i Legal framework
Professional liability is not a separate basis for liability, but rather a more stringent application of the law in certain situations, that may give rise to stricter liability for negligence.2 It relates to the practice of a profession, which often has particular industry-specific norms or standards.3 Industry practice is just one of several reference points for determining what constitutes 'good practice' in an area.4
The objective expectations of the professional in question is central to the assessment of liability. Whether the neglect is related to a central obligation, what damage it may cause and alternative actions available are also relevant.5 Not every deviation from proper behaviour will expose a professional to liability;6 however, limited experience is no excuse.7
The standard expected is relative to the injured party. In commercial relations, strict requirements are generally imposed on both parties. It is not the mandate of tort law to safeguard against loss for a careless party.8
One requirement for liability is that an alternative, cautious, action would have prevented the loss. The offender bears the burden of proof to substantiate that the damage would also have occurred in the hypothetical course of events.
Liability may be limited by disclaimers or reservations, but a disclaimer may be subject to adjustment if deemed unreasonable and a reservation will not provide a blanket protection to a practitioner if he nevertheless engages in the assignment.9 The professional carries the risk of any uncertainty about the scope of the assignment.10
Common lines of defence are that the loss was not caused by the negligent action or was not reasonably foreseeable, that the injured party has contributed to the damage, that the loss calculation is erroneous or that limitation periods have expired.11
There is nothing preventing third parties from claiming compensation, but where there is a contractual relationship, the professional's primary obligation will be towards his or her client.12 A professional may, however, be liable for misleading information provided to third parties.13
ii Limitation and prescription
The limitation period for monetary claims is three years. For claims arising from breach of contract, the limitation period runs from the date when the breach occurred. For other claims for damages, it runs from the date on which the injured party obtained or should have obtained knowledge of the damage and the person responsible.
A supplementary period of one year applies if the claimant lacked knowledge of the claim or the debtor.14
iii Dispute fora and resolution
Certain disputes may also be tried by low-cost advisory tribunals, which regularly consider whether applicable standards have been adhered to without taking a position on compensation.17
iv Remedies and loss
The injured party shall have his or her financial loss covered, neither more nor less.18
Especially when the claim is significant, the dispute will typically extend to the loss calculation.
If the claimant has failed to reduce the risk of or limit the damage, the compensation may be reduced or completely discounted.
Liability may be alleviated if it is unreasonably burdensome, or if the injured party should bear all or part of it, but this is rare.19
II SPECIFIC PROFESSIONS
Lawyers must provide security to cover any liability that may be incurred while practising under their own name,22 and must be insured against liability claims against their professional practice.23 The principal is responsible for his or her associates' acts or omissions. Positive case law indicates that parties other than clients may also have legal protection against damage, depending on the circumstances.24
There are five typical errors25 that may lead to liability:
- exceeding time limits that lead to loss for the client;26
- breach of formal requirements;27
- negligent advice, especially if the lawyer has branded himself or herself as a specialist;28
- real estate errors; and
- tax consultancy.29
Although not assigned as a tax adviser, a lawyer may be expected to identify relatively simple and well-known tax law issues and refer the client to another lawyer with expertise in the area.30
A tax adviser who has inflicted financial loss on the state may be subject to damage claims.31 So far, there are only a few such examples from case law.32 In Norway's largest criminal tax law case (the Transocean case), the state argued that Transocean's advisers were liable for damages of 1.8 billion kroner according to the general culpable standard.33 As the defendants were acquitted from all charges, the court did not take a position on the civil claim, but the district court stated in another case that there must exist qualified negligence to hold the lawyer responsible for the loss.34
ii Medical practitioners
It is not a condition that a particular individual must be proven to be at fault, however, the patient is entitled to the best possible treatment based on the existing conditions.37
Whether or not inadequate information constitutes a basis for compensation must be considered with regard to the risk of disease in the near future.38
Compensation may be awarded for non-financial loss if the injury is permanent and significant.39 Breach of confidentiality may constitute an infringement of privacy that provides basis for redress in certain circumstances.40
iii Banking and finance professionals
Financial entities are subject to statutory requirements for prudent operation and good business practice. Investment firms shall also safeguard the integrity of the market in the best possible manner.41 Debt collectors must furnish security for liability incurred in the conduct of their activities.42
A customer may demand highly qualified and specialised advice. The service provider's organisation must provide the necessary information to fulfil relevant requirements, analyse relevant information based on the customer's needs and bring the results to the employees who carry out the assignment. The customer must be made aware of the risk associated with the investment decision.
