A plaintiff whose case at trial was founded on the fact of intentional harassment cannot, on appeal, advance alternative causal hypotheses (negligent conduct, non-tortious conduct, or conduct that was an artefact of mental illness) that were never pleaded, opened, argued or addressed in evidence at trial. The interests of justice do not provide a residual discretion to permit a new case on appeal where the established 'new case' principles are not satisfied.
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