Barlow v Wigan Council: QBD 19 Jun 2019

Responsibility for personal injury after trip over a tree root on a path in a park owned and maintained by the Council. The Court was now asked whether the public footpath was a highway under the 1980 Act for which the council was responsible for maintenance.
Held: Having found for the Claimant on the intention to dedicate and capacity issues and rejecting the Council’s retrospectivity argument, the Court allowed the appeal and the Claimant succeeded on primary liability under s 36(2)(a) of the 1980 Act.
It unnecessary to decide whether she could succeed under s 36(1). But as to that: ‘. . this argument requires that the Path was not only created but dedicated before 16 December 1949. It might have been, by long usage at common law, but this was not a point considered by the Judge on the evidence before him (because this argument was not then in play) and while it was common ground that as at least 1994, the Path was a highway by reason of s31 of the Act, there was no common ground as to a much earlier date. Accordingly, while the Path might have been dedicated before 16 December 1949, I cannot speculate and that being so, and since the point is academic, it is preferable not to consider it any further.’
Waksman J
[2019] EWHC 1546 (QB), [2020] 1 WLR 29
Bailii
Highways Act 1980 36(2) 41
England and Wales
Citing:
CitedMcGeown v Northern Ireland Housing Executive HL 24-Jun-1994
The plaintiff lived with her husband in a house in a housing estate of which he was a tenant. Part of the land of the estate, in the ownership of the defendant housing authority, was crossed by footpaths, over which the public had acquired the right . .
CitedGautret v Egerton 1867
A man fell to his death when crossing a bridge used with the consent and permission of the defendants by persons proceeding to and coming from the defendants’ docks.
Held: The claim by his widow against the bridge owner was dismissed.
CitedTurner v Walsh PC 1881
(From Supreme Court of New South Wales) The appellant owned land in New South Wales, acquired from the Crown in 1879, over which there was a track. The respondent was sued for trespass when he went upon the track and removed fences running across it . .

Cited by:
Appeal fromBarlow v Wigan Metropolitan Borough Council CA 1-Jun-2020
Presumption of dedication dates back.
The claimant tripped over a tree root raising a path in the park. The court was now asked whether the pathway through a public park, but which was not a public right of way, was maintainable at public expense as a highway governed by the 1980 Act. . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.638770