MASON C.J., WILSON, BRENNAN AND DAWSON JJ.: The respondent to this appeal, who was the plaintiff in the action and whom it is convenient to refer to as the plaintiff, was employed by the appellant, the Water Board, which was then called the Metropolitan Water Sewerage and Drainage Board. On 26 August 1977, the plaintiff was hit by a bus and injured whilst he was working in the course of his employment in Elizabeth Street, Sydney. He sued his employer, the driver of the bus, and the owner of the bus by whom the driver was employed. Proceedings against the driver of the bus were discontinued.

2. The matter came on for trial in June 1984 before Yeldham J., who gave judgment in favour of the remaining defendants. The plaintiff appealed to the New South Wales Court of Appeal. The appeal against the owner of the bus was dismissed by consent but the appeal proceeded against the remaining defendant, the plaintiff's employer. The appeal was allowed and the plaintiff's claim sent back for retrial. The present appeal is by the employer against the decision of the Court of Appeal. There is a cross-appeal by the plaintiff upon the ground that the Court of Appeal should not have granted a new trial but should have entered a verdict for the plaintiff.

3. Elizabeth Street runs north and south and at the time of the accident there were three lanes marked on the western side of the roadway for traffic travelling north. Not far south of the intersection of Elizabeth Street with Campbell Street, roadworks were being carried out by the employer on the western side of Elizabeth Street. There was an excavation in the roadway in the first lane, which was the lane nearest to the western gutter. At the southern end of the excavation, which was about two feet deep and extended across almost the whole width of the first lane, was a compressor which blocked traffic from using the first lane to the north of it. Yellow markers, known as witches' hats, were placed along the side of the area where the work was being done. They were placed on or near the line dividing the first lane from the second, or middle, lane.

4. Throughout the trial the plaintiff maintained that when he was injured he was working entirely in the first lane some five or six feet north of the northern end of the excavation. He said that he bent down to pick up a shovel and was hit. Thereafter, according to his evidence, he saw the bus which had hit him and it was wholly in the second lane. He said that the nearside trafficator of the bus was damaged and yellow glass from it was lying upon the roadway.

5. The bus driver, whose evidence the trial judge accepted, said that at all times the bus was in the second lane and at no time did it deviate into the first lane. The traffic on the morning in question was heavy and was travelling in both directions. The bus was in a line of traffic which was travelling at a low speed.

6. The employer called no evidence and was not called upon to address the court.

7. The trial judge found that the only way in which the accident could have happened was for the plaintiff to have moved out from the first into the second lane to some extent because he concluded that at no time did the bus move out of the line of traffic in which it was travelling in the second lane. He therefore found that there had been no negligence on the part of the owner of the bus.

8. Similarly he found that there was no negligence on the part of the employer saying:

performed, but whether such a notation was there or

have protected people such as the plaintiff working

or other protection goes far beyond the dictates of

9. The point taken on behalf of the plaintiff on appeal to the Court of Appeal was that the trial judge ought to have held that the employer was negligent in not having erected a barrier of some kind in order to prevent the plaintiff from moving into the second lane and into the path of the bus. It was not suggested to the Court of Appeal that such a point was taken by the plaintiff during the trial. The plaintiff's whole case upon trial was that he remained at all times in the first lane and that the bus crossed from the second to the first lane. It was upon the basis that the trial was conducted in this way that the plaintiff's case upon appeal was presented.

10. As appears from the passage which we have cited from the judgment of the trial judge, what was put on behalf of the plaintiff at the trial was that the employer ought to have erected a barrier to protect the plaintiff against traffic moving from the second lane to the first, not to stop the plaintiff himself from moving from the first lane into the second. On appeal the plaintiff relied upon a particular of negligence alleging that the employer failed "to provide any or any adequate barriers so as to delineate that portion of Elizabeth Street upon which the plaintiff was working". That particular is ambiguous, but it does not appear that the plaintiff placed reliance upon it at the trial in any way other than that which we have mentioned.

