Mytest For Smyth: The Law and Business Administrations, Thirteenth Edition Chapter 3: The Law of Torts

MyTest for Smyth: The Law and Business Administrations, Thirteenth Edition
Chapter 3: The Law of Torts
1) Tort damages are often classified into

a. special and exemplary damages.
b. punitive and exemplary damages.
c. special and aggravated damages.
d. punitive and special damages.
e. general and special damages.
Answer: e
Diff: 1
Type: MC
Topic: Remedies
Skill: Recall
2) Albert and Jane and her husband own homes beside each other. Jane has a swimming
pool in her back yard. Between the houses, on Albert's property, there is a line of very old
trees that have grown so tall that they are blocking the sunlight from the swimming pool
area of Jane's property. Yesterday, Jane's husband, George, after hearing Jane complain
about the blocked sunlight, without going onto Albert's property, cut 3 metres off the top
of each of Albert's trees to let the sunlight into his and Jane's back yard. George's action
in cutting down the trees constitutes
a. the tort of defamation.
b. the tort of assault.
c. the tort of nuisance.
d. the tort of trespass.
e. the tort of negligence.
Answer: c
Diff: 3
Type: MC
Topic: Other Torts
Skill: Applied
3) Use this fact situation to answer the related questions that follow.
Mary is employed in administration at York University, where she is paid $3500.00 a
month. The administrative staff have gone on strike and, to that end, have set up a picket
line to prevent employees from going into the university's administration building. Mary
wants no part of the strike, so she decides that she will cross the picket line. As she does
this, an employee named Ralph says, "Unless you want a black eye, lady, you better not
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cross the picket line." John, another employee, pushes Mary back. Unknown to Mary,
there is a hole in the pavement that the university has been aware of for quite some time,
but has done nothing about, and as Mary falls back, her shoe catches in the hole and she
falls down, breaking her leg and spraining her right arm.
Ralph's statement to Mary is

a. the tort of negligence.
b. the tort of assault.
c. the tort of injurious falsehood.
d. the tort of battery.
e. the tort of trespass.
Answer: b
Diff: 2
Type: MC
Topic: Other Torts
Skill: Recall/Applied
4) Use the fact situation in Q3 to answer the related question that follows.
John's action in pushing Mary constitutes
a. the tort of assault.
b. the tort of battery.
c. the tort of negligence.
d. the tort of injurious falsehood.
e. the tort of trespass.
Answer: b
Diff: 2
Type: MC
Topic: Other Torts
The failure of the university to repair the hole in the pavement constitutes
a. the tort of nuisance.
b. the tort of trespass.

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c. the tort of negligence.

d. the tort of injurious falsehood.
e. the tort of battery.
Answer: c
Diff: 2
Type: MC
Topic: Negligence
If Mary sues the university, among the damages that she will receive if she is able to
prove her case are
a. general and special damages for pain and suffering and for her broken leg and sprained
arm.
b. general damages for loss of income and medical expenses, etc.
c. special damages for pain and suffering and for her broken leg and sprained arm.
d. general and special damages for loss of income and medical expenses, etc.
e. general damages for pain and suffering and for her broken leg and sprained arm and
special damages for loss of income and medical expenses, etc.
Answer: e
Diff: 3
Type: MC
Topic: Remedies
If Mary wants to show that the university was negligent, Mary must prove
a. that the injuries were a foreseeable result of the failure to repair the hole in the
pavement.
b. that the university breached its duty to repair the hole in the pavement.
c. that Mary suffered injuries as a result of the failure to repair the hole in the pavement.
d. that the university owed her a duty to repair the hole in the pavement.
e. all of the above

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Answer: e
Diff: 3
Type: MC
Topic: Negligence
8) Use this fact situation to answer the related questions that follow.
Harry, who owns a home in Toronto, needs a plumber to repair a leaky water pipe, so he
calls Marty the plumber. Yesterday it snowed, but Harry did not shovel the snow from his
walk and it has now turned to ice. Harry has some salt that he could put on the ice to
make it safe, but decides that watching the football game is more important. As Marty
arrives at Harry's house, he sees Jonny Star, the local newspaper boy, walk up Harry's
walk. Harry told Jonny that he could come over to watch the football game on Harry's
brand new HD television. Marty gets out of his truck and begins to go up Harry's walk.
Of course, because the walk is covered in ice, both Marty and Jonny slip and fall. Marty
breaks his right arm, and Jonny breaks his left ankle. When Harry looks out his window,
he sees Marty and Jonny on the ground and notices that although Jonny has rubber winter
boots on, Marty is wearing his dress shoes, which have leather soles.
In the fact situation above, Marty is

a. an occupier.
b. a trespasser.
c. a contractual entrant.
d. an invitee.
e. a licensee.
Answer: d
Diff: 2
Type: MC
Topic: Occupier's Liability
Skill: Applied
In the fact situation above, Jonny is
a. a trespasser.
b. an occupier.
c. a licensee.
d. a contractual entrant.

