Hastwell v Parmegiani** [2023] NSWSC 1016**

In this case, the court upheld an expert’s entitlement to immunity from suit, notwithstanding that the expert’s report was never served nor used in litigation.

Background

The plaintiff, a solicitor, was certified unfit for employment because of depression and anxiety in December 2014. His employment was terminated in April 2015.

Prior to the termination of his employment, the plaintiff instructed lawyers to act for him in respect of allegations of bullying, discrimination, and harassment he experienced with his previous employer. The plaintiff’s lawyers lodged a complaint with the Australian Human Rights Commission and appointed the defendant, an expert psychiatrist, to medically assess the plaintiff and provide his expert opinion, by way of written report.

The plaintiff attended an assessment by the defendant, who provided a medicolegal report in standard form, addressing the questions asked of him, and with the requisite acknowledgement in accordance with the Federal Court Expert Witness Code of Conduct. The report was never served and the AHRC claim was abandoned.

Subsequently, the plaintiff commenced proceedings against the defendant in the Federal Court and later filed a motion to amend his statement of claim.

The defendant filed a motion seeking orders pursuant to r 13.4 of the Uniform Civil Procedure Rules 2015 (NSW) (UCPR) that the proceedings be dismissed or, in the alternative, that proceedings be struck out pursuant to r 14.28 of the UCPR. The defendant argued that as an expert in the matter, he had the benefit of immunity and therefore, even if the plaintiff’s allegations in his statement of claim were correct, the claim could not succeed.

Expert immunity

The defendant’s report was obtained prior to the commencement of any litigation, and for the purposes of providing advice to the plaintiff.

The report concluded that the plaintiff’s condition existed long before his employment and was “likely exacerbated by the way in which his employer responded to his symptoms”, and the plaintiff took issue with this. It was never served or used in litigation, and the defendant was not required to give evidence as the AHRC claim was abandoned.

The plaintiff argued that expert immunity required that an expert write a report and give evidence. The plaintiff argued that as there was no finality of judgment in the AHRC claim, the defendant should not get the benefit of expert immunity.

The court rejected the plaintiff’s arguments, stating:

“The existence of immunity cannot depend on whether the opinion of an expert is favourable or unfavourable to the client who retained the expert, or any decision of the client as to the use of the expert report.” [70]

The plaintiff’s submission that he was seeking advice from the defendant as to whether he could pursue a claim was inconsistent with the documents, being the letter of instructions and the report, and his own affidavit. [74] The defendant was not retained to advise on the prospects of the plaintiff making a claim. He was retained to examine the plaintiff and prepare a report as an expert witness in future court proceedings, should it have been necessary.

The plaintiff further argued that the Australian courts should or could take the same position as the Supreme Court of the United Kingdom, being the abolition of expert witness immunity.

The court held that law in Australia remains clear: a medicolegal expert retained to provide a report, who is required to comply with the Expert Witness Code of Conduct on the basis that evidence might be used in court, continues to have immunity from suit. [89]

The court was satisfied that the plaintiff’s case was bound to fail it was dismissed pursuant to r 13.4 of the UCPR. [90]

Key takeaways

• Expert witness immunity is not dependent on the expert writing a report and giving evidence in court.
• Nor it is a prerequisite that the report written by the expert be served or used in litigation.
• Unlike the United Kingdom, the position in Australia remains that expert witnesses have the benefit of immunity from suit.

 

Read the full decision here.