Evidence from an expert opinion in the practice of labor courts

In proceedings before the labor court, regardless of the stage of its advancement, as well as in other types of court proceedings, there may be a need to take evidence based on an expert opinion. The parties often, already at the stage of submitting a statement of claim, indicate the need to take expert evidence, but it may turn out that the need for such evidence will arise only in the course of taking evidence by the court. Let's check the importance of expert evidence in the practice of labor courts

Article 278 § 1 of the Code of Civil Procedure indicates that expert evidence should be admitted in the case in cases requiring special knowledge.

The concept of special information refers to particular branches of science, technology, arts, crafts, as well as other skills that are necessary to resolve the case, and the court does not have them.

It is impossible to list all expert specializations that are appointed by labor courts, but most often they will be expert doctors of various specialties, expert accountants, experts in the field of occupational health and safety, and expert psychologists.

Recently, courts more and more often reach for evidence from expert opinions, and their opinions usually constitute the basis for a decision issued by a court.

Admitting evidence from an expert opinion

The court may admit evidence from an expert opinion in evidentiary proceedings at the request of a party or ex officio.

However, it should be borne in mind that the party requesting the admission and taking of such evidence must take into account the necessity to incur advances for this purpose. At the same time, it is worth remembering that in the proceedings before the labor court, the employee is exempt from paying court costs, which also includes expenses for opinions prepared by experts. Costs related to expert opinions are settled in the decision concluding the case and, as a rule, will be borne by the losing party.

Expert's choice: permanent expert or ad hoc expert?

When appointing an expert, courts usually appoint them from the list kept by the Presidents of District Courts, but it may happen that a person with special information required in the case will not be entered on such a list. Then the court may appoint her as an ad hoc expert. The opinion prepared by him has the same value as the opinion prepared by an expert from the list kept by the President of the District Court.

It should be noted that ad hoc expert opinions have already been considered by common courts and the Supreme Court, and the jurisprudence in this respect clearly supports the admissibility of opinions prepared by experts from outside the list kept by the President of the District Court, provided that certain requirements are met, i.e. submission by an expert ad hoc promise of having appropriate special knowledge and giving by such a person a guarantee of his objectivity and impartiality in the case.

In the judgment of the Supreme Court of March 11, 2010 (IV CSK 388/09), the following quotation was indicated: "According to Art. 278 § 1 of the Code of Civil Procedure, the court, having heard the parties' motions as to the number of experts and their selection, may appoint one or more experts to seek their opinion in cases requiring special knowledge. An expert may be appointed by a court from a list of (permanent) court experts or from among other impartial persons with appropriate qualifications - experts in a specific case (ad causam, ad hoc). The obligation to verify the qualifications of a person appointed as an expert rests with the court. Exceptionally, this does not apply to a court expert whose qualifications are checked before being entered on the list of court experts (Article 283 § 2 of the Code of Civil Procedure). Due to the opinion's source of origin, there are no grounds for treating and evaluating it differently”.

The court decides in what form the opinion will be prepared: orally or in writing. In practice, it is most often a written form, and in the event of doubts or objections being submitted to the opinion by the parties to the proceedings, the court summons an expert to a hearing to supplement the opinion orally, explain it or extend it.

The court is obliged to hear the parties as to the choice of experts and their number, but it is ultimately the court that decides which specialties the experts will issue opinions and in what form. If it is necessary to appoint several experts, e.g. in cases relating to accidents at work, practice suggests that the courts seek separate opinions prepared by the appointed experts. The law does not impose an obligation to submit a joint opinion in the event of appointment of several experts, although the court may impose such an obligation - then a joint opinion will be issued.

Experts of various specialties may be appointed simultaneously by the court or in succession.

Use by the court of an expert opinion prepared in another case

It is worth paying attention to the solution introduced in 2019, which allows the court hearing the case to use an opinion prepared by an expert commissioned by a public authority in other proceedings provided for by the act. The above means that in civil proceedings the use of expert opinions prepared in other civil cases, administrative cases, criminal cases and other official cases is permissible. The application of this solution in the labor court may prove useful, for example, in a situation where an employee pursues supplementary claims in connection with an accident at work, if proceedings for a one-off compensation in connection with an accident at work were previously pending, where expert opinions were prepared regarding the percentage of health impairment. the employee this could be used in a case against the employer.

Evidence from an expert opinion - issuing a decision on admission

Pursuant to Art. 236 of the Code of Civil Procedure, the court, in its decision to admit evidence, should mark the evidence and facts that are to be demonstrated with it, and, if necessary and possible, also the date and place of taking the evidence.

In practice, the content of the decision to admit expert evidence includes the following elements:

• indication of evidence - expert opinion;

• the person of an expert with an indication of his specialization;

• evidence thesis, i.e. facts that are to be explained or established by an expert in the opinion;

• deadline for the opinion;

• the scope of activities that the expert is obliged to take in connection with the preparation of the opinion, e.g. conducting a visual inspection.

Service of an expert opinion on the parties and the right to file charges

When the expert prepares an opinion, it is delivered to the parties to the proceedings in order to become acquainted with its content. According to the established court practitioners, when delivering opinions to the parties there is a time limit set by the court, which is usually 14 days or 7 days for submitting objections to the opinion.

They are submitted in the form of a pleading containing all kinds of reservations that affect the content and final conclusions of the opinion. After the charges have been filed, the court decides whether there is a need for a supplementary opinion.

Supplementary opinion or new opinion

If a party has filed allegations and the expert in the supplementary opinion did not address them in whole or in part, or denied these reservations and did not clarify the doubts, then there is a basis for further questioning the opinions and requesting the appointment of another expert.

