Should An Expert Witness Be Immune From Liability In Negligence?

In the case of Jones v Kaney [2011] EWHC UKSC 13, the Supreme Court abolished the immunity from suit for breach of duty that expert witnesses previously enjoyed in relation to their participation in legal proceedings.

The Facts

Sue Kaney (the respondent) was a clinical psychologist who was instructed to act as the expert on behalf of Mr Jones (the appellant) in relation to his personal injury action following a road traffic accident. Liability had been admitted by the relevant insurer but quantum was an issue between the parties. In her initial report, the respondent expressed the opinion that the appellant was suffering from post traumatic stress disorder ("PTSD") and depression amongst other complaints. In her second report eighteen months later, the respondent concluded that he was still suffering from depression and had some, but not all, of the symptoms of PTSD.

The consultant psychiatrist instructed by the insurer expressed the view that the appellant had been exaggerating his physical symptoms. The experts were ordered to produce a joint statement. In that joint statement, the respondent apparently agreed with the other side's expert stating that the appellant's psychological reaction to the accident was no more than an adjustment reaction and that he did not have PTSD. The joint statement also indicated that the respondent had found the appellant to be deceptive and deceitful.

When questioned by the appellant's solicitors as to why there appeared to be a discrepancy between the joint statement and the respondent's earlier report, she explained that:

She had not seen the report of the opposing expert at the time of the telephone conference; The joint statement, as drafted by the opposing expert, did not reflect what she had discussed over the telephone but she had felt under some pressure in agreeing it; Her true view was that the appellant had been evasive rather than deceptive; She believed the appellant did suffer from PTSD which was now resolved; and She was happy for the appellant's solicitors to amend the joint statement. The appellant failed to obtain permission to amend the joint statement or to rely upon another expert and the case was then settled.

In April 2009, the appellant brought proceedings against the respondent alleging that her negligence in agreeing the joint statement had forced him to settle for significantly less than he had been entitled to had the joint statement not been so agreed. The respondent applied to...