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e. an invitee.
Answer: c
Diff: 2
Type: MC
Skill: Applied
In the fact situation above, Harry is
a. an occupier.
b. a licensee.
c. a trespasser.
d. an invitee.
e. a contractual entrant.
Answer: a
Diff: 2
Type: MC
Skill: Applied
In a lawsuit by Marty and Jonny against Harry for negligence,
a. the fact that Marty was wearing shoes with leather soles may be found to be
contributory negligence.
b. the fact that Harry did not shovel his walk or put salt on it will likely not constitute
negligence.
c. the fact that Marty and Jonny should have known that Harry's walk was covered in ice
is contributory negligence.
d. the fact that Jonny was wearing rubber boots will likely be contributory negligence.
e. the fact that Marty and Jonny should have known that Harry's walk was covered in ice
is a voluntary assumption of risk.
Answer: a
Diff: 3
Type: MC

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Topic: Negligence
Skill: Applied
12) Which of the following is NOT a defence to the tort of defamation?

a. that the defendant did not mean to harm the plaintiff's reputation
b. that what the defendant said was true
c. that the plaintiff's reputation was not damaged
d. qualified privilege
e. absolute privilege
Answer: a
Diff: 2
Type: MC
Topic: Other Torts
Skill: Recall
13) Michael is employed by James' Groceries. Jim, the owner of Jim's Groceries
approaches Michael and convinces Michael to leave James' Groceries and work for Jim's
Groceries. James' Groceries may sue Jim's Groceries for
a. breach of employer–employee contract.
b. breach of employee contract.
c. interference with employee affairs.
d. breach of contract.
e. inducing breach of contract.
Answer: e
Diff: 2
Type: MC
Topic: Other Torts
Skill: Applied
14) Ted is employed as a computer analyst at Macrotech. His written contract of

employment requires him to give his employer 30 days’ notice of his intention to
terminate the agreement. Macrotech’s main competitor, Data Inc., attempts to hire Ted
away. Data Inc.’s president convinces Ted to accept their employment offer and to leave
Macrotech immediately, without providing any notice pursuant to the agreement. Data
Inc. has committed the tort of

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a. passing off.
b. negligence.
c. malicious prosecution.
d. inducing breach of contract.
Answer: d
Diff: 2
Type: MC
Topic: Other Torts
Skill: Recall
15) During the early development of the common law, the duty of an occupier or owner
of premises to persons who came on the premises was dependent on whether the persons
were invitees, trespassers, or
a. children.
b. public officials.
c. licensees.
d. law enforcement officials.
e. thieves or burglars.
Answer: c
Diff: 1
Type: MC
Skill: Recall
16) James has been burgled several times. He is fed up and decides to do something
about it. He places two traps at vantage locations in his home. One night he hears a
scream and he runs down to find Bob, a local troublemaker, writhing in pain and holding
his bleeding leg. Which of the following is NOT true?
a. Bob is not an invitee.
b. James owes a duty to Bob.
c. James owes no duty to Bob because Bob is a trespasser and was unlawfully on the
premises.
d. Bob can sue James for deliberately setting the trap to harm him.
e. Bob is a trespasser.

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Answer: c
Diff: 2
Type: MC
Skill: Applied
17) Which of the following statements is NOT true?

a. A manufacturer's duty towards consumers continues after it places a product on the
market.
b. A retailer may be liable to the consumer for a defective product.
c. After a manufacturer places a product on the market, its duty towards consumers ends.
d. A manufacturer's duty to warn its customers may be discharged if the warning is issued
to a learned intermediary.
e. A manufacturer who places a defective product on the market may be liable for
negligence.
Answer: c
Diff: 2
Type: MC
Page Reference: 58-61
Topic: Product Liability
Skill: Applied
18) The role of tort law is to

a. compensate victims for harm suffered from the activities of others.
b. assist judges by providing rules to determine how much money to pay victims of
crime.
c. punish wrongdoers in the same way that criminal law punishes criminals.
d. determine who caused a motor vehicle accident.
e. impose strict rules to prevent the commission of crimes.
Answer: a
Diff: 1
Type: MC
Topic: The Scope of Tort Law
Skill: Recall

