Slater & Gordon partner Bill Madden argues the March decision in Jones v Kaney in London could open up the door to medical and other expert witnesses who are negligent in their testimony being sued.
“The decision marks a significant shift away from the protection medical experts are given in UK and Australian courts,” Madden said.
Allens Arthur Robinson partner Michael Quinlan and senior associate Joanne Howie said it will be interesting to see whether this decision in the UK will impact on the immunity of expert witnesses in Australia, should a disgruntled litigant seek to sue its expert in Australia in the future.
"Some see this as a healthy development in the expert's ultimate task of assisting the court to a fair outcome of the dispute and helping the parties to a reasonable pre-trial settlement," the Allens lawyers said.
Madden, meanwhile, argues: “Medical professionals are often called on to provide evidence, not simply of what they saw, heard or did, like most witnesses, but of their opinions on matters within their expertise.
“In the case in London, the court decided that an expert psychiatrist who changed her opinion on the mental state of a person injured in a car accident - even though it did not reflect her true view - could be sued for negligence.
Slater & Gordon argues the decision effectively overturns an immunity given to expert witnesses dating back to 1585.
“The Court found the injured person was entitled to bring a claim against the consultant psychiatrist for the loss flowing from the signing of a joint statement with another expert, without the exercise of reasonable care.”
The UK Supreme Court decision is not directly binding on Australian courts.
“However in my opinion, the reasoning of the UK Supreme Court is persuasive and we may see a similar shift in approach here,” Madden said.
“While it is highly unlikely for experts to fail to take reasonable care in the expert evidence process, following this ruling we may start to see expert witnesses retained under written contracts, with clauses that seek to limit their liability for negligence.”
As Allens' Quinlan and Howie said, however, the majority of the Supreme Court stressed that proving an expert's negligence will not be an easy process, and Lord Brown noted that successful claims against experts will be "highly exceptional"
Lord Brown urged the courts "to be alert to protect expert witnesses against specious claims by disappointed litigants".
Less alarmed than their Slater & Gordon counterparts, perhaps, the Allens lawyers argue it remains to be seen whether or not this decision will have a chilling effect on the willingness of experts to provide their services.
"What is clear, however, is that expert witnesses, both in the UK and Australia, should ensure that they are protected from potential liability by adequate insurance arrangements and appropriate contractual provisions in their retainers."
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