- •Preface
- •Table of Contents
- •Country Reports
- •PUNITIVE DAMAGES IN ENGLAND
- •PUNITIVE DAMAGES IN FRANCE
- •PUNITIVE DAMAGES IN GERMANY
- •PUNITIVE DAMAGES IN HUNGARY
- •PUNITIVE DAMAGES IN ITALY
- •PUNITIVE DAMAGES IN SCANDINAVIA
- •PUNITIVE DAMAGES IN SOUTH AFRICA
- •PUNITIVE DAMAGES IN SPAIN
- •PUNITIVE DAMAGES IN THE UNITED STATES
- •PUNITIVE DAMAGES IN EUROPEAN LAW
- •Special Reports
- •PUNITIVE DAMAGES AND LIABILITY INSURANCE
- •ECONOMIC ANALYSIS OF PUNITIVE DAMAGES
- •AGGRAVATED DAMAGES
- •Annex
- •Index
PUNITIVE DAMAGES IN SCANDINAVIA |
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Bjarte Askeland* |
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I. Introduction |
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Scandinavian tort law has historically put heavy weight on the concept of |
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full compensation: no more, no less. This concept has, to a large extent, been |
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geared towards values that are possible to measure in economic or pecuniary |
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units. Hence, the concept of damage in Scandinavian tort law as a main rule |
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requires that the loss connected to the damage is economic or pecuniary. The |
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prevailing view has been that non-pecuniary loss may be compensated only |
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where parliament has enacted a special legal basis for such compensation.1 |
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Accordingly, there are only narrow possibilities to reflect the blameworthiness |
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of the defendant’s act in the assessment of compensation. Generally, the pecu- |
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niary loss stemming from a certain event is the same, whether the defendant |
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has acted with slight negligence or with cruel intentions. Only on the basis |
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of certain special rules is there a possibility to take into consideration factors |
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which under common law would be constitutive of punitive damages. These |
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special rules will be presented in the following report. |
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It should be clarified beforehand that “punitive damages” are a head of dam- |
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ages that simply have no tradition under Scandinavian law. Moreover, the con- |
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cept of “punitive damages”, or equivalent terms, does not commonly feature in |
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Scandinavian legal discourse. The closest concept may be where one refers to |
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a provision having a “penal function”. This only means, however, that the pre- |
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ventive effects of the provision were very important grounds for its enactment. |
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*Bjarte Askeland has been a Professor at the University of Bergen, Norway since 2005. Between 1992–1994 he worked as an assistant judge and subsequently a fully qualified judge at the Jæren District County Court, Norway. Since 2008, Askeland has led a research project on “The Temporal Dimension of Tort Law” and is also head of a Norwegian law committee appointed to revise legal provisions on the assessment of damages in personal injury cases.
1This view is articulated in various textbooks, see, for instance, for Norwegian law, J. Øvergaard, Norsk erstatningsrett (2nd ed. 1951) 285 and for Swedish law, J. Hellner/M. Radetzki, Skadeståndsrätt (7th ed. 2006) 366. Hellner/Radetzki refer to the German rule in § 253 Bürgerliches Gesetzbuch (BGB) in which a similar principle is expressed. For Danish law see S. Jørgensen, Erstatning for personskade og tab af forsørger (1972) 25.
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Bjarte Askeland |
The courts have never expressly added an award of strictly punitive damages on top of a conventional compensatory award.
4Sometimes, however, there is a correlation between the gravity of the tortfeasor’s fault and the amount of damages awarded. For deterrent purposes, as well as on the basis of justice, the courts attempt to reflect the gravity of the defendant’s violation of the victim’s rights in the award. Sometimes the courts even put weight on the severity of a related penal sentence when deciding the appropriate amount of damages to award.2 In this report, this practice will be referred to as incorporating “an element of punitive damages”. The expression merely indicates that the gravity of the tortfeasor’s fault is reflected in the award though the damages awarded do not exceed compensatory damages. This is the closest Scandinavian law comes to punitive damages.
5There are many factors which indicate that there is, to some extent, wider room for elements of punitive damages under Norwegian tort law than under the laws of the other two Scandinavian nations (Denmark and Sweden). On the basis of this observation, I have chosen to present the rules in the three countries separately (Part II–IV), before finally summing up the salient findings on the subject (Part V).
