The High Court has ruled that in order for a path to be considered a highway maintainable at public expense it need not have been constructed by a highway authority for that purpose. Instead it was sufficient for the path to become a highway as a result of consistent usage.
The Claimant tripped on a tree root on a public path in Abrams Park, Wigan, sustaining injury. The Defendant agreed the path was in a dangerous or defective condition. Accordingly, if the path was deemed a highway maintainable at the public expense ("a maintainable highway") the Defendant owed the Claimant a duty to maintain it pursuant to s41 of the Highways Act ("the Act) and would be liable for the Claimant's losses.
At first instance, it was held that the path was not a maintainable highway within the meaning of s36(2)(a) of the Highways Act 1980. It was held that in order for s36(2)(a) to apply, the path would have had to have been constructed as a highway; it was not enough that the highway, or what had become a highway, was simply constructed by the relevant highway authority.
As there was "no direct evidence as to the intention of the Defendant's predecessor at the time of construction", the judge could "not infer or conclude that at the time the paths were created, there was an intention to dedicate them as part of the highway".
The Claimant appealed, arguing s36(2)(a) did not require any proof of intent to create or dedicate a highway at the time of the construction of the path. The Claimant submitted it was sufficient that the path was constructed, that at the time of the accident it had become a highway and that it had been constructed by a highway authority.
The Claimant's appeal was allowed.
The High Court found s36(2)(a) applied to a public path, it was not confined to those constructed as highways at the outset and the path did not have to be constructed by a highway authority acting in that capacity.
Waksman J found that once a path is considered a highway nothing in the wording of s36(2)(a) limits that designation; there did not need to be an express dedication by the highway authority for s36(2)(a) to apply.
The Defendant had submitted that its predecessor was acting as a local authority providing a public amenity (the park) and not as a highway authority, meaning that for s36(2)(a) did not apply. Waksman J stated this distinction was "susceptible to uncertainty and arbitrariness insofar as the result may depend upon which particular department was handling that particular matter."The usual approach to identify the relevant legal entity should be taken.
The Defendant had cross-appealed the first instance finding that s36(2)(a) could apply to highways constructed before the Act came into force. This was dismissed.
Waksman J found liability would not arise "until and unless there has 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 may have been constructed at an earlier stage does not amount to the imposition of a retrospective liability."
What can we learn?
- The finding confirms that the Defendant would have similar practicable legal duties before and after the path became a highway. It would have created "an undesirable outcome" if the park and the path resulted in duties to visitors under the Occupiers' Liability Act, but not after it was designated a highway.
- Furthermore, had s36(2)(a) been interpreted to the extent that there needed to be an express dedication that a path was a highway when it was constructed, s36(2)(a) would not apply even if it was dedicated by the local authority as a highway at a later date.
- Such a dedication would remove any liability under the Occupiers' Liability Act but would not provide a duty to maintain under s41 of the Highways Act 1980. This would leave an injured claimant without remedy, and effectively withdraw responsibility from the local/highway authority.
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