The council had been found responsible by the magistrates for allowing footpaths to be ‘out of repair’. The paths were unusable for various reasons including having a hawthorn hedge growing down the middle, and having barbed wire fencing strung across.
Held: The appeal was allowed in part. A roadway was ‘out of repair’ within the statute only if the road surface itself was in some way disturbed. It was not want of repair merely not to remove something which had fallen across it. A fence which passed across a pathway was not out of repair as such. The hedgerow did affect the surface and those paths were out of repair.
Cairns LJ said: ‘I consider that a highway can only be said to be out of repair if the surface of it is defective or disturbed in some way. Not every defect in the surface would constitute being out of repair – e.g. an icy road would not in my view be out of repair. But if the surface is in a proper condition I do not think it can ever be said that the highway is out of repair . . I cannot imagine anybody describing the presence of such a fence as a want of repair of the path . . The other two paths have a substantial growth of vegetation in them. That vegetation no doubt constitutes an obstruction, but it must also interfere with the surface of the paths. If there had been merely branches and thorns overhanging from the sides of the footpaths I should not consider that they were out of repair, but I understand that a hawthorn hedge in one case and thick undergrowth in the other is actually rooted in the surface of the paths. With some hesitation I am of the opinion that this did cause the paths to be out of repair.’
Cairns, Lawton LJJ And Mackenna J (Dissenting)
[1975] 2 All ER 673, [1975] 1 WLR 901
Highways Act 1959 44(1)(a) 59(4)(b)
England and Wales
Citing:
Cited – Regina v Heath QBD 1865
The highways board had sought and obtained an order against a householder who had built an extension part way over the highway. He had been orderd to pay costs but the taxed costs left a shortfall. The board now sought the difference from the . .
Appeal from – Worcestershire County Council v Newman QBD 1974
A complaint had been made to the magistrates that the authority had failed in its duty to repair pathways. The paths were crossed by fencing, by barbed wire, and vegetation had grown. . .
Limited – Bishop v Consolidated London Properties Ltd 1933
Lord du Parq treated the landlord’s duty of repair as including the removal of blockages from rainwater downpipes: ‘to repair after all merely means to prepare or make fit again to perform its function: it means to put in order.’ . .
Cited – London and North Eastern Railway Company v Berriman HL 1946
Railway workers duties outside scope for damages
A railway worker’s widow sought compensation after her husband was killed by a train.
Held: He had been involved in routine maintenance and oiling at the time of the accident and was not ‘relaying or repairing’ tracks. She was not entitled to . .
Cited by:
Cited – Haydon v Kent County Council CA 1978
Impacted snow and ice had built up on a steep, narrow, made-up footpath from Monday to Thursday during a short wintry spell. The plaintiff slipped and broke her ankle. The highway authority operated a system of priorities. Their resources were fully . .
Cited – Department for Transport, Environment and the Regions v Mott Macdonald Ltd and others CA 27-Jul-2006
Claims arose from accidents caused by standing water on roadway surfaces after drains had not been cleared by the defendants over a long period of time. The Department appealed a decision giving it responsibility under a breach of statutory duty . .
Lists of cited by and citing cases may be incomplete.
Local Government, Land
Updated: 18 December 2021; Ref: scu.237583
