Highways — Highway maintainable at public expense — Breach of statutory duty — Section 36(2)(a) of Highways Act 1980 — Public footpath on housing estate — Footpath constructed by predecessor authority — Whether constructed by authority as highway authority or as housing authority — Whether single corporate entity capable of separate existence for purposes of highways — Whether footpath maintainable at public expense — Whether breach of statutory duty under section 41 of 1980 Act
In May 1999, the appellant, when walking along a footpath on the respondent council’s housing estate, tripped on a manhole cover and suffered personal injuries. At that date, the council were both the housing authority (and, in that capacity, the owners of the housing estate) and the highway authority. The appellant brought proceedings claiming agreed damages of £3,000 for, inter alia, breach of statutory duty under section 41 of the Highways Act 1980 on two grounds: first, that the footpath was a highway maintainable at public expense, within the meaning of section 36(2)(a) of the 1980 Act, because it was a highway constructed by the predecessors in law of the council, and the latter were the highway authority in May 1999; and second, because the council had assumed liability under section 38(1) of the Act by agreeing to maintain the footpath as the housing authority. The county court judge decided that the footpath was a public highway by dedication and at common law by continuous use by the public. He allowed the claim under section 41; the council were legally a single entity and the footpath was a highway maintainable at public expense under section 36(2)(a). Neuberger J allowed an appeal by the council to the High Court. The appellant appealed.
Held: The appeal was allowed. By the date when section 36(1) of the 1980 Act came into force, the footpath was already a highway maintainable at public expense by virtue of section 38(2)(c) of the Highways Act 1959. By sections 2(1) and 3 of the Local Government Act 1972, a county council are a single body corporate; they are one body in law. Accordingly, section 36(2)(a) of the 1980 Act does not contemplate a highway authority acting as such. For the purpose of section 36, the council were not two entities. The footpath was a highway maintainable at public expense because it had been constructed by the council’s statutory predecessors. It was not necessary to consider the alternative claim under section 38 of the 1980 Act.
The following cases are referred to in this report.
Gautret v Egerton (1867) LR 2 CP 371
McGeown v Northern Ireland Housing Executive [1995] 1 AC 233; [1994] 3 WLR 187; [1994] 3 All ER 53; (1994) 92 LGR 629
Suffolk County Council v Mason [1979] AC 705; [1979] 2 WLR 571; [1979] 2 All ER 369, HL
This was an appeal by the appellant, Mr David Thomas Gulliksen, against a decision of Neuberger J allowing an appeal by the respondents, Pembrokeshire County Council, from a decision of Judge Hickinbottom, sitting in Haverfordwest County Court, giving judgment to the appellant on his claim for damages for personal injury.
Bryan Thomas (instructed by Lowless & Lowless, of Tenby) appeared for the appellant; Mark Spackman (instructed by Douglas Jones Mercer, of Swansea) represented the respondents.
Giving judgment, SEDLEY LJ said:
Issue
[1] This is a second appeal. It comes before the court by permission of Hale LJ because of its general importance, and notwithstanding the relatively small amount at stake. The particular question it raises is whether the path on a council estate upon which the claimant tripped and fell is a highway maintainable at public expense. For reasons that will become apparent, the answer may have significant implications for local authorities throughout England and Wales.
History
[2] On 5 May 1999, Mr Gulliksen was walking with a friend along a footpath on the Mount Estate, Milford Haven, when, through no fault of his own, he caught his foot on a lip of about 1.5in on the edge of a manhole, caused by the indentation of one side of its rectangular cover. He fell, injuring his left elbow. The damages were agreed at £3,000 by the county council, which he sued.
[3] Judge Hickinbottom, who tried the case on the fast track at Haverfordwest County Court, in a reserved judgment (to the quality of which I would like to pay tribute), given on 29 September 2001, rejected the claimant’s case in negligence on the ground that, although the path was a highway, the hazard was the result of non-feasance, rather than misfeasance, so that the local authority, as landowners, were not liable at common law. He concluded, for reasons to which I will come, that, by virtue of the Highways Act 1980, the defendant county council, as highway authority, were liable to the claimant for the breach of their positive obligation to maintain the path in good condition.
