Personal injury action

2012 SCMR 1298 SUPREME-COURT-OF-UK Judicial Precedent

Expert witnessImmunity from suit for breach of dutyScopePersonal injury actionPreparation of a joint statement/report by expert witness for purposes of settlementNegligence by expert witnessClaimant having to settle for significantly lesser settlement as a consequenceEffect

Contentions of the defendant (expert) were that immunity to experts was necessary to ensure that they would be prepared to give evidence at all, and that expert witnesses would be reluctant to give evidence against their clients' interests if there was a risk that they would be sued

Validity

Mere fact that the immunity to witness rule was long-established was not a sufficient reason for blessing it with eternal life

Circumstances change as do attitudes to the policy reasons which underpinned the immunity

Question as to whether professional persons were willing to give expert evidence depended on many factors

Contention that possibility of being sued for negligence was likely to be a significant factor in determining whether a person would be willing to act as an expert, was not persuasive

Negligence was not easy to prove against an expert witness, especially in relation to what he or she said in the heat of battle in court

Experts were professional people who could be expected to want to comply with the rules and ethics of their profession

Most experts were honest conscientious people who needed no other incentive to comply with their duty and the rules and ethics of their profession

Immunity would not promote the discharge by experts of their duty to the court

Contentions of the defendant (expert witness) advanced in justification of the immunity were not convincing

His Lordship observed that he was not persuaded by the argument that the immunity was necessary in the public interest or that there was a sufficiently compelling reason to justify continuing to deny a remedy to a person who had suffered loss as a result of his expert's breach of the duty of care owed in contract and tort

Immunity of expert witnesses from liability to their clients for breach of duty (whether in contract or negligence) could no longer be justified

Appeal was allowed, accordingly.

2012 SCMR 1298 SUPREME-COURT-OF-UK Judicial Precedent

Expert witnessImmunity from suit for breach of dutyScopeDuty of care owed by expert witness to his clientScopePersonal injury actionPreparation of a joint statement/report by expert witness for purposes of settlementNegligence by expert witnessClaimant having to settle for significantly lesser settlement as a consequenceEffectExpert witness owed a duty to the client by whom he had been retainedBreach of said duty should, in the normal course, give rise to a remedy

Whether or not rule of witness immunity had a long history, the court should not be deflected from conducting a clear-sighted, contemporary examination of the justification for its preservation

Nothing existed to support the assumption that conscientious witnesses would behave discreditably by modifying their opinions from those they truly held because they feared that an aggrieved client might unwarrantably seek redress against them

Where an expert expressed an honestly held view, even if it differed from that which he might have originally expressed, provided it was an opinion which was tenable, he had nothing to fear from a disgruntled party

Only possible reason for preservation of the immunity to expert witness rule was its supposed longevity, and even if that could be established, it was in no sense an adequate justification for maintaining an immunity whose effect was to deny deserving claimants of an otherwise due remedy

Appeal was allowed, accordingly.

2012 SCMR 1298 SUPREME-COURT-OF-UK Judicial Precedent

Expert witnessImmunity from suit for breach of dutyScopeDuty of care owed by expert witnessScopeAdvantage of removing immunity of expert witnessScopePersonal injury actionPreparation of a joint statement/report by expert witness for purposes of settlementNegligence by expert witnessClaimant having to settle for significantly lesser settlement as a consequenceEffect

Where a person has suffered a wrong that person should have a remedy unless there was a sufficiently strong public policy in maintaining an immunity

Expert owed a duty to the client, but also owed a duty to the court, as a servant of the court, to present truthful and competent evidence

Immunity to expert witness had never prevented the possibility of prosecution for deliberately misleading the court or liability for disciplinary proceedings for unprofessional conduct in the preparation or presentation of expert evidence

Conscientious expert would not be deterred by the danger of civil action by a disappointed client, any more than the same expert would be deterred from providing services to any other client

Removal of immunity would tend to ensure a greater degree of care in the preparation of the initial report or the joint report by the expert witness

No policy reasons existed anymore for retaining immunity from suit for professional negligence by expert witnesses

Appeal was allowed, accordingly.

