piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

The end of expert witness immunity - another significant contribution by the City of Liverpool to the law of tort.

 

On the 14 March 2001 Paul Wynne Jones was stationary on his motorcycle, waiting to turn at a road junction in Liverpool, when he was struck by a car driven by Mr Bennett. Mr Bennett was drunk, uninsured and driving whilst disqualified. Mr Jones suffered significant physical and psychiatric injuries including post traumatic stress disorder (PTSD), depression, an adjustment disorder and associated illness behaviour which manifested itself in chronic pain syndrome. Mr Jones sued Mr Bennett in the Liverpool County Court.

 

 

 

 

 

 

 

Mr Jones’s solicitors instructed Dr Sue Kaney, a Consultant Clinical Psychologist, to prepare a report dealing with the psychological aspects of his injuries and specifically whether Mr Jones was suffering from PTSD or was consciously or unconsciously exaggerating his symptoms. Dr Kaney’s report was favourable. She concluded that Mr Jones’s symptoms were suggestive of PTSD. It must therefore have come as a considerable surprise to Mr Jones and to his solicitors when Dr Kaney signed a joint statement of her telephone discussion with the psychiatrist instructed by Mr Bennett’s insurers which included the observation that “Dr Kaney has found Mr Wynne Jones to be very deceptive and deceitful in his reporting” and concluded that the inconsistencies in Mr Jones’s account “would raise doubts of whether his subjective reporting was genuine".

 

Mr Jones became even more cross when he discovered that although the joint statement (drafted by the psychiatrist for Mr Bennett’s insurers) did not reflect what Dr Kaney had said in the telephone conversation, Dr Kaney had felt “under some pressure in agreeing it” and further that Dr Kaney “had not seen the reports of the opposing expert at the time of the telephone conference”. Having compromised his claim against Mr Bennett for less than he felt it was worth, Mr Jones sued Dr Kaney. Dr Kaney applied to strike out the claim on the grounds that as an expert witness she was immune from a claim in negligence.

 

The claim was transferred from the Liverpool County Court to the Queen’s Bench Division in London where on 21 January 2010 ([2010] EWHC 61 (QB)) Blake J. struck out the claim but granted a certificate under Section 12(1) Administration of Justice Act 1969 (“the leapfrog procedure”) to appeal direct to the Supreme Court.

 

On 11 and 12 January 2011 a special court of 7 Justices heard Mr Jones’s appeal. Judgment was given on 30 March 2011 ([2011] UKSC 13). The court split 5-2 with the majority (Lords Phillips, Brown, Collins, Kerr and Dyson) allowing the appeal and holding that no justification had been shown for continuing to uphold the rule that expert witnesses are immune from suit for breach of duty (whether in contract or in negligence). Lord Hope and Lady Hale dissented holding that the existing rule was long established, was based on House of Lords authority and was underpinned by policy in that it protected and maintained the integrity of judicial evidence gathering processes.

 

Mr Jones now has the satisfaction of knowing that his was the case that abolished the immunity from suit of an expert witness at least in respect of a claim by a person to whom that expert owed a duty of care. However, other questions now arise which will excite interest far beyond the City of Liverpool including whether other witnesses who up to now have enjoyed immunity from suit such as those owing contractual duties (e.g. of confidence) may also see their immunity challenged in the courts.

 

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