[4] On an appeal brought with the circuit judge’s permission, Neuberger J, sitting as a judge of the Queen’s Bench Division in Cardiff, allowed the county council’s appeal, holding that the path was not, in law, a highway maintainable at public expense. It seemed, in consequence, that we were required to choose between two very cogently reasoned judgments, but, for reasons to which I now turn, the case before both judges was argued and decided on a false basis of law.
[5] The estate was built in the early 1970s. It was accepted by the council that the path, which ran from a ring-path to a group of houses on the estate, was to be regarded, by virtue of section 31 of the Highways Act 1980, as having been dedicated by long and uninterrupted user as a public right of way. |page:10|
[6] By May 1999, Pembrokeshire County Council were both the housing authority (and, in that capacity, the owners of the estate) and the highway authority for the area. In both capacities, they had inherited all of their predecessor authorities’ legal liabilities. There was an agreement, or arrangement, within the council that the highways department would maintain the roads and paths for which the housing department were responsible, and that the housing department would pay them to do so. The paths on the estate were inspected annually by a highway inspector in the council’s transport and technical services department. This path had last been inspected before the claimant’s accident in July 1998. The defective manhole cover and frame had been repaired before the next inspection in July 1999.
Law
[7] The material provisions of the Highways Act 1980 are these:
Dedication of way as highway presumed after public use for 20 years
31.–(1) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.
…
Highways maintainable at public expense
36.–(1) All such highways as immediately before the commencement of this Act were highways maintainable at public expense for the purposes of the Highways Act 1959 continue to be so maintainable (subject to this section and to any order of a magistrates’ court under section 47 below) for the purposes of the Act.
(2) Without prejudice to any other enactment (whether contained in this Act or not) whereby a highway may become for the purposes of this Act a highway maintainable at the public expense, and subject to this section and section 232(7) below, and to any order of a magistrates’ court under section 47 below, the following highways (not falling within subsection (1) above) shall for the purposes of this Act be highways maintainable at public expense:–
(a) a highway constructed by a highway authority, otherwise than on behalf of some other person who is not a highway authority;
(b) a highway constructed by a council within their own area under [Part II of the Housing Act 1985],…
…
Power of highway authorities to adopt by agreement
38.–(1) Subject to subsection 2 below, where any person is liable under a special enactment or by reason of tenure, enclosure or prescription to maintain a highway, the Minister, in the case of a trunk road, or a local highway authority, in any other case, may agree with that person to undertake the maintenance of that highway; and where an agreement is made under this subsection the highway to which the agreement relates shall, on such date as may be specified in the agreement, become for the purposes of this Act a highway maintainable at the public expense and the liability of that person to maintain the highway shall be extinguished.
…
Duty to maintain highways maintainable at public expense
41.–(1) The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, subject to subsections (2) and (4) below, to maintain the highway.
…
Special defence in action against a highway authority for damages for non-repair of highway
58.–(1) In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority has taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.
(2) For the purposes of a defence under subsection (1) above, the court shall in particular have regard to the following matters:–
(a) the character of the highway, and the traffic which was reasonably to be expected to use it;
(b) the standard of maintenance appropriate for a highway of that character and used by such traffic;
(c) the state of repair in which a reasonable person would have expected to find the highway;
(d) whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;
(e) where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed; but for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions.
It is relevant to what follows to note that the reference in section 36(2)(b), in its present form, to Part II of the Housing Act 1985 was originally a reference to Part V of the Housing Act 1957.
[8] Judge Hickinbottom held that the path was not only, as the county council accepted, dedicated as a public right of way, but that it was, in law, a highway in the simple sense given by Lord Diplock in Suffolk County Council v Mason [1979] AC 705 at p710: “At common law a highway is a way over which all members of the public have the right to pass and repass without hindrance.” This finding has not been contested on appeal, and is one to which the judge was entitled to come in the absence of any evidence to indicate that it was not continuously so from the opening of the estate. I do not accept Mr Mark Spackman’s submission that the path will have been for the use only of council tenants. Albeit it was not a throughway, its natural purpose was to enable any members of the public who wished to do so to go to and from the houses contiguous to it. The court is accordingly entitled to approach the case without reliance upon section 31, on the footing that the path had been a highway by dedication since it was opened.
