Related Sector: Expert Witness

The 2011 Supreme Court case of Jones v Kaney [2011] UKSC 13 is rarely far from an expert’s mind, reversing 400 years of history by deciding that expert witnesses are not immune from being sued.

But finally, experts can breathe a sigh of relief as the High Court in Radia v Marks dismissed a claim against a medical expert who gave evidence as a joint expert in an employment tribunal case, therefore highlighting the difficulties of suing an expert for professional negligence.

What are the facts of this case?

In 2015, the Claimant took his former employer to the Employment Tribunal on the grounds of discrimination, harassment and victimisation. The Defendant, a consultant in haematology and stem cell transplant, was instructed as a joint expert witness in the case, to report on the effects of the claimant’s illness, Acute Myeloid Leukaemia, following his return to work.

The claim was dismissed, on the grounds that the Claimant had acted unreasonably by intentionally misleading the Tribunal. One element of his deceit concerned his weight-loss following chemotherapy, which had been reported by the expert from the expert’s interview with the claimant; the expert had also been given access to the claimant’s medical records.

In Radia v Marks, the Claimant alleged that the Defendant had misreported his chemotherapy-related weight loss by failing to carry out a competent review of his medical records. The Claimant further alleged that had the expert done so, the Tribunal would have found in his favour.

Why was the claim dismissed?

Judgment was given by Mrs Justice Lambert, who dismissed the claim on several grounds. But the most salient points for expert witnesses, were on the ground of duty and breach.

Regarding duty, Mrs Justice Lambert states that:

‘Defendant owed the Claimant a duty of care as a single joint expert in his assessment of the Claimant’s medical condition and in his report upon his condition to Tribunal.’

Crucially, however, she found that this duty of care did not extend beyond that, to the matter in dispute. And that no duty was owed by the Defendant to the Claimant to protect him from the risk of an adverse credibility finding or a finding of dishonesty.

‘It was no part of his retainer by either party to advise or assist on issues concerning the credibility of the claimant or the reliability of the claimant’s evidence. Nor was it part of his retainer to advise upon the credibility of the Jefferies witnesses. This was not the purpose of his instruction.’

And more broadly, she stated that a medical expert does not have the expertise to give evidence on the credibility of the Claimant.

‘The expert’s opinion is admissible only to the extent that it addresses issues which are within his or her expertise and not matters of common knowledge which the Tribunal would be competent to address for themselves.’

In addition, she found that the notion of such duty would be in direct conflict with an expert witness’ overriding duty to the court, and both parties (in cases when they are instructed jointly).

Mrs Justice Lambert was also asked to consider whether the Defendant’s misreporting of the Claimant’s weight constituted a breach of duty, and found in the negative, citing the following reasons:

  • ‘The volume of records was large (not limited to only those which concerned the claimant’s weight…there were several hundred pages of blood results which he also had to examine).’
  • ‘These records were provided to the defendant late in the day. It is clear that they had not been organised, let alone paginated by the claimant or his solicitors which would have made them more time consuming to review.
  • ‘No chronology was provided and no attempt made by either the claimant or the solicitors to help the defendant navigate his way through the emailed tranches of records.
  • ‘As the defendant told me, ultimately, even if he had picked up the weight references in the records it would not have altered the thrust of his report which was that the claimant had suffered from post treatment fatigue.’

She accepted the Defendant’s evidence that he reviewed the records as studiously as he could within the time constraints. If there were errors in his report, then both parties would be able to challenge the accuracy of the report, which she noted that the Claimant had failed to do.

What does this mean for expert witnesses?

Not only does Mrs Justice Lambert’s judgment set a precedent for the thresholds for a finding of professional negligence against an expert witness, but it also reaffirms the responsibilities of an expert witness. An expert witness has a duty to provide independent assistance by way of objective, unbiased opinion, and not to protect a party from the risk of an adverse credibility finding.

Author: Meera Shah, Content Manager
This article was first published on Wednesday 9th February 2022

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