The Court of Appeal has found that a council was liable for an injury suffered by a claimant when she tripped on a tree root on a path constructed in a park by one of its predecessor authorities.
In Barlow v Wigan Metropolitan Borough Council  EWCA Civ 696 Lord Justice Bean set out the background to the claim:
“On 21 September 2014 Deborah Barlow was walking along a path …. in Abram Park, Wigan when she tripped over an exposed tree root and sustained injury to her shoulder and arm. It might be thought that the question of whether she has a valid legal claim against Wigan Metropolitan Borough Council …., the present owners and occupiers of the park, would be a straightforward one.
“Far from it. Although the material facts are scarcely in dispute the case has already resulted in two different decisions by judges in the county court and High Court; 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.”
[For an in-depth analysis of the implications of this case, including for highways authorities, read Gulliksen dead and McGeown fatally wounded? By Matthew White (counsel to Ms Barlow)]
In December 2018 His Honour Judge Platts dismissed Ms Barlow’s claim but gave permission to appeal to the High Court.
On 19 June Mr Justice Waksman allowed her appeal on liability. The council was given permission to appeal to the Court of Appeal.
Judge Platts’ findings that the claimant had suffered injury as a result of tripping over the tree root on the path and that the tree root rendered the path “dangerous and defective”, were no longer in dispute at this stage.
Shortly before the hearing before Waksman J, it was admitted that Abram UDC (Wigan Council’s predecessor) had been the highway authority, though denied it was acting in that capacity when it constructed the paths in the park.
Before the Court of Appeal the claimant sought to uphold the decision in her favour, adding an alternative ground 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).
In the Court of Appeal Lord Justice Bean said that in order to succeed in her contention that Wigan were under a duty to maintain the path Ms Barlow had to prove one of two alternative cases.
The first was that it was a "highway constructed by a highway authority" within the meaning of s 36(2)(a) of the Highways Act 1980. The second was that it was one of those highways which "immediately before the commencement of this Act were highways maintainable at public expense" within the meaning of s 36(1) of the 1980 Act.
On the first issue, Lord Justice Bean found that Ms Barlow could not succeed under s 36(2)(a) of the 1980 Act, because when Abram constructed the path they were not acting in their capacity as the highway authority for the area. “This makes it unnecessary to decide whether intention is a factor under s 36(2)(a), though the issue of intention crops up in a different form under the heading of dedication.”
On the second issue, the Court of Appeal judge said that whether Ms Barlow could succeed under s 36(1) depended on whether the path was, or was deemed to have been, dedicated as a highway before 16 December 1949, the date on which ss 47-49 of the National Parks and Access to the Countryside Act 1949 came into force.
A highway may be created by (a) express dedication by the landowner (of which there was no evidence in the present case); (b) deemed dedication under what is now s 31 of the 1980 Act; or (c) dedication inferred at common law, the judge said.
Lord Justice Bean concluded that Ms Barlow succeeded on the basis of inferred dedication at common law.
“What the evidence does clearly establish is that the park was opened in the early 1930s; the Path and other paths were laid out soon afterwards; and that ever since that time (about 80 years before Ms Barlow's accident) the public have been allowed to walk on the paths without restriction or interruption of any kind even on one day a year,” he said.
“This is in my view ample evidence to support the implication or presumption of dedication at common law. There is no evidence of any alternative explanation.”
Lord Justice Bean said the importance of this was that when the common law presumption arose, it was retrospective, according to the decision of the Judicial Committee of the Privy Council in Turner v Walsh (1881) 6 HL 636.”
In Turner v Walsh Sir Montague Smith had stated:
"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. You refer the whole of the user to a lawful origin rather than to a series of trespasses. It may be that in this case the evidence of user prior to 1861 was alone sufficient to establish the presumption of dedication; but the strength of that presumption is increased by the subsequent user, and would certainly have been much diminished if the user had been discontinued after 1861. In this case their Lordships have no doubt that, the user being continuous, the direction is right, and if the direction is right, it is not contended that the verdict is wrong." [emphasis added by Lord Justice Bean]
The Court of Appeal judge said: “Although this was a decision of the Privy Council, and technically not binding on the English courts, the italicised passage is accepted to be a correct statement of English law, and [counsel for Wigan] did not contend otherwise. The effect is that the act of dedication – one thinks of a hypothetical ribbon-cutting ceremony, or at least the execution of a deed – is deemed to have occurred at the beginning of the period of continuous user, not at the end of it.
“In the present case this means that the Path is deemed to have been dedicated since the early to mid-1930s, well before the commencement of the 1949 Act. It is 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 and 1959 Acts), and "maintainable at public expense" since that time. The Claimant's cause of action for breach of statutory duty under s 41 of the 1980 Act is accordingly established.”
Lord Justice Singh agreed that the appeal should be dismissed on the alternative ground that was advanced by counsel for Ms Barlow in the Respondent's Notice. He also added some words of his own both because the Court of Appeal differed from the reasoning of Waksman J and because, like Bean LJ, he respectfully disagreed with the obiter dicta of Sedley LJ in Gulliksen, at . “Like Bean LJ, I prefer the interpretation of s. 36(2)(a) of the 1980 Act given by Neuberger J in Gulliksen, essentially for the reasons that he gave, although not entirely.”
Lady Justice Macur also agreed. She said: “In summary, although I am persuaded by the Appellant's arguments that the Path was not constructed as a highway by a highway authority and does not thereby establish Ms Barlow's claim by reference to s. 36(2)(a) of the 1980 Act, the undisputed evidence does establish that a thoroughfare had been created before 1949, and continued and unfettered public use thereafter and to date created a common law dedication of the Path which, upon retrospective dating prior to 16 December 1949 in accordance with dicta in Turner v Walsh, means the Path was maintainable by the inhabitants at large, and subsequently at public expense, consequent upon the 1949 and 1959 and 1980 Acts respectively.”