Expert Witness Testimony

Relevant court decisions

The traditional position in Australia has been that expert witnesses are immune from civil suit in relation to evidence they give in the course of legal proceedings.¹ The idea that expert witness immunity could extend to out-of-court work was then confirmed in the decision of Young v Hones ² (Young).

The court in Young determined that expert witness immunity would apply to work done by an expert who is intimately connected with work in court.³ In that case, the court held that there was a sufficient connection between the alleged negligent conduct of the experts (engineers who provided advice in earlier proceedings) and the settlement of the proceedings to bring the conduct within the scope of expert witness immunity.

However, two recent decisions of the High Court, Attwells v Jackson Lalic Lawyers Ptd Ltd ⁴ (Attwells) and Kendirjiran v Lepore ⁵ (Kendirjiran) concerning advocates’ immunity may have implications for expert witness immunity in general.

In Attwells and Kendirjiran, the High Court adopted a narrower approach in determining the scope of advocates’ immunity – and concluded that advocates’ immunity would not extend to negligent advice which leads to the settlement of a case by agreement between the parties (out-of-court work), but that it only covers advice that affects the conduct of the case in court and resolution of the case by that court.

What does this mean for doctors providing expert opinion?

Whether immunity extends to work done by expert witnesses out of court is particularly relevant in the area of medico-legal expert opinion, as the majority of medico-legal matters resolve before hearing, and the expert opinion will often be provided in the pre-trial phase.

Given the narrower approach adopted by the High Court in relation to advocates’ immunity,  it may be that this approach is also used when considering the scope of general expert witness immunity. The result would be that expert witness immunity would only extend to cover expert opinion given in evidence during a court hearing which leads to a judgment.

This might mean expert witness immunity may not extend to expert opinion:

• given in evidence during a court hearing, leading to a settlement
• given before a court hearing, leading to a settlement
• provided in the pre-litigation phase.

Summary points

• MDA National will continue to monitor any further developments in this area. In the meantime, it is important that you carefully consider any request to provide an expert opinion.
• For tips and more information, see the article Providing Expert Evidence in our Defence Update Autumn 2015 edition.
• If you have any questions or concerns, please contact our Medico-legal Advisory Services team on 1800 011 255.

Medico-legal Advisory Services
MDA National

References

1. Cabassi v Villa [1940] HCA 41; 64 CLR 130.
2. Young v Hones [2014] NSWCA 337.
3. Young v Hones [2014] NSWCA 337 at 35.
4. Atwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16.
5. Kendirjian v Lepore [2017] HCA 13.