Barlow v Wigan: Whose path is it anyway?

In this personal injury claim the Court of Appeal dismissed Wigan Metropolitan Borough Council’s appeal against a judgment in favour of the Claimant, who suffered an injury after tripping on a footpath. 

The Court of Appeal concluded that the path which the Claimant (B) was walking on was maintainable at the public expense for the purposes of s41 Highways Act 1980, despite the fact that the path had not been expressly constructed as a highway.  As it was common ground that the path was dangerous, and this had caused B’s injury, B’s claim succeeded.

The Details

B tripped on a tree root on a path in Abram Park in Wigan in 2014.  The parties agreed that B was owed no common law duty of care in respect of the condition of the path, but the claim was presented under s41.

Liability was denied by the Council on the basis that, among other arguments, the path was not a highway maintainable at the public expense.

The paths in the park were laid out in the 1930’s by the Council’s predecessor, Abram UDC. The Court accepted the Council’s argument that when Abram UDC laid out the path it was exercising functions which had been conferred on it as an urban district council, and was not acting in its capacity as highway authority.

Despite this finding, however, and although the path was never adopted, the Court agreed with B that the path was in fact already maintainable at the public expense at the time of the incident.   

There was no record of any express dedication at the time of construction of the path to confirm that it was intended for use as a highway. Instead, B’s argument involved tracing back through a number of previous legislative provisions.  Importantly, s38(2)(a) Highways Act 1959 confirmed that when that Act came into force, all paths which were, at that point, maintained by the “inhabitants at large” (in other words the local Parish Council) would then be deemed to be maintainable at the public expense.

Therefore if B could establish that, as of 1959, the path was being maintained by the “inhabitants at large”, the path would have been maintainable at the public expense when the 1980 Act came into force, allowing her to rely on s41 of the 1980 Act.

However determining the status of the path as of 1959 involved delving even further back in time, and assessing the impact of even older legislation, namely s47 and 49 of the National Parks and Access to the Countryside Act 1949. These provisions provided that any “public path” in existence when the 1949 Act came into force would become maintainable by the inhabitants at large at that point. 

So, to be able to follow this chain of legislation through to the 1980 Act, B had to show that the path in question was a “public path” (a highway) when the 1949 Act came into force.

On the facts, the Court of Appeal ruled that the path had the status of a highway under common law, applying the (fairly historic) case of Dawes v Hawkins (1860). This was because the landowner had permanently deprived itself of the right to exclude members of the public from the path, and there was evidence of continuous and unobstructed user over a long period.

Crucially, this meant that the path was deemed to have had the status of a highway ever since it was created.  The path was therefore a “public path” prior to 1949, which meant that B could trace the chain of statutory provisions all the way through to the 1980 Act, and rely on s41.

Comment

Whilst this case was rather fact-specific, it does mean that footpaths constructed and used as public rights of way prior to 1949 are likely to be maintainable at the public expense. This is important for highway authorities to bear in mind when looking at obligations to maintain these footpaths, especially those which are not adopted and whose history is unclear.