FAQ

The injured party has the "right to freely choose a motor vehicle expert" and is generally reimbursed for the costs of an expert report obtained by him/her from the party responsible for the damage or their liability insurer.

According to the Code of Civil Procedure (ZPO), all costs of the legal dispute must be borne by the party who lost the damages proceedings. This also includes the costs of experts.

As the injured party, you always have the right to choose your own expert, whose costs must be paid by the losing side.

Comprehensive insurance normally pays for the damage caused by the policyholder to his or her own vehicle, provided this was not due to gross negligence.

The amount of damage is assessed and determined by the motor vehicle assessor in a damage report.

The course of the accident can be reconstructed and analysed by experts in accident analysis and road traffic accident reconstruction. It is important to take as many photos as possible of the accident site and the vehicles involved. Of course, it is also possible to commission a sworn and court-certified expert in the field of road traffic accident reconstruction to document the evidence and subsequently analyse the course of the accident. The costs of the expert opinion depend on the effort involved.

Free choice of motor vehicle expert
and reimbursement of the expert's fees
by the liability insurer

In the out-of-court settlement of claims, the motor vehicle insurer usually commissions the expert. This article examines whether the injured party is allowed to obtain their own expert opinion and whether the costs for this must be reimbursed by the liability insurer.

An article by Dr. Bernhard Burtscher, research assistant and postdoctoral researcher at the Propter Homines Chair of Banking and Financial Market Law at the University of Liechtenstein.

Table of contents:

Summary
A. Background
B. The "free choice" of motor vehicle expert
C. Reimbursement of expert's fees
1. Expert's fees as consequential damage
2. Obligation to mitigate damage
3. Interim result: Entitlement to reimbursement of costs
4. Restrictions on the reimbursement of costs
a) Trivial damage
b) "Secret expert opinions"
c) Contributory negligence
D. Liability of the expert
1. Standard of care and damage items
2. Compensation for mere pecuniary loss
3. Conclusions

Summary

It has therefore been shown that the injured party not only has a free choice of motor vehicle expert, but that the costs of their own report are also reimbursed by the tortfeasor and their liability insurer. This corresponds to the established case law in Germany and the sparse case law of the OGH. By obtaining their own expert report, the injured party does not violate their obligation to mitigate damages. However, they do not receive any reimbursement of costs for "secret reports" or for reports on "obvious minor damage".

A. Background

Motor vehicle property damage is largely settled out of court.2) The basis for damage settlement is, in the vast majority of cases, the report from a motor vehicle expert.3) It is a well-established Austrian practice that this report is obtained by the respective insurer, who has to compensate for the damage.4) In many cases, the expert is even employed by the insurer (or its subsidiary).5) In international comparison, this is likely to be the exception in the liability sector. For German observers, it is self-evident6) that the injured party instructs the expert.7) Against this background, the question occasionally arises in Austria as to whether the injured party has such a "right of free choice of expert".8)

B. The "free choice" of motor vehicle expert

This touches on a sensitive point that sometimes arouses strong emotions in the industry. The German insurance industry holds experts commissioned by injured parties responsible for exorbitant claims for compensation;9) "far more than half"10) of their reports are allegedly inadequate. Conversely, the "opposite side" warns that an expert commissioned by the insurer only "prepares those reports that the client expects," which is why these "do not deserve the name 'expert reports'." There is also often a fear of a "relationship of dependency"12) between the expert and the insurer.

With the same argument that the expert is a "hired gun", the right to hire the expert themselves is immediately demanded. Even if experts are perhaps not expected to be sufficiently objective – especially when they are sworn by a court – the general impression is that it obviously makes a difference who commissions the expert.

For Ch. Huber, the expert is the "Archimedean point"13) of claims settlement. The expert often has discretionary powers when it comes to the assessment, the economic impact of which should not be neglected. Whether damaged rims are repaired or replaced depends on their assessment; whether a commercial loss of value is compensated; or whether billing is based on repair costs or total loss.14)

All in all, a lot of money is involved, which explains why the question of free choice of expert is controversial. It is, of course, true that the injured party has the right to freely choose an expert within the scope of their private autonomy. The real question is whether the insurer will then reimburse them for the expert costs incurred.

