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Liability of Expert Witnesses

Civil Claims

Disciplinary Sanctions

Associate Professor Tina Cockburn, Australian Centre for Health Law Research, Queensland University of Technology

Adjunct Professor Bill Madden, Australian Centre for Health Law Research, Queensland University of Technology; Carroll & O’Dea Lawyers

Liability of Expert Witnesses: Civil Claims Revisiting expert witness immunity after

Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16

Advocate’s immunity The orthodox approach: Giannarelli 1998

Giannarelli v Wraith (1988) 165 CLR 543

• G gave evidence at Royal Commission & was later

convicted of perjury. HCA quashed convictions as G’s

evidence to Commission was inadmissible at subsequent

trial

• G sued lawyers in negligence for failure to advise

Commission evidence inadmissible and failure to object

to admission of evidence.

• Held: barristers and solicitors immune from liability for

negligence in conduct of work in court, and “work done

out of court which leads to a decision affecting the

conduct of the case in court” (Mason CJ at 21)

Advocate’s immunity Orthodox approach affirmed: D’Orta-Ekenaike 2005

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1

• D was charged with rape. His solicitor and barrister

advised him to plead guilty at committal. He followed the

lawyers’ advice and was committed for trial.

• At trial, D changed his plea to not guilty, but the earlier

guilty plea was led in evidence > convicted > 3yrs

imprisonment.

• Successful appeal on ground of misdirection by judge. At

retrial, evidence of guilty plea not admitted > acquitted.

• D sued lawyers alleging negligent advice. Lawyers

claimed immunity.

Orthodox approach affirmed: D’Orta-Ekenaike 2005

• Orthodox approach affirmed

– “… there is no reason to depart from the test described

in Giannarelli as work done in court or "work done out

of court which leads to a decision affecting the conduct

of the case in court" or … "work intimately connected

with" work in a court.” [86] (majority)

– “… under the common law of Australia, advocates are

not liable to be sued in damages for negligent conduct

that is intimately connected with the hearing of a civil

or criminal cause.” [94] (McHugh J)

Expert witness immunity The orthodox approach: D’Orta-Ekenaike 2005

D’Orta-Ekenaike v Victoria Legal Aid • Expert witnesses, like advocates and other participants in the

judicial process, are immune from negligence suit in relation to court work, and work done out of court which is intimately connected with the work in court.

• “No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps…

[39] (majority)

• “A witness's immunity from suit extends even to out-of-court conduct

that is intimately connected with the giving of evidence in court”. [99] (McHugh J)

Advocate’s immunity revisited Attwells v Jackson Lalic 2016

• A guaranteed company’s debts > default – Company’s indebtedness ~$3.4 million. A‘s liability limited to $1.5

million.

• Day 1 guarantee proceedings trial - bank certified

$1,856,122 owing under guarantee (incl interest and

enforcement costs) - Settlement - Consent order. – Terms: judgment for full amount of indebtedness ($3.4 million), and

bank would not enforce if guarantors paid $1.75 million on or before 19

Nov 2010

– A failed to pay by 19 Nov > full amount due

• A alleged lawyers were negligent for advice to settle on

unfavourable terms; and failure to advise effect of

consent orders – Lawyers relied on advocates’ immunity as complete defence

Questions for the High Court

• Should advocate’s immunity be abolished?

• Alternatively, what is the scope of advocate’s immunity?

– Does advocate’s immunity extend to negligent advice

which leads to the settlement of a case by agreement

between parties?

Majority outcome – the key points

• The High Court upheld the advocate’s immunity from suit in

negligence.

– “To overturn Giannarelli and D'Orta would generate a

legitimate sense of injustice in those who have not pursued

claims or have compromised or lost cases by reference to

the state of the law as settled by these authorities during

the years when they have stood as authoritative

statements of the law. An alteration of the law of this kind is

best left to the legislature.” [28]

• But narrower scope

– “The immunity does not extend to negligent advice which

leads to the settlement of a claim in civil proceedings. “ [45]

Policy rationale for advocate’s immunity

• “Protection of the public interest in the finality and certainty of

judicial decisions” by preventing “collateral attack which

seeks to demonstrate that that a judicial determination was

wrong.” [34] – [35]

• Advocate’s immunity derived, not from any special status as an

advocate, but from the advocate’s role “as an officer of the court,

in the exercise by the court of judicial power to quell a

controversy.”: [33]