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19) A tort is
a. a criminal act.
b. a misrepresentation.
c. a breach of contract.
d. the punishment imposed on a person for a wrongful act done to the person or property
of another.
e. a wrongful act done to the person or property of another.
Answer: e
Diff: 1
Type: MC
Skill: Recall
20) Both a crime and a tort are being committed when

a. a homeowner decides not to put salt on his walkway after an ice storm and a guest slips
and falls the following morning.
b. a bar patron becomes ill as a result of being over-served in a tavern.
c. an NHL hockey player suffers a broken nose during a consensual on-ice fight.
d. a last-minute holiday shopper strikes a fellow shopper with his fist resulting in a
broken jaw.
Answer: d
Diff: 3
Type: MC
Skill: Applied
21) During the early stages of the development of tort law, liability was
a. dependent on a finding of guilt.
b. punishable by incarceration.
c. dependent on whether the wrongdoing was justifiable.
d. strict.
e. based on a finding of criminal liability.
Answer: d

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Diff: 1
Type: MC
Topic: Development of the Tort Concept
Skill: Recall
22) In modern times, the basis for liability in tort is

a. whether the wrongdoer is able to compensate the victim.
b. actionable recklessness.
c. legal carelessness.
d. criminal wrongdoing.
e. fault.
Answer: e
Diff: 2
Type: MC
Topic: The Basis for Liability
Skill: Recall
23) Strict liability

a. absolves the defendant from all liability.
b. establishes the amount of damages that is payable to an injured party.
c. requires that the plaintiff strictly prove that the defendant was at fault.
d. means that liabilities are strictly enforced.
e. removes the onus on the plaintiff to show that the defendant is at fault.
Answer: e
Diff: 3
Type: MC
Skill: Applied
24) Which of the following best demonstrates the concept of vicarious liability?
a. Jack is employed by Jim as a trainee mechanic. Jack goes to a party and is asked by a
friend, Mary, to check her car that won't start. Jack checks the car. A few minutes after
Mary drives away, the car's ignition explodes, injuring Maggie.
b. A man's dog runs out of the house and mauls a letter carrier.

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c. A cow leaves its pasture, walks into the garden of another farmer and destroys all the
farmer’s crops.
d. Jack is employed by Jim as a trainee mechanic. Jim's sister, Maggie brings her car to
the shop. It has an engine problem. Jack has never worked on a car's engine before. Jim
asks Jack to work on the engine. Jack works on the engine. Later when Maggie drives off
in the car, the engine explodes, injuring Maggie.
e. none of the above.
Answer: d
Diff: 3
Type: MC
Skill: Applied
25) Which of the following statements best explains the standard of care in the law of
tort?
a. The standard is one that the judge expects.
b. The standard is one that differs from person to person and activity to activity.
c. The standard is one that society expects.
d. The standard is one that the lawyer expects.
e. The standard is the same for all persons and activities.
Answer: b
Diff: 2
Type: MC
Topic: Negligence
Skill: Recall
26) At what stage in a negligence action will the court apply the remoteness test?
a. the duty of care stage
b. the breach of duty stage
c. the causation stage
d. the injury/damages stage
e. the standard of care stage
Answer: d
Diff: 2

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Type: MC
Topic: Negligence
Skill: Recall
27) Res ipsa loquitur means that

a. the facts as told by the plaintiff are false.
b. the facts speak for themselves.
c. the facts cannot be established and so the case must be dismissed.
d. the facts as told by the defendant are false.
e. the plaintiff must prove the case beyond a reasonable doubt.
Answer: b
Diff: 2
Type: MC
Topic: Negligence
Skill: Recall
28) Which of the following statement best explains what happens during a court
proceeding when the plaintiff relies on the principle of res ipsa loquitur?
a. The burden shifts to the defendant to establish that he or she was not at fault.
b. The plaintiff raises an objection and the judge sustains the objection.
c. The plaintiff raises an objection and the judge overrules the objection.
d. The defendant's defence is dismissed.
e. The defendant is required to file more documents.
Answer: a
Diff: 2
Type: MC
Topic: Negligence
Skill: Applied
29) During a parliamentary debate one day, Jack calls Jim, another member of
parliament, a "no-good person who has licked many boots in order to get to the top." Jim
decides to sue. Which of the following is true?
a. Jack has a defence of absolute immunity.
b. Jack has a defence of qualified privilege.