C. Reimbursement of expert costs

This question arises in liability insurance as well as in comprehensive insurance. The following considerations, however, are limited to liability law. While in comprehensive insurance the payment of expert costs can be regulated privately between the injured party (policyholder) and the insurer,15) the claims of the injured party against the liability insurer (the tortfeasor) follow from the law. The insurer is jointly and severally liable with the person causing the damage (§ 26 KHV), who is obliged to provide the injured party with restitution in kind (§ 1323 ABGB).

1. Expert costs as consequential damage

On this basis, the BGH grants the injured party, in established case law, a claim for reimbursement of the expert costs against the tortfeasor and their liability insurer. The costs of an expert report are therefore part of the costs of restoration and must be reimbursed to the injured party within the framework of restitution in kind (§ 249 BGB),16) as long as the report was "necessary and expedient to assert a claim for damages".17)

This is usually the case as long as there is no mere minor damage (see C.4.a). The injured party may "basically take the path to remedy the damage that, from their point of view, seems to best suit their interests".18) They are therefore entitled to "instruct a qualified expert of their choice to prepare the damage report".19)

The BGH thus emphasizes the injured party's interest in integrity as a crucial aspect: the injured party should, if possible, have the restoration in their own hands. The OGH also considers "costs of damage assessment"20) to be compensable because, "like the repair costs themselves, they are directly related to the accident and were caused by it".21)

In an unpublished decision from the 1970s, the Supreme Court reimbursed the injured party for the costs of a motor vehicle expert report that they had obtained. These costs are not "pre-procedural costs" because an appraisal is regularly carried out even in the case of out-of-court settlement, so that there is an interest in it that is independent of the proceedings.22)

The expert costs are therefore to be reimbursed "as a consequence of the damage" under compensation law. The appraisal costs are only incurred as a result of the injured party's decision to obtain their own expert report. However, this decision was prompted by the injury. As practice shows, it is regularly necessary to obtain an expert opinion in order to settle claims. If the injured party asserts claims against the liability insurer, they need a reliable basis for settlement. It is therefore obvious that both highest courts count the expert costs as consequential damages that can be compensated.

2. Obligation to mitigate damages

Of course, it still remains to be examined whether the injured party violates their obligation to mitigate damages (§ 1304 ABGB) by obtaining their own report. One could accuse them of increasing the damage unnecessarily because the insurer would have to obtain an expert report anyway. But that would be putting the cart before the horse.

The preliminary question is whether the injured party is entitled to reimbursement of the expert costs. If this claim is affirmed, it is not lost because the tortfeasor or their liability insurer is quicker to commission the expert. Therefore, the doctrine and the case law reimburse the injured party for the expert costs even if the person causing the damage has already obtained an expert opinion.23)

This applies all the more if the report commissioned by the insurer (as may sometimes happen) is not even presented to the injured party. The injured party cannot be expected to rely on an expert report that they are not even familiar with.

Section 29 (2) KHVG does not change this, according to which the injured party must provide the tortfeasor's liability insurer with the "information" necessary to determine the damage. This obligation to provide information can be broadened into a more general obligation of the injured party not to sabotage an assessment by the liability insurer.24) However, it does not follow from this that the injured party would have to leave the entire assessment to the liability insurer of the tortfeasor.

Rather, § 29 Para. 2 KHVG aims to enable the insurer to check the claims established and asserted by the injured party for their legitimacy.25) This means that § 29 Para. 2 KHVG (like the identical § 158d Para. 3 VersVG and § 119 Para. 3 dVVG) does not assume that the determination of the damage is in the hands of the insurer anyway, because otherwise the provision would be superfluous.

While Section 66 Paragraph 2 VersVG actually assigns the insurer the "authority to commission" the expert in relation to its policyholder, there is no corresponding regulation specifically for the relationship with the injured third party. This is also easy to understand teleologically. Ultimately, it depends on the expert's assessment whether and how the injured party will be restored to their condition before the injury. This essentially concerns their interest in integrity.

