A trial judge who decides a negligence case on a factual basis not advanced by either party and not put to the plaintiff is in breach of the principles in Kuhl v Zurich Financial Services and the rule in Brown v Dunn, warranting a new trial. The obligation to put an adverse hypothesis to a witness applies not only to cross-examining counsel but also to the judge where the judge's own hypothesis, if accepted, would be adverse to the witness's credit. Affidavits seeking to establish an appeal as of right under UCPR r 51.22(2)(b) must set out material facts demonstrating the likely amount of damages, not merely exhibit voluminous medical records.
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