Case No: B3/2001/2864
Neutral Citation Number: [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

Thursday 11 July, 2002
Before:

THE LORD CHIEF JUSTICE OF ENGLAND & WALES

LORD JUSTICE WALLER

and 

LORD JUSTICE SEDLEY

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Between:

	GULLIKSEN	Appellant	
	
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PEMBROKESHIRE COUNTY COUNCIL	
Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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Bryan Thomas (instructed by Messrs Lowless & Lowless) for the Appellant
Mark Spackman (instructed by Messrs Douglas Joues Mercer) for the Respondent

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Sedley: 

The issue
1.	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

2.	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.

3.	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.

4.	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.
 
5.	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. 

6.	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

7.	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 which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions.”
It is relevant to what follows to note that the reference in s.36(2)(b) in its present form to Part II of the Housing Act 1985 was originally a reference to Part V of the Housing Act 1957.

8.	Judge Hickinbottom held that the path was not only, as the county council accepted, dedicated as a public right of way but that it was in law a highway in the simple sense given by Lord Diplock in Suffolk CC v Mason [1979] AC 705, 710: “At common law a highway is a way over which all members of the public have the right to pass and repass without hindrance”. This finding has not been contested on appeal and is one to which the judge was entitled to come in the absence of any evidence to indicate that it was not continuously so from the opening of the estate. I do not accept Mr Spackman’s submission that the path will have been for the use only of council tenants. Albeit it was not a through-way, its natural purpose was to enable any members of the public who wished to do so to go to and from the houses contiguous to it. The court is accordingly entitled to approach the case without reliance on s.31, on the footing that the path had been a highway by dedication since it was opened.

The judgments below

9.	Judge Hickinbottom rejected the common law negligence claim, and with it the claim in nuisance, because so far as the defendant council was concerned the damage was the result of its failure to maintain the surface of the path, not of damage done to it by the council: see Gautret v Egerton (1867) LR 2 CP 371; McGeown v NI Housing Exec [1994] 3 All ER 53. This finding was not challenged by cross-appeal when the local authority appealed.

10.	The circuit judge, however, found for Mr Gulliksen under s.41 on each of two alternative statutory grounds. One was that because the county council was legally a single entity, the case fell within the literal wording of s. 36(2)(a): in other words, where the claimant had fallen was a highway which had been constructed by the predecessor in law of Pembrokeshire County Council, and the latter at the date of the accident was the local highway authority. The other ground was that if (contrary to his judgment) Pembrokeshire County Council as highway authority was in law a different entity from Pembrokeshire County Council as housing authority, then as highway authority it had assumed liability under s.38(1) by agreeing to undertake maintenance of the path with itself as housing authority, in which capacity it was liable by reason of tenure to maintain it. Since the defendant council felt able to advance no defence under s.58 of reasonable care, the judge gave judgment for the claimant.

11.	On appeal, Neuberger J was asked by the local authority to admit fresh evidence. He declined to let it in, although before so deciding he quoted enough of it for it to be apparent that much of it was simply recounting the recent history of local govt in relation to the Mount Estate, most of it a matter of law. On the same material as was before Judge Hickinbottom he concluded that both ways of putting the claim in breach of statutory duty failed, so that the claim fell to be dismissed. He allowed the appeal.

12.	Ordinarily it would be essential to set out how each judge below had put his conclusions on the construction of the Highways Act 1980. But for reasons I now turn to, it will not be helpful to do so here. I record simply that Neuberger J expressed his reluctance to come to the conclusion to which he felt himself driven; a reluctance which I share for reasons I now turn to.

The Highways Acts

13.	The purpose of the Highways Act 1980 is a simple and intelligible one which long antedates the measure itself and was for centuries a concern of the common law: to make it possible, by the exercise of reasonable care by those responsible, for the public to use the country’s highways in safety. The introductory note to Part IV of the Highways Act 1980 in the Encyclopaedia of Highway Law and Practice sets the scene:
“2-072	At common law, unless responsibility for the maintenance of a particular highway had attached to an individual or body by reason of tenure, enclosure or prescription, the highway was assumed to be maintainable by the inhabitants at large: R. v. Shoreditch (Inhabitants) (1639) Mar. N.R. 26; Anon 3 Salk; Austin’s Case (1672) 1 Vent. 189; R. v. Leake (Inhabitants) (1833) 5 B. & Ad. 469. If that duty was not properly performed, the inhabitants at large could be indicated for an offence against the ordinary criminal law at quarter sessions. Section 23 of the Highway Act 1835 modified the position, but not the general principle, by providing that “new” highways coming into being after 1835 were to be repairable by the inhabitants at large only if they were expressly adopted by the highway authority, by the formal procedures set out in that Act.
…
The Highways Act 1959 clarified matters. It stepped outside its consolidating functions and made fundamental changes in the law with respect to highway maintenance. In the first place the Act of 1959 abolished the duty formerly imposed on the inhabitants at large of any area. It then defines with some precision which highways shall be “highways maintainable at the public expense” and imposed on the highway authority an express duty to maintain any such highways. These provisions are now contained in sections 36(2) and 41(1) of the 1980 Act. The former procedure of an indictment preferred before quarter sessions in respect of neglect to maintain a highway was abolished by the 1959 Act, and proceedings in the Crown Court and magistrates’ court were substituted.”

