Mr Gulliksen was walking on a footpath on a housing estate to the house of a friend. He had an accident at a depressed manhole cover on the footpath over which he tripped. The footpath had been constructed by Pembrokeshire County Council, who were both the local housing authority and the highway authority at the time of the path’s construction and at the time of the accident. The footpath was a highway, because it had become deemed to be dedicated as such by the time of the accident. At the trial in the County Court Judge Hickinbottom accepted the council’s argument that the McGeown decision defeated any claim in negligence, but in what was described on appeal as a ‘clear and careful judgment’ he found for the claimant on the basis that the council had constructed the path; they were the highway authority; and that was sufficient to establish that they owed the claimant the statutory duty under s 41 of the 1980 Act. The county council appealed.
Held: ‘I turn then to the issue of construction relating to section 36(2)(a). In order to be ‘a highway constructed by a highway authority’ does the way have to have been constructed as a highway and/or does it have to have been constructed by the highway authority as such? I have been referred to no helpful authority, and judging by the notes to section 36 of the 1980 Act in Halsbury’s Statutes of England and Wales, 4th ed, vol 20 (1999 reissue) and in the Encyclopaedia of Highway Law and Practice it would appear that there is no helpful authority on the point.
It is said with obvious force by Mr Thomas, on behalf of Mr Gulliksen, that to construe ‘a highway constructed’ as meaning ‘a highway constructed as such’ and/or to construe ‘by a highway authority’ as meaning ‘by a highway authority as such’ involves implying words into a statutory provision which are not there, and that the court is at least as slow to imply words into a statutory provision as it is to imply words into a contractual provision.
That has considerable force on the face of it. However, it seems to me that, as with any words in a statute or in a contract, one has to take the words in their context and by reference not to what each word means, but by reference to what the phrase naturally conveys to the reader. As has been pointed out in many cases, it is sometimes difficult to identify precisely why a word or set of words conveys a particular meaning either in general or in its or their particular context. To my mind, 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’. I suspect that the two aspects are almost always going to lead to the same result. It must be rare that a council or other body which is a highway authority constructs a road which is a highway other than in its capacity as a highway authority. Equally, it must be rare for a council which is a highway authority to construct a highway other than in its capacity as a highway authority. Of course, there will be circumstances, of which this appears to be an example, where a council which is a highway authority will construct a highway other than in its capacity as a highway authority or where a highway authority as such will construct a way which is not a highway.
In my view, the notion of a way constructed by someone which in due course becomes a highway through dedication, for instance under section 31 in the present case, would not be thought of as a highway constructed by a highway authority. As I say, it is idle to pretend that there is not considerable linguistic force in Mr Thomas’s contention that a way which was constructed by someone who was a highway authority at the time, albeit in a different capacity, which has become a highway through dedication, has become, as a matter of language, a highway constructed by a highway authority, but I do not think that that is what the section naturally conveys in its context.
It would be somewhat surprising if the result were otherwise. One can conceive of circumstances, such as the present, where a housing authority constructs a housing estate with private roads and subsequently sells off the estate to the residents or to a third party, and subsequently the residents or the third party allow the public to use the private roads so that they become impliedly dedicated as highways under section 31. To my mind, it would be surprising if, in those circumstances, some 20 years later after selling the estate, the local authority found itself being liable to maintain those roadways at public expense because much earlier it, in its capacity as the housing authority, had constructed the roads as private roadways on the estate. If the words of section 36(2)(a) were clear and conveyed the contrary view to that which I think they convey, then I cannot pretend that this somewhat odd consequence should deter the court from giving the words their natural meaning. However, in my judgment, their natural meaning in their context, at least to me, is as the council in the present case contends.
A little support for the conclusion that the reference to a highway in section 36(2)(a) is to a highway constructed as such seems to me to be found in the provisions of section 24 of the 1980 Act, subsection (2) of which provides: ‘A local highway authority may construct new highways . . ‘ To my mind, in section 24(2) the power given to the local highway authority is not to construct ways which in due course may, for instance by dedication, become highways, but to construct ways which are intended to be highways from their inception. Again, it would be wrong to make too much of that point, but the terminology of section 24(2) in Part III of the 1980 Act is similar to, and therefore of some relevance when considering, section 36(2)(a) in Part IV of the 1980 Act.
Further, it appears to me that if section 36(2)(a) was intended to extend to the council in whatever capacity, it would have referred to ‘a council or other body which is the highway authority’ and not ‘a highway authority’.
26. It seems to me that whether a highway authority means the highway authority as such or the council which happens to be the highway authority must depend on context. For example, if money was left by someone to enable the employees of the highway authority to enjoy a Christmas party, I would have thought that it could not seriously be argued that all employees of the local authority were entitled to attend the Christmas party because the local authority was the highway authority: it would only be those employees in the highways department. Similarly, it is noteworthy that under section 1(1) of the 1980 Act it is the minister which is the highway authority for certain main roads, including trunk roads. Technically, the minister does not exist, he is an emanation of the Crown. Yet it is clear from that very first subsection of the Act, and other provisions of the Act, that the draftsman of the Act identifies for the purposes of the Act the minister as a separate entity. By the same token, it seems to me, that at any rate in section 36(2)(a) the highway authority is being referred to in its capacity as such and not in its capacity as the council or other entity which happens to be the highway authority.
27. Although I can well understand how the judge arrived at a contrary conclusion, and it should be said he did not have the benefit of all the arguments raised before me, I have reached the conclusion that the council’s argument is correct.’
Judges:
Neuberger J
Citations:
[2002] QB 825
Jurisdiction:
England and Wales
Citing:
Cited – McGeown 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 . .
Cited by:
Appeal from – Gulliksen v Pembrokeshire County Council CA 11-Jul-2002
The claimant had tripped on a footpath on a housing estate. There was a depressed manhole cover on the footpath over which he tripped. The footpath had been constructed by Pembrokeshire County Council, who were both the local housing authority and . .
Cited – Barlow 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. . .
Lists of cited by and citing cases may be incomplete.
Land, Personal Injury
Updated: 27 November 2022; Ref: scu.651083