Scope of advocate’s immunity

• Narrower view of the intimate connection test:

• “… the public policy, protective of finality, which justifies

the immunity at the same time limits its scope so that its

protection can only be invoked where the advocate's

work has contributed to the judicial determination of the

litigation.” [5]

• Requires a “functional connection between the advocate’s

work and the judge’s decision.” [5]

• The immunity is limited to “work by the advocate that bears

upon the judge’s determination of the case.” [46]

Judicial determination

Not (most) settlements

• Immunity only available to the extent necessary to fulfil the underlying policy objective of preserving finality of judicial decisions. [47]

– “In short, in order to attract the immunity, advice given out of court must affect the conduct of the case in court and the resolution of the case by that court. The immunity does not extend to preclude the possibility of a successful claim against a lawyer in respect of negligent advice which contributes to the making of a voluntary agreement between the parties merely because litigation is on foot at the time the agreement is made. That conclusion is not altered by the circumstance that, in the present case, the parties' agreement was embodied in consent orders. “ [6]

But immunity may extend to some

settlements

• Some settlements do involve judicial determination

• In personal injury cases, approval of settlement for a

person under an incapacity.

Refinements

Immunity does not apply to settlement after

court ordered mediation: High court appeal

Stillman v Rushbourne [2015] NSWCA 410

• A and GCS Pty Ltd retained R to act in litigation brought by

CCCS

• Court appointed mediation held – following mediation, on R’s

advice, A and GCS accepted CCCS’s settlement offer –

settlement following mediation

• A and GCS unable to fulfil terms of settlement deed

• A commenced proceedings alleging R gave negligent

advice and representation during mediation

Stillman v Rushbourne [2015] NSWCA 410

• Held: Majority: Work done by R fell within orthodox understandings of advocate’s immunity being work that led to a settlement and thus affected the conduct of the case in court: [11] (Gleeson JA); [19] Simpson JA.

– Basten JA, dissenting:

– Advocates’ immunity is rooted in the fundamental need of the administration of justice for finality of judicial determination of controversies between parties. In the present case, consent orders were entered prior to commencement of a trial, reflecting a settlement reached by the parties out of court; the judicial determination of the controversy on its merits did not take place. There was no justification for extending advocates’ immunity to the conduct of the respondents in the course of the mediation which lead to the settlement: [8]; [17]; [30]; [47].

• Special leave application granted – appeal allowed by consent: Stillman v Rusbourne & Ors [2016] HCATrans 194 (2 September 2016)

Refinements now pending Not settling: High court appeal

Kendirjian v Lepore [2015] NSWCA 132

• Personal injury claimant who was awarded $310,000 (by judicial

determination) sued his solicitor and barrister for allegedly

negligently advising that a settlement offer which was “too low” had

been made, without telling him the amount ($600,000).

• NSW Court of Appeal: summary dismissal on the grounds of advocate’s

immunity.

– Special leave granted after Attwells decided: Kendirjian v Lepore & Anor

[2016] HCATrans 141; [2016] HCASL 140 (17 June 2016); Heard on 9

February 2017 > awaiting outcome.

So, where does that leave experts? Who will

be immune?

Relationship between advocate’s immunity

and expert witness immunity

• Uniformity of approach between advocate’s immunity and

expert witness immunity

• “No action lies in respect of evidence given by witnesses in the course of

judicial proceedings, however false and malicious it may be, any more

than it lies against judges, advocates or parties in respect of words used

by them in the course of such proceedings or against jurors in respect of

their verdicts.”

– Cabassi v Vila (1940) 64 CLR 130, 140 (Starke J)

• … once it is appreciated that the rationale for the immunity is the same

as that for advocate's immunity, there is no reason for the test for the

application of the immunity to be different in either case.

– Young v Hones [2014] NSWCA 337, [35] (Bathurst CJ)

Expert witness immunity after Atwells 1. Evidence given in court > judgment

• If policy justification for immunity is protective of finality,

immunity invoked where expert witness evidence contributed

to judicial determination.

• Where expert gives oral evidence in court, which is taken

into account by judge in determining judgement > core

immunity.

Expert witness immunity after Attwells 2. Evidence given in court > settlement before judgment

• What if expert witness gives evidence during trial which contributed

to settlement between parties part way through hearing, without

final judgment?

