LLB Examination Civil Law: Property, Torts and Equity Syllabus

What relationships give rise to vicarious liability?

Principally: (1) master and servant; (2) principal and agent; (3) partners in a firm (for each other's acts in the course of business). The master/principal answers for torts committed within the scope of employment/authority.

State the maxim 'Qui facit per alium facit per se'.

'He who acts through another acts himself.' It is the basis of vicarious liability — the acts of the agent or servant, done within authority/employment, are treated in law as the acts of the principal or master.

For master-servant vicarious liability, what is the key test of the master's liability?

The wrongful act must be committed by the servant 'in the course of employment' — i.e. either an act authorised by the master, or a wrongful and unauthorised mode of doing some authorised act. Acts on a 'frolic of his own' fall outside.

Distinguish a 'servant' from an 'independent contractor' for vicarious liability.

A servant works under the control of the master as to how the work is done (control test). An independent contractor undertakes to produce a result but controls his own method. A master is generally liable for a servant's torts but not for those of an independent contractor.

Define the tort of 'negligence'.

Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff. It is the omission to do something a reasonable person would do, or doing something a prudent person would not do.

What are the three essential elements of the tort of negligence?

(1) The defendant owed the plaintiff a duty of care; (2) the defendant breached that duty; and (3) the breach caused damage to the plaintiff that is not too remote.

Which case established the 'neighbour principle' / modern duty of care in negligence?

Donoghue v. Stevenson (1932). Lord Atkin's neighbour principle: you must take reasonable care to avoid acts/omissions you can reasonably foresee would injure your 'neighbour' — persons so closely and directly affected by your act.

State and explain the maxim 'Res ipsa loquitur'.

'The thing speaks for itself.' Where the cause of an accident is within the defendant's control and the accident would not ordinarily happen without negligence, negligence is presumed, shifting the burden onto the defendant to disprove it.

What is 'contributory negligence'?

Where the plaintiff's own want of care contributes to the harm suffered. The plaintiff's damages are reduced in proportion to their share of fault (under apportionment principles) rather than the claim being wholly defeated.

Define the tort of 'nuisance'.

Nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it. It involves an unreasonable interference, not necessarily a direct physical entry.

Distinguish public nuisance from private nuisance.

Public nuisance affects the public or a class of people generally (e.g. obstructing a highway) and is a crime; a private individual can sue only on proof of special damage. Private nuisance affects a particular individual's use/enjoyment of their land and is a tort.

What are the essentials of a private nuisance?

(1) Unreasonable or unlawful interference; (2) with the use or enjoyment of land or some right connected with it; (3) causing damage or injury to the plaintiff. The interference must be substantial and continuous.

Distinguish nuisance from trespass.

Trespass is a direct physical interference with possession of land and is actionable per se. Nuisance is a consequential or indirect interference with the use/enjoyment of land and generally requires proof of damage.

Define 'defamation'.

Defamation is the publication of a false statement which tends to lower a person's reputation in the estimation of right-thinking members of society, or which causes him to be shunned, avoided, or exposed to hatred, ridicule or contempt.

Distinguish 'libel' from 'slander'.

Libel is defamation in a permanent form (writing, print, pictures) and is actionable per se; it may also be a crime. Slander is defamation in a transient form (spoken words, gestures) and generally requires proof of special damage (with exceptions).

What are the essential elements of defamation?

(1) The statement must be defamatory; (2) it must refer to (identify) the plaintiff; and (3) it must be published to a third person (someone other than the plaintiff). For slander, special damage is also usually required.

What are the main defences to an action for defamation?

(1) Justification or truth; (2) fair comment on a matter of public interest; and (3) privilege (absolute privilege, e.g. parliamentary/judicial proceedings, and qualified privilege).

What does the defence of 'justification (truth)' require in defamation?

The defendant must prove the defamatory statement is substantially true. Truth is a complete defence in a civil action, because the law does not protect a reputation a person does not deserve.

Define the tort of 'trespass to land'.

Trespass to land is the direct, unlawful interference with the possession of another's land — by entering it, remaining on it after permission ends, or placing/throwing any object upon it — without lawful justification. It is actionable per se.

Name the three forms of 'trespass to the person'.

(1) Assault — an act causing reasonable apprehension of immediate force; (2) Battery — the actual intentional application of force to another; and (3) False imprisonment — total unlawful restraint of a person's liberty.

Distinguish 'assault' from 'battery'.

Assault is an act that creates a reasonable apprehension in the plaintiff of imminent harmful or offensive contact, without contact. Battery is the actual intentional and direct application of force to the person of another without consent.

State the rule in Rylands v. Fletcher (strict liability).

A person who, for his own purposes, brings onto his land and keeps anything likely to do mischief if it escapes, must keep it at his peril; and if it escapes and causes damage, he is prima facie liable, however careful he was.

What are the essential conditions for liability under Rylands v. Fletcher?

(1) A 'dangerous thing' brought onto the land; (2) a 'non-natural use' of the land; and (3) an 'escape' of the thing from the defendant's land causing damage.

What are the recognised exceptions/defences to the rule in Rylands v. Fletcher (strict liability)?

(1) Plaintiff's own default; (2) act of God; (3) consent of the plaintiff; (4) act of a third party (stranger); (5) statutory authority; and (6) natural use of land.

Distinguish 'strict liability' from 'absolute liability'.

Strict liability (Rylands v. Fletcher) imposes liability without fault but admits exceptions (act of God, third party, etc.). Absolute liability imposes liability without fault and with NO exceptions, applied to enterprises engaged in hazardous activities.

What is the meaning and importance of 'absolute liability' (M.C. Mehta principle)?

Absolute liability holds an enterprise carrying on a hazardous or inherently dangerous activity fully liable for any harm from an escape, with no exceptions permitted. Laid down in M.C. Mehta v. Union of India (Oleum Gas Leak case).

Under the Transfer of Property Act, distinguish 'movable' from 'immovable' property.

Immovable property includes land, benefits arising out of land, and things attached to or permanently fastened to the earth (but excludes standing timber, growing crops and grass). Movable property is property of every other description, not so attached.

What three things are expressly EXCLUDED from 'immovable property' under the Transfer of Property Act?

Standing timber, growing crops, and grass — these are treated as movable property even though connected to the earth, because they are intended to be severed.

Define 'transfer of property' under Section 5 of the Transfer of Property Act, 1882.

'Transfer of property' means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and others. 'Living person' includes a company, association or body of individuals.

State the conditions of a valid 'transfer of property by act of parties'.

(1) Competent transferor (major, sound mind, authorised to transfer); (2) competent transferee; (3) property must be transferable; (4) lawful object and consideration; and (5) the transfer must be made in the form required by law (e.g. registration where necessary).

State and explain the 'doctrine of part performance' under Section 53A of the Transfer of Property Act.

Where a transferee, under a written contract to transfer immovable property, has taken possession and performed (or is willing to perform) his part, the transferor (and persons claiming under him) is barred from enforcing any right against the transferee inconsistent with the contract, even if the transfer was not completed by a registered deed.

What are the essential conditions for invoking the doctrine of part performance (Section 53A)?

(1) A written contract to transfer immovable property for consideration, signed by the transferor; (2) the terms are ascertainable; (3) the transferee has taken possession (or continued in possession) in part performance; (4) the transferee has done some act in furtherance of the contract; and (5) the transferee is willing to perform his part. It operates as a shield (equitable defence), not a sword.