It would be particularly problematic here to take the restitution process out of the hands of the injured party26) and have the assessment organized by the person who ultimately has to pay for the damage.

Ultimately, one could argue against a claim by the injured party for reimbursement of costs that the liability insurer could achieve cost savings during the assessment using economies of scale. In contrast, the commissioning of the expert by the injured party is more expensive and must therefore lead to an increase in motor vehicle liability insurance premiums.

Apart from the fact that this "premium argument" is difficult to prove empirically (in Germany, the premiums for compulsory motor vehicle insurance do not seem to be higher than in Austria),27) it would, in my opinion, have no place in liability law. The injured party's claims do not depend on whether the insurance premiums for the tortfeasor would increase.28) In addition, an increase in premiums could also be avoided with the help of contractual arrangements, as the split tariff for the reimbursement of rental car costs (Section 21 KHVG) shows.29) Therefore, in my opinion, nothing follows from the "premium argument" for the question of interest here.

3. Interim result: Claim for reimbursement of costs

Obtaining your own expert report does not constitute a violation of the obligation to mitigate damages. This also applies if, in an individual case, the injured party's own report is more expensive than a report obtained from the insurer.30)

This is initially supported by the injured party's interest in integrity. The basic assessment of § 1323 ABGB, according to which restitution in kind is to be given priority, fundamentally places the injured party's interest in integrity above the tortfeasor's interest in repairing the damage as cost-effectively as possible.

The injured party will be particularly concerned about equality of arms.31) They are regularly unfamiliar with vehicle repair issues, while the insurer has expert staff, extensive claims settlement experience and a professional organization. This structural imbalance can only be corrected by the injured party's own report.32)

If there is scope for discretion when it comes to repair and assessment issues, the injured party has a legitimate interest in ensuring that the damage is not quantified on behalf of the person who ultimately has to pay it. In addition, the injured party is also responsible for providing proof of the amount of damage.33) As a rule, however, they will only be able to gain clarity about the extent of their claims with the help of an expert report.34)

It is therefore plausible that the injured party will obtain a report in order to sue for the "correct" amount.35) Otherwise, they not only run the risk of claiming too little, but also of claiming too much, which would have negative cost consequences.36)

Therefore, in my opinion, the case law of the OGH and the BGH is to be agreed with. This means there is no risk of an unbearable escalation of liability to the detriment of liability insurers. If the expert commissioned by the injured party determines a compensation amount that is too high without due care, the insurer has recourse against the expert. This liability risk creates an incentive for the expert to determine the compensation amount as precisely as possible (see D.3.).

4. Limitations on reimbursement of costs

If the injured party is fundamentally entitled to reimbursement of costs against the tortfeasor and their liability insurer, this interim result still requires some restrictions.

a) Minor damage

German case law initially does not reimburse expert costs in the case of "obviously minor damage", although the trivial limit is often placed at around EUR 1,000.37) In this case, the expert opinion is not "necessary" for restoration within the meaning of Section 249 Paragraph 2 of the German Civil Code (BGB).38)

That seems appropriate, but requires more detailed justification under Austrian law. Expenses actually incurred "to determine damage or to pursue legal action" are, like all expenses to eliminate damage, to be calculated subjectively and specifically;39) limiting their replacement to the objectively "necessary" amount seems to contradict this.

Of course, within the scope of their obligation to mitigate damages, the injured party is obliged to choose the more favorable option if there are equivalent options for eliminating the damage.40) In the case of minor damage, obtaining a cost estimate will be sufficient.41) What matters is whether the injured party can easily recognize that there is minor damage,42) which will often only be the case with superficial paintwork damage.43) Otherwise, the injured party cannot be accused of violating their obligation to mitigate damages.44)

If the injured party obtains an expert report despite "obvious minor damage", they will probably have to bear the entire cost of the report (which exceeds the costs of a cost estimate) themselves. If the obligation to mitigate damages is violated due to increased damage, it is generally appropriate to divide the damages in accordance with Section 1304 of the Austrian Civil Code (ABGB).45)