• Policy of finality: “mere historical connection” between expert’s

evidence and litigious event > no immunity (Attwells).

• However, ancillary policy consideration - prevent witnesses being

deterred from giving truthful evidence due to fear of being sued.

Cabassi v Vila (1940) 64 CLR 130, 144 (McTiernan J)

• Inconsistent duties? Duty to court paramount.

Expert immunity after Attwells 3. Dispute > settlement before court hearing

• Immunity should not be available merely because litigation

on foot at time agreement made. (Attwells)

• Provision of reports before hearing, leading to decision to

settle.

• Shift in opinion at pre-hearing conclave leading to settlement

– AND, most cases settle…

The vanishing trial…

• How many cases end up “in court”

• How many cases are resolved “by the court”?

Young v Hones [2014] NSWCA 337

• Engineer participated in expert conclave - settlement followed

• Costs outstanding - short hearing - expert engineering witnesses gave evidence – costs award to P.

• A alleged expert engineer negligently agreed to inadequate remediation work

• Trial: expert witness immunity complete defence

• Appeal Dismissed:

– “… the immunity will apply where the work in question is work done in court or work done out of court which leads to a decision affecting the conduct of the case in court or putting it another way, is work intimately connected with the work in court.” (Bathurst CJ)

• claim arose from work in experts’ conclave (which formed part of proceedings) > within immunity.

• Special leave application refused [2015] HCASL 73 (6 May 2015).

– Would this outcome be the same today?

Perhaps a simpler approach in the UK?

• Advocate’s immunity abolished 2002: Arthur JS Hall & Co v

Simons [2002] 1AC 615

• Expert witness immunity abrogated: Jones v Kaney [2011] 2

WLR 823

• Action by P against his witness (a clinical psychologist) who

provided a report that P suffered PTSD but then signed a

joint expert report with insurers’ expert which stated that P

did not suffer PTSD > claim then settled on a compromised

basis.

Liability of Expert Witnesses:

Disciplinary sanctions

The business of giving expert evidence

• November 2015: the BMJ reported that a former NHS (UK) surgeon, Dr Francis D’Arcy, who made some 1.4 million pounds sterling in expert report fees was struck off the medical register for failure to pay more than £400,000 tax on that income.

• Asked the lawyers retaining him to provide cheques payable only to his surname and paid some the cheques into the accounts of his four children, all of whom were also doctors in Ireland and in Australia. [Knowledge of those doctors unclear.]

• The surgeon also pleaded guilty to criminal charges. He was given a two year suspended jail sentence, fined £230,000 and ordered to pay costs of £5,000.

Scope for problems to arise?

• Grant & Studdert (2013)

• Identified a cohort of 4 per cent of non-treating experts

who were involved in 30 per cent of all the studied

cases. – G Grant and D M Studdert, The Injury Brokers: An Empirical Profile of Medical Expert Witnesses in

Personal Injury Litigation (2013) 36(3) Melbourne University Law Review 832.

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Complaints regarding expert opinion

evidence “The Board regularly receives notifications about medical practitioners

who perform medico-legal or third party assessments…

Provided the Board is satisfied that the clinical method and reasoning

used in a report is sound, it is unlikely that notifications about the

content of a medico-legal report will lead to further action by the Board.

The Board will not take further action when a single notification does not

appear to amount to unprofessional conduct or unsatisfactory

professional performance.

However, the Board may decide to take action in relation to practitioners

who have been the subject of multiple notifications. “ • Medical Board of Australia; June 2014

http://www.medicalboard.gov.au/News/Newsletters/June-2014.aspx

• Avant (2016): reported a “recent increase in complaints” regarding

medicolegal assessments. • http://www.avant.org.au/resources/public/20150928-when-medico-legal-assessments-bite-

avoiding-client-complaints/

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The framework for regulating experts

• Does the disciplinary framework for medical

practitioners have a role in the context of expert

evidence?

• Is a response to unsatisfactory expert evidence best

considered as the province of the court, before

which the evidence is given?

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Good medical Practice: Code of conduct

Good Medical Practice: A Code of Conduct for Doctors in Australia

expressly refers to medico-legal, insurance or other assessments at

cl 8.7 – 8.9.

• Cl 8.7.4 requires the provision of an impartial report.

• Cl 8.8.4 indicates that good medical practice involves making clear

the limits of the practitioner’s knowledge and not giving opinion

beyond those limits when providing evidence.

