A trial judge's finding of fact that contradicts both the pleadings and all direct evidence from both parties is not open on the evidence and constitutes a denial of natural justice where the possibility was never raised with any witness. The Court of Appeal's power under r 766 UCPR to adjust a trial judge's assessment of damages does not extend to making a binding determination on quantum when the issue of liability is being remitted for retrial, as such a determination is not ancillary to the appellate court's exercise of power.
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