Highway — Duty to maintain — Appellant tripping on defective path — Path built and maintained by respondents — Whether path a highway maintainable at public expense — Whether respondents under duty to maintain path — Appeal allowed
The appellant, a council tenant, was injured when he tripped over a defective manhole cover on a path on the housing estate where he lived. The path had been constructed by the housing department of the respondent council’s predecessors, and was maintained by the council’s highways department. In the course of the appellant’s subsequent claim for damages, the central issue was whether the path was a highway maintainable at public expense within the meaning of section 41(1) of the Highways Act 1980, so that the council, as highway authority, were under a duty to maintain it. The council accepted that they would be liable to the appellant if the path were so maintainable.
The judge held that the path was maintainable at public expense under: (i) section 36(2)(a) of the 1980 Act, as a “highway constructed by a highway authority”; and (ii) section 38(1), since the council’s highways department had agreed with their housing department to maintain it, and the latter was a “person… liable… by reason of tenure… to maintain a highway”.
On appeal, the appellant contended that: (i) in relation to section 36(2)(a), the path had always been a highway; and (ii) the appeal judge had wrongly construed section 38(1).
Held: The appeal was allowed.
On the evidence, the path had always been a highway. Although it was not a through-way, its natural purpose was to enable members of the public to go to and from houses on the estate, and it had been continuously used for that purpose since it was opened. It had never been for the use of council tenants only. Moreover, it had been a highway maintainable at public expense under section 38(2)(c) of the Highways Act 1959 (highways constructed by a council under Part V of the Housing Act 1957). Accordingly, it continued to be so under the 1980 Act by virtue of section 36(1), and it was not necessary to show that it fell within the residual categories in subsection (2). Nor was it necessary to consider the section 38(1) point.
Per curiam: It was possible that the liability of a person to maintain a highway by reason of tenure might be established, for the purposes of section 38(1), simply by showing that, for a number of years, they and their predecessors and tenants had in fact done so.
Bryan Thomas (instructed by Lowless & Lowless, of Pembroke) appeared for the appellant; Mark Spackman (instructed by Douglas-Jones Mercer, of Swansea) appeared for the respondents.
Sally Dobson, barrister
