EXPERT LIABILITY

IS AN EXPERT WHO An expert witness may, in decision of Master Harrison of the

GIVES EVIDENCE IN very limited circumstances, Supreme Court in Sovereign.
be criminally or civilly liable.
COURT PROCEEDINGS Criminal liability is limited to THE SOVEREIGN CASE
LIABLE FOR where an expert has deliberately In Sovereign, Master Harrison
NEGLIGENCE OR attempted to mislead the Court considered an application by
MISLEADING AND by offering views not actually Howarth Asia Pacific (‘HAP’)
held. Civil liability is limited by the to strike out proceedings
DECEPTIVE CONDUCT?
principles of Court immunity set commenced by Sovereign against
Adelina Dal Pra out below. HAP. The question was whether
the principle of witness immunity
Associate COURT IMMUNITY prevented HAP, the expert, from
Colin Biggers & Paisley For more than 100 years1 being sued by Sovereign.
persons participating in judicial
proceedings have been immune Background
from civil liability in respect of In earlier proceedings, Sovereign,
that participation. That principle the lessee of a motel, had sued
now extends to judges, witnesses the lessor of the premises for
(both lay and expert), the parties breaches of the lease, claiming
and barristers. that the motel’s business had
suffered because the lessor had
The principle is founded on the
failed to maintain the property.
following considerations, which
Sovereign engaged HAP to provide
were recently restated by Master
three expert reports setting out
Harrison in the Supreme Court
the financial losses suffered as
case of Sovereign Motor Inns v
a result of the falling occupancy
Howarth Asia Pacific2 in respect of
level. His Honour Justice Austin,
expert witnesses:
who heard those proceedings,
...firstly, ... to encourage honest requested a further report be
and well meaning persons to prepared to give Sovereign the
assist the higher interest of the opportunity to present evidence
advancement of public justice, directly concerning the damages
even a dishonest and malicious related to the air conditioning
person may on occasion benefit failure. HAP prepared that report
from the immunity; secondly ... (the fourth report), acknowledging
to encourage freedom of speech that it would comply with
and communication in judicial Schedule K of the Supreme Court
proceedings by protecting Rules 4.
persons who take part in the
At the hearing most of HAP’s
judicial process from fear of
fourth report was struck out,
being sued for something they
only four pages of that report
say; thirdly, to ensure that there
being tendered. In his judgment,
is finality to litigation, so there
Justice Austin did not accept the
is no opportunity to re-litigating
quantifications in HAP’s fourth
the same issues by means of
report, indicating that Schedule
subsequent action.
K had not been complied with.
SCOPE OF THE IMMUNITY Sovereign lost the case.
Whilst the Australian High Court Sovereign then sued HAP for:
in Giannarelli has considered • the damages which were not
this type of immunity in respect recovered from the lessor in the
of barristers,3 there has been no previous proceedings; and
such high Australian authority
on the scope of the immunity in • recovery of costs Sovereign
respect of expert witnesses. The had been ordered to pay for the
highest authority thus far is the lessor.
based on:
46 AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #101 MARCH/APRIL 2005
• negligence associated with the offend the prohibition in s.52.6 The Courts will not lightly
fourth report; The Court will also imply into an interpret legislation in a way
expert report a representation
• breach of contract between which limits common law
that the expert has produced an
Sovereign and HAP for expert rights.
opinion based on a reasonable
evidence; and
application of the expert’s skills.7
• breach of s.52 of the Trade There is nothing specific in
Practices Act. the Trade Practices Act which
HAP sought to strike out the indicates that Act will not apply to
proceedings on the basis of expert evidence given in proceedings.
witness immunity principle. Where an expert has not
reasoned his conclusions and has
The arguments
not followed Schedule K (although
Sovereign submitted that Cabassi the reports states that Schedule
v Vila5 could not apply because K was complied with) there is
that was a case brought against a a clear possibility that s.52 has
lay witness for evidence in earlier been breached.
proceedings and not arising
Having regard to Justice
out of a report prepared by an
McHugh’s recommendation
independent corporation pursuant
in Mann, Master Harrison
to a contract.
in Sovereign considered the
Sovereign also submitted that: underlying rationale for the
• the immunity could not apply witness immunity:
to a witness who was obliged to If an expert is to adhere to
comply with Schedule K and failed Schedule K, it can be expected
to advise Sovereign that it was that when confronted with that
unable to do so; and of another expert in the same
• witness immunity does not field’s opinion, he or she may
apply to claims under the Trade make concessions and even
Practices Act. change their view. In these
circumstances, the expert should
SECTION 52 OF THE TRADE be able to give his evidence freely
PRACTICES ACT AND and not be in fear of being sued.
OPINION The rationales of not relitigating
the same issues and the higher
The Court in Sovereign held interest of the advancement of
that s.52 of the Trade Practices public justice are all applicable.8
Act would not apply to limit the
expert witness immunity, and that The Courts will not lightly
the claim for breach of contract interpret legislation in a way
and in negligence could not be which limits common law rights.
maintained. Rather, Courts have:
Section 52 (1) of the Trade • refused to extend legislation
Practices Act provides that: by implication to authorise
the trespass associated with
a corporation shall not, in trade installing listening devices,
or commerce, engage in conduct although the legislation expressly
which is misleading or deceptive permitted the use of listening
or is likely to mislead or deceive. devices, because trespass
The law about opinions that constituted an interference with a
contravene s.52 of the Trade basic right of property9; and
Practices Act is well established. • preferred interpretations
Generally, unless an opinion is of legislation which would not
‘not reasonably capable of being limit the common law right of a
held’ by the speaker, it will not

AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #101 MARCH/APRIL 2005 47

... it is important that the barrister to immunity from suit in REFERENCES
views of an expert and the relation to proceedings. 10
1. The English case of Dawkins v
underlying logic used in the In Sovereign, the Court was Rokeby (1873) LR 8 QB 255 is an
preparation of his report are whether the Trade Practices Act example.
thoroughly tested before the should be read down according
2. [2003] NSW SC 1120 at
to principles which are not
matter is taken to hearing. acknowledged by that Act. The
paragraph 34
Court found that parliament did 3. Giannarelli v Wraith (1988) 165
not intend to limit the expert CLR 543
witness immunity. Furthermore, 4. Schedule K sets out the Expert
the Court considered that the Witness Code of Conduct. Cases
principles of negligence would be such as Makita (Australia) Pty
read down so as not to impinge on Limited v Sprowles (2001) 52
the immunity. NSWLR 705 have made it clear
Where Courts are increasingly that the reasoning process of the
encouraging expert conclaves, expert needs to be transparent, so
it is important that the views of that the Court is able to follow the
an expert and the underlying logic. These principles have been
logic used in the preparation of replicated in expert witness Codes
his report are thoroughly tested of Conduct in most jurisdictions of
before the matter is taken to NSW, such as Schedule K.
hearing. This case would seem 5. [1940] 64 CLR 130
to suggest there is no recourse
against an expert for reports 6.Tobacco Institute of Australia
(whether for a particular party Limited v Australian Federation
or a joint report, the product of a of Consumer Organisations
conclave) prepared negligently in Incorporated (1992) 111 ALR 61
Court proceedings. 7. See, for example, Kenny &
Nevertheless, it is worth noting Good Pty Limited v MGICA (1997)
that the High Court has recently 140 ALR 313; Amadio Pty Limited
been invited to reconsider the v Henderson [1998] FCA 823 (Full
principles set out in Giannarelli Fed Court)
concerning advocates’ immunity 8. see above, at paragraph 39 of
in the case of D’Orta-Elenaike v the judgment
Victoria Legal Aid & Anor. That
case was heard in April 2004 and 9. see Coco v R (1994) 179 CLR
the High Court has reserved its 427
decision. It may well have some 10. see Giannarelli v Wraith (1988)
impact on the status of expert 165 CLR 543
witness reports in this regard.

48 AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #101 MARCH/APRIL 2005