11. Nevertheless, the Court of Appeal (Hope and Priestley JJ.A.; McHugh J.A. dissenting) held that upon the facts of the case as found by the trial judge and having regard to the submission which was made at the trial on behalf of the plaintiff concerning the erection of a barricade, a case of negligence "emerged" against the employer based upon its failure to provide a barricade to prevent its employees from straying from the first into the second lane. The outcome of the appeal to this Court turns upon the correctness of that view. If it were correct, the Court of Appeal may have been justified in entering judgment for the plaintiff. However, the Court concluded that it would be unfair to the employer to do so "on a set of facts to which it (the employer) has never had an opportunity of presenting a defence". Had the employer been faced at the trial with the contention that it should have taken precautions to keep its employees safely within the first lane it may, so the Court of Appeal said, have conducted its case differently and more elaborately with respect to the alleged duty to erect barriers. Moreover, in the view of the Court of Appeal an issue of contributory negligence arose which would be more appropriately dealt with upon a retrial.

12. The course taken by the Court of Appeal immediately casts doubt upon whether it was correct in concluding that, upon the facts as found by the trial judge, the plaintiff had made out a case of negligence against his employer. The only case which he could have made out was one which he sought to put, for a trial is not at large but is of the issues joined by the parties. If the case which the Court of Appeal thought was made out was one which the plaintiff had sought to put on trial, then it may not have been unfair, as the Court of Appeal appears to have thought it would have been, for judgment to have been entered for the plaintiff on the appeal and for any question of contributory negligence to have been dealt with then and there. Any element of unfairness can only have arisen from the fact that the case against the employer which the Court of Appeal discerned, was not a case which the plaintiff sought to make at trial and was not, for that reason, a case which the employer had been required to meet. It was not a case which could be met upon appeal because the possibility of calling evidence to meet it was denied to the employer at that stage.

13. More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. See Suttor v. Gundowda Pty. Ltd. [1950] HCA 35; (1950) 81 CLR 418, at p 438; University of Wollongong v. Metwally (No.2) [1985] HCA 28; (1985) 59 ALJR 481, at p 483; [1985] HCA 28; 60 ALR 68, at p 71; Coulton v. Holcombe [1986] HCA 33; (1986) 162 CLR 1, at pp 7-8; O'Brien v. Komesaroff [1982] HCA 33; (1982) 150 CLR 310, at p 319.

14. In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged. See Dare v. Pulham [1982] HCA 70; (1982) 148 CLR 658. In Leotta v. Public Transport Commission (N.S.W.) (1976) 50 ALJR 666, at p 668; 9 ALR 437, at p 446, a case having been submitted to the jury which was factually different from that alleged in the pleadings and particulars, Stephen, Mason and Jacobs JJ. observed that the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence. The failure to apply for the amendment in that case was held not to be fatal. But in Maloney v. Commissioner for Railways (N.S.W.) (1978) 52 ALJR 291; 18 ALR 147, Jacobs J., with whom the other members of the Court agreed, pointed out (at p 294; pp 151-152 ALR) that the conclusion in Leotta was reached only upon the presupposition that the new issue or new way of particularizing the existing issue had emerged at the trial and had been litigated.

15. It is necessary to look to the actual conduct of the proceedings to see whether a point was or was not taken at trial, especially where a particular is equivocal. The particular in question in this case falls into that category. The allegation that the employer failed to provide adequate barriers did not indicate the purpose for which it was contended that barriers ought to have been provided. The case presented by the plaintiff, however, made it quite clear that it was being alleged that the barriers ought to have been provided to prevent traffic from crossing into the first lane. The plaintiff could have presented his case in the alternative, upon the basis that the employer was negligent in failing to provide a barrier to prevent him from straying into the second lane. The relevant particular, because of its breadth, would have allowed such a case to be put. But it was not put. The plaintiff presented his case solely on the basis that he remained in the first lane and the imprecision of the relevant particular cannot be the means of attributing to the plaintiff a case which he did not make. Cf. Esso Petroleum Co. Ltd. v. Southport Corporation (1956) AC 218.

