title: From expert witness to defendant: abolition of expert witness protection and its implications.
abstract: In Jones v Kaney [2011] 2 AC 398, the United Kingdom Supreme Court held that in England and Wales (but not in Scotland), clients can sue expert witnesses in negligence and/or contract for work performed under their retainer, whether in civil or criminal trials. The duties of expert witnesses in England are regulated by the Civil Procedure Rules and Protocols; the former also regulate the conduct of cases involving expert opinions. The legal context that led to the litigation is examined in the light of these rules, in particular, the nature of the allegations against Dr Kaney, a psychologist retained to provide psychiatric opinion. Jones v Kaney, as a decision of the United Kingdom Supreme Court, is not a binding precedent in Australia. However, unlike statutory enactments, common law judgments are retrospective in their operation, which means that health care practitioners who follow a generally accepted practice today may still be sued for damages by their patients or clients in the future. By definition, the future, including the refusal by the Australian High Court to follow Kaney's abolition of expert witnesses' immunity from suit for breach of duty to their clients, cannot be predicted with certainty. Consequently, health care practitioners in Australia and other countries should be aware of the case, its jurisprudential and practical ramifications.
authors: School of Law, Deakin University. danuta.mendelson@deakin.edu.au
authors: Danuta
authors: D
authors: Mendelson
mesh_terms: D005104:Expert Testimony / Q000331:legislation & jurisprudence*; D006801:Humans; D016365:Liability, Legal; D006113:United Kingdom