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witness---Immunity from suit for breach of duty---Extent and
scope---Duty of care owed by an expert witness to his
client---Scope---Personal injury action---Preparation of a joint
statement/report by expert witness for purposes of
settlement---Negligence by expert witness---Claimant having to settle
for significantly lesser settlement as a consequence---Effect---Claimant
(appellant) was involved in a road traffic accident---Claimant's
solicitors instructed the defendant (respondent), who was a consultant
clinical psychologist, to examine the claimant and prepare a report for
the purposes of personal injury proceedings---Defendant prepared her
first report in which she expressed the view that the claimant was at
that time suffering from post traumatic stress disorder
(PTSD)---Defendant subsequently prepared a second
report stating that the claimant did not have all the symptoms to
warrant a diagnosis of post-traumatic stress disorder (PTSD), but was
still suffering from depression and some of the symptoms of
PTSD---Consultant psychiatrist instructed by the relevant insurer
prepared her own report, wherein it was stated that the claimant was
exaggerating his physical symptom---District Judge ordered the two
experts to hold discussions and to prepare a joint
statement---Consultant psychiatrist for the relevant insurer prepared a
draft joint statement, which the defendant (expert) signed without
amendment or comment---Said joint statement was damaging to the
claimant's claim as it recorded agreement that his psychological
reaction to the accident was no more than an adjustment reaction that
did not reach the level of a depressive disorder of post-traumatic
stress disorder (PTSD); that the defendant had found the claimant to be
deceptive and deceitful in his reporting, and that the experts agreed
that his behaviour was suggestive of 'conscious mechanisms' that raised
doubts as to whether his subjective reporting was genuine---Claimant, as
a consequence, had to settle his claim for significantly less than the
settlement that would have been achieved had not the defendant (expert)
signed the joint statement in the terms in which she did---Contentions
of the defendant were that immunity to expert witnesses was necessary to
ensure that they would be prepared to give evidence at all, and that
expert witnesses would be reluctant to give evidence against their
client's interests if there was a risk that they would be
sued---Validity---Expert witness must give his evidence honestly, even
if it involved concessions that were contrary to his client's
interests---No conflict existed between the duty that the expert owed to
his client and the duty that he owed to the court---All who provided
professional services which involved a duty of care were at risk of
being sued for breach of that duty---Expert would be well aware of his
duty to the court and where he frankly accepted that he had changed his
view it would be apparent that he was performing that duty---Postulating
that in order to persuade an expert to perform the duty that he had
undertaken to his client it was necessary to give him immunity from
liability for breach of that duty, would be paradoxical---Rational
expert witness who had performed his duty was unlikely to fear being
sued by the rational client---Unsuccessful litigant could easily allege,
if permitted, that a witness of fact who had given evidence against him
was guilty of defamatory mendacity but it was far less easy for a lay
litigant to mount a credible case that his expert witness had been
negligent---Defendant (expert witness), in the present case, had
admitted to putting her signature to a joint report that did not express
her views, therefore, there is nothing vexatious about the claimant's
claim---Contention that removal of expert witness immunity would lead to
a proliferation of vexatious claims was doubtful---No justification had
been shown for continuing to hold expert witnesses immune from
suit in relation to the evidence they gave in court or for
the views they expressed in anticipation of court proceedings---Immunity
from suit for breach of duty that expert witnesses had enjoyed in
relation to their participation in legal proceedings should be
abolished, however such abolition of immunity did not extend to
the absolute privilege enjoyed by expert witnesses in respect
of claims in defamation---appeal was allowed, accordingly.
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