Facts relevant to a conduit defence under s 52 TPA may also be relevant to the issue of causation and need not be separately pleaded where the issue has been litigated at trial. The surprise rule requires pleading of conduit defence facts where the misrepresentation is of a nature ordinarily regarded as material, but the potential for surprise may be overcome by the course of the trial. A breach of the rule in Browne v Dunn does not require exclusion of contradictory evidence; the appropriate remedy is recall of the witness or adverse comment on credibility.
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