• Cl 8.9.1 requires the provision of accurate, truthful and verifiable

information about the practitioner’s experience and medical

qualifications

• and more precisely, Cl 8.9.2 requires not misrepresenting, by

misstatement or omission, the practitioner’s experience,

qualifications or position.

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Notifications - Voluntary

• A voluntary notification may be made about a medical practitioner

under section 144 of the National Law under the following relevant

grounds:

• (a) that the practitioner’s professional conduct is, or may be, of a

lesser standard than that which might reasonably be expected of the

practitioner by the public or the practitioner’s professional peers;

• (b) that the knowledge, skill or judgment possessed, or care

exercised by, the practitioner in the practice of the practitioner’s

health profession is, or may be, below the standard reasonably

expected.

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Notifications – mandatory

• Arguably however, a mandatory notification obligation under section

140 of the National Law will not commonly arise, given the definition

of notifiable conduct:

notifiable conduct, in relation to a registered health practitioner,

means the practitioner has—

(a) practised the practitioner’s profession while intoxicated by alcohol or

drugs; or

(b) engaged in sexual misconduct in connection with the practice of the

practitioner’s profession; or

(c) placed the public at risk of substantial harm in the practitioner’s

practice of the profession because the practitioner has an impairment;

or

(d) placed the public at risk of harm because the practitioner has

practised the profession in a way that constitutes a significant departure

from accepted professional standards. 32

Expert witness code of conduct

• Uniform Civil Procedure (Amendment No 82) Rule 2016,

recently updated the Expert witness code of conduct

(UCPR 31.23 & Schedule 7 )

• Requirement for the witness to assist the court

impartially on matters relevant to the area of expertise of

the witness (clause 2)

• And to state the qualifications of the expert to prepare

the report (clause 3c)

• But no express focus on veracity of the evidence.

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Adverse comments in court decisions

• R v Chahoud [2013] NSWDC 228 per Berman SC DCJ – I should say something about Dr Jacmon. I have in the past been very

critical of his reports and nothing I have read in the report tendered

today causes me to alter my opinion. His reports suffer from two

particular defects. One is that they are virtually identical and almost

every report of his I have ever read suggests that "the offender's

actions which led to offending indicated markedly diminished capacity

for judgment because there appeared to be little thought given to the

consequences". The second problem with Dr Jacmon's report is that

there is little or no explanation as to how he has drawn conclusions.

• See also R v Hickson [2010] NSWDC 336; R v Issa & Yousif [2009]

NSWDC 337; R v Lee [2008] NSWDC 332.

• But, no report to regulatory bodies by the trial judge.

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Adverse comments in court decisions

• But note potential adverse effect of adverse judicial comments, when reviewed at appellate level.

• Vakauta v Kelly [1989] HCA 44 at [6] per Brennan, Deane & Gaudron JJ – ”The learned trial judge’s comments abotu Dr Lawson, Dr Revai

and Dr Dyball in the course of the trial were indeed strong: ”...that unholy trinity... Doctors who think that you do a full day’s work without any arms or legs”; whose ”views are almost invariably slanted in favour of the GIO by whom they have been retained, consciously or unconsciously”.

• At [7], the comments in the judgment were such as to cause reasonable apprehension of bias; new trial on damages ordered.

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Adverse comments in court decisions

R v Parenzee [2007] SASC 316

• HIV transmission – Unprotected intercourse knowing that P had HIV > 3 women > Conviction.

• At trial P did not dispute he was infected with the HIV virus, or that by engaging in unprotected sexual intercourse he could transmit the virus, or that if the women became infected the virus might cause them to suffer from AIDS and so endanger their lives.

• Notice of appeal – P’s legal representatives at trial were unaware of significant matters of fact and significant matters of scientific opinion.

– HIV virus has never been isolated and has not been proved to exist.

– It could not be demonstrated that the HIV virus was transmitted by sexual intercourse, even if it existed.

– No evidence that AIDS was "caused by a unique infectious agent", namely, by the HIV virus.

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R v Parenzee

• Application for appeal heard by single judge; evidence

and submissions over 7 days.

• Ms Papadopulos-Eleopulos and Dr Turner were not qualified

to express an opinion, as an expert, on the question of

whether it had been proved that HIV existed as a distinct or

separate virus, on the question of whether the virus was

transmitted by sexual intercourse nor on the question of

whether the HIV virus was the or a cause of AIDS. He

rejected their evidence: R v Parenzee [2007] SASC 143

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R v Parenzee

• Ms Eleni Papadopulos-Eleopulos - A degree in nuclear

physics from the University of Bucharest in Romania (1960).

