LSO Barrister Tort Law 1 — Questions and Answers
Question 1: Under the Anns/Cooper test for establishing a novel duty of care in negligence, what is the correct first step?
- Determine whether there is a sufficiently close and proximate relationship between the parties such that harm was reasonably foreseeable (Correct answer)
- Consider whether there are residual policy reasons to negate or limit the duty
- Assess whether the plaintiff contributed to their own loss
- Apply the Wagon Mound remoteness test to limit liability
Correct answer: Determine whether there is a sufficiently close and proximate relationship between the parties such that harm was reasonably foreseeable
The first stage of the Anns/Cooper test asks whether the relationship between the parties is sufficiently proximate and whether harm was reasonably foreseeable, establishing a prima facie duty of care.
Question 2: Under the Ontario Occupiers' Liability Act, what standard of care does an occupier owe to persons entering the premises?
- A duty to take such care as is reasonable in all the circumstances to see that persons on the premises are reasonably safe (Correct answer)
- A strict liability duty for all injuries occurring on the premises
- A duty limited to warning visitors of hidden hazards
- A duty of care only to invitees, not licensees or trespassers
Correct answer: A duty to take such care as is reasonable in all the circumstances to see that persons on the premises are reasonably safe
Section 3 of the Ontario Occupiers' Liability Act imposes a single common duty of care on all occupiers: to take such care as is reasonable in all circumstances to make persons on the premises reasonably safe.
Question 3: Which of the following best describes the 'but for' test for causation in negligence?
- The defendant's conduct materially increased the risk of the plaintiff's harm
- The plaintiff must prove that but for the defendant's negligence, the harm would not have occurred (Correct answer)
- The harm was of a type foreseeable from the defendant's breach
- There were multiple sufficient causes each independently causing the harm
Correct answer: The plaintiff must prove that but for the defendant's negligence, the harm would not have occurred
The 'but for' test requires the plaintiff to prove on a balance of probabilities that but for the defendant's negligence, the plaintiff would not have suffered the injury.
Question 4: The test for remoteness of damage in negligence was authoritatively established by which case?
- Donoghue v Stevenson [1932] AC 562
- Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound No. 1) [1961] AC 388 (Correct answer)
- Bolton v Stone [1951] AC 850
- Re Polemis and Furness Withy & Co Ltd [1921] 3 KB 560
Correct answer: Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound No. 1) [1961] AC 388
The Wagon Mound (No. 1) established that a defendant is only liable for damage of a type that was reasonably foreseeable at the time of the breach, replacing the direct consequence test from Polemis.
Question 5: In Ontario, contributory negligence is governed by which statute?
- The Tortfeasors Act, RSO 1990
- The Negligence Act, RSO 1990, c N.1 (Correct answer)
- The Limitations Act, 2002, SO 2002
- The Occupiers' Liability Act, RSO 1990
Correct answer: The Negligence Act, RSO 1990, c N.1
Ontario's Negligence Act replaced the common law complete bar to recovery with a system of apportionment, allowing damages to be divided according to the degree of fault of each party.
Question 6: Which of the following is the essential element that distinguishes private nuisance from negligence?
- The defendant must have intended to cause harm to the plaintiff
- The interference with the plaintiff's use and enjoyment of land must be unreasonable (Correct answer)
- The defendant must have been negligent in creating the condition
- Physical damage to the plaintiff's property must always be proven
Correct answer: The interference with the plaintiff's use and enjoyment of land must be unreasonable
Private nuisance protects against unreasonable interference with a plaintiff's use and enjoyment of land; it does not require proof of intent or negligence, and can be established by non-physical interference such as noise or smell.
Question 7: Which of the following correctly describes the defence of volenti non fit injuria in a negligence claim?
- The plaintiff voluntarily assumed both the physical risk of harm and the legal risk by agreeing to waive any claim against the defendant (Correct answer)
- The plaintiff was aware of the risk and proceeded anyway, reducing damages proportionately
- The defendant acted reasonably and therefore owed no duty to the plaintiff
- The plaintiff consented to the defendant's entry onto the property
Correct answer: The plaintiff voluntarily assumed both the physical risk of harm and the legal risk by agreeing to waive any claim against the defendant
Volenti requires proof that the plaintiff voluntarily assumed both the physical risk and the legal risk — that is, that they agreed to relieve the defendant of liability for negligence, which is a high bar.
LSO Barrister Tort Law 1
Under the Anns/Cooper test for establishing a novel duty of care in negligence, what is the correct first step?