The Contributory Negligence Path by Sedinam Botwe

Every law student in this faculty is well acquainted with that dirt path at the back of the building which leads to the road going towards Pentagon, Evandy and TF hostels. It’s a simple and convenient shortcut for law students resident in the above mentioned halls. It has proved its expedience over the course of time, helping people to get to their 7:30 classes and tutorials just in time. Because, let’s face it, there is absolutely no way anyone coming from Pent, Evandy, Bani or TF will walk all the way to the zebra crossing at the front and enter the faculty from that side when this little dirt path is staring him or her straight in the face.

This path, although super convenient is not without its shortcomings. It looks and potentially can be unsafe, especially when it rains. In the evenings, when it gets dark, the path seems more threatening than running across the N1 highway from one side to the other. Okay, I’m just exaggerating but it can get dangerous. This is probably why Vanessa Alabi calls it the contributory negligence path and refuses to use it any time after 6pm.

And for a route so unsafe, it’s a miracle no one has gotten hurt there yet. But were you to fall there, what would actually happen?

Legally speaking, everyone who occupies or is in possession of premises (i.e. the occupier) owes the people that enter the said premises a duty of care. This duty could either be one of protection from danger or warning of the danger depending on what type of entrant the person is.

The law on the tort of occupiers’ liability groups “entrants” into 2 main classes; lawful and unlawful.

A lawful entrant is one who is on the occupier’s premises either with the occupier’s permission or due to some legal authority that grants him the right to be there. The law further classifies lawful entrants into 4 categories;

Contractual visitors (persons who enter the premises of the occupier in pursuance of an already existing contract that they have concluded with the occupier),

Invitees (persons who have the express or implied permission of the occupier to enter the premises, usually the occupier has a material, mostly mutual interest in the purpose for their entry),

Licensees (persons who enter the premises of the occupier for their own purpose, or where the interest is shared between the licensee and the occupier, then it is not material or of a business nature; or anyone whose presence is merely tolerated by the occupier), and  

• Persons entering as of right (persons who enter the occupier’s premises in exercise of a right conferred on them by law e.g. policemen, meter-readers).

With unlawful entrants, the law recognizes only one class of persons; trespassers. The Black’s Law Dictionary (9th Edition) defines trespasser as “… one who intentionally and without consent or privilege enters property.” Simply put, a trespasser is anyone on the premises without the consent of the occupier or anyone on the premises without a legal right to be on the premises.

As already stated, the occupier owes every single person who enters onto his property a specific duty of care depending on the kind of entrant he/she is.

With contractual visitors, the law dictates that the scope of the duty of care owed the contractual visitor should be what has been set out in the contract. Where the contract makes no mention of any duty of care in relation to the safety of the premises, then the law’s position is that the occupier warrants that the premises are safe as reasonable care and skill can possibly make them for the purpose for which the contractual visitor is entering the premises.

This is why the defendant in the case of Frances v Cockrell (1870) L.R. 5 was held liable when a stand that the plaintiff had paid for to use in watching a steeplechase race, collapsed and injured him. The defendant was held liable even though the contract for the sale of the stand made no mention of a duty of care owed to the plaintiff in relation to the safety of the premises.

When it comes to invitees, the law places a duty on the occupier to take reasonable care to prevent the invitee from injury resulting from an unusual danger. This unusual danger should be one which the occupier knows about or ought to know about by the exercise of reasonable skill. And for this reason, the defendant in the case of Indemaur v Dames (1866) L.R 1 C.P.274 was held liable for the injury that the plaintiff, a gas-fitter, suffered when he fell through an unfenced hole which was unusually sited on the premises in the course of examining some burners that had been installed earlier on the defendant’s premises.

Licensees are expected to take the premises of the occupier as they find them. The occupier’s duty to licensees therefore is to avoid laying a trap for them and to warn them of a concealed danger, not obvious to the licensee but actually known to the occupier. In the case of Lowery v Walker (1911) A.C. 10, the defendant who owned a field and did not prevent persons from using it as a shortcut to a nearby railway station, put a horse which he knew was savage in his field to deter people from passing through. He put up no warning to warn people of the horse and when the plaintiff passed through the field and got attacked and injured by the horse, the court found the defendant liable since the plaintiff was an invitee and the defendant as the occupier had deliberately set up a trap and failed to warn the plaintiff of this danger.

