Significant legal finding on 'maintainable at public expense'

15/07/2019
Dominic Browne

A successful High Court appeal in a highways claim against Wigan Council has established an important point in case law - that if a highway authority built a highway, it counts as a 'highway maintainable at public expense' regardless of when or why it was built or designated a highway.

Facts of the case - Barlow v Wigan Council

Mrs Barlow was walking on a metalled path through a public park owned by the council in Abram, Wigan.

She tripped and fell on a tree root growing through the path.

The preceding trial judge determined that it was a dangerous defect, but did not accept it was a 'highway maintainable at public expense' and so the duty to maintain under Highways Act 1980 s.36(2)(a) did not apply.

This finding was overruled on appeal. The Appeal Judge Mr Justice Waksman said: 'As it appears to be common ground that if s36 (2) (a) applies, there has been a failure to maintain it would follow that Ms Barlow must succeed on liability. The case then needs be remitted only on the question of contributory negligence and quantum.'

The law:

Under Highways Act 1980 s.36(2) (a) it states:

'The following highways... 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 council argued that:

1) the path was constructed by Abram UDC (a long time ago) and while it was a highway authority, it did not construct the path wearing their highway authority 'hat' but rather its 'parks' or some other hat, and so was not performing the function of highway authority;

2) regardless of which hat it was wearing, there was no intention to dedicate it as a highway and so it cannot have been a highway constructed by a highway authority;

3) even if it was a highway constructed by a highway authority, the 1980 Act only applies to highways constructed after 1980, otherwise it is retrospective and that cannot be right.

The judge found against each of these points.

1 The wrong hat argument

It is not a defence to argue that the authority was not exercising its highway function when it constructed the highway but was using some other 'hat' - its parks function for instance.

The Judge agreed with the concept of a council being a 'single body corporate'. If it has a highway authority function, it is a highway authority constructing the highway regardless of the 'hat' that it is wearing, when it builds a highway.

Justice Waksman found: 'Any investigation into the particular 'hat' which the local authority was wearing at the time seems to me to be susceptible to uncertainty and arbitrariness insofar as the result may depend on which particular department was handling that particular matter. In my judgment, one should take the usual approach which is to identify the relevant legal entity and not attempt to look behind it.

'I (thus) remain of the view that, provided the relevant local authority at the time was, among other things, a highway authority, then that is sufficient for its construction of the way to attract the operation of s36 (2) (a). I can see no reason of language or logic for an additional "capacity" requirement.'

2 The unintended highway argument

The path was a highway as a result of the statutory presumption of dedication after 20 years uninterrupted use, and not because of a dedication by the highway authority.

The Appeal Judge found: 'There is no reason in statutory language, principle or case-law, why the Path here cannot fall under s36 (2) (a) because it only became a highway after long usage and was not constructed as such at the outset'.

's36 (2) (a) does not require any proof of intent to create (or dedicate) a highway at the time of the construction of the Path; it is enough that (a) the Path was constructed, (b) that at the relevant time (ie at the time of the accident), it had become a highway and (c) that it had been constructed by a highway authority, not now in dispute.'

Justice Waksman added that another problem with the argument was that 'if a highway authority created a relevant public way but did not dedicate it as a highway for, say, 6 months, it would fall outside of s36 (2) (a)'.

This would create a highway that was not maintainable at public expense and in respect of which no duty of care was owed, and would be an 'odd result'.

3) The retrospective application of the law argument

The judge noted that this is not 'an example of true retrospectivity where, for example, an event which has already taken place, lawful at the time, is now deemed to be unlawful'.

'The fact that the highway itself may have been constructed at an earlier stage does not amount to the imposition of a retrospective liability.'

The judge also noted that under the Highways Act 1980 'there is no express limitation within s36(2) (a) to highways created after the commencement of the Act', and 'nor is there any basis for implying such a limitation'.

Rather from 1980 highway authorities acquired a new duty, for the future only, to maintain highways constructed by highway authorities, whenever they were constructed.

Wigan Council was approached for comment.

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