Oliver May – Case Law Update

Deborah Barlow v Wigan Council [2019] EWHC 1546 (QB)

Significance: (1) The intended use of a highway at the time it is constructed is not relevant to whether it is “a highway maintainable at the public expense” under s. 36(2)(a) of the Highways Act 1980 (“the 1980 Act”). (2) Application of s. 36(2)(a) is not limited to highways constructed after the 1980 Act came into force.

Facts: Mrs Barlow brought a claim after she tripped on an exposed tree root while using a public path in Abram Park in Wigan.

The path had been constructed by Abram Urban District Council, a predecessor local authority to Wigan Council, in the early 1930s. It had been constructed to allow access to local amenities. It was common ground that Wigan Council was the highway authority and that the path had become a highway pursuant to s. 31(1) through over 20 years use.

HHJ Platts found that the path was dangerous and defective, but that it was not maintainable at the public expense as it had not been intended as highway when it was constructed. The claim was dismissed accordingly.

The Claimant appealed the decision. The Defendant cross-appealed that s. 36(2)(a) could not apply to highways constructed before the Act came into force.

Held (appeal): The intended use of a highway at the time of its construction is not a relevant consideration for whether it is maintainable at the public expense. To allow such a line of argument would mean that highway authorities could avoid liability for a newly constructed public way by refusing to dedicate it as a highway until, say, 6 months after construction.

A public path is a highway maintainable at the public expense under s. 36(2)(a) if: (i) the path was constructed; (ii) at the time of the accident it had become a highway; and (iii) it had been constructed by a highway authority.

Held (cross-appeal): The present case is not a proper example of retrospectivity, where an event that has already taken place was lawful at the time but is now considered unlawful. In matters such as this the relevant act/omission is the failure to maintain the highway, not the construction of it. Therefore there would be no liability where there had been a failure to maintain the highway which caused loss at some point subsequent to the commencement of the 1980 Act, but liability would not fail dependent on the date of construction.

Appeal allowed, cross-appeal dismissed.

Motor Insurers Bureau v Michael Lewis [2019] EWCA Civ 909

Significance: The Motor Insurers’ Bureau (MIB) is considered an emanation of the state for the purposes of the Motor Insurance Directive (2009/103), such that it is liable to indemnify claims against uninsured drivers on private land.

Facts: Mr Lewis had been walking on private land when a farmer in his uninsured 4×4 vehicle had collided with him, causing Mr Lewis serious injury. The MIB did not dispute that the farmer was liable for the accident, but denied any contingent liability by arguing that the Uninsured Drivers Agreement 1999 only applied to accidents and injuries caused by or arising out of the use of vehicles on a road or other public place under the Road Traffic Act 1988 s. 145.

The judge at first instance held that art. 3 of Directive 2009/103 had direct effect to the extent of at least the minimum requirement of €1 million per victim in art. 9, and that the MIB was an emanation of the state.

The MIB appealed, disputing that the art. 3 obligation was unconditional because it expressly required measures to be taken by the state, and that Member States had discretion as to how to ensure that civil liability in respect of the use of vehicles was covered by insurance. The MIB argued that driving vehicles off-road is different from driving on the road or in a public place and that at the time art.3 was implemented compulsory motor insurance was not intended to extend to vehicles on private land. It further contended that art.10 did not extend to provide compensation in situations where national legislation did not provide for compulsory motor insurance.

Held:

Directive 2009/103 required insurance cover to be in place for vehicles on private land. The UK government had failed to ensure that civil liability for vehicles on private land was subject to compulsory motor insurance, thereby failing to fulfil its obligation under art. 3.

The MIB, as the art. 10 body, is an emanation of the state to which direct effect applies in cases where there is a failure of the UK government to correctly implement compulsory motor insurance – in this case regarding vehicles on private land.

The Court also stated that “The fact that the UK government has failed to legislate for compulsory insurance in respect of the use of motor vehicles on private land… [means] the MIB may well have rights of contribution over against the Department of Transport.” Therefore while the appeal was dismissed, there is likely to be further litigation of this issue.