2012 SCMR 1298 SUPREME-COURT-OF-UK Judicial Precedent

Expert witnessImmunity from suit for breach of dutyExtent and scopeDuty of care owed by an expert witness to his clientScopePersonal injury actionPreparation of a joint statement/report by expert witness for purposes of settlementNegligence by expert witnessClaimant having to settle for significantly lesser settlement as a consequenceEffectClaimant (appellant) was involved in a road traffic accident

Claimant's solicitors instructed the defendant (respondent), who was a consultant clinical psychologist, to examine the claimant and prepare a report for the purposes of personal injury proceedings

Defendant prepared her first report in which she expressed the view that the claimant was at that time suffering from post traumatic stress disorder (PTSD)

Defendant subsequently prepared a second report stating that the claimant did not have all the symptoms to warrant a diagnosis of post-traumatic stress disorder (PTSD), but was still suffering from depression and some of the symptoms of PTSD

Consultant psychiatrist instructed by the relevant insurer prepared her own report, wherein it was stated that the claimant was exaggerating his physical symptom

District Judge ordered the two experts to hold discussions and to prepare a joint statement

Consultant psychiatrist for the relevant insurer prepared a draft joint statement, which the defendant (expert) signed without amendment or comment

Said joint statement was damaging to the claimant's claim as it recorded agreement that his psychological reaction to the accident was no more than an adjustment reaction that did not reach the level of a depressive disorder of post-traumatic stress disorder (PTSD); that the defendant had found the claimant to be deceptive and deceitful in his reporting, and that the experts agreed that his behaviour was suggestive of 'conscious mechanisms' that raised doubts as to whether his subjective reporting was genuine

Claimant, as a consequence, had to settle his claim for significantly less than the settlement that would have been achieved had not the defendant (expert) signed the joint statement in the terms in which she did

Contentions of the defendant were that immunity to expert witnesses was necessary to ensure that they would be prepared to give evidence at all, and that expert witnesses would be reluctant to give evidence against their client's interests if there was a risk that they would be sued

Validity

Expert witness must give his evidence honestly, even if it involved concessions that were contrary to his client's interests

No conflict existed between the duty that the expert owed to his client and the duty that he owed to the court

All who provided professional services which involved a duty of care were at risk of being sued for breach of that duty

Expert would be well aware of his duty to the court and where he frankly accepted that he had changed his view it would be apparent that he was performing that duty

Postulating that in order to persuade an expert to perform the duty that he had undertaken to his client it was necessary to give him immunity from liability for breach of that duty, would be paradoxical

Rational expert witness who had performed his duty was unlikely to fear being sued by the rational client

Unsuccessful litigant could easily allege, if permitted, that a witness of fact who had given evidence against him was guilty of defamatory mendacity but it was far less easy for a lay litigant to mount a credible case that his expert witness had been negligent

Defendant (expert witness), in the present case, had admitted to putting her signature to a joint report that did not express her views, therefore, there is nothing vexatious about the claimant's claim

Contention that removal of expert witness immunity would lead to a proliferation of vexatious claims was doubtful

No justification had been shown for continuing to hold expert witnesses immune from suit in relation to the evidence they gave in court or for the views they expressed in anticipation of court proceedings

Immunity from suit for breach of duty that expert witnesses had enjoyed in relation to their participation in legal proceedings should be abolished, however such abolition of immunity did not extend to the absolute privilege enjoyed by expert witnesses in respect of claims in defamation

Appeal was allowed, accordingly.

2012 SCMR 1298 SUPREME-COURT-OF-UK Judicial Precedent

Expert witnessImmunity from suit for breach of dutyPurpose and scopePersonal injury actionPreparation of a joint statement/ report by expert witness for purposes of settlementNegligence by expert witnessClaimant having to settle for significantly lesser settlement as a consequenceRemoval of immunity to expert witnessEffects

Purpose of immunity to witness rule was to ensure that witnesses were not deterred from coming forward to give evidence in court and from feeling completely free to speak the truth when they did so, without facing the risk of being harassed afterwards by actions in which allegations were made against them in an attempt to make them liable in damages

Purpose of the said rule was not to protect the negligent expert who was guilty of breaching the duty that he owed to the client from whom he had accepted instructions or by whom he was being paid

Question, in the present case, was whether the reasons which justified an immunity for witnesses generally did not apply to expert witnesses

Incautious removal of the immunity from one class of witness risked destabilising the protection that was given to witnesses generally

Privilege of immunity to witnesses existed for the protection of all witnesses, not just the few against whom successful actions might otherwise be brought for an award of damages

Need for certainty also made it necessary to extend the protection of the immunity rule to all witnesses and to all causes of action that might be brought against them

