You have a serious dispute with someone, which involves a technical issue. The matter has ended up in court, so you hire an expert to advise you on the technical issue. What liability does the expert have to you if the expert is careless in putting forward a position? The answer is ‘probably none’ – as confirmed by the NSW Court of Appeal in a 2014 case.

Background, and the position in England

It has long been the case in Australia that an expert cannot be sued in relation to giving evidence in court, and this was confirmed in a High Court decision in 2005. The position was similar in England until the 2011 decision in Jones v Kaney [2011] UKSC 13. This decision followed the abolition of advocate’s immunity from suit by the House of Lords. Acknowledging that the immunity dated back more than 400 years, Lord Phillips explained that the rationale for the principle had been the "chilling effect that the risk of claims arising out of conduct in relation to legal proceedings would have. It would make claimants reluctant to resort to litigation. It would make witnesses reluctant to testify. If they did testify, it would make them reluctant to do so freely and frankly. The cases emphasise that the object of the immunity is not to protect those whose conduct is open to criticism, but those who would be subject to unjustified and vexatious claims by disgruntled litigants."

But that rationale reflects a different era, a time when the opinion of a respected professional was regarded almost as sacrosanct. Today, the use of experts in litigation is widespread and there are many whose main professional practices involve the preparation of reports for use in litigation and the giving of expert evidence in court. But for some time, experts have often been criticised for acting as advocates - rather than dispassionately imparting their wisdom for the benefit of the court. To try to combat this, in Australia at least, the courts have felt it necessary to issue formal guidelines with which experts must formally agree to comply before their evidence will be accepted.

The UK Supreme Court reflected current circumstances when it suggested in the above case that the most likely consequence of removing immunity from experts would be a "sharpened awareness of the risks of pitching their initial views of the merits of their client's case too high or too inflexibly lest these views come to expose and embarrass them at a later date" and that, in cases where the expert behaves in an "egregious" manner, or negligently causes his or her client loss, the wronged client should have a proper remedy.

Position in NSW

But the new English position has not been adopted in Australia as the 2014 case of Young v Hones [2014] NSWCA 337 in the New South Wales Court of Appeal shows.

Ms Margo Young was a Forestville pensioner who by 2014 had been in dispute for over a decade about certain building works carried out by her neighbours to their property commencing in 2001. Part of the building works were unauthorised by the Council and she contended that drainage problems to her property were caused by the works.

She brought proceedings in the Land and Environment Court against her neighbours in 2003. During the first day of the trial in 2004, her engineer and an engineer appointed by her neighbours met in the precincts of the court, and by the afternoon had come to an agreement as to works that would be carried out by the neighbours to solve the drainage problem. The case was settled that day with the neighbours undertaking to the court to carry out the works. When the court considered the case a few days later (to make a costs order), the Chief Judge in the Land and Environment Court considered that the evidence of Ms Young’s engineering expert was clearly to be preferred to that of the neighbour’s expert whose evidence was regarded as ‘unsatisfactory’, and Ms Young was awarded costs.

However, the dispute lingered on (and was subject to further court hearings and mediation). The agreed works were never carried out, including because the Council refused to grant a DA, partly because Ms Young refused to consent to it. Ms Young then contended that the remediation works agreed upon by her expert engineer would be inadequate, because a representation made to the court about a drainage matter was incorrect. In 2008 she took the matter to the Supreme Court, suing the engineer (as well as her lawyers) for breach of his retainer and for negligence, on the basis that his bad advice had led to her agreeing to an inappropriate settlement in 2004.

What did the expert do wrong?

So what did the engineer do wrong? Perhaps nothing, but we will never know, because when the matter came before the Supreme Court, the judge did not have to make a finding as to the adequacy of the remediation plan. He dismissed the claim against the engineer on the basis that, whether he was negligent or not, he could not be sued in these circumstances.

Court of Appeal

The matter went next to the Court of Appeal which held that witness immunity was a complete defence to Ms Young’s claims against the engineer. It declined to follow the UK case, and instead quoted an old High Court case (Cabassi v Vila [1940] HCA 41) in which the court had found in favour of the immunity without reference to any exceptions to it – and in which the court had resorted to the rationale that, without such immunity, vexatious suits and interminable litigation would be encouraged.

The same reasoning applied to work done by an expert out of court which led to a decision affecting the conduct of the case in court, or was work intimately connected with the work in court. 

In the Court of Appeal’s view the work done by the engineer was therefore work done out of court which affected the conduct of the case in court. The claim arose directly out of the result of an expert conclave which took place during the proceedings in the Land and Environment Court. The Court of Appeal decided that in those circumstances the engineer was immune from suit.

Conclusion

Litigants of course always need to choose their experts carefully – but the right choice may not be the person who simply says what they want to hear. Litigants should, with their lawyers, do what they can to test the objectivity and credibility of their experts, and not take these for granted - bearing in mind that they may well not have legal recourse against a careless expert. Experts will be wise, despite the favourable decision, to exercise due care and skill in their work and not be partisan in their views or opinions of their client’s case as:

  • In some circumstances work done outside court is not covered by the immunity;
  • Even unsuccessful proceedings brought by a disappointed client can have an adverse effect on the reputation of the expert, be expensive in both time and money, and result in increased professional indemnity insurance premiums; and
  • The immunity does not extend to disciplinary proceedings that may be brought by a professional body, a regulatory authority, or the court itself.