness insofar as the result might depend on which particular department was handling that particular matter. One should take the usual approach, which was to identify the relevant legal entity and not attempt to look behind it. Provided the relevant local authority at the time was, among other things, a highway authority, then that was sufficient for its construction of the way to attract the operation of section 36(2)(a). There was no reason of language or logic for an additional “capacity” requirement: Gulliksen v Pembrokeshire County Council [2002] 3 EGLR 9 considered.
(3) On the cross-appeal, the respondent argued that section 36(2)(a) could only operate prospectively in the sense that it could only apply to highways constructed after the Act came into force. However, the present case was not an example of true retrospectivity where, for example, an event which had already taken place, lawful at the time, was now deemed to be unlawful. Compare the position here: there would be no liability until and unless there had been a failure to maintain the highway causing loss at some point subsequent to the commencement of the Act. The fact that the highway itself might have been constructed at an earlier stage did not amount to the imposition of a retrospective liability. Further, in contrast to section 38(2)(b) of the Highways Act 1959, which was in substance the same as section 36(2)(a), there was no express limitation within section36(2)(a) to highways created after the commencement of the Act. Nor was there any basis for implying such a limitation: Wilson v First County Trust [2004] 1 AC 816 considered.
(4) Accordingly, section 36(2)(a) applied. As it appeared to be common ground that if section 36(2)(a) applied then there had been a failure to maintain and the appellant succeeded on liability, the case had to be remitted on the question of contributory negligence and quantum.
Matthew White (instructed by Active Legal Solicitors of Sutton Coldfield) appeared for the appellant; Simon Vaughan (instructed by Forbes Solicitors of Manchester) appeared for the respondent.
Eileen O’Grady, barrister
