Gulliksen v Pembrokeshire County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Waller,The Lord Chief Justice of England & Wales |
| Judgment Date | 11 July 2002 |
| Neutral Citation | [2002] EWCA Civ 968 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2001/2864 |
| Date | 11 July 2002 |
[2002] EWCA Civ 968
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD Cardiff District Registry
Mr Justice Neuburger
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Lord Chief Justice of England & Wales
Lord Justice Waller and
Lord Justice Sedley
Case No: B3/2001/2864
Bryan Thomas (instructed by Messrs Lowless & Lowless) for the Appellant
Mark Spackman (instructed by Messrs Douglas Joues Mercer) for the Respondent
The issue
This is a second appeal. It comes before the court by permission of Hale LJ because of its general importance and notwithstanding the relatively small amount at stake. The particular question it raises is whether the path on a council estate on which the claimant tripped and fell is a highway maintainable at public expense. For reasons which will become apparent, the answer may have significant implications for local authorities throughout England and Wales.
The history
On 5 May 1999 Mr Gulliksen was walking with a friend along a footpath on the Mount Estate, Milford Haven, when through no fault of his own he caught his foot on a lip about of an inch and a half on the edge of a manhole caused by the indentation of one side of its rectangular cover. He fell, injuring his left elbow. The damages were agreed at £3000 by the county council, whom he sued.
His Honour Judge Hickinbottom, who tried the case on the fast track at Haverfordwest County Court, in a reserved judgment (to the quality of which I would like to pay tribute) given on 29 Sept 2001, rejected the claimant's case in negligence on the ground that, although the path was a highway, the hazard was the result of non-feasance rather than misfeasance, so that the local authority as landowner was not liable at common law. He concluded, however, for reasons to which I will come, that by virtue of the Highways Act 1980 the defendant county council as highway authority was liable to the claimant for the breach of its positive obligation to maintain the path in good condition.
On an appeal brought with the circuit judge's permission Neuberger J, sitting as a judge of the Queen's Bench Division in Cardiff, allowed the county council's appeal, holding that the path was not in law a highway maintainable at public expense. It seemed in consequence that we were required to choose between two very cogently reasoned judgments; but for reasons to which I now turn, the case before both judges was argued and decided on a false basis of law.
The estate was built in the early 1970s. It was accepted by the council that the path, which ran from a ring-path to a group of houses on the estate, was to be regarded by virtue of s.31 of the Highways Act 1980 as having been dedicated by long and uninterrupted user as a public right of way.
By May 1999 Pembrokeshire county council was both the housing authority (and in that capacity the owner of the estate) and the highway authority for the area. In both capacities it had inherited all its predecessor authorities' legal liabilities. There was an agreement or arrangement within the council that the highways department would maintain the roads and paths for which the housing department was responsible, and that the housing department would pay them to do so. The paths on the estate were inspected annually by a highway inspector in the council's transport and technical services department. This path had last been inspected before the claimant's accident in July 1998. The defective manhole cover and frame had been repaired before the next inspection in July 1999.
The law
The material provisions of the Highways Act 1980 are these:
"31 Dedication of way as highway presumed after public use for 20 years
(1) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.
36 Highways maintainable at public expense
(1) All such highways as immediately before the commencement of this Act were highways maintainable at public expense for the purposes of the Highways Act 1959 continue to be so maintainable (subject to this section and to any order of a magistrates' court under section 47 below) for the purposes of the Act.
(2) Without prejudice to any other enactment (whether contained in this Act or not) whereby a highway may become for the purposes of this Act a highway maintainable at the public expense, and subject to this section and section 232(7) below, and to any order of a magistrates' court under section 47 below, the following highways (not falling within subsection (1) above) shall for the purposes of this Act be highways maintainable at public expense:—
(a) a highway constructed by a highway authority, otherwise than on behalf of some other person who is not a highway authority;
(b) a highway constructed by a council within their own area under [Part II of the Housing Act 1985], …
38 Power of highway authorities to adopt by agreement
(1) Subject to subsection 2 below, where any person is liable under a special enactment or by reason of tenure, enclosure or prescription to maintain a highway, the Minister, in the case of a trunk road, or a local highway authority, in any other case, may agree with that person to undertake the maintenance of that highway; and where an agreement is made under this subsection the highway to which the agreement relates shall, on such date as may be specified in the agreement, become for the purposes of this Act a highway maintainable at the public expense and the liability of that person to maintain the highway shall be extinguished.
41 Duty to maintain highways maintainable at public expense
(1) The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, subject to subsections (2) and (4) below, to maintain the highway.
58 Special defence in action against a highway authority for damages for non-repair of highway
(1) In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority has taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.
(2) For the purposes of a defence under subsection (1) above, the court shall in particular have regard to the following matters:—
(a) the character of the highway, and the traffic which was reasonably to be expected to use it;
(b) the standard of maintenance appropriate for a highway of that character and used by such traffic;
(c) the state of repair in which a reasonable person would have expected to find the highway;
(d) whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;
(e) where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed;
but for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to...
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