16. The employer was never required to meet a case that the plaintiff was hit by the bus in the second lane and it was entitled in conducting its defence to rely upon the case which was actually put. Had the plaintiff alleged in the alternative that the accident occurred in the second lane, the employer may have been compelled to address in a different way the question of its failure to erect adequate barriers, if necessary calling evidence concerning the feasibility of adopting such a measure. The point was, however, raised for the first time upon appeal and, because of the possibility that the employer may, if it had been raised below, have wished to call evidence in response to it, it ought not to have been entertained.

17. It is true that in Maloney (at p 294; p 152 ALR) it was recognized that in "very exceptional cases" a plaintiff's omission to put at trial a case formulated on appeal may not be conclusive against him. But it was pointed out that the opportunity to assert the new case at another trial should only be granted where the interests of justice require it and such a course can be taken without prejudice to the defendant. No exceptional circumstances arise in this case where the parties adopted the course which they took of their own choice. Moreover, it could hardly be said that a new trial could be held now, more than ten years after the accident, without prejudice to the defendant.

18. The appeal to this Court should be allowed and the judgment in favour of the appellant should be restored. The cross-appeal should be dismissed.

GAUDRON J. The Water Board appeals and Mr Moustakas ("the plaintiff") cross-appeals from a decision and order of the Court of Appeal of the New South Wales Supreme Court. The Court of Appeal, by majority (Hope and Priestley JJ.A., McHugh J.A. dissenting) allowed an appeal from that part of a decision and judgment of Yeldham J. finding for the Water Board in an action in negligence brought by the plaintiff. A new trial of the plaintiff's action against the Water Board was ordered.

2. In August 1977 the plaintiff was employed by the Water Board. He was working near a Water Board excavation in Elizabeth Street, Sydney when he was struck by an Atlantean bus and suffered injury. He brought an action in the Supreme Court of New South Wales claiming damages for negligence against the bus driver, the Public Transport Commission (the owner of the bus and the employer of the bus driver) and the Water Board. The proceedings against the bus driver were discontinued when the matter came on for hearing, but before any evidence was called.

3. In the plaintiff's Statement of Claim it was pleaded that the bus was travelling in a northerly direction in Elizabeth Street. The negligence alleged against each of the three defendants was separately particularized in the Statement of Claim, but the particulars provided no details as to the point of impact between the plaintiff and the bus.

4. The Water Board sought no further particulars of the case pleaded in the Statement of Claim. However, in answer to particulars requested by the Public Transport Commission a sketch map was provided showing the point of impact as being close to the north-eastern corner of the hole which had been excavated in the western-most lane of Elizabeth Street at a point very close to the line between that lane and the adjoining lane. At the time there were three laneways for northbound traffic in Elizabeth Street. The western-most lane has been referred to throughout these proceedings as lane 1. The adjoining lane has been referred to as lane 2. For convenience I shall do the same.

5. At the time of the accident there were markers, known as witches' caps, separating the area of the Water Board works from the area of traffic. At the trial before Yeldham J. the plaintiff gave evidence that the markers were positioned along the line between lanes 1 and 2. However, Mr Katic, a fellow worker, gave evidence that they were inside lane 2. There was no specific finding on this matter.

6. The plaintiff gave evidence that he was in lane 1 when struck by the left hand side of the bus but some six feet further north of the north-eastern edge of the excavation. Evidence from Mr Katic also put the plaintiff to the north of the excavation and on the eastern side of lane 1, that is towards the line separating lane 1 from lane 2. However, Mr Katic did not see the accident. The plaintiff's evidence-in-chief was that he was "half a foot or one foot" from the line between lanes 1 and 2 when he bent down to pick up a shovel and the bus struck him.

