Australia: Will Australian experts remain immune from suit?

Legal Directions May 2011
Last Updated: 19 May 2011
Article by Elissa Morton

Jones v Kaney [2011] UKSC 13


On 14 March 2001, the appellant was involved in a road traffic accident which left him with a number of physical and psychological injuries. The appellant instructed solicitors ('Kirwans') to act for him.

In May 2003, Kirwans instructed the respondent (a clinical psychologist) to examine the appellant and prepare a report in relation to the appellant's psychological condition. In her report, the respondent expressed the opinion that the appellant had suffered from post traumatic stress disorder ('PTSD').

In December 2004, Kirwans instructed the respondent to re-examine the appellant and prepare a second report. In the second report, the respondent concluded that whilst the appellant did not have all the symptoms to support a diagnosis of PTSD, he did have some PTSD symptoms and a depressive disorder.

The respondent was subsequently ordered to confer with the defendant's medical expert and to prepare a joint report. A similar order can be made in Australian courts.

The joint report was damaging to the appellant's claim, indicating that the appellant had been deceptive and deceitful and had manufactured or exaggerated some of his symptoms. As a result, the appellant's claim was settled for significantly less than the settlement that might have otherwise been achieved.

The respondent later admitted she had signed the joint report without seeing the opposing expert's report and the joint report did not accurately reflect what she had agreed or thought.

The appellant commenced proceedings against the respondent in negligence. In January 2010, those proceedings were struck out by Justice Blake on the grounds of expert witness immunity. An appeal directly to the Court of Appeal followed because the proceedings involved a point of law of general public importance.


By a majority of five to two, the Court held the immunity from suit for breach of contract or negligence that experts had enjoyed should be abolished.

In reaching its decision, the Court provided a detailed discussion of the various arguments that have been raised by proponents of expert immunity. The arguments included that:

  • If expert witnesses are liable to be sued for breach of duty, they will be discouraged from providing their services which may result in an insufficient supply of experts and cause experts to be faced with a multiplicity of frivolous or vexatious claims
  • To ensure that experts are not deterred from giving full and frank evidence in accordance with their duty to the Court, even when the evidence might be adverse to their client's case.

The Court held that the above arguments were no longer sufficient to justify the continued existence of expert immunity for the following reasons:

  • There was no evidence to support the assumption that the immunity was necessary to prevent a shortfall in the supply of expert witnesses
  • There was no conflict between the expert's duty to the client and the expert's duty to the Court – the expert's duty is always to give their honest opinion and to draw the Court's attention to any changes in their opinion even if it does not support their client's case and whether or not it is contrary to any earlier opinion expressed by the expert
  • There was no evidence to support the assertion that experts would be faced with an abundance of frivolous or vexatious claims if immunity were abolished and, in any event, such claims would be most likely be struck out as an abuse of process.

The Court pointed out the grant of immunity denies the rights of others to a legal remedy which they would otherwise have and is therefore against the public interest. As such, immunity should not be granted in the absence of clearly justifiable reasons for its grant.

It was also noted that in most instances experts would have insurance cover for claims brought against them.

Lord Collins expressed the view that the abolishment of expert immunity was unlikely to have any effect on the preparation and presentation of expert evidence and would most likely encourage experts to take greater care when preparing their initial reports or joint reports.

Lord Hope and Lady Hale (in dissent) took the view that expert immunity should not be abolished on the basis that there was:

  • A lack of a secure principled basis for removing immunity
  • A lack of a clarity as to what would be affected by the removal of immunity
  • Too great a risk that experts would not give full and frank disclosure to the Courts, if they believed that such disclosure might result in a claim against them.


Prior to Jones v Kaney, experts in the United Kingdom were immune from suit in respect of anything which they said in Court, or anything which they said in a report which was adopted or incorporated in the expert's evidence. The immunity did not extend to advice which the expert provided regarding the merits of a party's claim.

In the UK, advocates immunity had already been abolished by Arthur J S Hall v Simons [2000] UKHL 38.

In Australia, advocates immunity and general witness immunity was reaffirmed by the High Court in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12.

The majority of the High Court held that advocates and witness immunity was justified on the basis of public policy considerations and, in particular, the importance of ensuring that issues arising in the principal proceedings were not the subject of re-litigation except in limited circumstances.

It remains to be seen whether the High Court will continue to adopt this position in light of the decision reached by the UK Supreme Court in Jones v Kaney.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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