Court experts who provide the court (and parties to the proceedings) with incorrect and inaccurate expert reports may be held directly and personally liable by the parties for any damages resulting from them (e.g. they lost the proceedings due to the inaccurate report)

Court experts who provide the court (and parties to the proceedings) with incorrect and inaccurate expert reports may be held directly and personally liable by the parties for any damages resulting from them (e.g. they lost the proceedings due to the inaccurate report).

Furthermore, under Austrian civil law, there is a higher standard of care for those who publicly claim a profession and demonstrate the required diligence and knowledge in a particular field. If damages occur in the exercise of one's profession, the damaging party is responsible for lack of such diligence and knowledge (see Section 1299 of the Austrian Civil Code). This also applies to court experts.

There can also be further differentiations within a specific profession. For example, a distinction needs to be drawn between the required diligence and knowledge of a "doctor-in-training" and those of a "qualified doctor". 

The Austrian Supreme Court dealt with this particular legal issue in a recent decision (10 Ob 50/15y; hereinafter referred to as "Proceeding II") regarding an inaccurate report provided by a medical court expert in the course of a prior civil proceeding (hereinafter referred as "Proceeding I").

In the course of Proceeding I, the appointed court expert had to make a determination regarding lead poisoning. The diagnosis of lead poisoning relates to the fields of internal medicine, clinical environmental medicine and occupational medicine, whereas the court expert almost exclusively practiced in the field of internal medicine. However, there were different opinions between the respective medical fields regarding the scientific method to determine lead poisoning. 

Based on the expert report (the expert affirmed lead poisoning), the court in Proceeding I intended to uphold the claim. However, the parties reached an out-ofcourt settlement before the judgement was entered.

In the course of Proceeding II, damage claims were raised against the court expert because he allegedly used an inaccurate scientific method. However, the Austrian Supreme Court came to the conclusion that the expert could not be held liable because:

  • During the relevant period, the scientific method used was disputed differently in the respective medical fields; whereas experts of internal medicine and of clinical environmental medicine considered the method as state-of-the-art and specialists of occupational medicine disagreed.
  • The court expert only practiced as a medical doctor for internal medicine and he acted with the required knowledge of an average expert in this field.
  • Although the determination of lead poisoning also relates to occupational medicine, the expert was not required to have the knowledge of an expert in that medical field.

Since he used a method which was considered state-of-the-art within the field of internal medicine, he could not be held liable for damages.