Barlow v Wigan Council:- If a highway authority built a highway, it is highway maintainable at public expense
26th June 2019
In Barlow v Wigan Council  EWHC 1546 (QB) the High Court found that a Highway was maintainable at public expense despite no evidence of intention for it to be a highway when it was constructed. Matthew White of our Personal Injury team represented the successful claimant/ appellant in this case, and provides a full case summary, reassuring local authorities not to panic. Matthew represents a lot of highway authorities, and has received a number of calls/ emails from people concerned that this case will have a big impact on local authorities. Matthew explains what it does and how highway authority defendants can avoid the same problem.
The basic message is that Highways Act 1980 s.36(2)(a) does what it says on the tin: a highway constructed by a highway authority is highway maintainable at public expense (“[email protected]”). The vital questions in any case are (a) was it a highway at the time of the accident?; and (b) was it constructed by a highway authority? It doesn’t matter when it was constructed, or what the highway authority’s intention was when they constructed it. Nor does it matter whether it was constructed by a council exercising a highway (as against any other) function. If it is a highway and if it was constructed by a highway authority, it is [email protected] and a duty us owed under s.41 of the Highways Act 1980. The risk that the case highlights for highway authorities is that there might be highways in their area that were constructed by them or their predecessor highway authorities which they have not realised are highways (and therefore [email protected]).
Download judgment: Barlow v Wigan Council  EWHC 1546 (QB)