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Expert Witness Liability

12/04/2011

The Supreme Court has removed 400 year old protections that expert witnesses should be immune from being sued for breach of duty.

Historically, experts have been able to give evidence to the court, without the fear of being sued by a party to those proceedings.

However, in the case of Jones v Kaney (2011), the court over-ruled the case authority of Stanton v Callaghan (1999) and ordered that a party in proceedings could sue the expert.

In brief, Dr Sue Kaney was an expert in a personal injury claim brought by Paul Wynne Jones following a road traffic accident. It was alleged that Kaney had negligently changed her opinion during the proceedings, which Jones claimed had resulted in a reduced award for his personal injury claim. The court allowed Jones to sue Kaney.

Paul Hatton , commercial dispute resolution solicitor at KBL comments. “Experts are necessary in technical cases, where the court needs guidance on specialist aspects of a claim. They have long had the comfort of being able to give evidence to the court without the fear of being sued by a disgruntled party to the proceedings. That protection has been removed by this judgment. It may create an influx of claims, albeit that professional negligence claims can be difficult to prove. Experts should take steps to ensure they are adequately protected and that they know what to do should they receive notice of a claim.”

Experts are commonly used in personal injury claims, construction & technology disputes and professional negligence claims. Given the possibility of being sued, experts should ensure that they discuss the loss of immunity with their indemnity insurers. They may also wish to update their terms of engagement.