Claimant wins appeal over status of path on which she was injured

A council was liable for an injury caused by a poorly maintained path regardless of whether it was originally intended to be ‘a highway’, a High Court judge has ruled.

In Barlow v Wigan Council [2019] EWHC 1546 (QB) Deborah Barlow, the claimant, appealed a decision by HHJ Platts that a public path in Abram Park was not a highway maintainable at public expense within the meaning of s.36 (2) (a) of the Highways Act 1980.

She had tripped on an exposed tree root on the path but HHJ Platts found she had no cause of action against Wigan and her claim for damages failed, and Wigan Council did not owe her a duty to maintain it pursuant to s.41 of the Act.

Mr Justice Waksman noted it was common ground that the path was in a dangerous or defective condition.

The park had been developed by the former Abram Urban District Council, a predecessor authority to Wigan, in the early 1930s and the path had been made to provide access to amenities.

Judge Platts had held that while the path was ‘a highway’ it was not one maintainable at public expense because it had not been constructed by a highway authority but simply by Abram UDC in its capacity as a local authority.

Although Wigan denied it at the trial before HHJ Platts, it subsequently accepted that Abram was itself a highway authority for the purposes of the relevant legislation namely the Act and its predecessor, the Highways Act 1959.

Allowing the appeal, Mr Justice Waksman said there was "no reason in statutory language, principle or case law, why the path here cannot fall under s. 36 (2) (a) because it only became a highway after long usage and was not constructed as such at the outset".

Mr Justice Waksman also said he remained 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.

“For all of those reasons I reject the council's argument based on the capacity in which Abram was acting at the time.

“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.”

Mr Justice Waksman also rejected an argument made by the council in its cross-appeal that s. 36 (2) (a) could only operate prospectively in the sense that it could only apply to highways constructed after the Act came into force.

Mark Smulian