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The Case of the Mystery Footpath

By Principal Lawyer and Employers Liability Lead , Personal Injury

I started a case for a client who had been injured on a footpath which initially wasn’t even deemed a footpath and one which nobody knew who was responsible for its maintenance. As part of the judgement from the Court the Judge stated:

 ‘Agatha Christie might well have entitled this “The case of the mystery footpath”.

When the path, the subject of this claim, was built, by whom and who owns the land upon which it was constructed is either not known or has not been disclosed. Furthermore, its status is disputed...’

This sums up the case in which I had to prove who owed the land and who was responsible for my client’s injuries. The case in question was Canagasingham -v- Kent County Council which was heard on 6 November at the Mayor’s & City of London Court by Judge Andrew Wallis.

Mrs Canagasingham, who was my client, lives in a housing development close to Bluewater Shopping Centre in Kent. There are a set of descending steps on a footpath leading from the housing development down to the shopping centre. The steps were in disrepair and on 12 October 2010 Mrs Canagasingham stumbled and fell on one of the defective steps at the top of the footpath. She sustained multiple minor injuries, the most severe being an injury to her right elbow. Damages were agreed at £10,000 on the morning of the trial.

A claim was sent to Kent County Council whose insurers immediately denied liability on the grounds that the footpath was a public right of way. They claimed there had been 20 years of continuous unfettered use by the public and therefore they were not liable to maintain or repair the footpath, relying upon the case of McGeown -v- Northern Ireland Housing.

We were told that Kent County Council (KCC) had no record of ever maintaining the path in any capacity whatsoever. In the midst of our correspondence people who remain unknown (!) cut back the undergrowth around the footpath and repaired the most dangerous of the many defective steps. When questioned, the insurers couldn’t tell us who had carried out the repairs but they could confirm that in fact they had in the past inspected and maintained the path on a reactive basis. We eventually obtained the very limited inspection documents from them and when asked the specific question “Was this a highway maintainable at the public expense pursuant to S.41 of the Highways Act 1980” we finally received the response: “Yes the path is in fact maintained at public expense but no it is not a highway subject to S.41.”

Due to the rather conflicting information we were getting from the insurers we did our own detective work. We were told the footpath was maintained at the public expense and given a copy of a definitive map and statement from the Council’s highways department. The documents confirmed that the footpath ‘DR15’ was indeed a public right of way but didn’t show clearly whether it was on the defendant’s lists of highways maintainable at public expense as required by S.36(6) of the Highways Act 1980. The statement also illustrated that at some point footpath ‘DR15’ was diverted creating a new ‘DR15’ but the information was incomplete. Despite numerous calls to Kent County Council and the Public Rights of Way Manager, we were simply told that the footpath in question was not a highway, the circumstances were complicated and that no further information would be provided.

On the basis of the limited information available to us it appeared that footpath DR15 was stopped up by KCC using the Stopping up of Highways (County of Kent) (No 2) Order of 1993, made by the Secretary of State for Transport. A Stopping up order is the removal of a public right of way. Stopping up orders are usually made to allow development to take place or because the public highway is no longer necessary. Public highways can include roads, streets, footpaths, public car parks, grass verges and footways.

The footpath was formally acknowledged as a public right of way created by the council on 1 April 2000. Section 36(2)(a) of the Highways Act 1980 defines a highway as ‘constructed by a highway authority, otherwise than on behalf of some other person who is not a highway authority, as a highway maintainable at the public expense. It appeared from the definitive map that the public footpath was created by the highway authority as opposed to some other person and as such our argument was that it was a pathway maintainable at public expense.

Proceedings were commenced referring to the old DR15 and I pleaded on the basis that the old DR15 was indisputably a highway and the new DR15 must also be a highway and maintainable at the public expense. In the alternative the new DR15 was constructed by a highway authority and is therefore a highway maintainable at the public expense.