14.	The technical question canvassed below, as Mr Spackman neatly put it on the council’s behalf, was whether s.36(2)(a) should be read as referring to “a highway constructed as such by a highway authority acting as such …”.  But to begin the argument at s.36(2) is to miss the essential relationship, to which counsel’s attention was drawn in this court, between it and s.36(1). The section opens Part IV of the Act, “Maintenance of highways”. Within it, the first group of provisions, of which s. 32 is the governing one, is cross-headed “Highways maintainable at public expense”. Section 32(1) begins by sweeping into this major category all highways which up to that point were already maintainable at public expense under the predecessor statute, the Highways Act 1959.  Subsection (2) is an explicitly residual set of categories, for it excludes highways which fall within subsection (1). The first inquiry, then, must be whether the path in question was a highway maintainable at public expense under the Highways Act 1959.

15.	Section 38 of the Highways Act 1959 provided:
“(1)	After the commencement of this Act no duty with respect to the maintenance of highways shall lie on the inhabitants at large of any area.
(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 the provisions of this section and of subsection (6) of section two hundred and six of this Act, and to any order of a magistrates’ court made under section fifty of this Act, the following highways maintainable at public expense, that is to say:-
(a)	 a highway which immediately before the	 commencement of this Act was maintainable by the inhabitants at large of any area or maintainable by a highway authority;
(b)	a highway constructed by a highway authority after the commencement of this Act, otherwise than on behalf of some other person not being a highway authority;
(c)	a highway constructed by the council of a borough or urban district within their own area under Part V of the Housing Act, 1957, and a highway constructed by a local authority outside their own area under the said Part V, being, in the latter case, a highway the liability to maintain which is, by virtue of the said Part V, vested in the council of the county, borough or district in which the highway is situated;”

The Housing Acts

16.	It is not necessary to delve deeply into Part V of the Housing Act 1957. Since no local authority can provide housing except under statutory authority, one can take it, in the absence of contrary evidence, that it was under the powers contained in that Part (in particular s.92) that the defendant’s predecessor authority built the Mount Estate, and that the paths were laid out and surfaced under the power contained in s. 107: “A local authority may lay out and construct public streets or roads and open spaces on land acquired or appropriated by them for the purposes of this Part of this Act…”. 

Conclusion

17.	If so, and given the inference which, like Judge Hickinbottom, I would draw that the paths were dedicated from the start as highways in the common law sense described in paragraph 8 above, it appears that by the date when s.36(1) of the Highways Act 1980 came into force the path we are concerned with was already a highway maintainable at public expense by virtue of s.38(2)(c ) of the Highways Act 1959. Once this point is reached, and in the absence of a s.58 defence, the claimant is entitled to succeed. Section 36(2), on which the argument below turned, is by definition excluded from consideration.

Remarks

18.	I would nevertheless venture the following observations on the provisions which were canvassed in the courts below. By s.2(1) and (3) of the Local Government Act 1972 a county council, like every other local authority, is a single body corporate. A local authority may well have to take care from time to time (for example when considering whether to grant itself planning permission) to keep its various capacities distinct, but it is one body in law. Agreements between its departments may be necessary for budgetary purposes, but they are not contracts because a legal person cannot contract with itself. For this reason I would not in any event have found it easy to adopt the view of Neuberger J that s.36(2)(a) contemplated a highway authority acting as such.

19.	While we did not find it necessary to hear out the alternative argument on s.38(1) of the 1980 Act, it is worth recording that the nowadays puzzling phrase “by reason of tenure, enclosure or prescription”  harks back to the vocabulary of an earlier age. Liability by reason of tenure to repair a highway “is generally established by proving that for a number of years the persons charged and their predecessors, or their tenants, have repaired the road in question, this evidence being sufficient to justify the assumption that the usage is immemorial” (21 Halsbury Laws of England (4th ed), §196; see ibid. §200 for liability by reason of enclosure, and §195 for liability by reason of prescription). So it is possible that, had the argument under s.36 failed because the county council was for these purposes two separate entities, s.38 might have come to the claimant’s aid. But for the reasons I have given there is now no need to explore this route.

Disposal

20.	I would allow this appeal and direct the entry of judgment for the claimant in the agreed amount of £3000 inclusive of interest. I would restore Judge Hickinbottom’s order that the defendant pay the claimant’s costs of the trial in the inclusive sum of £5,060. I would set aside Neuberger J’s formal order that the claimant pay the defendant’s costs of the claim in the sum of £6000 but assessing the claimant’s liability at nil. As arranged with counsel at the conclusion of argument, both sides are to be at liberty within 14 days of the handing down of this court’s judgments to make submissions in writing as to the proper order for costs before this court and before Neuberger J. I would accordingly reserve any decision on these costs.

Lord Justice Waller:
21.	I agree.
The Lord Chief Justice of England & Wales:
22.	I also agree.
Order: Appeal allowed.
(Order does not form part of the approved judgment)