The Defendant appealed a High Court decision which had found 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. The Court of Appeal found that the path did need to be constructed by a highway authority, but the Claimant was still successful because the path had been dedicated as a highway when constructed in the 1930s and was now maintainable at public expense by the Defendant.
Barlow v Wigan Council  EWCA Civ 696
The Claimant had tripped on a tree root in Abram Park sustaining injury. The High Court found the Defendant was found liable for the Claimant’s injury as the tree root was on a pathway which was classed as a highway maintainable at public expense. Accordingly the Defendant was under a statutory duty to maintain the path pursuant to section 41 of the Highways Act 1980.
The Defendant was granted permission to appeal on a number of grounds. It argued the High Court judge had been wrong to:
conclude the path was a highway maintainable at public expense;
find the Defendant was under a statutory duty to maintain the path, as the path had not originally been constructed as a highway;
find that when the local authority constructed the path it did not have to be acting in its capacity as highways authority for the path to be a highway under section 36(2)(a) of the Highways Act 1980;
use policy reasons – the Defendant submitted that the Judge had been concerned to ensure there should not be public highways in public open spaces maintainable by no one; and
wrong to find that section 36(2)(a) applied to paths constructed before 1980 (when the Highways Act came into force).
The Claimant submitted the High Court's findings in her favour were correct and also contended that “the path was probably dedicated before 1949 such that the path was highway maintainable at public expense by the operation of the National Parks and Access to the Countryside Act 1949 Section 47(1), Highways Act 1959 Section 38(2)(b) and Highways Act 1980 Section 36(1).”
Was the path constructed by a highway authority within s36(2)(a)?
Lord Justice Bean giving the lead judgment found that when the path was constructed in the 1930s, the local authority was not acting in its capacity as the highway authority for the area. Therefore, the Claimant could not succeed under section 36(2)(a).
Bean LJ referred to the judgment in Gulliksen where Neuberger J stated “To my mind, the notion of "a highway constructed by a highway authority" means "a highway constructed as a highway by a highway authority in its capacity as such.” Neuberger J continued “In my view, the notion of a way constructed by someone which in due course becomes a highway through dedication, for instance under section 31 in the present case, would not be thought of as a highway constructed by a highway authority.” If section 36(2)(a) was “intended to extend to the council in whatever capacity, it would have referred to “a council or other body which is the highway authority” and not “a highway authority”.”
Section 36(1) and the deemed date of dedication
Lord Justice Bean found that dedication inferred at common law meant that the path was a highway. He stated that the evidence clearly established that the park was opened in the early 1930s, and the path and other paths were laid out soon afterwards. Ever since that time “the public have been allowed to walk on the paths without restriction or interruption of any kind even on one day a year.” This provided “ample evidence to support the implication or presumption of dedication at common law” and there was no evidence of “any alternative explanation.”
Following the decision in Turner v Walsh (1881), when the common law presumption arises it is retrospective. The act of dedication “is deemed to have occurred at the beginning of the period” meaning that the path in this case was deemed to “have been dedicated since the early to mid-1930s”.
If a footpath was deemed to have been a highway before 16 December 1949 (when the National Parks and Access to the Countryside Act 1949 came into force) then it was repairable by the inhabitants at large of the local parish. When the Highways Act 1959 came into force the duty on inhabitants was abolished and was replaced with the concept of a highway maintainable at public expense.
The path had therefore become repairable by the Defendant, and it was liable to the Claimant for her injuries.
The Defendant’s appeal was dismissed, and the Claimant was successful with her claim albeit for different reasons than before the High Court.
What can we learn
At the beginning of his judgment Lord Justice Bean acknowledged that it was far from straightforward whether the Claimant had a valid legal claim against the Defendant. There had already been different outcomes from the county court and High Court, and “the authorities cited to us by counsel include five cases from the 19th century; and some of the issues raised have not been authoritatively decided at appellate level".
Lord Justice Singh (who agreed with Bean LJ) said whilst he also agreed with Neuberger J in Gulliksen the words “as such” were not necessary and he did not “consider that any words have to be read into the provision”. In his view “the words “highway authority” are used by Parliament to mean “an authority exercising its highway functions””.
Importantly for Local Authorities, duties under Section 36(2)(a) of the Highways Act 1980 (that a highway constructed by a highway authority is a highway maintainable at public expense) only applies to highways constructed from 1980 when the Act came into force. Obiter comments made in Gulliksen that it does not matter what capacity a council with a highway authority function was acting in when constructing a highway have therefore been disapproved.
The case of Turner v Walsh is a Privy Council case and as Bean LJ said “technically not binding on the English courts”, however the judgment of Sir Montague Smith – “and the presumption, if it can be made, then is of a complete dedication, coeval with the early user” – is accepted to be a correct statement of English law.