02 September, 2015
The Claimant brought a claim against the First Defendant alleging that he had tripped on a raised and defective paving stone in an alleyway whilst walking his dog.
From the outset of proceedings, Forbes on behalf of the First Defendant argued that it was not liable and sought to rely on the case of McGeown v Northern Ireland Housing Executive (1994). The First Defendant invited the Claimant to discontinue on numerous occasions. Eventually, the Claimant agreed to discontinue against the First Defendant on the day of the actual trial.
The First Defendant was the owner and occupier of the housing estate in which the alleyway was situated, however pursuant to the case of McGeown owed no liability to the Claimant. The First Defendant was not under any obligation to repair and maintain the alleyway. The alleyway was a public right of way, it had been in existence for over 20 years and members of the public had enjoyed an unfettered right to use the alleyway. In the absence of any negligent misfeasance (i.e. a positive wrong action) the First Defendant could not be found liable.
A McGeown defence provides a complete defence to such a claim. However, it is our experience that often Claimant solicitors do not always understand the principles of public right of way and adopted highway and in particular, the case of McGeown appears to cause confusion.
It is imperative that in order to rely on a McGeown defence that evidence is obtained to support the contention that the right of way in question has been in situ for over 20 years and that the public have enjoyed uninterrupted use of the same during this time.
For further advice on the case of McGeown v Northern Ireland Housing Executive or other matters relating to the principles of public right of way and adopted highway contact Sarah Davisworth.