In September 2014 Deborah Barlow was walking in her local park when she tripped over an exposed tree root. As Lord Justice Bean said at the beginning of his judgment: “It might be thought that the question of whether she has a valid legal claim against Wigan MBC…the present occupiers and owners of the park, would be a straightforward one. Far from it.”
Ms Barlow’s claim was brought under section 41 of the Highways Act 1980. No concurrent claim was brought under the Occupiers’ Liability Act 1957 because her legal team accepted the Council’s pre-action contention that the decision in McGeown v Northern Ireland Housing Executive  1 AC 233 precluded such a cause of action. It is of note that Bean LJ disagreed, and his obiter comments upon the true ratio of McGeown (paragraphs 9 to 13 of the judgment) are worth a read.
At first instance it was determined that the path was dangerous and defective by reason of the root, and this finding was not appealed. The issue was whether the Council owed a duty to maintain the path. To bring the claim within s.41 HA 1980 Ms Barlow had to establish that the path was a highway maintainable at the public expense.
The Court of Appeal considered two alternative arguments.
Ms Barlow’s Unsuccessful s.36(2)(a) Argument – When is a Council a Highway Authority?
Firstly, Ms Barlow relied upon s.36(2)(a) HA 1980 which provides that the definition of a “highway maintainable at the public expense” includes: “a highway constructed by a highway authority…”
It was common ground that the land upon which the path was situated had been purchased by the Council’s predecessor in 1920 with the intention of creating a park, and that the Council’s predecessor had built both the park and the paths some time during the 1930s.
The question then was whether the Council’s predecessor had constructed the path in its capacity as a highway authority. The Court of Appeal determined that it had not, drawing support from the decision of Neuberger J. as he then was, in Gulliksen v Pembrokeshire CC  QB 123. Gulliksen concerned a footpath constructed by Pembrokeshire CC, who were both the local housing authority and the highway authority at the time of construction. Neuberger, J., concluded that: “the notion of “a highway constructed by a highway authority” means “a highway constructed as a highway by a highway authority in its capacity as such.” Pembrokeshire CC had built the path in its capacity as local housing authority, and not as the relevant highway authority, and so the claim failed. For the same reason Bean LJ considered that Ms Barlow could not avail herself of s.36(2)(a) because when the Council’s predecessor built the path it had not done so in the capacity of a highway authority.
Ms Barlow’s Successful s.36(1) Argument – Inferred Dedication of Highways
Ms Barlow alternatively relied upon s.36(1) HA 1980 which provides that:
“All such highways as immediately before the commencement of this Act were highways maintainable at the public expense for the purposes of the Highways Act 1959 continue to be so maintainable…for the purposes of this Act.”
Section 38(2)(a) HA 1959 includes within its definition of highways maintainable at the public expense:
“a highway which immediately before the commencement of this Act was maintainable by the inhabitants at large of any area or maintainable by a highway authority”
Therefore, if Ms Barlow could prove that immediately before 1st January 1960 the path upon which she fell had been maintainable by the inhabitants at large, her claim would succeed. This required consideration of earlier legislation still – The National Parks and Access to the Countryside Act 1949 – which provided that if a footpath was expressly dedicated or deemed to have been dedicated as a highway before 16th December 1949 then it was repairable by the inhabitants at large of the local parish.
Therefore the key question was whether the path was dedicated or deemed to have been dedicated as a highway before 1949. At paragraph 56 of his judgment Bean LJ described the three ways in which a highway could be created:
i. express dedication by the landowner;
ii. deemed dedication under s.31 HA 1980;
iii. dedication inferred at common law.
There was no evidence of express dedication. Bean LJ felt it unnecessary to tackle the knotty question of whether s.31 HA 1980 applied, because Ms Barlow succeeded on the basis of inferred dedication. To create a highway a landowner must have the animus dedicandi – i.e. an intention to divest himself for all time of the right to exclude members of the public from using the way in question (Dawes v Hawkins (1860) 141 ER 1139). That intention could be inferred from the fact that a landowner allows the public to use a path every day of the year for several years without restriction and without putting up notices saying there is no right of way. In the instant case the public had been allowed to walk on the paths in the park without interruption or restriction for around 80 years before Ms Barlow tripped and this was “ample evidence to support the implication or presumption of dedication at common law.” Furthermore, the common law presumption was retrospective, so dedication was deemed to have occurred at the beginning of the period of continuous user. Because this was long before 1949, the path was caught by the NPACA 1949 and was accordingly a highway maintainable at the public expense in respect of which the Council owed a duty under s.41 HA 1980.
Few of us are likely to encounter huge numbers of park pathway tripping claims in practice, although it may be that ‘COVID-19 lockdown daily exercise’ injury claims prove to be a growth area in coming months (I’ve suffered a couple of sprains and niggles attempting poorly risk-assessed online work-out videos at home with my kids). Nevertheless, the decision provides helpful clarification upon the meaning of “constructed by a highway authority” (paras 43-48, 69-70) and equally useful guidance about the inferred dedication of highways (paras 58-60, 63-66). The comments of Bean LJ upon the true ratio of McGlone (paras 9-13) are also of interest albeit, as he said, whether his interpretation is correct will have to await a decision in another claim. If nothing else, Barlow is a reminder that even the most straightforward tripping claim can give rise to far from straightforward questions of law.
A full transcript of the judgment can be found here.
Tim Jacques represents and advises both claimants and defendants in a wide spectrum of personal injury cases. He has experience of cases involving total career loss, life-changing injuries and fatal accident claims.