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c. Jack has a defence of absolute privilege.

d. Jim may bring an action for negligent misstatement.
e. Jack's conduct is called libel.
Answer: c
Diff: 2
Type: MC
Topic: Other Torts
Skill: Applied
30) Exemplary damages are awarded by the court when it intends to

a. grant an injunction.
b. punish the wrongdoer.
c. compensate the victim for out-of-pocket expenses that can be quantified.
d. provide compensation for intangible injuries, such as pain and suffering.
e. compensate the victim's family for the loss of their loved one.
Answer: b
Diff: 1
Type: MC
Topic: Remedies
Skill: Recall
31) The purchaser of a bottled beverage is more likely to be successful in a suit for
damages against the manufacturer as a result of becoming ill if
a. she saw a long black hair in the bottle and decided not to drink it.
b. she saw a long black hair in the bottle and dropped it on the ground before she opened
it.
c. she saw a long black hair in the bottle after taking “a sip.”
d. she gave the bottle to a friend and saw a long black hair in the bottom after her friend
drank it.
Answer: c
Diff: 3
Type: MC
Topic: Causation of Damage
Skill: Applied

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32) Prior to the legislative changes in Canada with respect to contributory negligence, if a
plaintiff contributed in any way to her or his own loss the action would fail. Statutes now
require courts to
a. determine if the plaintiff’s degree of fault exceeds the defendant’s degree of fault as a
pre-condition to dismissing the action.
b. apportion damages according to the respective degree of responsibility of the parties.
c. find against the most liable defendant.
d. follow strictly the responsibility chart set out in the statute.
Answer: b
Diff: 3
Type: MC
Topic: Contributory Negligence
Skill: Recall
33) Which of the following is NOT a defence to a defamation action?

a. responsible communication on matters of pubic interest
b. the written or spoken words were true
c. qualified privilege
d. the written or spoken words came from someone else first
e. absolute privilege
Answer: d
Diff: 3
Type: MC
Topic: Defamation
Skill: Recall
34) A duty of care may be owed to someone other than the person who is directly injured.
a. True
Correct: Correct
b. False
Incorrect: Incorrect
Answer: a
Diff: 1

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Type: TF
Topic: Negligence
Skill: Applied
35) An occupier has no liability whatsoever to a trespasser.

a. True
b. False
Correct: Correct
Answer: b
Diff: 1
Type: TF
36) Compensation in tort law is not always in the form of damages.

a. True
b. False
Correct: Correct
Answer: b
Diff: 2
Type: TF
Topic: Remedies
37) An act of omission that is not found to be negligence today may later be found to be
negligence.
a. True
Correct: Correct
b. False
Answer: a
Diff: 1
Type: TF
Topic: Negligence

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38) An innocent employer is vicariously liable for the negligent acts of an employee.
a. True
Correct: Correct
b. False
Answer: a
Diff: 1
Type: TF
Topic: Legal Risks
Skill: Recall
39) In some cases an otherwise blameless employer may be required at law to

compensate victims of criminal acts committed by its employees.
a. True
Correct: Correct
b. False
Answer: a
Diff: 2
Type: TF
Topic: Vicarious Liability
Skill: Recall
40) An employer who has expressly prohibited certain actions can never be vicariously
liable if an employee ignores this prohibition.
a. True
b. False
Correct: Correct
Answer: b
Diff: 2
Type: TF
Topic: Vicarious Liability
Skill: Recall

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41) A high intensity sound coming from one property and affecting other properties does
not constitute the tort of nuisance.
a. True
b. False
Correct: Correct
Answer: b
Diff: 2
Type: TF
Topic: Other Torts
Skill: Applied
42) The roots of a tree that is growing on one property and that continue to grow onto
another property may constitute a nuisance.
a. True
Correct: Correct
b. False
Answer: a
Diff: 2
Type: TF
Topic: Other Torts
Skill: Applied
43) An attack by one person on the reputation of another person constitutes the tort of
injurious falsehood.
a. True
b. False
Correct: Correct
Answer: b
Diff: 1
Type: TF
Topic: Other Torts

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44) Leaving parliamentary debate aside, the only absolute privilege known and
recognized in law is the privilege between a lawyer and his or her client.
a. True
Correct: Correct
b. False
Answer: a
Diff: 2
Type: TF
Topic: Other Torts
Skill: Applied
45) Under strict liability, a wrongdoer is punished strictly if the wrongdoer was at fault.
a. True
b. False
Correct: Correct
Answer: b
Diff: 2
Type: TF
Skill: Recall
46) After a manufacturer places a product on the market, it has a continuing obligation to
warn consumers of potential dangers.
a. True
Correct: Correct
b. False
Answer: a
Diff: 3
Type: TF
Topic: Negligence
Skill: Recall

