On 21 September 2014, Deborah Barlow tripped and fell over an exposed tree root on a path (the ‘Path’) in Abram Park in Wigan and brought a personal injury claim against Wigan Metropolitan Borough Council (the ‘Council’)
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On 21 September 2014, Deborah Barlow tripped and fell over an exposed tree root on a path (the ‘Path’) in Abram Park in Wigan and brought a personal injury claim against Wigan Metropolitan Borough Council (the ‘Council’).
The claim was dismissed at first instance, but at the first Appeal before Waksam J, the claimant succeeded which led to the Council’s Appeal. Following a judgment handed down on 1 June 2020, the Court of Appeal has again found for the claimant albeit for different reasons than those given by the court below.
The decision for the Court of Appeal - was the Path a highway or highway maintainable at public expense?
If the Path was highway maintainable at public expense, the defect was a dangerous defect, the Council was in breach of its statutory duty under Section 41 of the 1980 Act and in the absence of a Section 58 Defence, the Claimant would win.
Conversely, if the Path was a highway and not highway maintainable at public expense, then the Council relied upon binding House of Lords authority in McGeown v Northern Ireland Housing Executive  1 AC 233 which gave it a complete Defence to the claim.
To those unfamiliar with McGeown, this decision makes it clear that:
Bean LJ gave the leading judgment in Barlow v Wigan MBC. His obiter comments criticise the decision in McGeown. At paragraph 9 of his judgment, Bean LJ states that:
“the proposition that a Local Authority can owe a greater duty to park users walking on the grass than to park users walking on a path is to my mind absurd”.
His comments suggest that the rule in McGeown ought to be limited only to persons coming onto land for the sole reason that a public right of way exists upon the land. Bean LJ’s interpretation of McGeown has not become new law. However, his comments may be used by Claimants in the future to try to limit the circumstances in which a McGeown Defence may operate. For example:
The decision in Barlow v Wigan MBC has not changed the rule in McGeown. However, when McGeown is applied in future cases, Bean LJ’s obiter comments will likely be used to try to weaken a McGeown Defence deployed by Highway Authorities. We will simply have to wait and see how much force Bean LJ’s comments may have and the extent to which (and perhaps more importantly how far through the Courts) parties are prepared to argue the point.
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