A defence was filed denying that the new footpath known as DR15 was a highway within the meaning of the Highways Act 1980. KCC relied solely on McGeown and did not even plead a Section 58 defence. Interestingly, the defence gave us some new information. The route of the footpath was not built in accordance with the route specified in the Stopping up Order and on that basis it was denied that Section 36(2) of the Highways Act applied and the footpath was not a highway but merely a public right of way. The defence did not expand any more than that!

It was only upon exchange of witness statements which included a witness statement from the West Kent Area Public Right of Way’s Manager (who had been spoken to prior to the commencement of proceedings) that the true history of the footpath was revealed. The old DR15 was stopped up by Ministerial Order and the Order was advertised in the London Gazette.

The new DR15 had to be created because the old DR15 was in the way of development of the now extensive Bluewater Shopping Centre. It was confirmed that the DR15 was diverted as a result of a Stopping up Order made by the Secretary of State in 1993 under the Town and Country Planning Act 1980 and was certified as having been properly constructed by an officer of Dartford Borough Council. He specifically confirmed that this would normally mean the new footpath would have become a highway maintainable at public expense.

The County Council’s Definition Team then made a Definitive Map Modification Order (DMMO) but made a mistake; the route that was actually constructed and certified was not the route that was created by the 1993 Stopping up Order.  The actual route constructed was constructed in the wrong place!  As a result, Mrs Canagasingham had her accident on the route that exists on the ground, but not the route shown on the Stopping up Order. The reason for this was that during construction works the ground was found to be unstable and following a discussion with the developers, the route was built in a different place. It was decided by KCC Legal Department that a formal variation to the 1993 Stopping up Order was not required as the new footpath was constructed just a few metres away and broadly followed the same route.

Their view was that as long as the re-sited footpath was adopted as a public highway and used by the public, there would be no need for any further legal formalities as public use would establish it as a public footpath. A further meeting in 1997 led to the decision that the route satisfied the spirit and intention of the Stopping up Order and accordingly no formal Variation Order was required to reflect the slightly diverted route.

KCC subsequently realised that legal decision was wrong and a formal variation of the Stopping up Order ought to have been carried out. Whilst the intention had been to create a highway, the necessary administrative steps were not taken and therefore the route was not formally adopted as a highway.

The full set of circumstances only became available to Mrs Canagasingham upon exchange of witness statements just 3 months before trial!

We felt that despite the fact that this case was extremely difficult, we would proceed to trial and fight to secure personal injury compensation for Mrs Canagasingham.

At trial the KCC Manager of Public Rights of Way was still unable to say who had maintained/repaired the path on two occasions since the date of Mrs Canagasingham’s accident and up to trial, and confirmed there was no documentation he could find concerning the construction of the footpath.

At trial the KCC Manager of Public Rights of Way was still unable to say who had maintained/repaired the path on two occasions since the date of Mrs Canagasingham’s accident and up to trial, and confirmed there was no documentation he could find concerning the construction of the footpath.

Judge Andrew Wallis provided a detailed draft judgment just 2 working days after the trial and agreed with our Barrister, Robert McAllister’s submissions describing the defendant’s stance as unattractively opportunistic. He agreed that “in consequence of” has a wider ambit than “pursuant to” and was of the view that it was clear the path only came into existence as a result of the Bluewater development which meant that the highway was maintainable at the public expense. He was also very unimpressed that despite the reams of documentation that must have been created, the County Council did not know who the path was built by and were unable to produce any disclosure.

Judge Wallis went on to consider whether the council had maintained the path as required by Section 41 and found in the claimant’s favour that they had not. Contributory negligence was not pursued by the defendants and therefore judgment was given in the agreed sum of £10,000 personal injury compensation.

A few days later the defendants made an application for permission to appeal. Submissions were made regarding the permission to appeal and the subject of costs. The Judge agreed that in the interests of clarity and certainty for a public authority regarding the status of a new footpath, there were compelling reasons why an appeal should be heard.

The case of the mystery footpath remains unsolved…

Tracey Benson is an Associate Personal Injury Solicitor at Slater and Gordon Lawyers in London.

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