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47) An invitee is a person who enters premises with the consent of the owner of the
premises.
a. True
b. False
Correct: Correct
Answer: b
Diff: 2
Type: TF
Skill: Recall
48) Most Canadian jurisdictions have now abolished the distinction between invitees and
licensees.
a. True
Correct: Correct
b. False
Answer: a
Diff: 2
Type: TF
Skill: Recall
49) An inmate is able to escape from a local prison because a security guard left a gate
open. The jail owes the same duty of care to a local farmer who is assaulted by the inmate
minutes later as it does to a gas station owner who operates 750 kilometres away and is
robbed three days later.
a. True
b. False
Correct: Correct
Answer: b
Diff: 3
Type: TF
Topic: Duty – Proximity

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Skill: Applied
50) Malicious prosecution concerns the prosecution of crimes and is not a tort.
a. True
b. False
Correct: Correct
Answer: b
Diff: 2
Type: TF
Page Reference: 64
Topic: Other Torts
Skill: Recall
51) During parliamentary debate one day, James describes Peter as "someone who has
lied all his way to the top." Peter decides to sue for defamation. James has a defence of
absolute privilege.
a. True
Correct: Correct
b. False
Answer: a
Diff: 2
Type: TF
Page Reference: 64
Topic: Other Torts
Skill: Applied
52) Restitution is a remedy available to a plaintiff who seeks an order restraining a person
from doing, or continuing to do, a particular act.
a. True
b. False
Correct: Correct
Answer: b
Diff: 2

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Type: TF
Topic: Damages
Skill: Recall
53) Even a trespasser is owed a duty of common humanity. Explain.
Answer:
An occupier or owner of premises owes a minimal duty to a trespasser. He or she must
not deliberately set out to harm the trespasser or recklessly disregard the possibility that
his or her acts might harm the trespasser.
Diff: 2
Type: ES
Skill: Applied
54) Explain the principle of vicarious liability.
Answer:
Although an employee may be primarily liable for a tort, if the tort is committed in the
course of employment, the employer is also liable in a secondary sense.
Diff: 2
Type: ES
Skill: Recall
55) In law, the concept of negligence continues to evolve, so that what was not
negligence in the past may well become negligence in the future. Explain.
Answer:
Being founded on a duty or standard of care, circumstances that may constitute
negligence change with society and what at one time may not have given rise to a duty of
care or set a standard of care may well change at another time.
Diff: 3
Type: ES
Skill: Applied

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56) Explain the concept of absolute privilege and its application.
Answer:
Absolute privilege provides complete immunity from liability for defamation, but is
restricted to defamatory statements made during parliamentary debate.
Diff: 2
Type: ES
Topic: Other Torts
57) Where there is negligence, the injured party may be required to mitigate his or her
damages. Explain.
Answer:
A person who suffers an injury due to the negligence of someone else has a duty to
minimize his or her injuries where this is possible. Minimizing these injuries is a form of
reducing or mitigating the injury and, thus, the damages caused by the negligence.
Diff: 2
Type: ES
Topic: Negligence
Skill: Applied
58) The duty of a manufacturer to warn may be discharged by issuing a warning to

learned intermediaries. Explain.
Answer:
A manufacturer has a duty to warn consumers after its products are placed on the market.
This duty extends to warnings regarding the improper use of the product. However, if the
manufacturer issues warnings to learned intermediaries, such as doctors, on how to use
the product properly, the manufacturer's duty towards the consumer is discharged.
Diff: 2
Type: ES
Topic: Negligence
Skill: Applied
59) Explain the development of fault as an appropriate basis for liability in tort.

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Answer:
In the early development of tort law, liability was strict. There was no inquiry into the
reasons for the injury and whether the wrongdoer's conduct was justified. However, the
idea developed that a person ought not to be liable for injury that he or she did not cause.
Thus, tort law soon began to take into account the fault of the alleged wrongdoer in
causing injury.
Diff: 3
Type: ES
Skill: Applied
60) Distinguish between general and special damages.
Answer:
General damages are intended to compensate an injured party for intangible injuries, such
as pain and suffering. Special damages are intended to reimburse the injured for out-of-
pocket expenses, such as hospital bills.
Diff: 1
Type: ES
Topic: Remedies
Skill: Recall
61) Distinguish between general and punitive damages.
Answer:
General damages are intended to compensate the injured party for intangible injuries,
such as pain and suffering. Punitive damages are imposed by the court to punish the
wrongdoer.
Diff: 1
Type: ES
Topic: Remedies
Skill: Recall
62) There are cases in which a remedy other than damages may be available. What is the
difference between a restitutionary order and an injunction?