However, this does not apply if the attribution factors on the part of the injured party strongly predominate or the injured party's decision to increase the damage was not prompted by the infliction of the damage.46) This is assumed, for example, when the owner of a damaged small car rents a luxury vehicle.47) It is similar here: in the case of obvious minor damage, obtaining an expert report is clearly disproportionate and is not necessary to settle the damage, so that the injured party must bear the expert costs themselves.

b) "Secret report"

The same applies to the costs of a "secret report". If the expert prohibits the injured party from passing on the report to the insurer,48) the report is clearly unsuitable for damage settlement, so that the costs for this do not count towards the restoration costs. The injured party's decision to obtain such a "secret report" is therefore not prompted by the injury.49)

c) Contributory negligence

It is controversial how the injured party's contributory negligence in the accident affects their claim for compensation. Some German courts also granted full reimbursement of costs to the contributorily negligent injured party because the costs for an expert report would not be incurred if the injured party had to bear the entire damage themselves. Therefore, they do not have to bear the costs even if they only pay part of the damage.50)

The Federal Court of Justice, on the other hand, treats the expert costs like all other items of damage, even with regard to contributory negligence, and only grants the injured party proportional compensation.51) Finally, obtaining the expert report also serves the interests of the injured party because the report provides them with clarity about the extent of the damage and the costs to be borne by them.52)

In my opinion, this question requires further investigation – also with a view to parallel assessments in legal costs law.53)

D. Liability of the expert

Finally, the expert's liability should be briefly discussed, as important conclusions can be drawn from this topic for the questions of interest here (D.3.).

1. Standard of care and damage items

As is well known, the expert is subject to the increased and objective standard of care set out in Section 1299 ABGB.54) If they carry out the assessment contrary to the rules of their profession, this can result in damage to both the insurer and the injured party.

For example, if the residual value is estimated too low, this could cause the insurer to pay an amount that is too high.55) Conversely, if the repair effort is estimated too low, the injured party could receive an amount that is too low. In both cases, there is a "differential loss" in money – once on the part of the insurer and once on the part of the injured party.56) This is purely financial loss.

2. Compensation for mere financial losses

This is not a problem for the expert's liability towards the injured party, since there is a contractual relationship between the two. Therefore, the expert is liable according to Section 1300 Sentence 1 ABGB, even in the event of slight negligence, for mere financial losses suffered by their client.57)

It is more difficult to assess the liability of the expert towards the liability insurer, since there is no contractual relationship between the two and, in tort law, an expert is only liable for the "knowingly" false preparation of an expert opinion (§ 1300 Sentence 2 ABGB).58)

German case law assumes that the contract between the expert and the injured party has protective effects in favor of the liability insurer. Therefore, the expert is liable to the insurer even in the event of slight negligence.59) The result is convincing; however, it would be dogmatically smoother if the expert were strictly liable for a violation of objective legal protection obligations.60)

The starting point for liability is therefore the trust created by the expert.61) According to the prevailing opinion, the creator of a report that is clearly aimed at a third party is also liable to the third party because the report is clearly intended to serve as a basis for the third party's decision.62)

In this way, strict liability of the expert towards the insurer can be conclusively justified. The expert, who prepares an appraisal in their own economic interest, claims the insurer's particular trust. The report is intended to serve the liability insurer as an expert and neutral basis for the settlement of claims.63)

The report therefore creates a particular danger for the assets of the liability insurer because it is intended to induce the insurer to pay out the estimated compensation amount.64) This justifies strict liability of the expert for mere financial losses.65)

The expert is therefore liable for incorrect reports to both the injured party and the liability insurer for their mere financial losses, even in the case of slight negligence.

3. Conclusions

Because of this strict liability, the report has a high guarantee of accuracy: if the expert estimates too low, they are liable to the injured party; if they estimate too high, they are liable to the insurer.

