Where a CTP insurer has admitted breach of duty under s 81 of the Motor Accidents Compensation Act 1999 (NSW) without interviewing the insured driver, and the insured driver is subsequently located and provides an account contradicting the plaintiff's version, the defendant may be granted leave to amend the defence to withdraw the admission and plead contributory negligence, provided solid and substantial evidence explains why the admission was made and no actual or presumptive prejudice to the plaintiff is established. The distinction between withdrawing the s 81 admission itself and amending the filed defence is significant — the Court did not endorse withdrawal of the s 81 notice but permitted amendment of the defence.
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