5. Liabilities arising from highways
5.2: Private liability
Paul Coughlan B.C.L., LL.M., Barrister
It is difficult to prove the existence of a private liability to maintain a highway, a
concept steeped in antiquity. However, in such cases the highway authority now usually
shares responsibility for maintenance. Consequently users may proceed against the
authority, leaving to it the perplexities of establishing the private liability and
obtaining reimbursement.
Mark R. Williams, Solicitor, Head of Legal Services, Carrick District Council
The law only imposes liability on occupiers for negligent acts or omissions in, on or
adjacent to a public right of way which injure a user of that way. The path user,
therefore, has to accept that in the ordinary course of events in using a public right of
way there will be little hope of recovering damages for injury to himself or his property
from the occupier of land over which the public right of way goes.
Professor Keith Davies, J.P., M.A., LL.M., Barrister, Hon. Assoc. R.I.C.S., Faculty of
Law, University of Reading
An injured victim who would otherwise recover damages against the occupier of land,
which was in a dangerous state through lack of repair, will be denied damages if the
reason for the victim's presence on the land was the use of an unadopted public right of
way.
Professor Keith Davies, J.P., M.A., LL.M., Barrister, Hon. Assoc. R.I.C.S., Faculty of
Law, University of Reading
Where public access to land is not `as of right' but depends on permission from the
occupier of the land, even when the latter is a public body, there is no highway and
therefore any liability for harm caused by negligent upkeep rests on the occupier not the
highway authority. Such liability is owed to a 'visitor' in accordance with the Occupier's
Liability Act 1957, s.2(2), which imposes on the occupier a `common duty of care'. This
comprises "such care as in all the circumstances is reasonable to see that the
visitor will be reasonably safe in using the premises for the purposes for which he is
invited or permitted by the occupier to be there". But, if a visitor is as fully
aware as the occupier of a dangerous state of affairs, any harm it causes to the visitor
will not render the occupier liable.
Professor Emeritus Keith Davies, J.P., M.A., LL.M., Hon. Assoc. R.I.C.S., Barrister
A case note
The owner and occupier of premises fronting a highway engaged a contractor to carry out
works at those premises. The contractor laid metal plates across the footway to facilitate
access to the site from the highway, and left the plates in situ after completion of the
works.
A neighbouring resident subsequently tripped over one of the plates and was injured, and
sued the owner, the occupier, the contractor and the highway authority. On an application
by the owner to strike out the claim as against him, the Court of Appeal, reversing the
decision at first instance, held that a frontage owner or occupier as such was not liable.
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