Liability law therefore offers the expert an incentive to estimate as correctly as possible.66) This incentive is missing if the expert only prepares the report for the insurer, while presenting the report to the injured party is not intended or is even prohibited. There is no third-party report here, meaning that the expert has no duty of care towards the injured party.

This will, of course, occur frequently in the practice of claims settlement, especially if the expert is only fulfilling their contractual obligations towards the insurer by preparing the report. This means that liability law no longer acts as a corrective in this variant. Rather, the expert has an incentive and scope for evaluation to be used unilaterally in favor of the insurer because they can thereby avoid any liability risk.67)

This builds a bridge to the free choice of expert. From an economic point of view, it seems advantageous if the injured party commissions the expert to prepare a third-party report because, in this variant, liability law develops its preventive effect better. This speaks even more in favor of the injured party also receiving reimbursement of costs for obtaining such an expert opinion, so that an economic perspective also supports the case law of the OGH and BGH.

1) The article deals with an excerpt from a larger research project on motor vehicle claims settlement, soon to be discussed by Burtscher/Spitzer, claims settlement by the motor vehicle insurer (in press).
2) Karner, property damage compensation in Austria, ZVR 2010, 476.
3) Statement on the Burtscher/Spitzer processes, claims settlement.
4) Reisinger, Who benefits from the end-of-life vehicle regulations? ZVR 2009, 354 (355).
5) For Germany Pamer, accident management, DAR 1999, 299 (302).
6) Macke, Current trends in the regulation of accident damage, DAR 2000, 506 (514).
7) Ch. Huber, Motor vehicle damage settlement in Austria and Germany, ZVR 2008, 532 (533).
8) Wielke/Pfeffer in Fucik/Hartl/Schlosser/Wielke, Handbook of Traffic Accidents II3 (2019) Rz 408.
9) See only Engelke, The motor vehicle expert in accident regulation, NZV 2012, 365.
10) See Engelke, NZV 2012, 365 (367); Take, servant of two masters – The independent motor vehicle damage assessor between the client and liability insurance, DAR 2013, 557 (558); critical but flaw, DAR 2000, 506 (514).
11) Becker, the motor vehicle expert in accident damage settlement, zfs 2013, 484 (488, 487); Mikulla-Liegert, damage management by insurers, DAR 1999, 289 (291); also criticizes Macke, DAR 2000, 506 (514).
12) Kriegner, repair cost accounting for motor vehicle accidents, ZVR 2014, 40 (42); see also Becker, zfs 2013, 484; Ch. Huber, Smart Repair in motor vehicle liability damage, SV 2016, 82 (83).
13) Ch. Huber, Current Questions of Property Damage – Part I, ÖJZ 2005, 161 (164).
14) Excerpt from Pfeffer, technical questions of damage assessment, ZVR 2019, 448 in this issue.
15) For comprehensive insurance, see Burtscher/Spitzer, claims settlement.
16) BGH NJW-RR 1989, 953; NJW 2005, 356; NJW 2007, 1450; NJW 2014, 3151; J.W. Flume in Bamberger/Roth, BeckOK-BGB47 § 249 108; Oetker in MüKo, BGB8 § 249 Rn 396 ff.
17) Instead of all BGH NJW-RR 1989, 953; NJW 2005, 356; NJW 2007, 1450; NJW 2017, 1875; NJW 2018, 693; NZV 2019, 34; Oetker in MüKo, BGB8 § 249 Rn 396.
18) BGH NJW 2007, 1450.
19) BGH NJW 2007, 1450; NJW 2014, 3151; NJW 2017, 1875; NJW 2018, 693; NZV 2019, 34; J.W. Flume in BeckOK BGB47 § 249 108; Hörl, NZV 2003, 305 (306 f); Macke, DAR 2000, 506 (514); Vuia, The reimbursement of expert costs especially after traffic accidents, NJW 2013, 1197.
