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THANK YOU!

Court Case and Section

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.

LAW OF TORT

Trespass To Land

  • It is a tort which depents upon ENTRY not DAMAGE. Thus there is no need to prove damage (actionable per se) as a consequence of the tort (distinct from negligence)

  • It is no defence that the trespasser intented no harm or did know that he was trespassing.

  • The element of trespass to land

- mental state of defendant

- direct interference

Trespass

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 It also can be meant by permission or authority granted has been revoked or lapsed.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.

Court Cases and Section

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.

Children Trespasser

TRESPASS AND OCCUPIERS' LIABILITY

  • The general rules as to the duty of occupier towards trespasser does not apply on the case of children trespasser.
  • Some points to be considered:
  • Occupiers must be prepared for the fact that children are less careful than adult.
  • what may be a warning to adult may not be necessary to children
  • the occupier may be liable toward the safety of the children if there is attractive in the premise that cause them enter the permise.
  • the occupiers may be liable to lawful visitors if he knowledge that there has been children trespasser on his premises and he takes no action.
  • this is due to the site is located near to the park.

Occupiers' Liability

  • Occupiers' liability concerns only with person who suffer injury while they are on another's premises.

  • In construction, it governs the liability to end independent contractors when carry out work on another's land.

  • In occupiers' liability can be categorised into two which are lawful visitors and unlawful visitors.

  • Lawful visitors are invited and permitted people (with consent and expressed/implied permission-license)

  • Unlawful visitors are people who are present on to a premises without the occupiers' expressed or implied permission.

Relate Situation and Law of Tort

GROUP MEMBERS :

-NUR HAZIQAH BINTI MOHED

-NURUL AFIFAH ALIA BINTI RIDZUAN

-NURUL AKMAL AKILAH BINTI HARUN

-NUR SYAZLYN BINTI NAZARUDDIN

-SYAHIDAH BINTI LOKMAN

-IZYAN NADZIHAH BINTI SAMSOUR BAHARI

Based on the question, this situation can be relate to trespass under trespass to land and occupiers' liability under children trespasser.

QUESTION 4

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

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