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Answer:
A plaintiff attempting to recover property wrongfully converted by a defendant can
obtain a restitutionary order requiring its return. Courts may also grant injunctive relief
preventing a defendant from committing wrongful acts under threat of contempt of court.
Diff: 3
Type: ES
Topic: Remedies
63) What is meant by owing a "duty of care" in the tort of negligence?
Answer:
A duty of care is said to be owed by one person, for example, Jack, to another, for
example, Jim, where the closeness of Jack and Jim is such that Jack ought reasonably to
have Jim in contemplation as being affected by his acts or omissions.
Diff: 2
Type: ES
Topic: Negligence
Skill: Applied
64) What do we mean when we say that damage is remote?
Answer:
Damage or injury suffered by a person is said to be remote when it could not have been
foreseen by the wrongdoer as likely to result from her or his acts or omissions.
Diff: 2
Type: ES
Topic: Negligence
Skill: Applied
65) What is contributory negligence?
Answer:
Contributory negligence is the negligence of an injured party that contributes to the
injured party's own injury.
Diff: 2

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Type: ES
Page Reference: 56
Topic: Negligence
Skill: Recall
66) Explain how a warning issued by a manufacturer to a "learned intermediary"

discharges the duty of the manufacturer to warn consumers of defects in a product.
Answer:
A manufacturer has a continuing duty to warn consumers of dangers and defects
associated with products it places on the market. The manufacturer may issue the warning
to a learned intermediary, namely, a person whom the consumer consults about the use of
the product—for example, a doctor. The duty to warn is discharged if the warning is
issued to a learned intermediary.
Diff: 3
Type: ES
Topic: Negligence
67) Explain how the defence of qualified privilege may be used in a defamation action.
Answer:
The defence of qualified privilege to a defamation action is one that is available to
persons in positions of authority whose responsibility it is to provide information about
other persons. Provided such persons give the information sought in good faith and with
an honest belief in its accuracy, they can successfully defend against a defamation action
even if the information proves to be false.
Diff: 3
Type: ES
Topic: Other Torts
Skill: Recall
68) Criminal law and tort law focus on different persons when a tort or crime is
committed. Explain.
Answer:

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Tort law focuses on the victim of a tortious act and seeks to compensate the victim for the
harm suffered. Criminal law focuses on the perpetrator of the criminal act and seeks to
punish the perpetrator.
Diff: 3
Type: ES
Page Reference: 47
Skill: Applied
69) What is the difference between intentional torts and negligence?
Answer:
Intentional torts involve behaviour done deliberately that causes injury or loss to another
person. Negligence is an unintentional tort, usually the result of careless activity on the
part of a defendant. Negligence traditionally requires the court to consider whether the
defendant’s conduct fell below a reasonable standard of care in all the circumstances.
Diff: 3
Type: ES
Topic: Torts
70) Social policy influences judicial decision-making and legislative intervention in the
area of tort law. Explain.
Answer:
Society has certain standards by which it expects persons to live. Societal standards
necessarily give rise to expectations regarding the consequences of a breach of those
standards. In the area of tort law, societal standards give rise to expectations of how
persons should act towards each other, and, in the event that one person injures another,
the amount of compensation that should be paid to the injured party should the other
party be deemed to be at fault. The expectations of society ultimately influence policy-
making in the form of legislative intervention of judicial decision-making. Judges look at
societal standards and expectations, for example, to determine how much a person who
has lost a limb should be given in compensation. As well, lawmakers in the legislature
make laws that reflect standards. For instance, in Canada, workplace safety laws require
that employers contribute to workplace safety and insurance. An injured worker is paid
from this pool of contributions. This law reflects the social policy that employers who do
business should contribute to the rehabilitation of injured workers.

