The document discusses whether an expert witness can be held liable for negligence or misleading conduct when providing evidence in court proceedings. It summarizes:
1) Expert witnesses have limited criminal liability if they deliberately mislead the court, and limited civil liability according to principles of court immunity.
2) Court immunity, established over 100 years, protects judges, witnesses, parties and barristers from civil liability for their participation in judicial proceedings. This encourages honesty and participation in the pursuit of justice.
3) The highest authority on expert witness immunity is a case, Sovereign Motor Inns v Howarth Asia Pacific, where the court considered whether expert witness immunity prevented an expert from being sued for their report in previous
Original Description:
Original Title
Is an Expert in Court Liable for Negligence or Misleading Conduct
The document discusses whether an expert witness can be held liable for negligence or misleading conduct when providing evidence in court proceedings. It summarizes:
1) Expert witnesses have limited criminal liability if they deliberately mislead the court, and limited civil liability according to principles of court immunity.
2) Court immunity, established over 100 years, protects judges, witnesses, parties and barristers from civil liability for their participation in judicial proceedings. This encourages honesty and participation in the pursuit of justice.
3) The highest authority on expert witness immunity is a case, Sovereign Motor Inns v Howarth Asia Pacific, where the court considered whether expert witness immunity prevented an expert from being sued for their report in previous
The document discusses whether an expert witness can be held liable for negligence or misleading conduct when providing evidence in court proceedings. It summarizes:
1) Expert witnesses have limited criminal liability if they deliberately mislead the court, and limited civil liability according to principles of court immunity.
2) Court immunity, established over 100 years, protects judges, witnesses, parties and barristers from civil liability for their participation in judicial proceedings. This encourages honesty and participation in the pursuit of justice.
3) The highest authority on expert witness immunity is a case, Sovereign Motor Inns v Howarth Asia Pacific, where the court considered whether expert witness immunity prevented an expert from being sued for their report in previous
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.
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