II. Elements of Punitive Damages under Norwegian Tort Law
A. The Theoretical Basis
6Oppreisning is a remedy for various types of non-pecuniary loss, such as pain, suffering and bereavement. Historically, Norwegian rules on oppreisning had a penal function.3 At the beginning of the 20th century, one could only get oppreisning provided that the Penal Code was applicable to the case at hand. This prerequisite was abandoned in 1912.4
7The remedy of oppreisning had a legal basis in straffelovens ikrafttredelseslov, 22 May 1902, no. 11 (an appendix to the Norwegian Penal Code), § 19 and § 21, two provisions which in 1969 were incorporated into Skadeserstatningsloven (the Norwegian Compensation Act, NCA), 13 June 1969, no. 26, § 3(5).
8Fredrik Stang, a Norwegian theorist who worked in the first half of the last century, was very influential in Norwegian, as well as Scandinavian tort law.5 Stang elaborated on whether the degree of culpa should, in principle, be a decisive factor in the assessment of compensation.6 In this respect, he drew a
2See, for example, the case in Norsk Retstidende (Rt.) 2006, 961 and N. Nygaard, Skade og ansvar (6th ed. 2007) 165.
3 J. Skeie, Den norske civilprocess, vol. 1 (1929) 121.
4Act of 26 July 1912 no. 37 (on changes to the Act on the enforcement of the Penal Code of 22 May 1902).
5 See B. Dufwa, Flera skadeståndsskyldiga (1993) no. 3201. 6 F. Stang, Erstatningsansvar (1927) 372–380.
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distinction between erstatning (which can be translated as “economic compen- |
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sation”), and oppreisning. Stang particularly emphasised that oppreisning – as |
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mentioned above – first and foremost had a penal function.7 He compared |
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the institute of oppreisning to the historical institute of private punishment |
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and mentioned that part of the reason for awarding oppreisning was so the |
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plaintiff obtained the satisfaction of seeing that the defendant had to pay for |
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his misdeeds.8 He also clearly expressed that the degree of culpability was an |
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important parameter when deciding the extent of the award.9 One should, how- |
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ever, take note that at the end of his discussions on oppreisning, Stang warned |
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against the possibility of letting a jury decide the extent of the award. He held |
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that there should be a cap on this kind of compensation.10 |
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Stang also elaborated on whether the amount of erstatning should be decided |
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by the degree of the wrongdoer’s fault. In this respect, he referred to penal con- |
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siderations as an important factor behind tort law rules. He started his analysis |
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by recapitulating the central European opinions on this matter. Stang illus- |
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trated, however, how unsound the results would be if a plaintiff got less com- |
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pensation for damage to his goods or property where the defendant was only |
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slightly culpable and more compensation where there was gross negligence. |
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Stang found that the degree of culpability was decisive only in certain contexts: |
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namely in connection with contributory negligence and contributory conduct |
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between joint and several tortfeasors.11 This view holds true even today. Both |
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the current statutory provisions that deal with the aforementioned rules refer to |
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the degree of culpability as an important parameter for determining the amount |
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which the parties are to pay.12 |
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In short, the influential theoretical discussions in Norwegian tort law resulted |
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in historically important choices being made: Firstly, consideration of the de- |
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gree of the defendant’s culpability, an element of punitive damages, is only |
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acceptable within the frame of compensation for non-pecuniary loss, such as |
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oppreisning. Secondly one has to prescribe modest awards in this respect. |
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Under Norwegian law, NCA, § 3(5), as aforementioned, now constitutes a pos- |
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sible legal basis for such compensation. This rule prescribes compensation for |
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serious pain and for krenkelse, a word that connotes a sort of “humiliating |
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infringement”. Furthermore, the paragraph provides for compensation for be- |
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reavement: see the second section of the provision. One should, however, note |
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that the provision requires that the defendant personally injured the plaintiff |
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(or the deceased, in case of bereavement) and that he had intent or was grossly |
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negligent in doing so. There exists an element of punitive damages in this |
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Ibid. at 366–368. |
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Ibid. at 367. |
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Ibid. |
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10Ibid. at 368.
11Ibid. at 378.
