The slow erosion of immunity beachheads
Aug 2011 |In Jones v Kaney,1 the Supreme Court (formerly sitting as the House of Lords) was confronted with equally competing principles of dispute jurisprudence. On the one hand, that no wrong should be without a remedy. On the other, that those participants (judges, witnesses, experts) to a trial should not themselves be the subject of litigation by an aggrieved party.
The facts are informative to understanding the principles and reasoning.
Mr Jones was involved in a motor vehicle accident caused by another driver, who was drunk, disqualified and uninsured. Mr Jones commenced a personal injury claim, materially against the Motor Insurance Bureau, who admitted liability. The accident caused Mr Jones to apparently manifest a psychiatric condition.
As part of his expert evidence in the personal injury proceedings, Mr Jones' lawyers retained a consultant clinical psychologist, Ms Kaney, to undertake an examination of Mr Jones. Ms Kaney diagnosed a post traumatic depressive condition and submitted a report with her conclusions.
The Bureau required Mr Jones to be submitted for examination by their psychiatrist. In a resulting Court-directed telephone conference between Ms Kaney and that psychiatrist, Ms Kaney resiled from her earlier diagnosis and, by jointly signed report to the Court, conceded several critical aspects relevant to Mr Jones' medical condition, including that he did not suffer a depressive illness and was deceptive and deceitful on the issue.
When questioned on her change of position, Ms Kaney conceded she had not read the contents of the report submitted by the psychiatrist before the telephone conference, but felt pressure to sign the joint conclusions at the conclusion of that exercise. She observed Mr Jones was evasive rather than deceptive and that she was now prepared to return to her original evidence and supportive conclusions. The Court, however, refused leave for the evidence comprised by the joint report to be revised.
As the joint report severely damaged Mr Jones' position in the dispute, he settled the personal injuries claim for a significantly diminished quantum, consistent with the changed view of his expert witness.
Mr Jones then commenced a professional negligence claim against Ms Kaney for damages corresponding to the losses he had abandoned in settling with the Bureau. Ms Kaney claimed immunity as a forensic expert.
Mr Jones was confronted with the principle that an expert (even when neglectful in the preparation and delivery of their forensic evidence) was shielded by immunity from any claim by the party they had wronged.
The immunity was designed to protect persons from being sued as a result of evidence the person gives in proceedings and in respect of out of Court conduct, provided that that conduct is sufficiently connected with the proceedings.2
That immunity enjoyed a deep foundation in the 400 year old decision of Cutler v. Dixon.3 The immunity had been refreshed by the modern decisions of the English Court of Appeal4 and, more recently, in the House of Lords decision of Arthur JS Hall & Co v. Simons5 where it had been unequivocally supported:
"A feature of the trial is that in the public interest all those directly taking part are given civil immunity for their participation…Thus the court, judge and jury, and the witnesses including expert witnesses are granted civil immunity. This is not just privilege for the purposes of the law of defamation but is a true immunity."
(per Lord Hobhouse of Woodborough at 740).
The submissions for the continuation of the immunity were:
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To avoid the multiplicity of infinite litigation based upon a trial upon a trial.
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To ensure experts were confident they could testify freely and frankly, without fear of being later pursued by a disgruntled client.
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To ensure the Court was assisted in the administration of Justice by establishing the truth of testimony.
It was submitted in conclusion that the removal of the immunity would have a chilling effect on the preparedness of professional persons agreeing to become involved in the forensic litigation process.
The Supreme Court was not convinced any of these apprehended calamities would befall expert witnesses by removing the immunity.
The Supreme Court observed that professional persons were daily at risk at being sued by clients in the conduct of their non litigation practices (whether or not that claim was vexatious6 or legitimate) and had established regimes of insurance to manage those risks. Moreover, that far from diminishing the quality and integrity of evidence an expert would provide to the Court, the prospect was the evidence would be enhanced.
The immunity was also to some degree handicapped by its longevity. The Supreme Court observed that the immunity pre-dated any developed concepts of negligence and the proliferation of retainer-for-reward by modern day litigants of professional experts to act as specialist witnesses.
Perhaps, however, the most persuasive aspect of the Court's considerations was the position of another participant to the litigation process, the barrister (or advocate). Barristers traditionally enjoyed immunity from a claim, by the party they represent, for failure to exercise reasonable skill and care in the conduct of litigation on behalf of that client. However, in 2002 the House of Lords abolished advocates immunity on the ground that it could no longer be justified.7
By a majority8 and expressly on the basis of public policy, the Supreme Court accepted the submission advanced on the part of Mr Jones that the immunity of an expert witness from suit by their own client should be abolished.
There are two issues of immediate note:
1. To succeed in a claim against their expert, the client will still need to establish that the expert has caused a loss to them by failing to exercise reasonable care, such as taking a position contrary to the spectrum of reasonable expert opinions. Disappointed litigants will not succeed, for example, when the Court has simply favoured the conclusions of one expert over another.
2. The Kaney decision has no effect on the absolute privilege against claims in defamation, or the longstanding immunity of general witnesses from being sued by a disgruntled litigant.
Whilst the Kaney decision has become the governing common law precedent in England, it is not binding in Australia. Nor will the Kaney decision ever bind a Court in Australia, as the High Court of Australia represents the apex of our judicial hierarchy.9 The most recent considerations of the immunity in the higher appellate Australian jurisdictions have all resulted in an affirmation of the immunity.10 However, those considerations were made before the Supreme Court delivered their reasoning.
The Kaney decision, however, represents a highly persuasive authority and is likely to be tested at some proximate occasion in Australia.
An indicator of the reception the abolition of the expert's immunity may receive in Australia is perhaps best gauged by the corresponding treatment here of the advocates' immunity.
As earlier noted, in 2002, the House of Lords abolished the long standing immunity enjoyed by advocates. When provided with an opportunity to follow their English counterparts in 2005, the High Court of Australia declined, choosing instead to maintain the principle of immunity from suit.11
The likelihood, therefore, is that expert's immunity may continue to apply in Australia. However, that should not discourage experts with litigation support practices from discussing the scope of their professional indemnity coverage with insurance advisers, nor reviewing the wordings of their retainers.
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1[2011] UKSC 13 (the Kaney decision)
2 In Queensland, an expert has the same protection and immunity for the contents of a report disclosed as required under the UCPR as the expert could claim if the contents of the report were given orally at a trial of the proceeding in which the report is disclosed: see Rule 429C of the Uniform Civil Procedure Rules, 1999
3 (1585) 4 Co Rep 14b; see too the comparatively youthful authority of Watson v. M'Ewan [1905] AC 480, which still pre-dates by nearly 3 decades the landmark ruling of Donaghue v. Stevenson [1932] AC 562
4 Stanton v Callaghan [1998] QB 75
5 [2002] 1 AC 615
6 Lord Brown urged Courts to be alert to protect witnesses against specious claims by disappointed litigants
7 See footnote 5
8 By 5-2 (Lords Phillips, Brown, Collins, Kerr and Dyson; Lord Hope and Lady Hale dissenting)
9 See the aggregate effect of Privy Council (Limitation of Appeals) Act 1968; Privy Council (Appeals from the High Court) Act 1975 and The Australia Act 1986
10 Most recently the Court of Appeal in New South Wales in Commonwealth of Australia v. Griffiths and Anor [2007] NSWCA 370 (14 December 2007)
11 D'Orta-Ekenaike v. Victorian Legal Aid [2005] HCA 12