In the case of Jones v Kaney [2011] UKSC 13 the Supreme Court in England and Wales decided (by majority) that there is no justification for continuing to hold expert witnesses immune from lawsuits in relation to evidence given in court.
The case involved personal injury action in which Dr Kaney was instructed as an expert witness. At issue was whether Mr Jones was suffering from Post Traumatic Stress Disorder (PTSD). Originally, Dr Kaney’s view was that he was suffering from PTSD but, subsequently, she signed a joint statement with the expert witness instructed by the Defender in which she stated that his psychological reaction to the accident did not reach the level of PTSD.
Following settlement of the action, Mr Jones raised an action for professional negligence against Dr Kaney claiming that, as a result of her having signed the joint statement, he had incurred loss in having to settle his claim for less than would otherwise have been achieved.
Dr Kaney defended the action on the grounds that expert witnesses could not be sued for negligence. Her application to have the case struck out was initially successful. The High Court later referred the case to the Supreme Court as it involved a point of law of public importance. The Supreme Court considered whether or not public policy still justified granting an expert witness immunity from liability and held that the onus was on the expert to justify the immunity behind which they sought to shelter. They found that there was no evidence that the removal of immunity would act as a disincentive to experts to act. The Court seemed to take comfort from the fact that the earlier removal of immunity for Advocates had not led to any disincentive for them to act nor to any increase in vexatious claims against them.
Lord Hope, dissenting, made clear that, in Scotland, the position is still governed by the binding decision in Watson v McEwan [1905] AC 480 and expert witness immunity remains in place and is a devolved matter.
Time will tell what effect this decision has in Scotland and whether it will lead to a flood of claims against expert witnesses by those who have instructed an expert but are dissatisfied with their performance. Expert witnesses themselves will also now have to consider what steps they will need to take steps to minimise their exposure to potential claims.
Insurers should take note of this decision and consider whether there is now a greater risk of claims against expert witnesses. If so, they may wish to consider whether to exclude expert witness work from standard professional indemnity insurance cover or whether to demand additional premiums from those engaging in this type of work.
Lynne Cardow