7. The only other evidence as to the point of impact was given by the bus driver. His evidence was that the bus was at all times in lane 2. In cross-examination by plaintiff's counsel he agreed that "there would have only been a matter of a few inches on either side of the bus to occupy the complete lane". The maximum difference then between the point of impact identified by the plaintiff and that identified by the bus driver was something of the order of 15 inches.

8. The bus driver was the only witness called by the defendant Public Transport Commission. The Water Board elected to call no evidence. Counsel for the plaintiff addressed. Counsel for the defendants were not called upon. The trial judge found that the bus was at all times "wholly within the second lane" and that "the only way in which (the) accident could have happened was for the plaintiff to have moved out from the first lane into the second lane to some extent". His Honour found that neither the Public Transport Commission nor the Water Board was negligent and judgment was entered for the defendants.

9. The plaintiff appealed to the Court of Appeal. The appeal so far as concerned the Public Transport Commission was later, by consent, dismissed. On appeal against the Water Board it was argued that it should have been found that the Board was negligent in not providing a barrier to prevent the plaintiff from moving inadvertently into lane 2: see McLean v. Tedman [1984] HCA 60; (1984) 155 CLR 306, at pp 311-312 and the cases there cited. It was objected that this was a new case in that the case made by the plaintiff at trial was that barriers should have been erected to prevent on-coming traffic from going into lane 1, and not that barriers should have been erected to prevent workmen from straying into lane 2.

10. In the Court of Appeal Priestley J.A., with whom Hope J.A. agreed, seems to have stopped short of an express finding that a new case was raised, referring to the plaintiff's argument throughout his judgment as "the 'new' case", although his Honour stated that "the Board does not appear to have been faced directly at the trial with a claim that it should have taken care to guard the plaintiff from straying into lane 2 as distinct from taking care to keep traffic from getting into lane 1". In the end his Honour thought the case distinguishable from that considered by this Court in Suttor v. Gundowda Pty. Ltd. [1950] HCA 35; (1950) 81 CLR 418 in that the findings of the trial court revealed "an apparently sound case against the (Water Board), although on a slightly different factual basis". McHugh J.A. was of the view that a new case had emerged and that, as there was a possibility that evidence could have been given at the trial which could have prevented the point from succeeding, the principle in Suttor v. Gundowda Pty. Ltd. precluded the point from being entertained on appeal.

11. In Maloney v. Commissioner for Railways (N.S.W.) (1978) 52 ALJR 292; 18 ALR 147 this Court rejected an argument that it was open to an appeal court to entertain a case based on a ground of negligence not litigated at the trial, although allowing that a case might be left to the jury notwithstanding that it had not been pleaded or particularized. In that case Jacobs J., with whose reasons Stephen, Mason and Aickin JJ. agreed, acknowledged (at p 294; p 152 of ALR) that "there are very exceptional cases where the interests of justice may require a new trial on an issue of fact not litigated at the trial". His Honour then cited a passage from the judgment of Samuels J.A. in that case in the Court of Appeal wherein it was stated that "the plaintiff's omission to put at the trial the case now formulated is not necessarily conclusive against him. He might be entitled to the opportunity to assert it at a new trial, if the interests of justice require it, if the evidence already given is capable of sustaining it, and if such a course could be taken without prejudice to the defendant". What was there stated by Jacobs J. must be taken as an exception to the general rule enunciated in Suttor v. Gundowda Pty. Ltd. I do not understand that exception to have been excluded by any subsequent decision of this Court. Although Priestley J.A. described the present case as "dissimilar" from that considered in Suttor v. Gundowda Pty. Ltd., it seems that his Honour may also have considered that if a new case had arisen it was one which in the interests of justice required a new trial for his Honour stated that "to refuse to entertain the argument would be to send the plaintiff from the court without his being heard on an argument which the findings of the court itself have made possible, those findings being ones on which he is, at least prima facie, entitled to a remedy".

