Cases - Karling v Purdue

Record details

Name
Karling v Purdue
Date
[2004]
Citation
ScotCs 221
Keywords
Expert witness
Summary

In an action by a previously accused person in criminal proceedings against a pathologist responsible for flawed Crown evidence, the court considered the scope of an expert's immunity from suit. The following principles would apply generally:

  1. When a witness comes to court to give evidence, they are immune from any civil action that might be brought against them on the ground that the things said or done by them in the ordinary course of proceedings were said or done negligently.
  2. The underlying rationale of the immunity is that witnesses should speak freely. Without the rule, witnesses would be reluctant to assist the court.
  3. The immunity would be worthless if confined to the actual giving of evidence in court. The immunity applies to potential or prospective witnesses who might not, in the event, be called to give evidence.
  4. Moreover, immunity applies to the early stages of litigation where evidence is being collected with a view to court proceedings.
  5. Negligent conduct, such as examination or removal of organs in a post-mortem examination, for the purposes of making a report with a view to giving evidence, will be protected on the ground that the conduct forms part of the preparation by a potential witness.
  6. Absolute immunity exists where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or possible crime with a view to a prosecution or a possible prosecution in respect of the matter being investigated.
  7. Where investigations have an immediate link with possible proceedings, immunity applies.
  8. Where an expert is engaged in the context of an existing litigation or a prospective litigation, they may perform a dual role. The first is advisory and the second is in their capacity as expert witness. The difficulty of identifying whether the work of an expert or part of it falls inside or outside the protective circle of immunity is greater in the context of civil proceedings than criminal proceedings.
  9. The acts of an expert that are intimately connected with the conduct of the litigation and those which are not is a distinction which is difficult to apply with any degree of consistency and may not truly represent the touchstone of immunity.