Expert liability

The experts liability refers to a special obligation to pay damages of experts , if he has been appointed by the court and in particular its opinion evidence purposes is used.

Germany

An expert appointed by the court has been liable since August 1, 2002 for a deliberately or grossly negligent inaccurate expert opinion if the knowledge communicated by him has become the basis of a court decision ( § 839a BGB). However, this statutory regulation is ruled out if, under the pressure of an unfavorable false report, a settlement that is later perceived as inappropriate is concluded.

A judicial expert is only liable under Section 823 (1) of the German Civil Code (BGB) if a party involved in the proceedings has been violated in an absolute law as a consequence of the expert opinion , e.g. B. if he ended up unjustly in prison, but not if he has only suffered financial loss as a result of the unjustified loss of legal proceedings . From § 823 Abs. 2 BGB i. V. m. Sections 153, 154 StGB, the expert is also liable for pure financial loss, but only in the case of intent. However, he is liable for this under Section 823 (2) BGB i. V. m. Section 163 StGB for simple negligence if he has been sworn in or is generally sworn in and invokes this oath in the proceedings.

The inclusion of a beneficiary through an insurance contract in the protective effects of a contract concluded between the insurer and an expert consulted by the insurer can only be considered under special conditions.

Austria

The expert is personally liable for findings and reports to the parties or his contractual partner in accordance with §§ 1295, 1299 ABGB for the damage caused by the report .

According to established case law, the expert also has an objective legal duty of care in favor of third parties if he has to expect that his expert opinion will form the basis for the disposition of third parties. The expert is responsible for a lack of knowledge and skills.

Official experts as well as persons who are appointed as experts by an authority and who act within the framework of the sovereign power of the administration are liable if the activity can be directly assigned to the respective official, possibly according to the rules of official liability law. According to the case law, the court-appointed expert is not an organ within the meaning of the Official Liability Act.

As a rule, the expert is only liable if he can be accused of at least conditional intent or if he has evidently followed the interests of third parties with his report. The fact that a statement made in an expert opinion also affects the sphere of a third party is generally not sufficient for a justification of liability.

A new expert opinion does not necessarily constitute a reason for resumption of a completed judicial or administrative procedure if it does not provide any new facts. The factual circumstances that emerge later, which indicate the correctness of an expert opinion obtained or the inadequate suitability of an expert consulted, are by themselves not a suitable reason for reopening.

Liechtenstein

In Liechtenstein, the expert liability results from §§ 1295, 1299 FL-ABGB .

literature

Alfred Tanczos, liability of experts for their reports, in Harald Krammer, experts and their reports: Handbuch für die Praxis 1st edition, Manz Verlag, ISBN 978-3-214-00965-6 , S112ff
Martina Michor, The Art Expert , Dissertation Vienna 2013