12. It may be accepted that a new case emerges where a different cause of action is asserted from that litigated at the trial. See Mummery v. Irvings Pty. Ltd. [1956] HCA 45; (1956) 96 CLR 99, at p 111. Similarly, it may be accepted that a new case emerges where a different duty of care is asserted. See Leotta v. Public Transport Commission (N.S.W.) (1976) 50 ALJR 666, at pp 668-669; 9 ALR 437, at pp 446-447. So too, it may be accepted that a new case emerges where a different ground of negligence is asserted. See Maloney v. Commissioner for Railways (N.S.W.), at pp 293 and 294; pp 149 and 151 of ALR However, the present case involves none of these. The cause of action asserted at all times was negligence. The duty asserted against the Water Board was at all times the duty to provide a safe system of work. The ground of negligence asserted from the filing of the Statement of Claim until the final address was the failure to provide a barrier or barriers.

13. The negligence particularized against the Water Board in the plaintiff's Statement of Claim included a particular in the following terms:

"Failure to provide any or any adequate barriers so

as to delineate that portion of Elizabeth Street

upon which the plaintiff was working".

It may here be noted that the distinction between barriers to prevent traffic going into lane 1 and barriers to prevent the plaintiff straying into lane 2 is a refinement which is not to be found in the words of the quoted particular. It is a refinement which appears to have emerged in the proceedings in the Court of Appeal. If, as seems more relevant in the context of the assertion of a duty to provide a safe system of work, the issue is refined by reference to the area in which the plaintiff was working (as was done in the particulars) there may not be a marked difference between barriers to prevent traffic going into the area in which the plaintiff was working, and barriers to prevent the plaintiff going beyond that area. Particularly is that so in a factual situation in which the excavation extended almost entirely across the carriage way (only five or six inches short of lane 2), in which the plaintiff was working in close proximity to lane 2, and in which the work area may have extended into lane 2.

14. As previously noted, the Statement of Claim in which the failure to provide barriers was particularized provided no details as to the point of impact between the plaintiff and the bus. Within that context there was no warrant for assuming that the plaintiff's case was other than an assertion of failure to protect the plaintiff from traffic by the erection of barriers delineating the work area. So stated the failure involves no refinement, whether by reference to barriers to keep traffic out of the work area, or barriers to keep traffic out of lane 1.

15. Nor could the sketch map which was supplied to the Public Transport Commission be understood to confine the ground of negligence asserted against the Water Board. That sketch map was in answer to a request that the plaintiff "specify the collision referred to in paragraph 3 of the plaintiff's Particulars of Negligence against the Second Defendant (the bus driver)". Even assuming that the Water Board was entitled to have the plaintiff's case against it confined by the particulars supplied to the Public Transport Commission (a proposition which I do not accept) the specification of the collision by reference to a point which, allowing for scale, appears to be only inches from the line between lanes 1 and 2 could not, in a context in which the duty asserted was a duty to provide a safe system of work, be reasonably understood to derogate from the ground of negligence asserted against the Water Board in the Statement of Claim.

16. At the trial the plaintiff's evidence was that he was in lane 1 when struck, but as previously pointed out "half a foot or one foot" from the line between lanes 1 and 2. Within the context of that evidence it may have been reasonable to assume that the only relevant purpose barriers would have served in the particular circumstances would have been to keep traffic out of lane 1. However, that context changed when evidence was given by the bus driver that he was at all times within lane 2. As previously noted, that evidence revealed that the difference between the point of impact sworn to by the plaintiff and that sworn to by the bus driver was, at the most, of the order of 15 inches, i.e. not more than one step backwards from the point at which the plaintiff swore that he bent down to pick up his shovel to commence work. At that stage the evidence disclosed two possible factual situations each amounting to a breach of the asserted duty to provide a safe system of work and each falling within the ambit of the particularized ground of negligence viz. failure to provide barriers to delineate the area in which the plaintiff was working. At that stage the Water Board elected to call no evidence.