In relation to persons entering as of right, the occupier owes them the same duty that is owed to invitees i.e. to prevent the invitee from injury resulting from an unusual danger.

With trespassers, the occupier generally does not owe them a duty of care since their presence is not reasonably contemplated. However, where the existence of a trespasser is known to the occupier, he or she must avoid causing deliberate harm to him. Where the trespasser is a child, the duty of care owed by the occupier to the child is much higher than where the trespasser is an adult. The occupier is expected to prevent the child trespasser from injury by taking reasonable steps to eliminate the dangerous condition or keeping children off the property completely.

Armed with this legal knowledge, let’s reconsider our position as law students in this faculty in relation to the law on occupier’s liability. What is our reason for being on the faculty premises? It is most likely in pursuance of the contract for education which we enter into with the University Administration once our applications are successful and we are granted admission to study law. Essentially, we are contractual visitors in relation to our presence in the law faculty.

This would mean that the school owes us, students of the law faculty a duty to ensure that the premises of the faculty are as safe for the purposes of studying as reasonable care and skill can make them. The only ground on which the school can be completely excluded from liability is where there was absolutely no way the danger could have been discovered even with the exercise of reasonable skill and care.

Considering the above mentioned peculiar shortcut on the faculty premises in relation to all of this, it would be reasonably expected that the administration of the school would take some steps to either make the route safer, close it down altogether or warn students of the danger they put themselves at by using this route; taking due regard of its generally unsafe nature. No such step has been taken and people continue using this route even though they are fully aware of its dangers. Even I, used this route on my way to class this morning.

In the unfortunate event that I were to slip and fall into the gutter beside this path, I could sue the Administration in an action for occupiers’ liability, basing my argument on my status as a contractual visitor and the duty of care owed me by the school. As a contractual visitor, the school cannot attempt to exclude itself from liability on the grounds that the danger was an obvious one and that I should have known better than to pass that route, seeing as there is a much safer alternative; i.e. the zebra crossing at the main entrance.

The school could for its own benefit argue that I am an invitee, on the faculty premises due to a mutual material interest. One reason the court might uphold the school’s argument might be that, to hold that all students on the University premises are contractual visitors would only open the floodgates for all manner of unreasonable claims to be brought against the University; and since the standard of duty owed to contractual visitors is higher than that owed to invitees, the school would almost always be found liable. Therefore, to impose such a high standard of care would not be fair, just, and reasonable as was illustrated in the Caparo v. Dickman [1990] 1 All ER 568.

Let’s suppose the court upheld my argument, as a contractual visitor. The school cannot attempt to exclude liability on the grounds that I could clearly see that the path is unsafe. The defence of contributory negligence could however come to the school’s rescue.

Contributory negligence, being a partial defence only limits the liability of the occupier to some extent based on the premise that the injury is partly due to the fault of the occupier and partly to the fault of the plaintiff in the case. The purpose of this defence essentially is to apportion blame between the defendant and the plaintiff. To succeed in such a claim, all the school needs to prove is that I, in one way or the other, contributed to my injury.

According to Lord Denning in the case of Jones v Livox Quarries [1952] 2 QB 608, “a person is guilty of contributory negligence if he might have reasonably foreseen that if he did not act as a reasonable, prudent man, he might hurt himself…” A reasonable student on their way to the faculty would use the main entrance rather than this shortcut, knowing fully well that the shortcut is unsafe and that using it might most likely lead to injury.

I have eyes. I can plainly see that the route is unsafe, especially when it rains or when it gets dark; yet I choose to continue using this route on a daily basis, even when I’m not late to class. Clearly, I am contributing to my own injury in the unfortunate event that this injury arises and I decide to blame the school administration for allowing the shortcut to exist in the first place.

This is the exact reason why Vanessa Alabi calls it the contributory negligence path and absolutely refuses to use it after 6pm, when it gets dark. She is not being a “fearo”, but rather “the reasonable man” whom the law of torts always has within its contemplation.