The Court of Appeal case of Gulliksen v Pembrokeshire County Council in 2002 clarified the law in relation to when an estate road can be deemed to be highway maintainable at public expense. However it is not always well understood, especially by claimant law firms, and this case is a good example of what evidence is needed to defeat such a claim.
When claims are brought as a result of alleged trips that occur on defects on housing estate roads there can often be a dispute between parties on the status of the road. Claimants and their representatives assume and assert the road is a highway maintainable at public expense and that the defect is a breach of Section 41 of the Highways Act 1980 for failure to maintain the highway, such that liability rests with the highway authority.
That might not be the case and careful examination of how the road came into being is necessary to establish whether the highway authority is responsible for the road.
In one case that we ran successfully to trial for our client, Tameside MBC, the Claimant alleged a breach of Section 41. The Claimant had tripped on a defect on a housing estate road and injured himself.
The road on which the alleged accident was said to have happened had been part of a stock transfer of housing land to a housing association years before and was unadopted. Tameside MBC denied responsibility for the road as it had not been maintained by them except in relation to street lighting. The Claimant tried to allege this was sufficient to prove the Council had maintained the road over a period of time, which the judge dismissed, saying that maintaining street lighting is not an admission of responsibility for the road more generally.
The Court of Appeal decision in Gulliksen v Pembrokeshire County Council in 2002 made clear that estate roads can be deemed to be highway maintainable at public expense, even if they formed part of a stock transfer and remain unadopted. This is if they were built under Part V of the Housing Act 1957 (the Act). The road in Collins v Tameside MBC had been constructed prior to the Act, so it did not assist the Claimant.
The possibility for a defendant to be liable does not end there. If the road could be proved to have been a public right of way that was in existence prior to the Highways Act 1835, it will be deemed to be highway maintainable at public expense. The evidence in Collins v Tameside MBC was that this could not be the case.
There are several other ways that a highway can become maintainable at public expense if the facts so allow, which are beyond the scope of this article. None of them applied here, and so the claim failed.
Lessons to be learnt
It is very important in claims arising from falls on estate roads to properly examine the documents in relation to how the road came into existence.
The successful defence of this claim required detailed investigation into when the road and estate were built, which means looking back into historical records, obtaining records from the Land Registry, and providing statements from people with the confidence and expertise to explain the history of the land to the court.
In this case the key witness, Stuart Grocott, Senior Engineer at Tameside MBC, was described by the judge as “particularly consistent, thorough and knowledgeable”, and his statement was clearly set out to explain the complicated history of the road and estate. This made it relatively easy for the judge, in the end, to accept what was being said on behalf of the Council, and to find in their favour.