Judgments below
[9] Judge Hickinbottom rejected the common law negligence claim, and, with it, the claim in nuisance, because, so far as the defendant council were concerned, the damage was the result of their failure to maintain the surface of the path, not of damage done to it by the council: see Gautret v Egerton (1867) LR 2 CP 371 and McGeown v Northern Ireland Housing Executive [1994] 3 All ER 53. This finding was not challenged by cross-appeal when the local authority appealed.
[10] The circuit judge, however, found for Mr Gulliksen, under section 41, on each of two alternative statutory grounds. One was that because the county council were legally a single entity, the case fell within the literal wording of section 36(2)(a); in other words, where the claimant had fallen was a highway that had been constructed by the predecessors in law of Pembrokeshire County Council, and the latter, at the date of the accident, were the local highway authority. The other ground was that if (contrary to his judgment) Pembrokeshire County Council, as highway authority, were, in law, a different entity from Pembrokeshire County Council as housing authority, then, as highway authority, they had assumed liability under section 38(1) by agreeing to undertake maintenance of the path with themselves as housing authority, in which capacity they were liable, by reason of tenure, to maintain it. Since the defendant council felt able to advance no defence under section 58 of reasonable care, the judge gave judgment for the claimant.
[11] On appeal, Neuberger J was asked by the local authority to admit fresh evidence. He declined to let it in, although, before so deciding, he quoted enough of it for it to be apparent that much of it was simply recounting the recent history of local government in relation to Mount Estate, most of it a matter of law. On the same material as was before Judge Hickinbottom, he concluded that both ways of putting the claim in breach of statutory duty failed, so that the claim fell to be dismissed. He allowed the appeal.
[12] Ordinarily, it would be essential to set out how each judge below had put his conclusions on the construction of the Highways Act 1980. But for reasons I now turn to, it will not be helpful to do so here. I record simply that Neuberger J expressed his reluctance to come to the conclusion to which he felt himself driven; a reluctance that I share, for reasons that I now turn to. |page:11|
Highways Acts
[13] The purpose of the Highways Act 1980 is a simple and intelligible one, which long antedates the measure itself, and was, for centuries, a concern of the common law: to make it possible, by the exercise of reasonable care by those responsible, for the public to use the country’s highways in safety. The introductory note to Part IV of the Highways Act 1980 in the Encyclopaedia of Highway Law and Practice sets the scene:
2-073 At common law, unless responsibility for the maintenance of a particular highway had attached to an individual or body by reason of tenure, enclosure or prescription, the highway was assumed to be maintainable by the inhabitants at large: R v Shoreditch (Inhabitants) (1639) Mar NR 26; Anon 3 Salk; Austin’s Case (1672) 1 Vent 189; R v Leake (Inhabitants) (1833) 5 B&Ad 469. If that duty was not properly performed, the inhabitants at large could be indicted for an offence against the ordinary criminal law at quarter sessions. Section 23 of the Highway Act 1835 modified the position, but not the general principle, by providing that “new” highways coming into being after 1835 were to be repairable by the inhabitants at large only if they were expressly adopted by the highway authority, by the formal procedures set out in that Act.
…
The Highways Act 1959 clarified matters. It stepped outside its consolidating functions and made fundamental changes in the law with respect to highway maintenance. In the first place the Act of 1959 abolished the duty formerly imposed on the inhabitants at large of any area. It then defines with some precision which highways shall be “highways maintainable at the public expense” and imposed on the highway authority an express duty to maintain any such highways. These provisions are now contained in sections 36(2) and 41(1) of the 1980 Act. The former procedure of an indictment preferred before quarter sessions in respect of neglect to maintain a highway was abolished by the 1959 Act, and proceedings in the Crown Court and magistrates’ court were substituted.
[14] The technical question canvassed below, as Mr Spackman neatly put it on the council’s behalf, was whether section 36(2)(a) should be read as referring to “a highway constructed as such by a highway authority acting as such…”. But to begin the argument at section 36(2) is to miss the essential relationship, to which counsel’s attention was drawn in this court, between it and section 36(1). The section opens Part IV of the Act: Maintenance of highways. Within it, the first group of provisions, of which section 32 is the governing one, is cross-headed: Highways maintainable at public expense. Section 32(1) begins by sweeping into this major category all highways that, up to that point, were already maintainable at public expense under the predecessor statute, the Highways Act 1959. Subsection (2) is an explicitly residual set of categories, for it excludes highways that fall within subsection (1). The first inquiry, then, must be whether the path in question was a highway maintainable at public expense under the Highways Act 1959.