12NCA § 5-1 and § 5-3.
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requirement in that only where the wrongdoer’s blameworthiness exceeds a certain threshold may one be compensated for non-pecuniary loss. In addition, the structure of the rule allows a slight possibility for the courts to take the gravity of the defendant’s conduct into consideration (see below).
13For the sake of completion, one should also add that there is a legal basis for oppreisning where the conduct in question consists of various forms of sexual assault: see NCA, § 3(6) with reference to § 3(3). Moreover, § 3(6) provides a legal basis for oppreisning to be awarded as a remedy for defamation and for intruding on one’s private sphere. These provisions are not of particular interest though when it comes to elements of punitive damages. One exception will, however, be mentioned below: the distinction between intentional and negligent rape, a distinction which is based on the same rationality that applies to punitive damages.
B. Modern Developments
14In modern Norwegian court practice, the courts have acknowledged that the degree of blameworthiness on the part of the defendant should be reflected in an award of damages.13 Standardised compensation tables for oppreisning have been established. Thus, today it is commonly recognised that the institute of oppreisning rests on both penal and compensatory grounds. This has been expressed quite articulately in several Supreme Court cases.14 Hence, one might say that a regime that historically was quite unfriendly towards punitive damages has in the last few years become even more reluctant to accept this approach to tort law. As a result of this development, the ability to incorporate punitive elements in an assessment of oppreisning has become more and more difficult over the past few years.
15Still there is room to indirectly put weight on the same factors that are decisive when awarding punitive damages. Even though some types of cases (e.g. rape and homicide) have standardised economic values for compensation, the courts will always put weight on the gravity of the harmful act. Furthermore, the Supreme Court has stated, in several cases, that the level of punishment under the Penal Code will be of guidance when it comes to assessing the appropriate level of compensation to be ordered.15 At least these aspects, which may be relevant in jurisdictions that allow punitive damages, play a part in the assessment of oppreisning under Norwegian law.
16Attempts to standardise awards of compensation are also influenced by the degree of culpability shown by a defendant.16 This approach is illustrated by the fact that the level of compensation for grossly negligent rape is higher than that of deliberate rape.17
13P. Lødrup, Lærebok i erstatningsrett (4th ed. 1999) 509.
14See Rt. 1999, 1363, 1378 and Rt. 2005, 289, no. 42.
15Rt. 2005, 1749; Rt. 2006, 743.
16See Rt. 2000, 96.
17See P. Lødrup, Oppreisning – et praktisk rettsinstitutt, Tidsskrift for Erstatningsrett (TfE) 2006, 211–237, 226.
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The tendency to differentiate on the basis of the gravity of the wrongdoer’s |
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conduct is also evident in cases where one departs from the standardised levels |
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of compensation. When the Supreme Court decided to standardise the levels |
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of compensation, it presupposed that standardisation would not apply in spe- |
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cial cases – particularly where the special circumstances of the case were ex- |
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tremely horrifying. In such cases, one should determine the award on the basis |
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of the appalling facts of the case: an approach which very much resembles |
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the approach when assessing punitive damages. An example of such a case is |
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referred to in Rt. 2002, 481: |
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A man poisoned his wife to death. Between 1992–1998, the couple had an |
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on-and-off relationship and in May 1998 the woman decided to end it perma- |
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nently. In June 1998, the man added thallium sulfate to the woman’s glass of |
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coke with the intention of harming her. She drank the coke and immediately |
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became ill. She suffered severe pain, hair loss, panic attacks and depression |
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and was out of work for 11 weeks before she recovered. After her condition |
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had improved, the man again added thallium sulfate to her drink of coke. Her |
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suffering was even worse than the first time and she could not work for 16 |
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weeks. At Christmas 1998, the man broke into the woman’s house and added |
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thallium sulfate to a bottle of cognac, a bottle of sparkling water and a carton |
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of red wine. On 24 January 1999, she was admitted to hospital with unbearable |
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pains having drunk some of the liquor. She eventually died on 17 February |
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1999. In connection with the trial against the man, the deceased’s two daugh- |
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ters, born in 1986 and 1989, claimed compensation for non-pecuniary loss. |
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The Supreme Court had, in an earlier case, established a standard award for |
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compensation for non-pecuniary loss for parents who lost their children due |
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to deliberate violence: approximately € 15,000.18 The Supreme Court found |
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that the case at hand should by no means be subject to a standardised award. |
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The special circumstances of the case should be reflected in the award. In this |
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respect, the court pointed to the fact that the claimants were children, that their |
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mother had suffered unbearable pain over a long period of time (8 months) |
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and that the children had witnessed her suffering. In light of these factors, the |
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Supreme Court found that a sum of € 37,500 for each of the children was ap- |
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propriate. |
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Where the misdeeds of the defendant are less cruel than the facts in the above |
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case were, there probably will be a possibility to reflect the latter’s reduced |
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level of blameworthiness in the award. |
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When it comes to unjust enrichment based on the wrongful exploitation of |
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another man’s material or immaterial objects, a Norwegian theorist, Erik Mon- |
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sen, has suggested that the assessment of compensation should take into con- |
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sideration the gravity of the harmful act. The need for preventive measures |
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18 Rt. 2001, 274.