Genuine cause of action might be excluded in some cases but in the vast majority of cases it was the assurance of the protection that enabled people against whom no action could reasonably be brought to speak freely without facing the prospect of being harassed by those against whose interests they had spoken

Removing just one brick from the wall that sustained the witness immunity might have unforeseen consequences

Risk of the expense and distress of a harassing litigation at the instance of an aggressive client might become quite obvious in some cases

One could not discount the fact that exposure to the risk of incurring the expense and distress of a harassing litigation at the client's instance should the defence fail, would colour the expert witness's evidence

Question which was not clear was whether the immunity was also to be removed in cases where the expert agreed to give evidence for the other side or felt himself bound when giving evidence for his own side to reveal information which the court needed, if it was to be told the truth but which his client maintained was confidential

Other questions requiring consideration were as to how would one determine who, for the purposes of the removal of the immunity, was an expert and who was not, and how was one to identify those to whom the duty was owed

Lack of a secure principled basis for removing the immunity from expert witnesses, the lack of a clear dividing line between what was to be affected by the removal and what was not, the uncertainties that it would cause and the lack of reliable evidence to indicate what the effects might be suggested that the wiser course was to leave matters as they stood

Appeal was dismissed, in circumstances.

2012 SCMR 1298 SUPREME-COURT-OF-UK Judicial Precedent

Expert witnessImmunity from suit for breach of dutyExtent and scopeAdvantages of removing immunity of expert witnessScope'Witness of fact' and 'expert witness'Duty of care owedScopePersonal injury actionPreparation of a joint statement/report by expert witness for purposes of settlementNegligence by expert witnessClaimant having to settle for significantly lesser settlement as a consequenceEffect

Absolute immunity rule which applied to witnesses of fact was designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who took part in the judicial process from the fear of being sued for something they said

Witnesses of fact were unlikely to owe the party calling them any duty of care whether in contract or in tort but in stark contrast, expert witnesses clearly owed the party retaining them a contractual duty to exercise reasonable skill and care

Gains to be derived from denying expert witnesses' immunity from suit for breach of said duty substantially exceeded whatever loss might be thought likely to result from it

Most likely broad consequence of denying expert witnesses the immunity accorded to them would be a sharpened awareness of the risks of pitching their initial views of the merits of their client's case too high or too inflexibly in case these views came to expose and embarrass them at a later date

Another advantage of denying immunity to expert witnesses was where the witness behaved in an egregious manner such as was alleged in the present case or, otherwise caused his client loss by adopting or adhering to an opinion outside the permissible range of reasonable expert opinions, the wronged client would enjoy, rather than have denied to him by rule of law, his proper remedy

Courts should be alert to protect expert witnesses against specious claims by disappointed litigants, and should stamp vigorously upon any sort of attempt to pressurise experts to adopt or alter opinions other than those genuinely held

Balance of advantage, in the present case, clearly laid in favour of allowing the appeal

Appeal was allowed, accordingly.

2012 SCMR 1298 SUPREME-COURT-OF-UK Judicial Precedent

Expert witnessImmunity from suit for breach of dutyPurposeRemoval of such immunityValidityPersonal injury actionPreparation of a joint statement/report by expert witness for purposes of settlementNegligence by expert witnessClaimant having to settle for significantly lesser settlement as a consequence

Rationale for removing immunity of expert witness in the present case was that, an expert witness would owe a duty of care to his own client and there was no reason why he should not be liable if he had caused his client loss through the breach of that duty

Question which was not clear was whether the exception would apply only in a case where there was a contractual duty or whether it would apply in a case where there was no contractual duty but there might be a duty owed in tort, or was it to be assumed that the two were co-terminous

Not possible to say as to what effect the removal of immunity would have, either on the care with which the experts gave their evidence, or upon their willingness to do so

Object of the immunity rule was to protect all witnesses, the great majority of whom were trying to do a professional job and were well aware of their duties to the court, against the understandable but usually unjustifiable desire of a disappointed litigant to blame someone else for his lack of success in court

Policy considerations in favour of making the exception to the rule did not seem to be so strong that the court should depart from previous authority in order to make it

Making such a change on an experimental basis would be irresponsible and it was a topic more suitable for consideration by the Law Commission and reform, if thought appropriate, by Parliament rather than by the court

Appeal was dismissed, accordingly.