20) See also Koziol, Liability Law I3 (1997) Rz 2/66; diff. Ch. Huber, Damage calculation 618 ff, 642.
21) OGH 2 Ob 258/59 ZVR 1960/201; RIS Justice RS0023583; Barefoot, Procedural and cost reimbursement issues in pre-litigation reports, in Aicher/Funk, The expert in economic life (1990) 81 (89).
22) OGH 2 Ob 207/78; also Kriegner, ZVR 2014, 40 (42); about this in general M. Bydlinski, The claim to compensation for "pre-litigation costs", JBl 1998, 69 (79); Deixler-Hübner, replacement for extra-procedural expenses – basis for claim and amount of claim, ÖJZ 2002, 372 (375); aA still Hule, again: pre-procedural costs, ÖJZ 1958, 651 (652); also Burtscher/Spitzer to differentiate, Claims settlement.
23) Oetker in MüKo, BGB8 § 249 Rn 399; Schiemann in Staudinger § 251 Rn 122 mwN; Vuia, NJW 2013, 1197 (1199); Wortmann, The expert at the center of damage settlement – Part I, DS 2009, 253; KG OLGZ 1977, 315; OLG-Jena OLG-NL 2005, 270.
24) BGH VersR 1984, 79. This is, of course, not without controversy, W.-T. Schneider in MüKo, VVG2 § 119 Rn 17; Dötsch also criticizes, zfs 2013, 63.
25) See OLG Bremen NJW-RR 1990, 1181; W.-T. Schneider in MüKo.
26) See BGH NJW 2007, 1450; Ch. Huber in Schwimann/Neumayr § 1323 Rz 12.
27) Ch. Huber, ZVR 2008, 532 (537).
28) Ch. Huber, Questions of Damage Calculation2 (1995) 103.
29) See Ch. Huber, damage calculation 104.
30) To replace obviously excessive fees, see Burtscher/Spitzer, claims settlement.
31) Vuia, NJW 2013, 1197 (1199).
32) Instructive OLG Karlsruhe NJW 1968, 1333.
33) In addition, Koziol, liability law I3 Rz 16/7 ff mwN on the damage assessment according to § 273 ZPO.
34) M. Bydlinski in Fasching/Konecny II/13 § 41 ZPO Rz 36; Obermaier, Cost Manual3 (2018) Rz 1,425.
35) Krieger, ZVR 2014, 40 (42); see already Hüpper, VersR 1961, 583 (584); Wortmann, Damage settlement in traffic accidents – in particular the expert costs, VersR 1998, 1204 (1205).
36) Section 43 also offers him complete protection in the event of over-claiming Paragraph 2 ZPO not: M. Bydlinski in Fasching/Konecny II/13 § 41 ZPO Rz 36; Chvosta, Legal Costs Law (2000) 87.
37) Ausf Verheul in Himmelreich/Halm/Staab, motor vehicle damage regulation4 (2018) Rz 13/9 ff; critic Wortmann, DS 2009, 253 (254); on the Oetker development in MüKo, BGB8 § 249 Rn 398; Wortmann, VersR 1998, 1204.
38) Oetker in MüKo, BGB8 § 249 Rn 398.
39) Koziol, liability law I3 Rz 2/66 and Rz 9/10.
40) Koziol, liability law I3 Rz 12/89.
41) Böhm/Strecke, reimbursement of expert costs after a traffic accident, zfs 2015, 4 (5); Vuia, NJW 2013, 1197; K. Schneider in Berz/Burmann, HB Road Traffic Law (2019) Cape. 5C Rz 72 a mwN.
42) See Vuia, NJW 2013, 1197 (1197 f).
43) Wortmann, DS 2009, 253 (254 mwN); Weeping in the kingdom of heaven/Halm/Staab, motor vehicle damage settlement4 Rz 13/21 ff.
44) The BGH also relies on a "subject-related assessment of damage", see only BGH NJW 2014, 1947; Offenloch, The case law of the BGH on liability law in road traffic, DAR 2018, 302 (309).
45) Koziol, Legal consequences of violating an obligation to mitigate damages – return of the archaic Kulpa compensation? ZEuP 1998, 593; Karner in KBB5 § 1304 Rz 10 mwN.
46) In general Karner in KBB5 § 1304 Rz 10; Koziol, liability law I3 Rz 12/92.
47) Koziol, liability law I3 Rz 12/92.
48) On corresponding attempts by German experts Engelke, NZV 2012, 365 (366); LG Berlin NJOZ 2012, 2122.
