The expert witness immunity in negligence

Abstract

Experts play a fundamental role in litigation, particularly in the court that related to technology and construction field which almost always require technical expertise. Experts often become part of the litigation team from an early stage and their professional opinion can be a deciding factor in determining whether to pursue a claim. Expert witness currently benefit from blanket immunity from civil liability in relation to evidence provided in civil proceedings. The rationale for the immunity from civil suit was found in various law cases. In recent years, there have been calls for this whole question of immunity to be reviewed and in some cases where experts have failed in their duty to the Court their immunity should be removed. Law of Evidence in Malaysia 1950, Section 45 defined an expert as a person who own special skills on those points which he is asked to give expert evidence. However, there are no any statutes stated that expert is immune from the legal proceeding in Malaysia content. In England, the main problem is the conflict between the expert immunity doctrines and the Civil Procedure Rules (CPR), Part 35 where an expert witness owes a duty of care to the court and to those who appointed him. There are too many different views and decisions ruled by the court. It is hard to understand the ground or the principles of expert immunity. Therefore, the aim of this study is to determine the legal reasons for the granting or removing the expert witness immunity in negligence action. It also examines the limitations of expert witness immunity. The study reviewed that the expert witness immunity was removed in England in the case of Jones v Kaney. There are a total number of eight England court cases have been analyzed thoroughly in this study. As the findings of the result, the legal reasons for granting the expert witness immunity are the necessity to secure that witness will speak freely and fearlessly, to avoid multiplicity of actions in which the value or truth of their evidence would be tried over again when their giving evidence in the court, to protect public interest, treats the immunity of expert witness and ordinary witness are the same and expert witness was owed no duty of care to the court. Interestingly, from the study, the legal reasons for removing immunity of expert witness are the breach of duty of expert witness when comply his duty to the court, difference between expert witnesses and lay witnesses; and the remedy of expert witness immunity. The immunity of expert witness are limited when he gives wrongly advises to his client, serious failure to comply duties to the court and proofing that expert witness was serious act incorrectly reported or interpreted the results of the test. The findings of the study showed that the client now can sue their experts for negligence and breach of contract in the performance of their duties in preparing for and giving evidence in court proceedings.