17. During his address counsel for the plaintiff submitted that the Water Board was negligent in its failure to provide barriers. That submission was referred to by the trial judge as follows:

"... I think it is quite unreal to suggest, as

counsel for the plaintiff did suggest, that some

type of post or other barricade should have been

erected in the circumstances to have protected

people such as the plaintiff working in a nearside

lane".

If that correctly records the submission of counsel, then the submission was not limited to the protection of people from vehicles moving into the lane in which they were working. However, apparently it was so understood by the trial judge for his Honour continued:

"I think that to require such or other protection

goes far beyond the dictates of reasonable care in

the circumstances. To place yellow witches caps,

as they are called, or markers designating the area

where the work was being performed was quite

sufficient, indeed, it was probably more than

sufficient, because the workers were there plainly

to be seen and I do not consider that the third

defendant, as the employer of the plaintiff, was in

any way to blame for what occurred."

18. In view of the way in which the case has developed it must be accepted, for the purpose of this appeal, that counsel for the plaintiff did not make an express submission that barriers should have been erected to keep the plaintiff from straying into lane 2. Even if the further assumption is made that the submission relating to the provision of barriers was made expressly by reference to keeping traffic out of lane 1, it cannot be assumed that the plaintiff had disavowed an entitlement to a verdict made possible on the evidence of the bus driver. An action in negligence is not defeated by evidence, which, although negativing the particular breach alleged, establishes or is consistent with some other breach of the duty of care. The position was put in Mummery v. Irvings Pty. Ltd. as follows (at p 110):

"In an action conveniently described as a

negligence action the particular duty, a breach

of which is relied upon to establish negligence

on the part of the defendant, may be alleged to

have been transgressed in a variety of ways and

if the plaintiff particularises the transgression

or transgressions relied upon the defendant may,

subject to the discretion of the court, hold him

to the issue or issues of fact so raised. But

the action is still for a breach of the duty

specified and the defendant will not defeat the

plaintiff's claim either by establishing that the

plaintiff's injuries resulted from or were

consistent with some other breach of the same

duty. If the facts, as proved in the case, lead

to the conclusion that the injuries resulted

either from one or the other the plaintiff will

succeed. This view is implicit in the decision

in Doonan v. Beacham [1953] HCA 38; (1953) 87 CLR 346."

(emphasis added)

19. Doonan v. Beacham was a case in which the evidence (all of which was called by the plaintiff) failed to establish that the accident was due to any of the causes itemized in the particulars. The defendant called no evidence, and submitted that there was no case to go to the jury. The trial judge directed the jury to find for the defendant. In this Court Williams A.C.J., with whose reasons all other members of the Court agreed, stated (at p 351):

"In my opinion the jury are entitled to consider

the evidence as a whole and if, on the whole of

the evidence, the jury can reasonably infer that

the accident was due to the negligence of the

defendant, then they can find for the plaintiff.

When I say the whole of the evidence I mean the

whole of the evidence which is admissible within

the scope of the particulars."

20. Although it follows from Maloney v. Commissioner for Railways (N.S.W.) that a plaintiff may not seek on appeal to make a case "not only different from the facts pleaded but also different from that which the plaintiff seeks to have submitted to the jury" (p 294; p 152 of ALR), the decisions in Doonan v. Beacham and Mummery v. Irvings Pty. Ltd. necessitate a different approach to cases in which either evidence within the scope of the particulars is such that a jury may infer negligence, or evidence called by the defendant establishes or is consistent with a breach of duty not particularized. In the identified circumstances the case presents itself on the admissible evidence without need for amendment of pleadings or particulars. It cannot in any relevant sense be identified as a new case.

