For some 400 years, professionals called to give evidence in court as expert witnesses had been immune from any civil action being taken against them for the views they expressed. Not any more. In a historic ruling by the Supreme Court on 30 March 2011, that immunity was removed.
The judgement stemmed from a case involving a man who was injured in a motor accident. His defence lawyers had instructed a psychologist to appear as an expert witness and, during her testimony, she stated that the man had suffered Post Traumatic Stress Disorder (PTSD) as a result of the accident. The expert called by the defendants’ lawyers, however, argued that this was not the case and that the man was exaggerating his symptoms.
As is typical in such cases, the court ordered that the two experts should consult and produce a Joint Statement. Which they did. And the statement they prepared concluded that the man had not experienced PTSD after all. Clearly, this judgement was likely to have a significant effect on the damages the man was likely to receive and he took action against the expert witness his lawyers had instructed on the grounds that she had been negligent in signing the Joint Statement.
In this subsequent case, the judge ruled against the man and upheld the expert witness’s immunity. Although he did state that a superior court, with the power to effect such a decision, might conclude that there was a public policy justification for overruling his decision. Which is exactly what the Supreme Court did.
End of immunity for expert witnesses. And a cue for any professional who might be called to provide such a service to ensure that he or she has some robust professional indemnity insurance cover in place!
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