Just a walk in the Park

Mon, 08 Jun 2020

Barlow v Wigan MBC – an important Highways case. McGeown and Gulliksen under attack?

1. The interplay of cases and statutes including some from the last century hardly makes for exciting bedtime reading but Barlow v Wigan MBC[1] is an important decision for those who suffer injury as a result of a highway defect particularly if they are walking on a path in a park established many years ago. It is also a tribute to solicitors and counsel who pursue such claims with dogged determination, and in the case of those acting for Claimants, at a risk if the claim is unsuccessful of receiving no payment in return.
   
   
2. This was a tussle of a case. The Claimant lost at first instance, and won on appeal at the High Court and the Court of Appeal. Each court came to their decisions for different reasons. The Council argued at all three courts that the path was a highway but a highway non-maintainable at public expense.
   
   
3. In brief, Ms Barlow succeeded in her claim because the evidence showed that the path had been constructed in the park by Abram District Council[2] in the 1930’s and thereafter “used”, without interruption, by the public. As such it was held by the Court of Appeal that it was deemed to have been dedicated since the 1930s. By “dedication” it was a path “repairable by the inhabitants at large” until 16 December 1949 and thereafter until 1 January 1960[3] and “maintainable at public expense” since that time – s36(1) Highways Act 1980. It was therefore repairable at public expense immediately before the HA 1980 came into force and remained so after the Act came into force and therefore a claim could be made under s41 of the Act.
   
   
4. In September 2014 Ms Barlow tripped over an exposed tree root as she walked along what was found to be a dangerous and defective path in Abram Park, Wigan. She injured her arm and shoulder. She claimed against Wigan MBC who own and occupy the park. Wigan MBC argued that the path was a highway by virtue of long use but non maintainable at public expense – a trap set by McGeown[4] which tells us that in such circumstances a claim under the Occupiers’ Liability Act 1957 will fail because a Claimant is not a licensee/invitee, but using the path as of right and there is no duty to maintain the path. In these circumstances the path becomes maintainable by no one. As a result Ms Barlow pursued her claim neither under the OLA nor in negligence.
   
   
5. The Court of Appeal therefore were required to consider only whether this path, was a highway maintainable at public expense so as to give rise to a claim under s41 of the Highways Act 1980. Ms Barlow had to prove either that the path was a highway constructed by a highway authority – s36(2)(a) of the HA 1980; or that the path was one of those highways which immediately before the commencement of the HA 1980 were maintainable at public expense – s36(1).
   
   
6. It was accepted by Wigan and that it owed a duty under the OLA for all areas of the park other than the paths. This led Bean LJ to observe that, if this was correct, notices to KEEP OFF THE PATHS rather than KEEP OFF THE GRASS would be more appropriate. He suspected that the true ratio of McGeown and of the earlier case of Gautret[5] was that only if a person is lawfully on a defendant’s land because of the existence of a public right of way which he or she is using, is there no duty of care owed by the landowner either at common law (save in respect of dangerous acts) or under the Occupiers’ Liability Acts. Perhaps another Claimant will be tempted to invite a Court to consider those obiter remarks.
   
   
7. In November 1920 land was purchased by Abram UBC, Wigan’s predecessors, for a public park which was constructed in the early 1930s. Paths were constructed soon afterwards and before the commencement of the HA 1959. Wigan or its predecessor had built both the park and the paths. Wigan’s records did not list the park as a public right of way. There were probably 2 entrances on the west side of the park and a 3rd on the north-eastern side which came into existence when housing was built just outside that entrance. Wigan admitted (denied at trial but admitted on appeal) that Abram had been the highway authority but denied that it was acting in that capacity when it constructed the paths.
   
   
8. Was the Path constructed by a highway authority – HA 1980 s36(2)(a)?
   
   
9. The Court considered the case of Gulliksen[6] and rejected reliance on obiter dicta of Sedley LJ in the Court of Appeal that Mr Gulliksen was entitled to succeed under s38(2)(c) of the HA 1959 because a council was a single body corporate. It might be for the purposes of the law of contract but it did not follow that it was indivisible for all purposes. Bean LJ gave the example of a council which is both housing authority and planning authority but is not exempt from the need to obtain planning permission if it wishes to construct new housing.[7] He further held that that s36(2)(a) of the HA 1980 should be construed to refer only to highways constructed by a highway authority acting in their capacity as such because the HA 1980 was a consolidating Act not intended to change the law[8].
   
   
10. The critical issue so far as Bean LJ was concerned was whether the path was always deemed to have become highway before 16 December 1949 when ss 47 – 49 of the National Parks and Access to the Countryside Act 1949 (NPACA) came into force. Only if a footpath was expressly dedicated or deemed to have been dedicated as a highway before that date was it repairable by the inhabitants at large of the local parish. S47(1) of the Act provided that all public paths which had been or were deemed to have been dedicated as highways were to be repairable by the inhabitants at large. However this would not apply to any public path constructed after the commencement of the Act unless pursuant to a public path agreement[9].
    
    
11. S23 of the HA 1835 relieved the parish of its previous responsibility in relation to highways which were “maintainable by the inhabitants at large”. This did not however apply to footpaths except where established over a road or occupation way.
    
