The Root of the Problem – The Court clarifies the duty to maintain paths and roads

A recent case in June 2019 involving Wigan Council and a tree root has clarified the meaning of a “highway maintained at the public expense” and potentially exposed local authorities to more injury claims.

The key legislation in this case is the Highways Act 1980 (“the Act”).  Within the Act, s.36 provides that a path can be a highway maintainable at the public expense if certain conditions are met. Local Authorities have a duty to maintain such highways. If they fail in that duty, s41 of the Act provides that they will be vulnerable to compensation claims if the public are injured tripping or slipping on that highway. This case summarised the law and tested the boundaries of applicability of the Act.

Mrs Barlow tripped on a tree root protruding from a path while enjoying the amenities of her local park. The path had been created decades earlier and long before the Council took over ownership of the park.

Over the years the use of the path meant that in law the path was a ”highway” over which the public had a right to walk.

Mrs Barlow brought a claim against Wigan Council for compensation for injury. She relied on the argument that the path was a highway maintainable at the public expense within the meaning of s36 (2) (a) of the Act.  The claim was dismissed at trial as the judge found the path did not fit the definition required under the Act.

Mrs Barlow appealed.

The appeal Judge found that even though the path was created before the Act, the council were responsible for maintenance of the path. There was no reason in statutory language, principle or case-law, why the path did not fit the definition. It did not matter that the path was not originally constructed as a highway at the outset. What was important was that it was constructed by a high authority and that over the years it had become a highway over long usage.

Flora Wood partner at Ashfords comments:

“This case does not really tell us anything new but it does remind highway authorities that they probably have pathways and roads in their patch that were built many years ago and which are therefore not on their radar as highways which may fall under the definition of the Act.”

Local Authorities would do well to read the case of Barlow v Wigan Council [2019] EWHC 1546 (QB).

They should then carry out a review of their roads and pathways to ensure that there is a robust system of maintenance and inspection for any highways which may fall within the s.36 definition of the Act. Failure to do so may prevent them from raising a statutory defence to these types of injury claims.

For more information on this article please contact Flora Wood.

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