In the case to be decided by the BGH, the owner of a house sued the building insurer for damages as a result of flood damage. She claimed destruction of the building in the area of the foundation, while the defendant objected that there was only damage to the building, which it had paid for in full. The expert appointed by the Regional Court did not find any damage to the foundation during an inspection of the house. She therefore considered the opening of the foundation to be absolutely necessary for a further assessment, but at the same time she expressly pointed out the dangers of such an opening of the building component. Due to the possible damage to the building in case of an opening of the building component, the expert refused to assume liability for such an intervention in the substance of the house. This risk would have to be assumed by the plaintiff. However, the plaintiff refused to carry out such an opening of the foundation herself and instead requested that the court order the expert to carry out the opening of the building component despite her reservations.
However, the Regional Court did not comply with the plaintiff's request. Instead, it dismissed the claim for the most part because the inspection of the house by the expert had not revealed any evidence of damage to the foundation. The Higher Regional Court confirmed the decision of the Regional Court and the plaintiff was also unsuccessful before the Federal Supreme Court.
In its reasons for the judgement, the Federal Supreme Court emphasised that a court is indeed obliged under section 404a (1) and (4) of the Code of Civil Procedure to give the expert the instructions necessary for the nature and scope of his or her work. From this right to issue instructions also includes the factual measures necessary to answer the question of evidence. However, the Federal Supreme Court grants the court discretion in each individual case. When issuing an instruction to the expert, the court must carefully weigh the interests of the party obliged to provide evidence against the requirements placed on the expert. In doing so, it must also take into account the particular dangers and liability risks of the expert in the specific individual case, as they may result from a risky intervention in the building fabric, which the expert cannot avoid despite his or her own expertise and the intensive supervision of previously carefully selected specialist contractors. Finally, in the view of the BGH, the failure to instruct the expert does not put the plaintiff in evidentiary jeopardy, as it could have taken care of the necessary opening of the foundation itself under the given circumstances.
