What is a highway?

According to the Oxford English Dictionary, ‘a walk in the park’ refers to ‘something easy, effortless, or pleasant’. Presumably that is unless you injure yourself tripping over an exposed tree root. That is unfortunately what happened to Deborah Barlow on a public path in Abram Park, Wigan. However, her claim for damages against Wigan Council (pictured above) failed at first instance. HHJ Platts decided that since the path in question was not a highway maintainable at public expense under section 36(2)(a) of the Highways Act 1980, Barlow had no cause of action against the council. However, if the path had been such a highway, the council would have owed her a duty to maintain it under section 41 of the 1980 act (duty to maintain highways maintainable at public expense). For the path was found to be in a dangerous or defective condition. 

Waksman J on appeal saw things differently. For on 19 June 2019 in Barlow v Wigan Council [2019] EWHC 1546 (QB), he (among other things) ‘respectfully’ disagreed with the conclusion of HHJ Platts that section 36(2)(a) did not apply.

Background

A highway (that is to say, a way over which there exists a public right of passage for all Her Majesty’s subjects at all seasons of the year freely to pass and repass without let or hindrance) may be created either by statute or by the common law doctrine of dedication and acceptance. There is a statutory presumption of dedication after 20 years’ uninterrupted use by the public under section 31(1) of the Highways Act 1980. However, dedication at common law does not require 20 years (or indeed any period) of uninterrupted use. If there is dedication and acceptance, a highway is created (see paragraphs 17 and 18 of the decision of HHJ Curran QC in Young v Merthyr Tydfil [2009] PIQR 23).

So far as material, section 36(1) and (2)(a) of the 1980 act provides as follows: 

‘(1) All such highways as immediately before the commencement of this act were highways maintainable at the public expense for the purposes of the Highways Act 1959 continue to be so maintainable… for the purposes of this act. 

(2)… the following highways (not falling within subsection (1) above) shall for the purposes of this act be highways maintainable at the public expense: 

  (a) a highway constructed by a highway authority, otherwise than on behalf of some other person who is    not a highway authority;’

The key issue was whether for section 36(2)(a) to apply the path had to be constructed as a highway at the outset. HHJ Platts thought it did. As he had put it: ‘In my judgment the intention of the act was that, for the path to be classified as a highway, it had to be constructed as such rather than it becoming a highway due to subsequent usage. The phrase “a highway constructed by a highway authority” in my judgment refers to a highway which at the time of construction was intended to be such, and it does not in my judgment refer to a path constructed by a highway authority that subsequently became a highway, by way of usage. In those circumstances it seems to me that this pathway cannot be said to have been a highway constructed by the highway authority for the purposes of section 36(2)(a).’

In McGeown v Northern Ireland Housing Executive [1995] 1 AC 233 the House of Lords had held that a person using a public right of way did so by right and could not be the visitor of the owner of the land over which the way passed for the purposes of the Occupiers’ Liability Act 1957. In the view of Waksman J, the problem with the first instance construction 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 of section 36(2)(a). So because it was a highway (per McGeown), no duty would be owed to users under the Occupiers Liability Act nor would there be any duty to maintain under section 41 of the act. That, said Waksman J, ‘would seem a very odd result’.

It was common ground that from at least 1994 (some 20 years before Barlow sustained her injuries), the path was a highway under section 31 of the act (dedication of way as highway presumed after public use for 20 years). In the court’s view, once it is recognised that the relevant highway may have become such after its initial construction there is nothing in the wording to limit the way in which it later became a highway. Therefore, Waksman J found no reason in statutory language, principle or case law, why the path here cannot be covered by section 36(2)(a) because it became a highway only after long usage and was not constructed as such at the outset.

The council also argued that although Wigan’s predecessor was a highway authority at the time of construction, it was not caught by section 36(2)(a) because it was not acting qua highway authority at the time. This argument was also rejected since the council was in law a single body corporate. Also not accepted was the argument that section 36(2)(a) could apply only to highways constructed after the act came into force. The fact that the highway itself may have been constructed at an earlier stage did not amount to the imposition of a retrospective liability. No liability occurs unless and until there has been a failure to maintain the highway under the 1980 act. Consequently, since section 36(2)(a) was found to apply, Barlow succeeded on liability subject only to remission on the issue of contributory negligence and quantum. 

Nicholas Dobson writes on local authority law and governance