Law Report: No duty to right of way users: McGeown v Northern Ireland Housing Executive - House of Lords (Lord Keith of Kinkel, Lord Goff of Chieveley, Lord Brown- Wilkinson, Lord Mustill and Lord Lloyd), 23 June 1994

A person using a public right of way is not owed a duty of care by the owner of the soil over which the right of way passes to maintain the right of way in a safe condition.

The House of Lords dismissed an appeal by the plaintiff, Josephine McGeown, against the dismissal by the Court of Appeal and the High Court in Northern Ireland of her action for damages against the housing executive.

The plaintiff lived with her husband in a terrace house of which her husband was the tenant of the housing executive. Part of the area between the terrace and the one opposite had been adopted by the highway authority. It surrounded a remaining part, which was partly flagged and partly grass covered, owned by the housing executive. This was crossed by three footpaths over which the public had acquired a right of way.

The plaintiff tripped in a hole in one path and broke her leg. The hole was caused by a failure to keep the surface of the pathway in good repair and constituted a danger to persons using the pathway. The plaintiff's action was dismissed.

Hugh Kennedy QC and Gerald Simpson, both of the Northern Ireland Bar (Robin Thompson & Partners for Trevor Smyth & Co, Belfast) for the plaintiff; Paul Girvan QC and Bernard McCloskey, both of the Northern Ireland Bar (Alistair Thompson & Partners for McCloskey & Co, Belfast) for the housing executive.

LORD KEITH said that the first issue raised in the appeal concerned the soundness of the rule in Gautret v Egerton (1867) LR 2 CP 371 that the owner of land over which a public right of way passes was under no liability for negligent nonfeasance towards members of the public using it. The authorities, such as Greenhalgh v British Railways Board (1969) 2 QB 286 and Holden v White (1982) QB 679, showed that the rule in Gautret v Egerton was deeply entrenched in the law.

The rule was a sound and reasonable one. Rights of way passed over many different types of terrain, and it would place an impossible burden on landowners if they not only had to submit to the passage over them of anyone who might choose to exercise them but also were under a duty to maintain them in a safe condition.

Persons using rights of way did so not with the permission of the owner of the solum but in the exercise of a right. There was no room for the view that such persons might have been licensees or invitees of the landowner under the old law or that they were his visitors under the British and Northern Irish Occupiers' Liability Acts 1957.

The other issue was whether the common duty of care under the 1957 Act was owed by the housing executive to the plaintiff by reason that the pathway where she sustained her injuries formed part of a means of access to and from her husband's dwelling house. If the pathway on which the plaintiff fell had not become subject to a public right of way, the housing executive would have owed her the common law duty of care under the 1957 Act and would have been liable accordingly. The question was whether the licence to use the pathway which the housing executive would have been held to have granted to the plaintiff before it became subject to the right of way was to be held to have become merged in that right of way and so have been extinguished, or whether it could be treated as having a continued existence.

Greenhalgh v British Railways Board appeared to admit that one person might come upon a right of way as a member of the public and be owed no duty as regards its state of repair, while another person might come upon the same right of way in a different capacity and be owed such a duty.

The concept of licensee or visitor involved that the person in question had at least the permission of the relevant occupier to be in a particular place.

Once a public right of way had been established, there was no question of permission being granted by the owner of the solum to those who chose to use it. They did so as of right and not by virtue of any licence or invitation. A person using a public right of way could not be the visitor of the owner of the solum. The appeal would be dismissed.

LORD BROWNE-WILKINSON, concurring, said that it did not necessarily follow that the existence of a public right of way was incompatible with the owner of the soil owing a duty of care to an invitee, as opposed to a licensee.

In the case of an invitee there was no logical inconsistency between the plaintiff's right to be on the premises in exercise of the right of way and his actual presence there in response to the express or implied invitation of the occupier. It was the invitation which gave rise to the occupier's duty of care to an invitee.

LORD GOFF, LORD MUSTILL and LORD LLOYD agreed with Lord Keith.

Ying Hui Tan, Barrister