21. In the present matter the case based on failure to erect barriers to protect the plaintiff from straying outside the work area emerged on the evidence without the need to amend the pleadings or particulars. It is not to the point that the Water Board may have called evidence to answer that case. Its decision not to call evidence was taken at a time when the available evidence disclosed a cause of action for breach of a duty to provide a safe system of work by failure to provide barriers whether the purpose which would have been achieved by the barriers was that of keeping the plaintiff out of lane 2 or that of keeping traffic away from the work area.

22. In my view, the plaintiff's assertion in the Court of Appeal that the Water Board breached its duty to provide a safe system of work by reason of its failure to provide barriers which, in the circumstances, would have prevented the plaintiff moving some few inches across the line between lane 1 and lane 2 was not a new case. The evidence to support that case was within the scope of the particulars, and the plaintiff was entitled to have his case determined on that evidence. At the trial all facts relevant to the plaintiff's entitlement to recover damages had, so far as the parties wished, been "proved beyond controversy" and it was "expedient, in the interests of justice" that it then be decided: Connecticut Fire Insurance Co. v. Kavanagh (1892) AC 473, at p 480. See also Suttor v. Gundowda Pty. Ltd., at p 438; Green v. Sommerville [1979] HCA 60; (1979) 141 CLR 594, at pp 607-608; O'Brien v. Komesaroff [1982] HCA 33; (1982) 150 CLR 310, at p 319 and Coulton v. Holcombe [1986] HCA 33; (1986) 162 CLR 1, at pp 7-8.

23. The facts which had been proved at the trial were such as to raise an issue of contributory negligence on the part of the plaintiff: McLean v. Tedman, at pp 315-316. The issue of contributory negligence was argued in the Court of Appeal, but the majority view was that the issue should not be decided because had the Board "been aware of the further contention that it should have taken precautions to keep its employees safely within lane 1 it is conceivable that it may have conducted its case differently and more elaborately in regard to the barrier issue", and that it would thus be "procedurally unfair to the Board" to enter judgment for the plaintiff.

24. I see no such procedural unfairness. First, the issue of barriers was not directly relevant to the issue of contributory negligence: it went to the issue of the Board's negligence. Secondly, the Board in its defence expressly pleaded contributory negligence, particularizing, inter alia, the plaintiff's failure to keep a proper lookout, failure to take care for his own safety and failure to check for the presence of vehicles before stepping onto a roadway. Notwithstanding the plaintiff's evidence that he was in lane 1, counsel for the Water Board directed questions in cross-examination to the plaintiff designed to show that he realized the importance of keeping a proper lookout and of not straying into the lane of traffic. In context it is difficult to understand the point of those questions other than on the basis that, notwithstanding the plaintiff's evidence that he was in lane 1, the defendant wished to lay the ground for an argument based on contributory negligence if the accident was found to have taken place in lane 2.

25. In my view, no question of procedural unfairness is involved in the issue of contributory negligence being decided by an appellate court on the facts "proved beyond controversy" at the trial. However, in the absence of argument it is inappropriate that it be decided by this Court.

26. For the foregoing reasons, I would dismiss the appeal, allow the cross-appeal, set aside the order of the Court of Appeal that there be a new trial, remit the matter to the Court of Appeal to determine the issue of contributory negligence and thereafter to remit the matter for hearing as to damages.

27. Finally, I should add that were I not of the view that no new case was raised in the Court of Appeal, I should think that, in an action for negligence, the denial of a verdict to a plaintiff where the evidence called by a defendant results in a finding of fact disclosing a breach of duty not expressly relied upon by the plaintiff makes the case a "very exceptional (case) where the interests of justice ... require a new trial" as contemplated by Jacobs J. in Maloney v. Commissioner for Railways (N.S.W.).

Appeal allowed with costs. Cross-appeal dismissed with costs.

Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales dated 1 May 1987 except the orders made by consent. In lieu thereof, order that the appeal against the judgment for the appellant be dismissed with costs.