Expert Witnesses Stripped of Immunity From Negligence Suits in the UK
Significant reasons for judgement were recently released by the Supreme Court of the UK stripping expert witnesses of their immunity from lawsuits in negligence. While this development is not binding in British Columbia it is noteworthy as the law in BC is often shaped or at least influenced by developments in other common law jurisdictions.
The issue of expert witness immunity is important as the outcome of a personal injury trial can largely turn on the testimony of various exeprt witnesses. Often times there is disagreement about the extent of a Plaintiff’s injuries as between his/her treating physicians and ‘independent’ medical examiners hired by opposing parties. If the opposing expert is negligent in providing their opinion BC Courts have held that they generally cannot be sued for any losses that follow.
The justification given for this immunity is that if experts could be sued “ there will be a chilling effect on the willingness of health care providers to deliver their necessary assistance to the Court, and to be full and frank in their opinions when doing so.”
This same rationale gave expert witnesses in the UK immunity for over 400 years. This immunity has now been overturned by the Supreme Court of the UK in the decision of Jones v. Kaney. In Jones, the Plaintiff was injured in a motor vehicle collision. In the course of the damages suit he was assessed by a psychologist. After resolving his claim he sued the pscyhologist alleging she was negligent in providing her opinion. The lawsuit was initially dismissed based on the long standing immunity enjoyed by expert witnesses.
In overturning this immunity the UK Supreme Court held that no justification had been shown for continuing to hold expert witnesses immune from suit for breach of duty in relation to the evidence they give in court or for the views they express in anticipation of court proceedings
Given that BC’s expert witness immunity is grounded in the same logic as the UK’s was it will be interesting to see if our Courts are willing to re-visit this issue.