Liability for maintenance of public footpaths

29th November 2016

Many landowners have public rights of way, particularly public footpaths, running across their land, and the maintenance of these paths and liability for injury on them is often a cause for concern.

The vast majority of paths are maintainable at the public expense by the local Highway Authority (usually the County Council). There are a few situations where the landowner is responsible for maintenance of a public path, depending on how the path was created, but these are unusual.

If the Highway Authority is responsible for the path, it has a statutory duty under the Highways Act 1980 to keep the surface in a safe condition and fit for the type of traffic which is ordinarily expected to use it. The duty is to maintain the structure and fabric, including the surface. The depth of the surface depends on how much is needed to support the path. A footpath will not be properly maintained if its surface is disturbed or defective. Public footpaths are generally subject to a lower standard of maintenance than roads open to vehicles.

If a Highway Authority disputes public liability for maintaining a footpath, the onus is on the Highway Authority to prove that the landowner has private maintenance responsibilities. There is a statutory procedure under the Highways Act to compel a Highway Authority to repair a publically maintained highway where it is out of repair.

Any stile, gate or other similar structure across a footpath belongs to the landowner and must be maintained by the landowner in a safe condition, and to the standard of repair required to prevent unreasonable interference with the rights of persons using the path. If the path includes a bridge passing over a natural stream or obstacle, the bridge is part of the path therefore publically maintainable.

If someone is injured because a public path is in disrepair, the party responsible for maintaining the footpath would potentially be liable. A private law action for damages can be brought against the Highway Authority or the landowner for breach of their duty to maintain.

There is also a statutory procedure under the Highways Act 1980 for action against the Highway Authority for injury suffered when using a publically maintained footpath. There is a defence if the Highway Authority has taken reasonable care. It must show a reasonable and workable system of inspection and repair. Case law shows that less care and attention is needed for un-metalled country paths than for metalled roads, but the Highway Authority cannot ignore them.

The Occupiers Liability Acts do not apply to visitors using public rights of way. Therefore neither the Highway Authority nor the landowner is liable under the Acts to users of the path. Stiles and other structures are an exception as the landowner is liable for these.

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