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Part 7 Limitation of liability
I. Introduction
2 / 126 The Norwegian doctrine of tort law revolves around the causal link between the tortfeasor’s act and the damage. There is – as under Germanic law – a need for
some kind of limitation of the causal consequences for which the tortfeasor should pay damages186. As for the general approach, the equivalence theory and the con-
ditio sine qua non test are the starting point and the first step in a » bifurcated approach «. The second step is named as » limitation of causality « by some scholars, a term resembling that suggested in Basic Questions I187. The second step is, however, somewhat confusing because it consists of two separate approaches that are sometimes intertwined. The first approach is a test of whether a condition that qualifies as a conditio sine qua non is so insignificant that it should not be regarded. The other approach is to ask whether a consequence of the damaging act is too remote. Both tests occur in the same case, and depending on the concrete merits of the case, they sometimes revolve around the same factual events, something that leaves an untidy picture. The approaches may be looked upon as alternative ways of justifying a limitation of liability based on the causal connections of the case.
2 / 127 The Norwegian model of limitation is to set boundaries for liability on a normative and quite discretionary basis. The adequacy test consists of a set of themes that are elaborated from case to case with variable strengths and weights. The themes are varied considerations of values, efficiency, and general conceptions of how the risk stemming from an act or activity should be divided between the tortfeasor and the claimant.
II. The requirements of adequacy
2 / 128 The rules and principles of Norwegian law regarding adequacy have to some extent the same content as Austrian law; however, some major aspects are missing or are not extensively developed in court practice or the doctrinal literature. Particularly important is that the idea that the protective purpose of the rules set bounda-
186Nygaard, Skade og ansvar ( 2007 ) 352.
187Nygaard, Skade og ansvar 352 ff; cf Basic Questions I, no 7 / 5.
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ries for adequate causation is present but not as predominantly as in Germanic |
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law188. Also, other continental ideas have only pale or non-existing counterparts in |
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the Norwegian doctrine. |
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The basic requirements of adequacy are that the damage which occurred was |
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foreseeable and that the damage was sufficiently closely connected to the interests |
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of the plaintiff189. The latter criterion is most often applied when the damage is |
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caused to a third party, such as in cable cases190. In such cases the crucial question |
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has been whether the damaged interest of the victim was sufficiently » concrete |
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and close « to the damaged thing191. |
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The boundaries of adequacy are drawn further where the damage is caused |
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with intent. This view has had theoretical support in older literature192. Leading scholars later argued against it193. In court practice the reasoning is, however, accepted. Also the presence of gross negligence constitutes a reason for making even remote kinds of damage compensable194. When it comes to strict liability, there is no clear doctrine of a wider range of adequacy; however, the case in Rt. 2006, 690 may very well be understood as an indication of such a principle: two trains collided and the cargo on one of the trains leaked out, bringing about an imminent danger of explosion. Many stores and offices in the adjacent town of Lillestrøm had to close and evacuate for several days. The court emphasised that the damage was caused by a typical incident that should be covered by the strict liability for railroads and implicitly argued that the responsibility should therefore be wide and cover remote effects, such as expenses stemming from the need to evacuate due to an impending danger of explosion. The fact that strict liability under Norwegian law has developed via a rigid application of the culpa rule may possibly justify making the range of adequacy wider in strict liability cases than in cases based on culpability.
188See on this subject Koch, Der Ersatz frustrierter Aufwendungen 115–122 ( on the » Schutzzwecklehre « and Nordic law ). See also H. Andersson, Skyddsändamål och adekvans ( 1993 ).
189An important case is Rt. 1973, 1268.
190See below nos 2 / 136 and 149; Rt. 1955, 842 and Rt. 1973, 1268.
191Rt. 1955, 842: a ship lowered an anchor and damaged a cable so that a factory lost electricity and had to temporarily stop production. The interest of the factory was deemed to be sufficiently concrete and closely connected with the damage to the cable.
192O. Platou, Privatrettens almindelige del ( 1914 ) 620 f.
193Stang, Erstatningsansvar ( 1927 ) 380.
194Rt. 1960, 359 and Rt. 1973, 1268.
