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Gulliksen v Pembrokeshire County Council

16 July 2002
The issues

Public footpaths – highway – tripping.

The facts

The Claimant was using a footpath through a Council Estate. He tripped on the edge of a manhole cover. The Judge at first instance dismissed the claim on the ground that although the path was a highway, the hazard was caused by non-feasance rather than mis-feasance and therefore the Local Authority’s land owner was not liable. However, the Council was liable as Highway Authority and in breach of its positive duty under Section 41 of the Highways Act 1980. The Defendant went to the High Court Judge, who allowed the Appeal on the grounds that the path was not a highway maintainable at public expense. The Claimant appealed to the Court of Appeal.

The decision

1. Section 32(I) of the 1980 Highways Act referred to “highways maintainable at public expense” which included all highways that were already maintainable under the Highways Act 1959.

2. Section 38 also included highways constructed by any Council under Part 5 of the Housing Act 1957.

3. The Court would assume that the paths in the Council Estate had been built under that provision since no authority could provide housing except under statutory authority.

The path therefore was a highway maintainable at public expense and given the failure of a Section 58 Defence, the Claimant would succeed.

Appeal allowed.

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