Thursday, 28 November 2013

A new insight of IMMUNITY

It has been a long founded principle as settled in the case of Cutler v. Dixon (1585) 4 Co Rep 146 which shielded the expert witnesses with immunity from being sued for breach of duty while giving their expert opinions during the proceedings in court. King’s Bench in this case had held that a witness could not be liable for slander for things said in court as, 

“if action should be permitted in such cases those who have just cause for complaint would not dare to complain for fear of infinite vexation.”

The court at that time is aware that protection for testimony made in court or immunity shall be given to the witnesses. If the people knew that someday their testimony might bite them back (be sued for what they say), might as well they chose not to give one. The Court in this case are so aware of this that they knew, refusals and fear to give testimony in court by the people will slow down and clogged the process of attaining justice hence immunity must given to encourage people to assist the courts and the parties to proceeding. 

It was then followed in the case of Watson v M’Ewan [1905] AC 480  in which the court has followed the basic principle in the Cutler case and stated that a doctor (expert witness) could not be sued for breach of a duty of confidence owed to his patient where the alleged breach occurred in the course of providing evidence for proceedings.

This concept also applies though involving elements of :

(a) false and malicious evidence as decided in the case of  Roy v Prior [1970] 2 All ER 729
(b) covered conspiracy (Marrinan v Vibart [1963] 1 QB 528])

This shall be consider unfair for an attainment of justice, as the immunity awarded gives freedom to expert witnesses in manipulating their position as experts to give false evidence in court. The interested parties in the proceeding may have conspired with the experts to tamper the evidence or give contradicting statements which may put the opponents in a griever situation.

Hence, the case of Jones v. Kaney has set out a new light in this area in which the immunity of expert witness in this case was taken away by the court. 

In this case the plaintiff had been knocked down by a car driven by a drunk, uninsured and disqualified driver in which he suffered physical and psychiatric injuries as a result of the knock down. The psychiatric injuries experienced by the plaintiff included particular post-traumatic stress disorder (PTSD), depression, an adjustment disorder and associated illness behaviour which manifested itself in chronic pain syndrome. The defendant, was a consultant clinical psychologist instructed by the plaintiff’s solicitors as witness to ascertain the psychological injuries suffered. She testified that the plaintiff suffered PTSD two years after the accident. Upon determining the quantum of damages to be covered by the insurer (Fortis), the defendant carried out further examinations on the plaintiff 18 months later and testified although he still suffered from depression and shown some symptoms of PTSD, he did not have all symptoms that will warrant to a diagnosis of PTSD. Dr El-Assra, the psychologist instructed by the insurer in his report claimed that the plaintiff is exaggerating the injuries suffered. Hence, the court ordered both experts to discuss. The joint statement was prepared by Dr. El- Asrra and signed blindly the defendant without any amendment or comment made and had damaged the plaintiff’s claim. The statement further stated that the defendant found the plaintiff to be deceitful. It also seemed that although the joint statement did not reflect Dr Kaney’s true view, she had felt pressured into agreeing it. The plaintiff then sued the defendant for negligence in which the defendant raised 
the defence of expert immunity which would be the centre of discussion.

                This case was one wisely decided in which the court had considered a great concern for public importance and had abolished a 400 year long principle of immunity for expert witnesses from being sued on breach of duty. This was decided in the Supreme Court of United Kingdom in 2011 and set a better precedent and preserves justice for the public. The principle of immunity had in some cases and circumstances being illustrated as a bad law in which the expert witness was given too much of a liberty to give opinions without having any rules to regulate what they testify in court. Good opinions given may benefit any parties and at the same time serve justice at its best as the weight of expert evidence strongly influence the courts in deciding. However, bad opinions especially one with malice, may destroy one’s claim and also affect the aggrieved person negatively as illustrated from the abovementioned case. Having expertise in a particular field gives the experts the upper hand in manipulating the courts. It’s like a Thai telling a Malaysian who had never set foot 
in Thailand that the Thais ride elephant to school.

The courts have come up with a few grounds or basis in deciding so. Firstly, the court differ the position of expert witnesses and lay witnesses. An expert witness would have chosen to provide his services and would have voluntarily undertaken duties to his client for reward under contract whereas a lay witness did not have such motive for giving evidence. Hence having voluntarily undertaken his duties to his client, the client will be expecting the duties to be performed with a certain standard. The client in this situation would have entrusted the expert to have done a good job on part of the client and there exist a greater reliance since the client had no expertise in such field.

Secondly, the court was of the view that a wrong should have a remedy based on a general rule of law. Meaning to say that the plaintiff who had committed negligence and causes detriment to his client shall be responsible for the detriment cause to his client for his negligence and bears the liability. In order to maintain immunity, the courts must be satisfied that there are compelling reasons in allowing so.  However, in the present case, the court could find no convincing reasons to bestowed upon the defendant immunity from being sued from breach of duty as it is a clear cut situation that the defendant is negligent in performing her duty to the plaintiff. and there would need to be compelling reasons to maintain any immunity. Hence the immunity should be removed so that the wronged client would enjoy, rather than be denied by rule of law, his proper remedy.

The decision made in this case had caused great implications to the position of law in regards to immunity awarded to expert evidence. Bearing in mind that the decision made in this case does not affect the absolute privilege defence open to expert witnesses from defamation claims, nor does it undermine the long-established immunity of other witnesses in litigation. Although it was predicted that the decision made may result to lack of experts willing to testify in court in the future but I wish to set forth the positive outcome of the decision wisely made. Among the positive outcome to the public is when a client had been wronged by the opinions or testimonies made by experts instructed by them in courts, he will now have the right to seek appropriate legal redress against his expert witness. But the most significant outcome from this decision is to warn the experts to give a more transparent and truthful in giving their opinions or testimonies. This will also help in curbing situations where the experts instructed conspired with the opponents to give false evidence. Experts would be more concerned to ensure that accurate advice is given at all stages of proceedings. When this happen, justice will be considered to have been partly served to the party deserving it.

            Since, this is a 2011 case, by virtue of S. 3 and 5 of the Civil Law Act 1956, the decision made in this case is not binding in Malaysia. But considering it as a good persuasion, it would be better for the courts in Malaysia to consider the same and followed the principle introduced in Jones v. Kaney. As the world is evolving, the law in Malaysia shall be changed and considering that the 400 years old trite law in some circumstances could be a bad one, adjustment should be made.


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