Personal Injury Case Azad Kashmir

Citation Name : 2012 SCMR 1298 SUPREME-COURT-OF-UK Side Appellant : JONES Side Opponent : KANEY Expert witness---Immunity from suit for breach of duty---Extent and scope---Duty of care owed by an expert witness to his client---Scope---Personal injury action---Preparation of a joint statement/report by expert witness for purposes of settlement---Negligence by expert witness---Claimant having to settle for significantly lesser settlement as a consequence---Effect--- Claimant (appellant) was involved in a road traffic accident---Claimant's solicitors instructed the defendant (respondent), who was a consultant clinical psychologist, to examine the claimant and prepare a report for the purposes of personal injury proceedings---Defendant prepared her first report in which she expressed the view that the claimant was at that time suffering from post traumatic stress disorder (PTSD)---Defendant subsequently prepared a second report stating that the claimant did not have all the symptoms to warrant a diagnosis of post-traumatic stress disorder (PTSD), but was still suffering from depression and some of the symptoms of PTSD---Consultant psychiatrist instructed by the relevant insurer prepared her own report, wherein it was stated that the claimant was exaggerating his physical symptom---District Judge ordered the two experts to hold discussions and to prepare a joint statement---Consultant psychiatrist for the relevant insurer prepared a draft joint statement, which the defendant (expert) signed without amendment or comment---Said joint statement was damaging to the claimant's claim as it recorded agreement that his psychological reaction to the accident was no more than an adjustment reaction that did not reach the level of a depressive disorder of post-traumatic stress disorder (PTSD); that the defendant had found the claimant to be deceptive and deceitful in his reporting, and that the experts agreed that his behaviour was suggestive of 'conscious mechanisms' that raised doubts as to whether his subjective reporting was genuine---Claimant, as a consequence, had to settle his claim for significantly less than the settlement that would have been achieved had not the defendant (expert) signed the joint statement in the terms in which she did---Contentions of the defendant were that immunity to expert witnesses was necessary to ensure that they would be prepared to give evidence at all, and that expert witnesses would be reluctant to give evidence against their client's interests if there was a risk that they would be sued---Validity---Expert witness must give his evidence honestly, even if it involved concessions that were contrary to his client's interests---No conflict existed between the duty that the expert owed to his client and the duty that he owed to the court---All who provided professional services which involved a duty of care were at risk of being sued for breach of that duty---Expert would be well aware of his duty to the court and where he frankly accepted that he had changed his view it would be apparent that he was performing that duty---Postulating that in order to persuade an expert to perform the duty that he had undertaken to his client it was necessary to give him immunity from liability for breach of that duty, would be paradoxical---Rational expert witness who had performed his duty was unlikely to fear being sued by the rational client---Unsuccessful litigant could easily allege, if permitted, that a witness of fact who had given evidence against him was guilty of defamatory mendacity but it was far less easy for a lay litigant to mount a credible case that his expert witness had been negligent---Defendant (expert witness), in the present case, had admitted to putting her signature to a joint report that did not express her views, therefore, there is nothing vexatious about the claimant's claim---Contention that removal of expert witness immunity would lead to a proliferation of vexatious claims was doubtful---No justification had been shown for continuing to hold expert witnesses immune from suit in relation to the evidence they gave in court or for the views they expressed in anticipation of court proceedings---Immunity from suit for breach of duty that expert witnesses had enjoyed in relation to their participation in legal proceedings should be abolished, however such abolition of immunity did not extend to the absolute privilege enjoyed by expert witnesses in respect of claims in defamation--- appeal was allowed, accordingly.