49) See OLG Düsseldorf 1 U 122/92 VersR 1995, 107: The costs for an expert report cannot be reimbursed if the injured party deliberately prevented an inspection of the vehicle by the liability insurer because the report can then no longer be regarded as a neutral basis for settlement.
50) AG Sieburg DAR 2010, 389 (to Poppe); OLG Rostock DS 2011, 290.
51) BGH NJW 2012, 1953 (Figgener); Oetker in MüKo, BGB8 § 249 Rn 400.
52) OLG Düsseldorf DS 2011, 288 (to Wortmann); OLG Celle 14 U 47/11; OLG Hamm DAR 2012, 20; to Engelke, NZV 2012, 365 (368).
53) In addition, Burtscher/Spitzer, claims settlement.
54) On this Karner in KBB5 § 1299 Rz 2 mwN; Koziol, liability law I3 Rz 5/39; Code in Kletečka/Schauer, ABGB-ON1.03 § 1297 Rz 22 (as of January 1, 2018, rdb.at).
55) See LG Bochum NJW-RR 1993, 29; LG Giessen NJW-RR 2002, 751.
56) The causality of the breach of duty could be problematic for the "differential damages" because the expert only establishes facts, while claims remain unaffected. However, it is often no longer possible for the injured party to make additional claims or for reimbursement by the insurer; see also Burtscher/Spitzer, claims settlement.
57) See Reischauer in Rummel3 § 1300 Rz 4.
58) On this Karner in KBB5 § 1300 Rz 4.
59) Munich Higher Regional Court NZV 1991, 26 (additionally Hällmayer); LG Bochum NJW-RR 1993, 29; LG Giessen NJW-RR 2002, 751; Schiemann in Staudinger § 251 Rn 122 mwN.
60) In addition, Karner, liability for advice and information between contract and offense, in FS Koziol (2010) 695 (706 ff); Welser, Liability for Advice, Information and Reports (1983) 87; Ausf Burtscher/Spitzer, claims settlement.
61) Karner in FS Koziol 695 (712); Reischauer in Rummel3 § 1300 Rz 9; see already Canaris, The scope of expert liability towards third parties, ZHR 163 (1999) 206 (224 f).
62) RS0106433; Karner, liability of the expert towards third parties and trustors, ÖBA 2001, 893; Chess rider in Kletečka/Schauer, ABGB-ON1.05 § 1300 Rz 17 (as of March 1, 2019, rdb.at); Welser, Rat 86 ff; aA Harrer in Schwimann3 § 1300 Rz 10.
63) See also Hällmayer, NZV 1991, 27 f.
64) See Karner in FS Koziol 695 (705) for the parallel situation when obtaining an appraisal.
65) Karner in FS Koziol 695 (701).
66) On this aspect Schäfer, liability for incorrect valuations from an economic perspective, AcP 202 (2002) 808 (829); Karner in FS Koziol 695 (706).
67) See Schäfer, AcP 202, 808 (829) VVG2 § 119 Rz 20.

If you have an accident on the way to your vacation, the most important matters should be addressed on site immediately.

1. Liability question: Fill out and mutually sign the international accident report.
2. In case of personal injury, contact the police, who are usually quick to arrive on site and help with clarification.
3. Take as many thorough photos as possible of the damage and the positions of the vehicles. This can help clarify the accident analysis.
4. To assess the damage incurred, it is best to consult an expert in motor vehicles and accident analysis for a damage report. This expert will carry out a comprehensive assessment of the damage and calculate the repair costs. The costs of the report must be covered by the liability insurance of the party at fault, as the right to freely choose an expert applies in Austria.
5. If the vehicle is still operational, there is nothing preventing the vacation or the journey home, as the essential questions have been clarified. If the vehicle is not operational, alternative solutions such as renting a replacement vehicle can be discussed.