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through pecuniary sanctions has been emphasised.19 Monsen maintains that a guideline for the assessment should be that the award should be so high that it represents an effective, deterrent sanction. He does not, however, advocate the establishment of a pure punitive rule.20 The courts have so far been reluctant to move in this direction.
III. Elements of Punitive Damages under Swedish Tort Law
22As for Sweden, the same reluctance regarding punitive damages exists. An expressed attitude is that a system that makes an award of damages proportionate to the degree of fault on the part of the defendant is “unfamiliar” to Swedish law and a step backwards to the conditions which prevailed during medieval times.21 Knowing that this view prevailed in the preparatory works to the Swedish Compensation Act (SCA), it comes as no surprise that room for punitive damages or similar ways of assessing damages is quite narrow.
23Under Swedish law, the basic rule is that pecuniary loss is to be compensated, whereas non-pecuniary loss is compensated only in certain situations and if a legal provisions expressly so provides. The most important such legal provision to our subject is 2 chap. 3 § SCA. This provision deals with the infringement of physical personal integrity and infringements that affect the psychological well-being of the victim as well as his honour. A prerequisite for this kind of compensation is that the infringement is considered “serious” or “grave”. In assessing the appropriate award, there exists a special provision in 5 chap. 6 § which lists five different factors to be considered. The courts may, for example, put weight on whether the harmful act caused serious fear for life or bodily well-being or whether the harmful act represented a misuse of trust.
24Apart from this, Swedish legal theory emphasises that an award should be decided by an objective evaluation of the effect which the infliction of the harmful event typically has, with ethical and social values being considered.22 Consequently, one may not put direct weight on the degree of the tortfeasor’s fault or apply reasoning that is typical for punitive damages. The courts may, however, indirectly take into consideration elements that are relevant to the graveness of the harmful act. They may, for example, look at certain objective characteristics of the case, such as the duration of the harmful act and the act’s potency of humiliation. By taking such factors into consideration, the courts may indirectly reflect the blameworthiness of the tortfeasor in an award of damages. This seems to be as close as one gets to punitive damages in Swedish tort law.
19E. Monsen, Berikelseskrav (2007) 303–330.
20Ibid. at 330.
21See, for example, the preparatory works to the Swedish Compensation Act (Skadeståndslagen (1972/207), hereinafter SCA), SOU 1992: 84, 234 and Proposition (prop.) 2000/01: 68, at 51. See also B. Bengtsson/E. Strömbäck, Skadeståndslagen – En kommentar (2008) 299.
22SOU 1992: 84, 233–234, prop. 2001/01: 68, at 51–52 and Bengtsson/Strömbäck (fn. 21) 298– 302.