• Dr Valendar Turner had the degrees of Bachelor of Medicine

and Bachelor of Surgery, and is a Fellow of the Royal

Australasian College of Surgery and of the Royal

Australasian College for Emergency Medicine.

• Evidence rejected on grounds of expertise, cogency etc.

• No record of disciplinary action re Dr Turner (who appears

on AHPRA as practising in Western Australia)

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R v Parenzee

• At [61]:

– Like the single Judge, this Court can do no more than

act on the material now before it. That material

overwhelmingly supports the conclusion that the HIV

virus exists and is identifiable, that the HIV virus can

be transmitted by sexual intercourse, and that it

causes AIDS: Parenzee at [250], at [323] and at [337]

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Disciplinary Sanctions: Mustac v The Medical Board of Western Australia [2004]

WASCA 156

• Allegation predating the National Law, of improper

conduct by way of the respondent's use of the Test of

Memory Malingering (TOMM) for psychiatric

assessment.

• Dr Zelko Mustac was frequently engaged to give expert

evidence on the subject of the medical condition and

capacities of claimants seeking compensation for

personal injury

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Mustac v The Medical Board of Western

Australia

• Used the TOMM in his psychiatric assessment of certain patients knowing that it had been standardised on a North American population and had little or no relevance to an Australian population;

• Used the TOMM to conduct a medico-legal assessment of an accident-related compensation claim contrary to the specific purpose for which the test was developed namely detecting feigned amnesia and claims of pervasive difficulties learning new information;

• Applied the TOMM to questions of overall veracity in circumstances where it was not designed to generate reliable information as to overall veracity.

• Dr Mustac’s registration was suspended for a period of six months.

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Disciplinary Sanctions Eastwood v Psychology Board of Australia [2016] ACAT 52

• An appeal was brought by the psychologist in respect of conditions imposed on the registration of a psychologist by the Psychology Board of Australia.

• Original complaint focused in part on the reference in report (written for Centrelink against the background of family law proceedings) to ‘parental alienation syndrome’, which was not a recognised psychological disorder according to DSM-V.

• The Tribunal concluded at [34] that the psychologist had become an advocate for his client’s cause. There was little sign of an objective professional opinion.

• Upheld the imposition of conditions but revisited the duration of the conditions imposed.

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Squier v General Medical Council [2016] EWHC

2739

• ‘Shaken baby’ evidence on behalf of the accused.

• Review the findings of the UK Medical Practitioners Tribunal and an order that Dr Squier’s name should be removed from the medical register.

• The criticisms directed at Dr Squier related to six babies about whom she had provided reports and given evidence. In each case, two or three allegations were made, to the effect that Dr Squier had:

– Expressed an opinion outside her field of expertise;

– Made assertions which were insufficiently founded on the evidence available to her; and

– Purported to rely on research papers which did not support her opinion, in the way suggested by her.

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Squier v General Medical Council

• Review focused on whether dishonest or not; held not dishonest but upheld other findings such as that evidence was misleading.

• General Medical Council stated afterwards: – The objectivity and integrity of doctors who act as expert witnesses is

paramount and this judgment reinforces the importance of expert witnesses adhering to their duties to the court. When a doctor departs from them in this way, that is a very serious matter for the reputation of the medical profession and public confidence in the profession and the court process.

– The ruling makes clear that she acted irresponsibly in her role as an expert witness on several occasions, acted beyond her expertise and lacked objectivity, and sought to cherry-pick research which it was clear did not support her opinions.

• Allowed to return to clinical practice but not to give expert evidence for 3 years.

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Conclusions

1. Expert witness immunity likely to be retained, though narrower scope.

2. Despite scope for court responses to dubious expert opinion evidence, little sign of courts wishing to grapple with that problem directly.

3. Quite useful to have scope for disciplinary action to fill what otherwise might be a lack of ‘remedy’.

4. Small number of reported disciplinary decisions considering expert opinions said to be outside expertise or flawed.

5. Do the reported increases in complaints (generally and in relation to medico legal assessments), and the Eastwood and Squier examples, foreshadow increased disciplinary focus on dubious opinion evidence?

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