Expert Witness Immunity and Jones v Kaney (Part 3 of 3)

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As mentioned in the first post of this series, the current law in Australia is that expert witnesses still enjoy immunity. This issue has been addressed directly and recently in the NSW Court of Appeal,[1]and this decision was described in the Supreme Court of NSW in March this year as an ‘uncontroversial position’.[2] However, it is our opinion that it is only a matter of time before Australia follows the UK law.

The position of expert witnesses’ immunity is somewhat similar to that of advocate’s immunity, which was abolished by the House of Lords (therefore, abolished in the UK, but not Australia) in 2002, in Arthur JS Hall & Co v Simons [2002] 1 AC 615. Many of the public policy issues argued on behalf of expert in Jones v Kaney[3] were argued in Arthur JS Hall. Furthermore, as recognised in the judgment, in modern litigation expert witnesses are more similar to advocates than lay witnesses. Lord Phillips compared barristers to expert witnesses and particularly noted the UK’s experience in the decade since the abolishment of the immunity. For example, he stated that the assertion that barristers require the immunity to perform their duty to the court was ‘mere conjecture’[4] and that he is ‘not aware that since Arthur JS Hall & Co v Simons [2002] 1 AC 615 barristers have experienced a flood of such claims from disappointed litigants.’[5]

Importantly as well, this decision recognises the professional nature of expert witnesses. Whilst they are not ‘hired guns’ per se, there is a growing body of experts who are willing to offer their specialised knowledge in order to assist the court, and clients. The creation of the ExpertsDirect to service this niche and subsequently the sheer numbers of witnesses added to the database is illustrative of the maturity of the expert witness market.

However, it is important to recall that to make out a case of negligence against a barrister or expert is extremely difficult, even without the immunity. Therefore, it may be a significant amount of time before the appropriate factual circumstances reach the High Court of Australia. In our opinion, it is much more likely that the issue will be considered in the context of a frivolous/vexatious suit, which, will mean that that the Court will possibly be partial to keeping the immunity, even in the face of the UK jurisprudence.[6]

This article was prepared in conjunction with Truman Biro

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[1] Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268.

[2] DC v New South Wales (No 4) [2013] NSWSC 207 (18 March 2013) [24].

[3][2011] 2 AC 398.

[4][2011] 2 AC 398, 421 (Lord Phillips).

[5][2011] 2 AC 398, 421 (Lord Phillips).

[6]For an example of a frivolous suit that potentially contributed to the removal of advocate’s immunity in the UK, see Rondel v Worsley [1969] 1 AC 191.

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