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As for the size of the awards, they are comparable to the level described under |
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the part on Norwegian law. However, the awards are not standardised. |
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There are also other provisions that constitute a legal basis for non-pecuniary |
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loss. Firstly one may claim compensation for permanent personal injuries such |
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as loss of amenities and for special disadvantages (särskilda olägenheter) under 5 |
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chap. 1 § second sec. no. 3. This kind of non-pecuniary damages is standardised.23 |
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Secondly, there is the provision on compensation for temporary pain and suf- |
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fering (sveda och värk) under 5 chap. 1 § second sec. no. 3. The level of com- |
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pensation is standardised for this kind of non-pecuniary damage.24 Accord- |
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ingly, there is no room for assessments that resemble punitive damages. |
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Sweden also has a rule on compensation for distress following the loss (be- |
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reavement) of a kinsman under 5 chap. 2 § first sec. no. 3. This provision |
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applies, however, only where the claimant is actually proved to be ill in a medi- |
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cal sense. Mere feelings and reactions of sorrow do not qualify. This rule on |
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bereavement applies regardless of the degree of blameworthiness shown by the |
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defendant. The preparatory works to the statutory provision explicitly make |
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clear that the degree of suffering experienced by the next of kin is the same, |
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regardless of whether the defendant acted in culpa or dolus.25 This statement |
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may, in principle, be perceived as a general attitude that disregards or rejects |
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the idea of punitive damages.26 |
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IV. Elements of Punitive Damages under Danish Tort Law |
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Under Danish law, one may be awarded compensation for non-pecuniary loss |
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on the basis of various statutory provisions in the Danish Compensation Act |
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(DCA).27 Firstly, one may be awarded compensation for temporary physical |
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pain and suffering (DCA § 3) and for permanent disadvantages, a sort of loss of |
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amenities (DCA § 4). Both these heads of damages are standardised and there |
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is no scope for elements of punitive damages.28 |
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Secondly, there is legal basis for compensation for a “tort” (see DCA § 26). |
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“Tort” is a Danish expression which may best be translated as a “humiliating |
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infringement”. In the case of very serious attacks on another person’s life or |
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liberty, there is also a legal basis for a certain kind of compensation (see DCA |
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§ 26, sec. 3) even if there is no “tort” in the ordinary, Danish sense of the word. |
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This rule was enacted in 1997 to provide a legal basis for compensation in the |
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case of violent harmful acts. |
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23See Bengtsson/Strömbäck (fn. 21) 197 ff.
24See ibid. at 199 ff.
25Prop. 2000/01: 68, at 34.
26Cf. the general attitude stated supra, no. 22.
27Bekendtgørelse av Lov om erstatningsansvar LBK no. 750 af 4 September 2002 (The Danish Compensation Act, hereinafter DCA).
28See B. von Eyben/H. Isager, Lærebog i erstatningsrett (6th ed. 2007) 307 f., 308 ff.
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31Finally, one may get compensation for bereavement under DCA § 26(a). In assessing bereavement damages, the courts generally put weight on the character of the harmful act as well as the suffering which the plaintiff faced.29 In the works preparatory to the Act, it was suggested that the award should not exceed DKR 100,000 (€ 13,000) for intentional homicide.30 Where the tortfeasor has only acted with gross negligence, the award is considerably lower. In extraordinary cases, the award may be higher than that mentioned above.
32These observations indicate that there is only a small possibility to indirectly take into consideration the gravity of a tortfeasor’s act when assessing damages. Hence, there are only very slight elements of punitive damages within Danish tort law.
V. Conclusions
33As one can observe, when it comes to elements of punitive damages in Scandinavia, the same pattern seems to emerge in all three jurisdictions: Elements of punitive damages may only come into play in connection with non-pecuniary loss in the case of personal injury. In this area, the assessment of damages is partly standardised in all three jurisdictions. This fact leaves only a narrow room for weight to be put on factors that are decisive for punitive damages in the jurisdictions which accept them. It is fair to say that there are no examples of real punitive damages under Scandinavian tort law.31 There is only an indirect possibility for an assessment based on the same kind of reasoning that justifies punitive damages. See the remarks above on “elements of punitive damages”.32
34In Norway and Denmark, the severity of the harmful act is the most important criterion for the assessment of damages. In Sweden, the focus is more on the impact the harmful act typically has on the victim. The punitive element therefore only comes into play indirectly by emphasising the gravity of the harmful act or the severity of its impact. The results presented of the three jurisdictions suggests that there may be slightly more room for this kind of reasoning in Norwegian law than in the other two Scandinavian jurisdictions.
29Ibid. at 326.
30See “Betænkning V: Betænkning no. 1412/2002 om godtgjørelse til efterladte ved dødsfall”, 85.
31See also supra no. 3.
32See supra no. 4