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Diff: 3
Type: ES
Skill: Applied
71) Jack owns a pub. One evening, Jim, a friend, comes into the pub and orders a drink.
Over a period of approximately two hours, Jim orders and drinks a variety of alcoholic
beverages. Shortly before the pub closes, Jim pays for his drinks and leaves the pub. Jim
gets into his car and drives away. On his way home, Jim is involved in a motor vehicle
accident. Explain the nature of the tort that Jack would be found to have committed. Are
there any defences available to Jack? Explain what these defences are.
Answer:
Jack would most likely be found to have been negligent. The tort of negligence is
committed when a party who is said to owe a duty of care to another breaches that duty.
Jack may be said to owe a duty because he meets the test. Jack and Jim are in such
proximity that Jack ought reasonably to consider Jim as being affected by his acts or
omissions. In this instance, Jack owed a duty to Jim to stop Jim from drinking
immediately once he determined that Jim was drunk. He also owed a duty to prevent Jim
from driving home. Jack did not stop Jim, either from continuing to drink or from driving
home, and this is in breach of his duty. As a result of Jack's omissions, Jim sustained an
injury, which could be said to be directly related to Jack's omission. Jack is able to
advance the defence of contributory negligence, and of voluntary assumption of risk, to
reduce the amount of compensation to which Jim may be entitled. Jim was not only
contributorily negligent, he also voluntarily assumed the risk that if he consumed too
much alcohol and he drove home, he could be involved in an accident.
Diff: 3
Type: ES
Topic: Negligence
Skill: Applied
72) The standard of care in the law of negligence is not a uniform standard. Explain.
Answer:
The law places a duty on each person to take such reasonable care that his or her acts and
omissions do not cause foreseeable harm to another. The standard of care, that is the
nature and degree of care that the law considers to be reasonable and expects a person to
live up to, is not uniform and varies from person to person and from activity to activity.
In addition, the court also takes into consideration various factors, such as the likelihood
of harm and the potential severity of the injury. Thus, in the case of a medical procedure
with potentially serious consequences, the standard of care that the court will expect of a

3-27
doctor who is a specialist will be higher than the standard it expects of someone who is
not a specialist.
Diff: 3
Type: ES
Topic: Negligence
Skill: Applied
73) Foreseeability is a major element in the determination of the extent of liability.

Explain.
Answer:
Foreseeability is the legal term that means the extent to which an injury could have been
anticipated. That is to say, was the injury foreseeable. The law places a duty on all
persons to not engage in acts, and to avoid omissions, that will result in foreseeable injury
to another. Until the 1960s, the general principle was that a wrongdoer was liable for any
injury that resulted directly from his or her actions, however unlikely it was that the
injury could have flowed from the act or omission. In one of the landmark cases in the
common law, The Wagon Mound, decided in the United Kingdom, the Court restricted
liability to injury or damage that was reasonably foreseeable. In Canada, the current
position takes a broad view of what is foreseeable. The position is that a wrongdoer takes
a victim as he or she finds him or her. Thus if a victim has a pre-existing condition or
disability such that the injury that flows from the act of the wrongdoer is far more serious
than might have been expected, the wrongdoer will nevertheless be liable for the injury.
Diff: 2
Type: ES
Page Reference: 53-54
Topic: Negligence
Skill: Applied
74) The concept of foreseeability in tort law is considered by a court in determining the
existence of a duty of care and as a threshold for the recovery of any damage suffered by
an injured plaintiff. Explain the significance of “reasonably foreseeable” as it relates to
both duty and damages, as well as the policy reasons why courts sometimes fail to
recognize a duty, or fail to recognize that the plaintiff has met the threshold for recovery
of damages.
Answer:
As far as duty of care goes, the courts will not impose liability unless it was “reasonably
foreseeable” that a negligent act or omission would cause potential injury or loss to the
plaintiff. Judges often refer to this aspect of the establishment of a duty of care as

