WILLIAMS v McFARLANE [1996] NSWCA 559

WILLIAMS v McFARLANE [1996] NSWCA 559

Leave to raise a ground not litigated at trial should be refused unless exceptional circumstances exist requiring it to prevent a miscarriage of justice. In this case, the appellant is held to the case advanced at trial (injury as pedestrian), and it is impermissible to raise on appeal an alternative case (injury as pillion passenger) which was expressly disclaimed at trial.

Parties
Appellant: Scott Williams; Respondent: Gordon McFarlane
Jurisdiction
Australia
Judgment Date
05 February 1996
Procedural Posture
Appeal / Judgment on Application for Leave to Amend Grounds of Appeal and Final Disposition
Outcome
Appeal dismissed with costs; leave to raise new ground of appeal refused
Legal Topics
Appeal and New Trial, Raising New Grounds on Appeal, Motor Vehicle Negligence, Contributory Negligence
Civil Procedure Torts Appeal and New Trial Raising New Grounds on Appeal Motor Vehicle Negligence Contributory Negligence

Case Brief

Summary, issues, holding and outcome

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Parties

Scott Williams

Appellant

Gordon McFarlane

Respondent

Procedural Posture

Appeal / Judgment on Application for Leave to Amend Grounds of Appeal and Final Disposition

Legal Issues

  1. 1 Whether leave should be granted to raise a new ground of appeal not litigated at trial
  2. 2 Whether exceptional circumstances exist to prevent a miscarriage of justice by allowing a new claim on appeal
  3. 3 Whether the appellant, disbelieved at trial, can recover on a ground not pleaded or argued below

Ratio Decidendi

Leave to raise a ground not litigated at trial should be refused unless exceptional circumstances exist requiring it to prevent a miscarriage of justice. In this case, the appellant is held to the case advanced at trial (injury as pedestrian), and it is impermissible to raise on appeal an alternative case (injury as pillion passenger) which was expressly disclaimed at trial.

Court Disposition

Appeal dismissed with costs; leave to raise new ground of appeal refused

Orders

  • Motion for leave to add a ground of appeal, refused
  • Appeal dismissed with costs