Description
Where Counsel was concerned that evidence was being adduced that was a departure from a pleaded case, it was incumbent upon him to invite the trial judge to rule on that objection and insist on the ruling. It was therefore too late to raise the point on appeal.
The appellant employee appealed against a decision dismissing her personal injury claim arising out of the alleged negligence of the respondent employer. It was apparent that the approach of counsel for the employee at trial was insufficient; if she had been concerned that the respondent would adduce evidence and seek to rely on it in departure from the pleaded case, it was incumbent on her to invite the trial judge to rule on that objection. Accordingly, she ought to have insisted on a ruling at trial. If such an objection had been taken, the respondent in turn could have applied for an amendment if necessary. The appellant had had an opportunity to raise the point at trial and had failed to do so. It was now too late to complain. In any event, the trial judge had rejected the appellant's expert's evidence more or less in its entirety and the trial judge's conclusion that appellant's expert's evidence was insufficient to satisfy her claim had been a free-standing conclusion.
