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 of way. The plaintiff was walking on one of the paths when she tripped in a hole in it and broke her leg. The hole was a danger to persons using the path and resulted from a failure to keep the path in good repair.
Held: A landowner was not liable to the public using a right of way for negligent non-feasance. No positive duty of care exists toward users of public right of way over private land.
The person using the public right of way did so by right and could not be said to be an invitee of the landowners.
Although the plaintiff would have been a licensee of the housing authority in respect of the path on which she had fallen, before it had become a public right of way, that license had merged in the right of way subsequently established; and accordingly it made no difference that the path had formed part of a means of access for the plaintiff to and from the house of which her husband was tenant
Lord Keith of Kinkel referred to a number of authorities before saying: ‘the rule in Gautret v Egerton is deeply entrenched in the law. Further, the rule is in my opinion undoubtedly a sound and reasonable one. Rights of way pass over many different types of terrain and it would place an impossible burden upon landowners if they not only had to submit to the passage over them of anyone who might choose to exercise the right, but also were under a duty to maintain them in a safe condition. Persons using rights of way do so not with the permission of the owner of the solum but in the exercise of a right. There is no room for the view that such persons might have been licensees or invitees of the land owner under the old law or that they are his visitors under the English and Northern Irish Acts of 1957.’
Lord Keith added: ‘If the pathway on which the Plaintiff fell in the present case had not become subject to a public right of way it seems clear that the Defendants would have owed her a common duty of care under the Act of 1957 and would have been liable accordingly.’
Lord Keith of Kinkel
Gazette 03-Aug-1994, Independent 28-Jun-1994, Times 24-Jun-1994,  3 All ER 53,  3 WLR 187,  1 AC 233
Occupiers’ Liability Act 1957, Occupiers’ Liability Act (Northern Ireland) 1957 2
Cited – Gautret 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.
Cited – 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 . .
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. . .
Cited – Gulliksen v Pembrokeshire County Council QBD 2002
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 . .
Cited – 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 . .
These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.83539