How to re-frame common issue (h) such that it would be appropriate for a common issues trial?

The Court of Appeal’s decision is instructive regarding how best to re-frame common issue (h) such that it would be appropriate for a common issues trial. At paras. 86 and 87, Garson J.A. states: 86 The [rule in Ryland v. Fletcher’s] elements are well established. The plaintiff must show that (1) the defendant was engaged in a non-natural use of its land, (2) the defendant brought onto that land something with the potential to make mischief, (3) that the thing subsequently escaped and (4) damage was caused to the plaintiff as a result of the escape. Proof of all elements results in strict liability for damages: Smith v. Inco Ltd., 2011 ONCA 628 at paras. 68-71. 87 Once again, the first three elements of the test could properly be certified as common issues. The fourth element, however, requires individual assessment of damages. The chambers judge erred in certifying the question as it was written. Had the question been framed to address the elements of the test up to, but not including, the element of damage, it could have been certified as a common issue.