Expert Witnesses Immunity Under Threat

Hello to everyone in the rehabhub. Whether you are a regular reader or just having a look, we hope you take something positive away with you. This week we have a serious matter. The principle of expert witness immunity may be under threat. I know a lot of injury management professionals are involved in providing expert witness reports and appearances. It made me wonder how important this legal principle is to the people performing these services.

With the recent English decision of Kaney-v-Jones  QB 21/1/10, the 400 year old principle of expert witnesses immunity has been overturned in that jurisdiction. It is possible that Australian Courts may choose to follow this change if such a case were brought here.

In this particular case, Mr Jones had been involved in a motor vehicle accident and had sought to claim against the other driver. His expert witness Dr Kaney, a psychologist, had advised that Mr Jones was suffering from post traumatic stress disorder. The defendant’s expert witness, Dr Alazra, also a psychologist, stated that Mr Jones had not suffered post traumantic stress disorder as a result of the accident. The two experts were ordered to produce ajoint draft statement outlining issues on which they agrees and disagreed. The experts spoke by telephone and Dr Alazra produced a draft statement which was sent to Dr Kaney. Dr Kaney apparently signed the draft without reading it and later stated that she did not read the statement but signed it as she felt under pressure to do so. They statement severely damaged Mr Jones’ case and he was forced to settle with the defendants.

Dr Kaney later admitted that she had not read the statment but on reading it did not agree with it. She relied on expert witness immunity as her defence. The Queens Bench chose this case to overturn the doctrine of expert witness immunity.

Will this happen in Australia?

Expert witnesses enjoy immunity in most similar juristdictions except for some states in the USA. Immunity for advocates, that is barristers and solicitors appearing in court, has been slowly reduced in Commonwealth countries and the USA. It could be expected that expert witness’s immunity may follow the same pattern.

Adapted from ABC Law Report – Should expert witnesses and barristers be safe from being sued? 10/5/11

Please feel free to leave a comment if this subject effects your work. Are you aware of the principle of expert witness immunity? Will a change in that immunity change your behaviour?


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