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Bjarte Askeland |
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III. Differences between Germanic and Norwegian law regarding adequacy
2 / 131 Under Norwegian law, the protective purpose of the rule is, as mentioned, not recognised as a special doctrine of limitation of damages. Of course teleological interpretation is a part of the general method of interpretation of statutory provisions, but such interpretation is not very often applied in the field of tort law. The profound ideas of the German and Austrian approach are nevertheless from time to time present in the wide and somewhat indistinct doctrine of adequacy. The idea that the victim must be protected by the rule in question is connected with the question of how written rules affect the culpa norm. The prevailing opinion is
that the written rule only defines the duty of care provided that the rule was made to protect the victim195.
2 / 132 In other cases the purpose of an Act plays a role in the more precise elaboration of where the boundaries of adequacy should be drawn. In Rt. 1992, 453 a case on public authority liability for lack of control of imported fish that led to fish disease and consequential loss to fish farmers, the purpose of the Act on Fish Disease Control was brought into the reasoning but not, however, as a decisive point196.
2 / 133 Because there is no theoretical frame for or no developed doctrine on protective purpose, elements of the idea will and also will not arise in reasoning concerning adequacy depending on the discretion of the court. This is very much in line with the philosophy of leaving much flexibility to the judge. In this way the likelihood of reaching sound decisions is good, but there may be a lack of foresee-
ability in the application of adequacy tests, something that has been criticised by scholars197.
2 / 134 The idea of lawful alternative conduct has not been promoted or developed on a theoretical level in Norwegian tort law. Some of the examples, such as the example of the drunken cyclist ( Basic Questions I, no 7 / 22 ), would probably have been solved by using general causal explanations.
195See Nygaard, Skade og ansvar 203 f, referring to Rt. 1984, 466 and Rt. 1957, 590. See also Hagstrøm, Culpanormen ( 1985 ) 54 ff.
196On the implicit application of the » Schutzzwecklehre « in this case, see Koch, Der Ersatz frustrierter Aufwendungen 77–81.
197On the criticism, see Nygaard, Skade og ansvar 354.
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Limitation of liability |
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IV. The problem of disproportionately vast damage
Under Norwegian law, one of the problems connected with adequate causation |
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has been the assessment of the impact of disproportionately vast damage which |
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has devastating consequences for the tortfeasor who may have limited assets to |
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pay damages. In earlier times this was addressed under the label of adequacy, |
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most clearly in an obiter dictum in Rt. 1955, 1132. The case concerned a bet placed |
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with a bookmaker who failed to send in the coupon, and therefore deprived the |
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man who had bet of a gain that he would have made had the bookmaker acted pru- |
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dently. The gain was modest, approx NOK 3,000 ( € 360 ), and the court stated that |
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they might have reasoned otherwise had a larger sum of money been concerned, |
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thereby implicitly suggesting a limitation based on adequacy. |
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A consistent approach was taken by the Supreme Court in the famous cable |
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case in Rt. 1973, 1268, where an airplane crashed into electricity cables, leaving |
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a large number of electricity users with no electricity. The claimant was a fish |
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farmer, who due to the lack of electricity suffered a loss stemming from the fact |
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that a large number of ( baby ) fish died because the water was not sufficiently hot. |
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In the action against the owner of the airplane, the state, the Supreme Court found |
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that the risk of being ruined by a floodgate of claims in cable cases should speak |
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for limiting the circle of compensable consequences. This was one of a few argu- |
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ments that supported the decision not to pay compensation to the fish farmer. |
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Later, a debate arose about whether the limitation due to large claims is still |
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valid since a general reduction clause was enacted in Norwegian law. Some schol- |
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ars maintain that the reasoning in the 1973 case is no longer valid198. Others hold |
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the opinion that the flexible borderline of adequacy stands on its own, and that |
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the limitation cannot be changed by the fact that other rules touch upon the same elements199. This debate will be elaborated upon below, in connection with the description of the application of the reduction clause.
198Nygaard, Skade og ansvar 370.
199B. Askeland, Konkret og nærliggende interesse som avgrensingskriterium ved tredjemannsskader, Jussens venner ( 2001 ) 303–318, 312 f.
Helmut Koziol ( ed ) • Basic Questions of Tort Law from a Comparative Perspective
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