by Stephen McGuinness February-12-2016 in Healthcare Law, Litigation & Dispute Resolution
Oscar Wilde defined an expert as merely ‘an ordinary man away from home giving advice’. While the use of the term ‘expert’ remains as unfettered now as it did then, recent times have seen the role of an expert in litigation proceedings being placed under much more scrutiny, explains Stephen McGuinness.
Earlier this year Mr Justice Barton brought to the fore what the courts expect from experts when delivering his judgment in Waliszewski v McArthur and Company Limited (2015) IEHC 264. In this matter the plaintiff was an employee of the defendant, a supplier of steel for the construction industry. The plaintiff alleged that his role involved driving a side loader on a constant basis over an uneven surface for which the side loader was neither designed nor intended. The consequence of this was that he was exposed to what was described in the evidence as “whole body vibration” which, together with the necessity of having to twist his body in his seat, caused him to suffer a significant lower back injury.
In dismissing the plaintiff’s claim pursuant to Section 26 of the Civil Liability and Courts Act 2004, Justice Barton held that the Replies to Particulars had failed to disclose a subsequent traffic accident, which he determined to be material and that the failure to make such disclosure was false and misleading. Justice Barton also referenced the fact that the plaintiff’s expert, Mr K, orthopaedic surgeon, also failed to disclose in his expert report the plaintiff’s subsequent road traffic accident.
Mr K, in his evidence, stood over the content of his medical report, which didn’t reference the relevant road traffic accident. In his judgment, Justice Barton confirms that Mr K stated he omitted the accident “due to his desire not to cause confusion”. There was no doubt Mr K was aware of the accident as he had previously issued a medical certificate stating the plaintiff was unfit to work as a result of severe back injury which was attributable to the road traffic accident.
Justice Barton said that the plaintiff’s back injury should have been fully dealt with by Mr K in the reports prepared by him for the purpose of the proceedings. “His failure to do so was reprehensible and is to be deprecated. I reject his explanation that this was due to his desire not to cause confusion. No question of confusing the court, in particular, would arise by a full and frank disclosure of the road traffic accident,” Justice Barton said. Furthermore, Justice Barton directed that a copy of his judgment be forwarded to the Medical Council of Ireland.
Expert immunity
This judgment follows developments in England and Wales where expert witness immunity has been lifted. Immunity of expert witnesses meant that they could not be sued in contract or tort for either the evidence given or where their reports were relied upon in court. The English and Welsh decision of Jones v Kaney (2011) UK SC 13 found that there was no continuing justification for expert witness immunity. The case involved a psychologist (Kaney), instructed as an expert witness in a personal injury claim, who was said to have negligently signed a statement of matters agreed with the expert instructed by the opposing side, in which she made a number of concessions that weakened the claim considerably. As a result the claimant (Jones) said he had to settle the claim for much less than he would have obtained had his expert not been careless.
However, the issue of expert witness immunity is still upheld in this jurisdiction. The principle was most recently reinforced in the Irish decision of WJ Prendergast and Others v Redver Skelton 2007 IEHC 192. In this matter an expert fire consultant was hired by the respondents in a malicious injury claim pursuant to a fire in the plaintiff’s factory. The plaintiff alleged that the applicant had given false and misleading evidence in the proceedings and that he interfered The judge described the expert's failure to deal fully with the issues as 'reprehensible'. No confusion would arise from full and frank disclosure. with the analysis of samples for a wrongful purpose. The defendant argued that the proceedings should be struck out because as a witness he was immune from suit as the proceedings were based on evidence he had given in court. The court dismissed the claim against the expert, finding that he was entitled to avail of expert immunity.
Now that the position has changed in England and Wales there is uncertainty as to what will happen in Ireland. It is generally felt that there is a strong likelihood the courts in Ireland will follow the new position taken in England and Wales.
Conclusion
The role of experts and how they perform their tasks has become particularly relevant given the judgment in Jones v Kaney and Justice Barton’s comments in the Waliszewski Case. Experts involved in all areas of litigation must be aware of their duty to the court and their roles and obligations when giving evidence. Furthermore, when it comes to writing reports, the judgment of Justice Barton will no doubt remind experts of the importance of being earnest.
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About the Author
Stephen McGuinness
Stephen is a partner in the Healthcare team at Hayes solicitors. Stephen specialises in the defence of medical and dental negligence claims taken against hospitals as well as individual medical and dental practitioners.