Austria: Third party liability of the expert30 June 2021
In numerous constellations, the question arises whether and, if so, to what extent an expert is liable for an incorrect expert opinion. For example, the Supreme Court already had to answer this question in connection with an incorrect soil appraisal, which was the basis for a decision on a land purchase agreement. With the decision of April 24th, 2020 on 7Ob47 / 20t, the Supreme Court had to deal with the issue again and repeated the case law that had meanwhile been well established on this point.
The decision was based on facts in which the plaintiffs commissioned a construction company with the construction of a turnkey single-family home. The third installment of the wages of 55% should be due when the shell and roof of the house have been completed and the third phase of construction has been completed. It was contractually agreed that this determination should be made by an expert from the field of civil engineering. In the specific case, the facts were not subject to the Building Contracts Act (BTVG), but the situation is definitely comparable with the construction progress auditor provided for in the BTVG. The defendant expert, commissioned by the construction company, confirmed the completion in his report, although the third construction phase had not yet been completed and there were clearly recognizable, serious deficiencies on inspection. Obviously the expert was not on site and relied on the statements of the construction company or he checked sloppily. In any case, based on the incorrect expert opinion, the plaintiffs paid the third installment and thus 55% of the wages to the construction company. It happened as it had to and the construction company did not continue construction shortly after the payment. The plaintiffs then claimed the construction company for payment of the cover capital for the completion and improvement work. Bankruptcy proceedings were opened against the property of the construction company while these legal proceedings were still pending.
The expert's obligation to pay compensation according to §§1299f ABGB is basically limited to the person entitled to the debt relationship (contractual partner of the expert). However, liability towards a third party can be considered if there is a contract with protective effects in favor of third parties or the legal protective effects are to be extended to the third party. It is recognized in teaching and jurisprudence that duties of protection and due diligence arising from a contractual relationship not only exist between the contracting parties, but also towards certain third parties who are clearly endangered to a greater extent by the performance of the contract and who belong to the sphere of interest of a contracting party. The third party acquires direct contractual claims against the debtor, in our case constellation the expert. Beneficiaries in this sense are third parties whose contact with the main contractual service (between the client of the expert and the expert) was foreseeable when the contract was concluded, i.e. who are related to the contractual service and in whom the contractual partner has a visible own interest or in which he himself is obviously interested there is a duty of care.
In addition, the breach of objective legal due diligence is recognized as a basis for claims in jurisprudence and teaching. A duty of care under property law in favor of a third party therefore applies to an expert if he has to reckon that his expert opinion will form the basis for the third party’s disposition. A third party is therefore protected if a statement (report) is recognizably third-party, i.e. if there is a fact of trust that is intended to represent a basis for decision-making for the third party. The most important thing is therefore the purpose for which the report was submitted. If this is not expressly stated in the expert report, this is determined according to the traffic practice. In principle, the expert's third-party liability can therefore be derived in many cases.
The expert also accepted the decisions of the first two instances, according to which he was fundamentally liable for the inaccuracy of his report. However, the expert submitted that precisely the claim that had been made had already been made against the construction company. The congruence of the claim was also not lost due to the subsequent insolvency of the construction company. The background to this is that both the legal institution of the contract with protective effect in favor of third parties and the liability from objective legal breaches of protective duty are subordinate (subsidiary). This means that the obligee has no unlawful interest if he has a congruent claim for damages by virtue of his own legal special connections with his contractual partner (contract).
The Supreme Court ultimately affirmed liability because the claim was not congruent. The claim against the construction company is the fulfillment claim to the cover capital for the renovation. This is not the same as the claim against the expert. The latter is a claim for damages because of the payment of the third installment. To this extent, the assets available to the plaintiffs for a different completion of the third construction phase were reduced.
Regarding the amount, the expert stated that the injuring party (expert) must in principle provide the injured third party as it would have been without culpable behavior. The damage is to be determined by a differential calculation. First of all, the hypothetical asset level, without determining the damaging event, must be deducted from this amount, and the actual asset level at the time of assessment must be deducted.
In summary, this means that everyone, even if he is not a contractual partner of an expert, can rely on his report if the report clearly serves to form the basis for the third party’s dispositions. For experts, in turn, this means taking into account that third parties can also rely on the report and liability claims can arise from it. At most, this can be excluded in the contract between the client and the expert by stating that the purpose of the expert opinion is aimed exclusively at the contractual partner. In such a case, it is advisable to record this in the report itself.
You can find the decision in full text here.
For further information, contact:
Konstantin Fischer, Partner
Zumtobel Kronberger Rechtsanwälte OG, Salzburg
t: +43 662 624500
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