Weightmans’ Roddy Macleod on the threat to expert witness immunity

THE days of the principle of expert witness immunity from legal claims are numbered after a High Court decision in Paul Jones v Sue Kaney.

Following a car accident in which he suffered injury, Jones instructed clinical psychologist Kaney to prepare a medical report.

When she was later asked to prepare a joint report with the defendant’s expert, she agreed that Jones’s symptoms didn’t amount to psychiatric disorder – which meant Jones’s claim dropped in value.

When questioned, Kaney admitted the joint report didn’t reflect what had been discussed, but she still signed it. Jones sued Kaney for damages, but the expert pleaded witness immunity under a previous Court of Appeal decision.

While the High Court was bound by the authority of that decision, it conceded it was appropriate to allow the case to leapfrog to the Supreme Court, where, once leave to appeal is granted, the matter can finally be decided.

There is a substantial likelihood that on re-examination, the public policy justification for the immunity rule can no longer be supported and that blanket immunity is far too broad.

Thus, whether it concerns a medical or any other expert, it looks likely that any expert who negligently prepares for a joint conference or fails to carefully scrutinise a joint statement before signing it, will not be able to hide behind witness immunity.