supreme court ends expert's immunity
30 March 2011
In a decision handed down today (30 March 2011) the Supreme Court
has swept away blanket immunity for expert witnesses.
As a result expert witnesses are no longer immune from suit from
liability for negligence in the performance of their duties when
giving evidence in court or for views they express in anticipation
of court proceedings.
In Jones v Kaney Mr Jones claimed damages alleging
post-traumatic stress disorder following a car accident in March
2001. He engaged Dr Kaney, a clinical psychologist, as his expert
witness in his claim. Initially Dr Kaney supported Mr Jones’
allegations but later signed a joint statement with the defendants
expert, stating that Mr Jones had been “deceptive and deceitful” in
reporting his injuries.
Mr Jones’ case was seriously compromised and as a result he had
to settle his claim for a considerably lesser sum. It later emerged
that Dr Kaney’s true view was that although Mr Jones had been
evasive he had been suffering from PTSD. Mr Jones launched
negligence proceedings. However, Dr Kaney pleaded expert immunity
and applied to have the claim struck out.
Alison Siniver, a professional indemnity expert at law firm
Browne Jacobson commented:
“There will clearly be concern that this decision will lead to
an increase in claims against professionals who act as expert
witnesses. Claims which would previously have been struck out at an
early stage will now need to be looked at more carefully. The value
or truth of the evidence will need to be analysed all over
again.
“On a more positive note insurers who are also exposed to the
underlying claims which are the subject matter of expert’s reports,
might be able to look forward to dealing with them against the
backcloth of better quality evidence.”