As indicated in the jurisprudence of the Supreme Court: "If the content or form of an additional expert opinion indicates that he is not trying to convince the accuracy of the conclusions of the opinion by extending or deepening the argumentation, but feels offended by the doubts or reservations raised and "stiffens" his current position, and he would like to treat the issue of its legitimacy through the prism of faith or trust, instead of on the level of knowledge, it is irrational to obtain an additional (third) opinion from the same expert. In such a situation, the court is obliged to consult another expert (Article 286 in fine of the Code of Civil Procedure)”(Supreme Court judgment of 10 February 2000, II UKN 399/99).

Submission of factually correct objections to the opinion may constitute the basis for the court to commission the preparation of an opinion by another expert in a given field. It should be stipulated that the court is not obliged to admit opinions prepared by subsequent experts as evidence only because the party is dissatisfied with the opinions drawn up so far, which are unfavorable to it. The court is obliged to admit evidence from further opinions, when necessary. It occurs when the opinion prepared by the court contains significant shortcomings, because it does not respond to the evidence theses put forward, is unclear, i.e. improperly justified or unverifiable, i.e. when the analysis presented by the expert does not allow the adjudicating authority to verify its reasoning as to the accuracy of his final conclusions.

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The scope of the expert's opinion and powers

It should be pointed out that the expert may not go beyond the scope of the order given to him by the court, which specifies the decision on admitting evidence from an expert opinion, but also beyond the statutory powers. The expert does not have the competence to determine the factual and legal status of the case, as this is the exclusive power of the Court adjudicating in the case.

The expert does not have the right to supplement the evidence on his own. If the evidence provided to him by the court turns out to be insufficient to prepare an opinion in accordance with the court's order, the expert should inform him about it and return the files made available to him.

The court's assessment of evidence based on an expert opinion

As for the evidence from an expert opinion, it is subject, like other evidence in the proceedings, to the assessment according to the criteria set out in Art. 233 § 1 of the Code of Civil Procedure, however, it is indicated in the jurisprudence of common courts that, in addition, when assessing this evidence, the court must take into account specific criteria of assessment, which are: the principles of logic and common knowledge, the level of expert knowledge, the theoretical basis of the opinion, the manner of motivating and the degree of firmness expressed in her conclusions.

Private expert opinion prepared for the purposes of a court case

When discussing the issues related to the issuing of opinions by experts in court proceedings, it is impossible to ignore the issue of the so-called private expert opinions. A document prepared by a person with special knowledge in a given field, even if it was drawn up by a person entered on the list of experts kept by the competent President of the District Court, is a private document which cannot replace the evidence from an expert appointed by the court.

According to the latest case law of the Supreme Court, namely the judgment of the Supreme Court of 9 August 2019 (II CSK 352/18): "The written position of a person who is an expert in a specific field of knowledge presented by a party, signed by that person, constitutes a private document and uses the presumption of authenticity specified in Art. 245 of the Code of Civil Procedure. However, such a document does not constitute evidence in the field of special knowledge, the finding of which is based on an expert opinion. Although a party may demand that evidence of such an expert opinion be admitted as a private document, such evidence may only prove that the person who signed the expert opinion submitted a declaration contained in its content”. 

However, it is emphasized that the court hearing the case, when assessing the expert opinion, is obliged to respond to the opinion presented by the party, and to consider whether the juxtaposition of the content of both opinions, i.e. the expert and the private one, does not require supplementing the expert opinion or admitting an additional opinion.

A private opinion prepared at the request of the party is an expression of the position of the submitting party, supported by the expertise of an expert in a given field. The factual findings made on the basis of this document concern the commission and preparation of such an opinion and develop the procedural position of the parties in the case. On the other hand, it is unacceptable to make findings on its basis that would be fundamental to the issue of resolving the case. This is confirmed by the jurisprudence of the Supreme Court and common courts. And this is how it should be pointed out to the judgment of the Supreme Court of August 20, 2001 (file reference number I PKN 571/00), where it was indicated that: "Making findings of fact by the court based on evidence that has not been formally admitted and carried out at the hearing, violates the general rules of evidence proceedings in terms of directness, openness, equality of parties and adversarial procedure ”. Moreover, in the judgment of the Court of Appeal in Łódź of February 19, 2013 (file reference number I ACa 1121/12) it was noted that: "Private expert opinions prepared at the request of the parties, either in the course of the trial or before its initiation, should be treated as an explanation of the parties' positions, supported by special messages. Basing the decision on private expert opinions would be a violation of the provisions of the civil procedure”.

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Therefore, in the light of the above judgments, one should be aware that, first of all, drawing up a private opinion favorable to the ordering party will not constitute a basis for issuing a decision based on it. Secondly, drawing up a private opinion will not speed up the proceedings in the case, but on the contrary - due to the need to verify it together with an expert opinion prepared at the request of the court, it may extend it. Thirdly, the undoubted advantage of a private opinion is that it allows to prove the validity of the party's claims, supporting them with expert knowledge, and at the same time constitutes the basis for a polemic with the content of the opinion of an expert appointed by the court.

It should be mentioned that more and more often private opinions submitted by parties in court proceedings lead to the need for the court to consult an opinion prepared by another expert in order to eliminate any doubts that may arise in the context of two different expert positions, even if the private opinion is treated as a document private.

Summing up, it should be pointed out that the expert opinion is an important element of the proceedings before the court, but in order to be the basis for resolving the dispute, it must be verified taking into account the aspects discussed in the article, starting from its compliance with the issued evidence, and ending with the criteria for the free assessment of evidence. and the specific criteria set out in the jurisprudence of the courts envisaged for this type of evidence.