What exactly is a highway maintainable at public expense? The High Court gave important guidance on that issue in upholding a compensation claim brought by a woman who suffered injury when she tripped over an exposed tree root whilst walking on a path through parkland.

After she sued the local authority which bore responsibility for the park, the latter accepted that the path was in a dangerous or defective condition. It was also common ground that the path was a highway, having lawfully been used as such for more than 20 years. However, the woman's claim was dismissed after a judge found that it was not a highway maintainable at public expense, within the meaning of Section 36(2) of the Highways Act 1980.

The park was opened in the 1930s by the council's long-since-defunct predecessor authority. The public enjoyed unfettered access to the path, which dated back to before 1959. However, the judge ruled that it could not qualify as a highway maintainable at public expense in the absence of evidence that it had been originally constructed and dedicated as such by the predecessor authority.

In upholding the woman's appeal against that ruling, the Court found that the judge had taken too narrow an approach. In order to establish that the path was a highway maintainable at public expense, there was no requirement to prove that the predecessor authority intended to create a highway when the path was laid down. It was sufficient that it had been constructed by a highway authority and had become a highway by the date of the accident.

Given the council's concessions in respect of the path's condition, the Court's ruling rendered it liable to compensate the woman for her injuries. The amount of her award, and the extent to which her own carelessness may have played a part in the accident, will be assessed at a further hearing.