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Witness immunity - not down the drain?

Young v Hones [2013] NSWSC 1429

In this edition of expert matters John Temple-Cole, Partner and Alex Viniarsky, Senior Business Analyst in our Sydney office, discuss a case which explores the continuing applicability of the doctrine of witness immunity for experts, and their employers.


Ms Young and Mr and Mrs King were neighbours living in Forestville in suburban Sydney. The Kings’ property was at a lower level than Ms Young’s property. This meant that drainage from Ms Young’s property was via a trench onto the Kings’ property.


In mid-2001, the Kings undertook building work which involved excavation on the Kings’ side of the common boundary, taking their ground level to about 90cm below Ms Young's property. Ms Young formed the view this work was being done without council approval. And it was, although the Warringah Council granted development consent for relevant works in February 2002, requiring suitable drainage to be installed behind the proposed retaining wall.


Later in 2002, further works were undertaken by the Kings. Ms Young made a series of complaints to Warringah Council and was dissatisfied with the response. In April 2003, she commenced proceedings in the Land and Environment Court, in which she sought 15 declarations, nine injunctions and other relief, including an award of damages.


By the time the case came on for hearing in February 2004, the parties were already engaged, through their experts, in discussion about what work might be needed to be done to rectify any environmental problems on the site caused by the works that had already been undertaken. By the end of the first day of trial, the experts had met and come to an agreement about the works which needed to be done.


Although in large part the proceedings were resolved by this agreement, there was no agreement between the parties in relation to costs. Chief Justice McClellan noted that, whilst it was unnecessary for him to explore all of the evidence prepared for the matter, it was necessary for him to receive and consider the evidence insofar as it related to the appropriate order for costs. His Honour then considered the evidence of the experts. In doing so, he accepted the evidence of Ms Young’s expert, Dr P.


Having concluded that, in all material respects, Ms Young had been successful, Chief Justice McClellan awarded her costs. As the parties had otherwise reached agreement, Chief Justice McClellan also ordered that the proceedings be dismissed.


In 2008, Ms Young commenced action in the Land and Environment Court, seeking to have Chief Justice McClellan’s orders in relation to the dismissal of the earlier proceedings vacated1. Ms Young's position was that she had discovered evidence which she contended established that those orders were procured 'improperly', and that the court's orders have worked an injustice on her. Justice Sheahan described her claims as follows2:


The suggestions of collusion, dating back to 2008–9, flowered into an allegation of at least one (perhaps criminal) conspiracy, in which some combination of the following was, or must have been, involved – the respondents, their lawyers and advisors over time; the local council, its officers, and its advisors; and her own former solicitor, barrister, and expert(s).


In October 2012, Justice Sheahan upheld the respondents’ application in this matter for a summary dismissal of Ms Young’s claims.


In the interim, in 2010 Ms Young commenced proceedings in the Supreme Court of New South Wales. In those proceedings (which produced the judgment to which this summary is addressed), Ms Young sued her former solicitor (and his firm), her former barrister and her former expert, Dr P (and his employer). Justice Garling discussed the significant difficulties he encountered in identifying the precise bases for Ms Young’s claims, ultimately concluding that the relevant questions to be answered included:


1.  Is the defence of advocate's immunity a complete answer to any, and if so which, part or parts of Ms Young’s claim against her former solicitor?


2.  Is the defence of advocate's immunity a complete answer to any, and if so which, part or parts of Ms Young's claim against her former barrister?


3.  Is the defence of witness immunity a complete answer to any, and if so which, part or parts of Ms Young's claim against Dr P and his employer?


Justice Garling concluded that, in relation to first and second questions, the defence of advocate's immunity was a complete answer all of Ms Young’s claims.


In dealing with the question of witness immunity, Justice Garling identified three issues:


1.  Whether witness immunity covered advice provided in an expert report;

2.  Whether witness immunity extended to alleged loss which accrued due to the settlement of a dispute on the basis of the expert report; and

3.  Whether witness immunity extended to an employer in a vicarious liability suit for the conduct of an expert under his or her employment.

Historical position on expert immunity

The doctrine of expert immunity is so rooted in common law and legal practice that its concise enunciation by Lord Mansfield in one of the most famous English cases, R v Skinner, almost predates Captain Cook’s discovery of Australia:3


...neither party, witness, counsel, juror or judge can be put to answer civilly or criminally, for words spoken in office.


Nearly 75 years ago, the High Court of Australia affirmed the principle of expert immunity in Cabassi v Vila:4


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.


Witness immunity has a strong legal and historical foundation and is said to serve two key objectives:


1. Ensuring that witnesses are able to give evidence freely;5 and

2. To avoid multiple actions in which the same evidence would be tried repeatedly.6


A witness, such as an expert, is typically involved in a number of preparatory steps which include the preparation of draft reports and the articulation of his or her preliminary opinions to instructing solicitors and clients before the giving of any evidence in court. Although courts are reluctant in giving the protection of immunity a wide application, expert witness immunity has historically been extended to preparatory steps like these7, including statements and reports prepared outside of court.


The obligation on an expert witness to comply with codes of conduct provides a strong argument in favour of the retention of an absolute immunity for expert witnesses. An expert witness attracts immunity on the basis that, unlike other types of witnesses, experts have an overriding duty to the court, and not as an advocate for the party that engaged them. Moreover, an expert’s work outside of court, such as making enquiries, site visits, conducting experiments and tests and writing expert reports, form part of the process of preparation for and giving of evidence. These steps are inextricably connected to the process of preparing and giving evidence in court and thus attract the protection of witness immunity. Finally, it is a long-established principle that expert witness immunity does not extend to the consideration of the appropriateness of an expert’s conduct by a professional body of which the expert is a member.


Findings on expert immunity in these proceedings

The plaintiff’s case against Dr P alleged that, as a result of Dr P’s negligent advice the plaintiff agreed to a settlement that was wholly inadequate with respect to the drainage issues on her property. This, it was said, resulted in the plaintiff suffering a loss. Justice Garling found that the circumstances in this case were consistent with those envisaged by the doctrine of witness immunity and, accordingly, dismissed the plaintiff’s action against Dr P.


Justice Garling also found in favour of Dr P’s employer, Hughes Trueman Pty Ltd, in the vicarious liability suit against it. This action was dismissed under the principle in Griffiths: that a ‘person who is vicariously liable for the tortious conduct of another is protected by any immunity that is available to the alleged tortfeasor.’


As such, Dr P’s immunity extended to his employer in respect of the action for vicarious liability.


To the extent that Dr P’s employer, Hughes Trueman Pty Ltd, was sued directly for damages, Justice Garling held that such a suit would undermine the underlying rationale of witness immunity:


...Any such suit would require the adducing of evidence in court to support the allegation that the evidence of Dr [P] was in some way directly liable for the outcome. This would offend the underlying rationale of witness immunity.


This case reinforces the continuing applicability of the doctrine of witness immunity for experts, and their employers, in Australia. It confirms that the immunity covers advice provided in the form of an expert report, along with the preparatory work leading to the provision of that report.

1. Young v King (No 4) [2012] NSWLEC 236

2. Ibid, at [285]

3. (1772) Lofft 54.

4. (1940) 64 CLR 130.

5. Commonwealth of Australia v Griffiths [2007] 70 NSWLR 268.

6. Ibid. A trial of an expert which focussed on the evidence given might also suffer from the fundamental difficulty that it could be necessary to call the original judge as a witness to establish whether a different outcome may have arisen had different evidence been given.

7. D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12.

8. James v Medical Board of Australia and Keogh [2006] SASC 267.



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