Langhorne v London Borough of Merton and Williams [18.02.16]

Highway authority represented by Kennedys held not liable for injury suffered on forecourt; no evidence that the forecourt was maintainable at public expense.

Facts 

On 27 January 2011, Mr Langhorne allegedly fell and suffered an injury to his left ankle whilst walking across the forecourt of 147 Cannon Hill Lane in Merton. He alleged that his fall was as a result of stepping into a hole in the surface of the forecourt. Mr Langhorne brought a claim against the London Borough of Merton (First Defendant) and the freehold owner of 147 Cannon Hill Lane, Mr Williams (Second Defendant). 

The Second Defendant argued that the forecourt at 147 Cannon Hill Lane had been dedicated as a highway under s.31 Highways Act 1980 and, as such, he could not be found liable for Mr Langhorne’s injuries. 

We argued that even if the forecourt was a highway, which was contested, it was in any event not maintainable at public expense, which would relieve the First Defendant of any duty to compensate Mr Langhorne. 

Background law

  • Historically, highways were considered maintainable by the ‘inhabitants at large in the parish’ unless that responsibility had been attached to an individual or company.
  • When s.23 Highways Act 1835 came into force, that responsibility continued for highways that were in existence. However, any new highways brought into existence after 1835 were no longer considered to be maintainable at public expense unless the statutory adoption procedures were followed.
  • Whilst this provision did not initially cover footpaths, s.49 National Parks and Access to Countryside Act 1949 extended s.23 to include most footpaths.
  • We submitted that, as the statutory adoption procedure had not been followed, the forecourt could only be deemed to be maintainable at public expense if it had been continually used for 20 years prior to s.49 coming into force.

Decision 

His Honour Judge Wulwik agreed with our analysis of the law. Due to the lack of evidence proving that a highway maintainable at public expense had come into existence prior to 1949, the First Defendant could not be found liable for Mr Langhorne’s injuries even if the forecourt was found to be a highway. 

In any event, HHJ Wulwik ruled that the forecourt was not a highway. On this basis the Second Defendant could be liable for Mr Langhorne’s injuries. 

The claim against the Second Defendant is continuing. 

Implications 

Highway authorities will welcome this judgment, which shows that it is possible to successfully rely on s.49 when a claim is being made for injuries suffered on a highway dedicated under s31. 

In the majority of cases, evidence proving that a highway maintainable at public expense had come into force before 1949 will be sparse. Witnesses attesting to continued use over the 20 years prior to this date will be few and far between and there will eventually come a date in the near future when finding witnesses will be impossible. It is likely that documentary evidence will also be difficult to locate given the passage of time.