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Kelsen v. Imperial Tobacco Co. Ltd (1957)
Kelsen v. Imperial Tobacco Co. Ltd, the defendant have created a sign which extended some 8ft into the plaintiff’s land. The plaintiff entitled to a mandatory injunction requiring the defendant to remove the sign. The intrusion was a trespass to land. Same as Damai construction, if they make a trespass to land in order to prevent the children trespass, they also can be sue.
- mental state of defendant
- direct interference
Trespass means without permission or authority. It also can be meant by permission or authority granted has been revoked or lapsed.
Trespass can be categorised into three which are trespass to goods, trespass to land and trespass to people.
British Railways Board v Herrington (1960)
Miss Herrington, a 15 years old girl, climbed through a gap in a fence onto a railway line owned by the British Railways Board. she was hit by a train. She sued the board under occupiers' liability (Scotland) Act 1960 for failing in their common duty of care to keep the premises reasonably safe for visitors.
Held that the pursuer had taken a chance, fully aware of the risk involved and that the Board had no responsibility to maintain the fence anymore that they had.
Judgement
The House of Lords dismissed the climant's final appeal, holding that she was not owed any duty under the occupier's liability(Scotland) Act 1960 on the grounds that she had voluntarily decided to run the risk of walking on the railway line. As such, the defender had no duty, at least in relation to the pursuer, to maintain the fence any better than they had.
Based on the question, this situation can be relate to trespass under trespass to land and occupiers' liability under children trespasser.
Damai Contractor succeeds in winning a contract for the construction of a 20 storey shopping and office complex. on the day of handing over possession of the construction site, the Architect warns Damai Contractor of the possibility of children trespassing as the site is located very close to a park.
The Quantity Surveyor cautions Damai that the contractor himself can also be guilty under trespass and occupier liability.
Damai contractor now wants you to explain to him how he could be guilty of trespass and occupier liabity.
with reference to decide cases, advice Damai Contractor on
i) various type of trespass and occupier liability that can occur in construction worksand.
ii) how to deal with the issues of children trespassing