Austen v Oxford City Council

Expert evidence – joint experts – cross-examination – oral evidence.

The Claimant suffered an accident at work and sued. Liability was not in issue. The Claimant suffered a soft tissue injury as a result of the accident but also a question arose as to whether fibromyalgia from which he suffered had been caused by the accident. Orthopaedic evidence conflicted on the issue. A joint psychiatric report had been obtained which was unfavourable to the Claimant. An Application to cross-examine the expert was made at Trial. The County Court Judge refused that Application. The Claimant appealed.

1. The Judge had wrongly failed to take account of the fact that the Claimant had rejected the report and that it was not a report on which both parties were relying.

2. He had not taken account of the fact that it was for him and not the Psychiatrist to decide whether the Claimant was genuine.

3. He was wrong to conclude that there was no material on which the psychiatric expert could be cross-examined.

4. The Judge had power to order cross examination, but it would have been preferable for the Application not to have been made at Trial, but for the request to have been made at an earlier stage for a second expert to have been appointed.

5. Appeal allowed.

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