Precis

Court-appointed experts often play a crucial role in court proceedings. Unlike other jurisdictions, opinions from private expert witnesses have little to no weight towards the outcome of court proceedings in Austria, however, the opinion of a court-appointed expert is much more difficult to challenge.. But what happens if the court-appointed expert errs? And how is an error determined? In a recent decision the Austrian Supreme Court dealt with exactly these questions.

What?

The case in question was about a woman who was, for years, exposed to lead in her tap water (Austria is a tap water drinking nation). Eventually she fell ill. A court-appointed expert testified that the drinking of tap water had been the cause of the woman’s condition. The provider of the leaded water (a municipality) settled the matter with the woman amicably in light of the court-appointed expert’s opinion. The municipality’s insurance company, however, sued the court-appointed expert claiming that the wrong scientific methods had been used to determine that the lead in the water had caused woman’s health condition.

In Austria, a court-appointed expert is personally liable for damages resulting from a faulty opinion if the expert acted negligently. Experts can also be liable where they claim expertise beyond their professional skill. In general, experts (not only court-appointed) are subject to a higher standard of diligence. This higher standard of diligence focuses on the state-of-the-art knowledge of experts at the moment of issuing their opinion.

The diagnosis of a lead intoxication fell within overlapping fields of medicine. This is relevant in this case because the court-expert was an expert practising only in one of the relevant fields of medicine. Furthermore the method used to determine the alleged intoxication was questionable and according to current state-of-the-art knowledge, was controversial and disputed in some medical fields. However, as the court-expert’s general expertise was sufficient as regards all fields of practice concerned and the method of determining the intoxication was not rejected in all medical fields (although it was disputed) at the time, the court-expert was not held liable. A retrospectively incorrect expert opinion does not trigger a court-expert’s liability if the method used was not generally rejected.

So what?

With the world becoming more technical in all aspects of life, court-appointed experts have become increasingly important in court proceedings. Experts are now appointed to determine questions regarding finance, technology, medicine, etc. Frequently a court-appointed expert’s opinion will have a substantial impact either on a case. This case highlighted that overlapping fields of expertise, which are increasingly common, are not adequately provided for by the current regime of court-appointed expert liability and how difficult it therefore is to actually hold a court-appointed expert liable. There is much critique of the current system and commentators are calling for a reform of the rules relating to court-appointed expert liability to make it easier to hold a court-appointed expert liable where they fail to meet the high standard of diligence imposed on them, act negligently or use methods that aren’t considered state-of-the-art.