Expert witness immunity revisited: "An intimate connection"

16 May 2016

The traditional immunity from suit afforded to advocates and expert witnesses has all but been removed in the United Kingdom,1 with New Zealand following suit at least in respect of advocates’ immunity.2

In this context, the High Court of Australia’s decision last year to grant special leave to appeal in Attwells v Jackson Lalic Lawyers Pty Ltd3 caused some concern that there may have been a readiness to dispense with, or limit, advocates’ immunity,4 which in turn, may impact the future of expert witness immunity in Australia.

On 4 May 2016, the High Court delivered its judgment in Attwells5 and unanimously declined to reconsider its previous judgments on advocates’ immunity. The decision did not expressly consider expert witness immunity.

Given that expert witness immunity has been left unchanged, we provide an overview of expert witness immunity in Australia and in the UK, where expert immunity has been abolished. We also consider the practical ‘effects’ of the abolishment of expert witness immunity.

The Australian position
Basis for expert witness immunity

Expert witnesses are immune from civil suit in Australia in judicial proceedings. The basis for the expert witness immunity is founded on the rationale that witnesses should be able to give their evidence freely for the higher interest of justice6 and upon preserving the finality of litigation by avoiding re-litigation or collateral proceedings against expert witnesses.7

Scope of expert witness immunity

The scope of expert witness immunity extends to out of court conduct that is “intimately connected”8 with the giving of evidence in Court, including preparatory steps. It is now well accepted that the expert witness immunity extends to the preparation of evidence to be given in Court,9 whether or not it is actually adduced in Court, and that it covers acts or omissions of an expert witness during the stage in which material is being collected or considered in preparation for trial.

However, there are limitations to the current immunity. It does not extend to an expert witness who has been retained for another purpose other than the dominant purpose of giving evidence in proceedings, for example where an expert has been retained for the purpose of providing an opinion to a client as part of their investigations prior to the commencement of litigation. Further, the immunity does not extend to an intentionally untruthful statement, the fabrication of evidence or giving false evidence to a Court.10

Young v Hones11 is the most recent decision which considered the scope of expert witness immunity.12 This case involved an action of negligence brought against engineer respondents who had been engaged by the appellant in earlier proceedings. The engineer respondents had prepared a joint report at a conclave in the earlier proceedings, which lead directly to the settlement of the matter.13 The proceedings had been dismissed at first instance on the basis that expert witness immunity applied and thus, operated a complete defence to the claim.14

The NSW Court of Appeal held that the primary judge had applied the correct test of “connection” established in D’Orta, in determining whether expert witness immunity applied and that there was a sufficient connection between the expert engineers’ alleged negligent conduct and the settlement of the proceedings to bring the conduct within the scope of expert witness immunity.15 Given the immunity was held to apply, the NSW Court of Appeal upheld the primary judge’s decision that the immunity was a complete defence to the action of negligence.

The English position

Expert witness immunity was abolished in England in 2011 in the decision of Jones v Kaney.16 This matter involved a clinical psychologist, Dr Kaney, who provided an expert report which stated that Mr Jones, the appellant, was suffering from post traumatic disorder (PTSD) after being knocked off his motorcycle by a drunk driver.

On the basis of Dr Kaney’s report, Mr Jones commenced personal injury proceedings against the driver and the relevant insurer. Dr Kaney was ordered by the Court to prepare a joint report with the clinical psychologist retained by the insurer. Following a conference with the other expert, Dr Kaney signed a joint expert report stating that Mr Jones did not suffer PTSD, despite realising that it did not represent her opinion. The effect of the report was that Mr Jones had to settle his claim on a compromised basis. Mr Jones then commenced proceedings against Dr Kaney.

The underlying rationale for the decision by the majority of the Supreme Court in Kaney was that “no wrong ought to have a remedy.17 The Supreme Court was not persuaded by public policy arguments that the removal of the immunity might make experts reluctant to provide their services, noting that there was no immunity against disciplinary proceedings where an expert witness has negligently given an opinion and further, that expert witnesses could insure themselves against such risks.18

Nor did the majority consider that experts would be reluctant to give frank evidence to the Court, if the immunity was removed, given that an expert’s overriding duty is to the Court19 or that the ‘floodgates’ would open with re-litigation of matters or collateral proceedings, given that that barristers had not suffered such a fate following the earlier abolishment of the advocates immunity in England.20

Practical effects of the abolishing the immunity

Since the expert witness immunity was abolished in England in 2011, the ‘floodgates’ with respect to re-litigation or collateral proceedings do not appear to have been opened. It has been reported that experts continue to “get on with their job” just as they did prior to the abolishment of the immunity. There has been some industry reports that experts are more careful and are giving more measured advice in order to avoid having to make concessions at a later stage in the proceedings when their views are found to be unsupportable.

Conclusion

Whilst expert witnesses are still afforded immunity in Australia, it is a timely reminder to lawyers to ensure that experts are fully briefed with all relevant materials and for experts to ensure that they set out the basis of their opinions in their reports.21

This article was written by Amy Rogerson, Associate and Kerrie Chambers, Partner.


1Arthur JS Hall & Co (a Firm) v Simons [2002] 1 AC 615; Jones v Kaney [2011] WLR 823.

2Chamberlains v Lai [2007] NZLR 7.

3[2015] HCA Trans 176.

4Formulated in Giannarelli v Wraith (1988) 165 CLR 534 and affirmed in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1.

5[2016] HCA Trans 16.

6Cabassi  v Vila (1940) 64 CLR 130 at [141].

7Marrinan v Vibart [1963] 1 QB 528.

8D’Orta (2005) 223 CLR 1 per McHugh J at [168].

9Young v Hones [2014]  NSWCA 337 at  [237].

10Darker v Chief Constable of the West Midlands Policer [2001] 1 AC 435 at [23].

11[2014] NSWCA 337.

12Ibid at [236] to [253].

13Ibid at [99].

14Young v Hones [2013] NSWSC 1429 at [196].

15Young [2014] NSWCA 337 at [276].

16Jones v Kaney [2011] 2 WLR 823 at [61] to [62].

17Ibid at [195].

18Ibid at [164].

19Ibid, per Lord Phillips at [56].

20Ibid, per Lord Phillips at [59].

21Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.

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