[15] Section 38 of the Highways Act 1959 provided:
(1) After the commencement of this Act no duty with respect to the maintenance of highways shall lie on the inhabitants at large of any area.
(2) Without prejudice to any other enactment (whether contained in this Act or not) whereby a highway may become for the purposes of this Act a highway maintainable at the public expense, and subject to the provisions of this section and of subsection (6) of section two hundred and six of this Act, and to any order of a magistrates’ court made under section fifty of this Act, the following highways maintainable at public expense, that is to say:–
(a) a highway which immediately before the commencement of this Act was maintainable by the inhabitants at large of any area or maintainable by a highway authority;
(b) a highway constructed by a highway authority after the commencement of this Act, otherwise than on behalf of some other person not being a highway authority;
(c) a highway constructed by the council of a borough or urban district within their own area under Part V of the Housing Act, 1957, and a highway constructed by a local authority outside their own area under the said Part V, being, in the latter case, a highway the liability to maintain which is, by virtue of the said Part V, vested in the council of the county, borough or district in which the highway is situated;
…
Housing Acts
[16] It is not necessary to delve deeply into Part V of the Housing Act 1957. Since no local authority can provide housing except under statutory authority, one can take it, in the absence of contrary evidence, that it was under the powers contained in that Part (in particular, section 92) that the defendants’ predecessor authority built Mount Estate, and that the paths were laid out and surfaced under the power contained in section 107:
A local authority may lay out and construct public streets or roads and open spaces on land acquired or appropriated by them for the purposes of this Part of this Act…
Conclusion
[17] If so, and given the inference that, like Judge Hickinbottom, I would draw, that the paths were dedicated from the start as highways in the common law sense described in [8] above, it appears that, by the date when section 36(1) of the Highways Act 1980 came into force, the path we are concerned with was already a highway maintainable at public expense, by virtue of section 38(2)(c) of the Highways Act 1959. Once this point is reached, and in the absence of a section 58 defence, the claimant is entitled to succeed. Section 36(2), upon which the argument below turned, is by definition excluded from consideration.
Remarks
[18] I would nevertheless venture the following observations on the provisions that were canvassed in the courts below. By section 2(1) and (3) of the Local Government Act 1972, a county council, like every other local authority, are a single body corporate. A local authority may well have to take care from time to time (for example, when considering whether to grant themselves planning permission) to keep their various capacities distinct, but they are one body in law. Agreements between their departments may be necessary for budgetary purposes, but they are not contracts, because a legal person cannot contract with itself. For this reason, I would not, in any event, have found it easy to adopt the view of Neuberger J that section 36(2)(a) contemplated a highway authority acting as such.
[19] While we did not find it necessary to hear out the alternative argument on section 38(1) of the 1980 Act, it is worth recording that the nowadays puzzling phrase “by reason of tenure, enclosure or prescription” harks back to the vocabulary of an earlier age. Liability by reason of tenure to repair a highway “is generally established by proving that for a number of years the persons charged and their predecessors, or their tenants, have repaired the road in question, this evidence being sufficient to justify the assumption that the usage is immemorial”: Halsbury Laws of England (4th ed) vol 21, para 196; see ibid para 200 for liability by reason of enclosure, and para 195 for liability by reason of prescription. So it is possible that, had the argument under section 36 failed because the county council were, for these purposes, two separate entities, section 38 might have come to the claimant’s aid. But, for the reasons I have given, there is now no need to explore this route.
Disposal
[20] I would allow this appeal, and direct the entry of judgment for the claimant in the agreed amount of £3,000, inclusive of interest. I would restore Judge Hickinbottom’s order that the defendants pay the claimant’s costs of the trial in the inclusive sum of £5,060. I would set aside Neuberger J’s formal order that the claimant pay the defendants’ costs of the claim in the sum of £6,000, but assessing the claimant’s liability at nil. As arranged with counsel at the conclusion of argument, both sides are to be at liberty, within 14 days of the handing down of this court’s judgment, to make submissions in writing as to the proper order for costs before this court and before Neuberger J. I would accordingly reserve any decision on these costs.
[21] WALLER LJ agreed and did not add anything.
[22] WOOLF LCJ also agreed and did not add anything.
Appeal allowed.
