Gulliksen v Pembrokeshire County Council

A highway may already be maintainable at public expense under the transitional provisions of the Highways Act 1980, by reference to its status under the Highways Act 1959. Section 36(2) is residual and does not apply where the highway falls within section 36(1). A highway constructed by a local authority under housing legislation may qualify under section 38(2)(c) of the 1959 Act. Once that status exists, the highway authority is subject to the statutory duty to maintain under section 41, subject to the statutory defences. A local authority is one corporate legal person. Arrangements between its departments do not create contracts with itself.

The claimant was injured when he tripped on a defective manhole cover on a footpath forming part of a council estate. The damages were agreed at £3,000. The county court treated the path as a highway, rejected common-law negligence and nuisance claims based on non-feasance, but found statutory liability under section 41 of the Highways Act 1980.

Neuberger J allowed the council’s appeal, holding that the path was not a highway maintainable at public expense. The claimant brought a second appeal. The central issue was whether the path, constructed as part of a council estate in the early 1970s, had acquired that status under the highways legislation.

1. Appeal allowed. Sedley LJ delivered the leading judgment, with Waller LJ and the Lord Chief Justice agreeing. The path was a highway in the ordinary common-law sense. It was open to members of the public generally, not merely council tenants. The court applied the definition stated in Suffolk CC v Mason [1979] AC 705. The court was entitled to treat the path as dedicated from the opening of the estate and therefore did not need to rely on the statutory presumption in section 31 of the Highways Act 1980.
2. The structure of Part IV of the Highways Act 1980 was decisive. Section 36(1) continued the status of highways which were already maintainable at public expense under the predecessor legislation. Section 36(2) was a residual provision and expressly excluded highways falling within section 36(1). The first question was therefore whether the path had been maintainable at public expense under the Highways Act 1959.
3. It was reasonable to infer that the predecessor local authority had constructed the estate and its paths under Part V of the Housing Act 1957, including sections 92 and 107. Under section 38(2)(c) of the 1959 Act, a highway constructed by a council under those housing powers was maintainable at public expense. That status continued under section 36(1) of the 1980 Act.
4. The council was accordingly subject to the duty in section 41 of the 1980 Act. Since it advanced no defence under section 58, the claimant was entitled to judgment. The unchallenged rejection of the common-law claims under Gautret v Egerton (1867) LR 2 CP 371 and McGeown v NI Housing Exec [1994] 3 All ER 53 did not prevent recovery under the statutory duty.
5. In obiter observations, the court stated that a local authority is a single body corporate under section 2(1) and (3) of the Local Government Act 1972. Internal departmental arrangements are not contracts between separate legal persons. The court also noted, without deciding, that section 38(1) of the 1980 Act might have assisted if the council’s housing and highway capacities had been legally separate.
6. Judgment was entered for the claimant for £3,000 inclusive of interest. The county court costs order was restored, the order requiring the claimant to pay £6,000 was set aside, and costs in the Court of Appeal and before Neuberger J were reserved for written submissions.

1. Court of Appeal (Civil Division): Allowed the second appeal and entered judgment for the claimant.
2. Queen’s Bench Division: Neuberger J allowed the council’s appeal and held that the path was not a highway maintainable at public expense.
3. County Court: Found the path to be a highway, rejected the common-law claims, but found the council liable under section 41 of the Highways Act 1980.