    
12. The Highways Act 1959 came into force on 1 January 1960. It was provided by s38 (1) that after that date no duty in respect of the maintenance of highways should lie on the inhabitants at large of any area, but section 38(2)(a) made maintainable at public expense a highway which immediately before 1 January 1960 had been maintainable by the inhabitants at large of the area or had been maintainable by a highway authority. The fact that Abram UDC had constructed a path before 1949 did not help Ms Barlow because it had not been dedicated nor deemed to have been dedicated as a highway before 16 December 1949[10].
    
    
13. Section 38(3) of the HA 1959 provided that S38(2)(a) should not be construed as referring to a highway maintainable by an urban district council otherwise than in its capacity as a highway authority. S36(2)(a) HA1980 did not alter that position. Ms Barlow could not therefore succeed under s 36(2)(a) of the HA 1980 because when Abram UDC constructed the path they were not acting in their capacity as the highway authority for the area.
    
    
14. S36(1) of the HA 1980 provides that all highways, which immediately before the commencement of the Act were highways maintainable at public expense for the purposes of the HA 1959, continued to be so maintainable for the purposes of the HA 1980. It was therefore necessary for Ms Barlow to show that the path on which she fell was indeed maintainable at public expense before the commencement of the HA 1980.
    
    
15. S31(1) of the HA 1980 provides that where a way over land has been enjoyed as of right and without interruption for 20 years, it is deemed to have been dedicated as a highway in the absence of evidence to the contrary. However, by s31(2) the 20 year period is calculated retrospectively from the date when the right to use the way is questioned. If that right came into question on the date of Ms Barlow’s accident it would be of no assistance since the deemed dedication would be after 16 December 1949.[11]
16. There was no evidence of express dedication by the land owner. Any dedication was to be inferred at common law. The Council submitted that to create a highway a landowner must show an intention to divest himself for all time of the right to exclude members of the public from using the way; there must be no evidence of another reason for the way being used; the burden rests on the person who alleges dedication; and there must be evidence of continuous and unobstructed use over a long period, though not necessarily 20 years. Bean LJ observed that while those propositions were no doubt correct, the requisite intention could be inferred from the fact that the landowner allowed the public to use the path every day for many, if not as long as 20, years without restriction and without putting up notices saying that there was no right of way.
    
    
17. The evidence established that, ever since the paths had been laid out about 80 years before Mrs Barlow’s accident, the public had been allowed to walk on the paths without restriction or interruption of any kind. That was ample evidence to support the implication of presumption of dedication at common law. There was no evidence of any alternative explanation.
    
    
18. When the presumption arises, it is retrospective. Bean LJ cited Sir Montague Smith in Turner v Walsh[12]:
    
    “The proper way of regarding these cases is to look at the whole of the evidence together, to see whether there has been such a continuous and connected user as is sufficient to raise the presumption of dedication; and the presumption, if it can be made, then is of a complete dedication, coeval with the early user.”
    
    
19. Turner was a decision of the Privy Council but the italicised passage was accepted by Counsel for Wigan MBC to be a correct statement of English law. Bean LJ went on to hold that the effect is that the act of dedication is deemed to have occurred at the beginning of the period of continuous user, not at the end of it. So far as Ms Barlow’s case was concerned it meant that the path was deemed to have been dedicated since the early to mid 1930s, well before the commencement of the 1949 Act. It was therefore deemed to have been “repairable by the inhabitants at large” until 16 December 1949 and thereafter until 1 January 1960 (the commencement dates of the 1949 NPACA and 1959 HA) and “maintainable at public expense” since that time – s36(1) HA1980.
    
    
20. In those circumstances Mrs Barlow’s cause of action under s41 HA 1980 was established. The Council’s appeal was dismissed. Quantum remains for assessment in due course.

Observations

• When pursuing such a case the historical perspective is important. Clearly considerable time and effort was expended by Ms Barlow’s legal team on researching the history of the Park.
  
  
• It would have been interesting to see how this Court of Appeal would have dealt with the issue of occupiers’ liability. That will have to wait for another day. Certainly, tree roots are a well-known cause of damage to paths and their maintenance should not be overlooked.
  
  
• A number of claims might emerge from this decision. However, it must be remembered that establishing that a defect is dangerous is not always easy; nor is showing that a maintenance regime is inadequate or has not been followed.
  
  
• In the future, should occupiers’ liability become significant in a claim such as this, it may not be difficult for defendants to successfully argue that some sort of reactive system of maintenance is sufficient.

[1] [2020] EWCA Civ 696. Judgment handed down on 1.6.20

[2] Wigan’s predecessors

[3] The commencement dates of the National Parks and Access to the Countryside Act 1949 and the Highways Act 1959

[4] McGeown v Northern Ireland Housing Executive [1995] 1 AC 233

[5] Gautret v Egerton (1867) LR 2 CP 371

[6] Gulliksen v Pembrokeshire CC [2003] QB 123

[7] See also other examples given by Singh LJ at paragraph 70 of the Judgment

[8] There were some Law Commission recommendations adopted but they are not relevant to Ms Barlow’s claim

[9] Not applicable in Ms Barlow's claim

[10] Date when the NPACA came into force

[11] See previous footnote

[12] (1881) 6 HL 636

Timothy Newman View Profile