Section 5O of the Civil Liability Act 2002 (NSW) must be pleaded as a defence, or at least the material facts contemplated by s 5O must be pleaded, because it modifies the common law and transfers the onus of proof. A party who intends to take a pleading objection to exclude evidence must communicate that intention to the opposing party; failure to do so constitutes litigation by ambush and will be a significant factor in favour of allowing a late amendment. However, even where amendment is wrongly refused and evidence wrongly excluded, the appeal will be dismissed if the excluded evidence, properly analysed, could not have affected the result.
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