3-28
“proximity.” With respect to the recovery of damages, the court employs a “reasonable
foreseeability test” to establish a threshold that a plaintiff must meet or exceed to recover
damages. The court undertakes an objective assessment of what a reasonable defendant
would foresee as likely injury to the average plaintiff. The plaintiff must satisfy the court
that a person of “ordinary fortitude” would likely have suffered injury, failing which,
causation at law is not established. Policy concerns considered by the court in either
recognizing a duty of care or recognizing an entitlement to claim damages include the
proliferation of lawsuits and the ability to insure against a potential new risk.
Diff: 3
Type: ES
Topic: Foreseeability: Duty and Damages
Skill: Applied
75) How can the plaintiff's own conduct affect the outcome of a claim for negligence?
Answer:
Jurisdictions have contributory negligence legislation that requires the courts to apportion
damages according to the degree of responsibility of the parties. If a plaintiff is injured
but contributed to the injury through the plaintiff's own fault, the compensation that the
defendant is required to pay will be reduced. The courts apply a "comparative
blameworthiness" approach in apportioning responsibility.
Diff: 2
Type: ES
Topic: Negligence
Skill: Recall
76) For the most part, Canadian courts apply modified principles of negligence to
determine liability. Some critics of fault-based systems propose that victims be
compensated through “no-fault” government schemes—similar to those already in place
relating to motor vehicle accidents and workers compensation. Others argue that the law
should impose “strict liability” in all areas in which plaintiffs have traditionally struggled
to establish fault, namely, against manufacturers of goods or products. Explain the three
bases for awarding compensation to injured parties and the advantages and disadvantages
of each.
Answer:
The traditional fault-based system provides an injured plaintiff with access to the courts
to obtain compensation. However, a plaintiff must prove all three elements of a
traditional negligence claim—that being, fault causing loss. Fault-based systems are often
thought to be fair because damages are only awarded against negligent defendants. There

3-29
is also a significant deterrent effect. However, requiring a plaintiff to establish fault can
be costly and can often result in a financially needy plaintiff receiving no compensation
at all. A comprehensive no-fault scheme with respect to personal injury would in effect
take away the right to sue for compensation. Instead, everyone who suffered unexpected
or unanticipated injury could apply pursuant to a government scheme to receive
compensation. No-fault schemes are attractive in that all injured parties receive some
level of compensation, but a government scheme of no-fault insurance for all personal
injury would undoubtedly be costly and claimants would likely receive lower levels of
compensation than they would under the current tort regime. Critics of no-fault
legislation also argue that persons may be less vigilant in causing injury to themselves or
in contributing to any loss. Additionally, there would be no deterrent effect on potential
defendants to take care in circumstances where parties may be injured as a result of their
acts or omissions. To impose strict liability on all defendants would certainly allow
plaintiffs to more easily recover damages for their injuries. There would be a requirement
on the part of the plaintiff to muster a case on the issue of liability, which often would
require hiring lawyers and experts. It is arguable that defendants would take greater steps
to ensure that the products they delivered to market were safe for users. On the other
hand, imposing liability on every defendant in every case where a plaintiff suffered harm
could potentially result in ballooning insurance costs. A strict liability scheme would
likely lead to some legislative measures reducing damage awards to avoid runaway
insurance premiums. The plaintiff retains access to the courts but is relieved from any
obligation to prove fault, rather shifting the obligation to the defendant to show that no
breach of the applicable standard of care occurred.
Diff: 3
Type: ES
Topic: Compensation Schemes
Skill: Critical Thinking

3-30

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Mytest For Smyth: The Law and Business Administrations, Thirteenth Edition Chapter 3: The Law of Torts

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MyTest for Smyth: The Law and Business Administrations, Thirteenth Edition

Chapter 3: The Law of Torts

1) Tort damages are often classified into

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Ralph's statement to Mary is

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c. the tort of negligence.

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In the fact situation above, Marty is

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12) Which of the following is NOT a defence to the tort of defamation?

14) Ted is employed as a computer analyst at Macrotech. His written contract of

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17) Which of the following statements is NOT true?

18) The role of tort law is to

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20) Both a crime and a tort are being committed when

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22) In modern times, the basis for liability in tort is

23) Strict liability

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27) Res ipsa loquitur means that

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c. Jack has a defence of absolute privilege.

30) Exemplary damages are awarded by the court when it intends to

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33) Which of the following is NOT a defence to a defamation action?

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35) An occupier has no liability whatsoever to a trespasser.

36) Compensation in tort law is not always in the form of damages.

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39) In some cases an otherwise blameless employer may be required at law to

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Copyright © 2013 Pearson Canada Inc.

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53) Even a trespasser is owed a duty of common humanity. Explain.

54) Explain the principle of vicarious liability.

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56) Explain the concept of absolute privilege and its application.

58) The duty of a manufacturer to warn may be discharged by issuing a warning to

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60) Distinguish between general and special damages.

61) Distinguish between general and punitive damages.

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63) What is meant by owing a "duty of care" in the tort of negligence?

64) What do we mean when we say that damage is remote?

65) What is contributory negligence?

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66) Explain how a warning issued by a manufacturer to a "learned intermediary"

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69) What is the difference between intentional torts and negligence?

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73) Foreseeability is a major element in the determination of the extent of liability.

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Copyright © 2013 Pearson Canada Inc.

Copyright © 2013 Pearson Canada Inc.

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