Unless it has been expressed that the customer will not place significant reliance on a bank's advice, the requirement for diligence will apply regardless of the customer's level of knowledge.43 Special circumstances, such as the needs expressed by the client, the parties' different positions and professionalism, and their insight into the relevant field, may, however, be relevant.44 When selling risky and complex products to non-professional investors, the customer must understand the contents of the deal and not be furnished with misleading or erroneous information that affects the investment decision.45
The Financial Services Complaints Board deals with insurance, banking, financing, securities funds and debt collection disputes.46
iv Computer and information technology professionals
These professionals essentially operate in an unregulated area, however, there are supervisory authorities for electronic trust services and data protection legislation.47 It is customary to include insurance obligations in computer and technology contracts.48
v Real property surveyors
The ethical guidelines for appraisers include requirements for liability insurance and assignment confirmations.49 An appraiser may be held liable for negligence to the buyer of a property,50 or to the seller's insurance company directly.51 Appraisers are expected to comply with decisions of the Complaints Board for Appraisers.52
vi Construction professionals
Construction law is subject to freedom of contract within the boundaries of consumer legislation and statutory public law requirements.53 It is common that standard contracts adapted to different project types require the contractor to provide liability insurance. For consumers, the contractor must guarantee fulfilment of new building contracts.54 Specialist commissions may handle disputes.55
A contractor's work must be performed in a professional manner that safeguards the principal's interests.56 Industry norms, practices, safety rules and standard contracts may serve as guidance for the liability assessment.
If an enterprise approves a project that is not in accordance with granted permissions or applicable legislation, it may be held liable to governing authorities, the principal and third parties.57
vii Accountants and auditors
Both the Auditors Act and the Accounting Act contribute to ensuring the quality of financial reporting. However, auditors and accountants perform different functions and have different roles.58
Annual auditing gives certainty for those who make decisions in reliance upon financial statements. Strict standards must be met for an auditor to earn his or her title as 'a trusted person of the public'.59 He or she must act with professional scepticism and ask critical questions.
Liability for negligence and security requirements are determined by statute.60 The liability will be particularly strict for the auditor's core tasks;61 however, not every breach of 'good auditing practice' will constitute negligence.62
As is the case for lawyers, auditors may be held liable for the state's financial loss from tax evasion or losses suffered by other third parties.63
Whereas the framework for an audit engagement is statutory, an accountant's assignment is determined by contract.64 For cases concerning an auditor's negligent advice outside of his or her statutory duties, the assignment will, however, be central for the liability assessment.65 In contrast to auditors, accountants cannot comment the accuracy of accounts or initiate reporting to third parties.66
Auditors are required to document how an audit was conducted, and the result of it, to support and enable testing of their conclusions.67 It may otherwise be difficult to substantiate that a proper audit has been conducted.
The Financial Supervisory Authority may control that audits are compliant with applicable legislation and standards.68 Negative findings may support an injured party's claim for damages.
viii Insurance professionals
An insurance broker's main task is to identify the client's risk exposures and seek optimal insurance coverage.69 Brokers are independent and not party to the insurance agreement.70 Brokering activities entail complicated risks and incorrect advice may cause damage.71 Authorisation is thus conditional upon fulfilment of applicable insurance requirements.72 If the claim concerns a contract between the parties, it is a condition for compensation that there is a breach of contract and that the broker has acted negligently.73
The complaints board for insurance and reinsurance brokerage provides advisory decisions in disputes between clients and insurance brokerage firms.76
A policyholder may expect the insurer to strictly adhere to the terms and conditions.77 The client is not necessarily required to investigate the insurance terms closely if he or she has a legitimate expectation that a new insurance policy covers the same damage as the previous policy.78
III YEAR IN REVIEW
A mother who had found her son dead while in hospital due to healthcare failure was awarded damages by the Supreme Court, which clarified that liability for mental injuries may be determined if the circumstances represent a particular strain on the parent beyond the loss of, or damage to, the child.79
Another case that has been widely debated in the legal community concerned negligent legal advice to a bank regarding a new insurance exemption clause in connection with helicopter leasing agreements. The bank's insurance claim was rejected when its client became insolvent, and its lawyers were held liable for not clearly having pointed out the insolvency exemption.80
The Court of Appeal referenced a previous case where an auditor should have clearly pointed out to the client that a particular tax strategy entailed a significant risk that the purpose of the strategy would not be achieved.81 The subject area was, according to the Supreme Court, an area where stringent requirements are imposed.
There are good reasons to differentiate between subject areas. Tax legislation, limitation rules and formal requirements are statutory and thus relatively available. The situation is less straightforward in contractual negotiations, where a myriad of clauses may be up for discussion, including clauses posing only theoretically or commercially acceptable risks. Lawyers should be able to expect that professional clients will read and acquaint themselves with the contract without having to highlight every risk that could potentially materialise in order to avoid being held liable for negligent advice. To impose such a requirement would be cumbersome, not cost-effective and inconsistent with industry practice.82
In the helicopter case, the burden of proving that clear oral advice had been provided was placed on the lawyers, contrary to the claimant's general duty to substantiate his or her claim. As the lawyers also had to substantiate that the bank would have entered into the agreements in the hypothetical set of circumstances, they ultimately bore a double burden of proof.83
Although careful conduct by the bank would have prevented the loss, the court explicitly dismissed the bank's omissions as grounds for exempting the lawyers from liability, but reduced the damages by 60 per cent. Greater emphasis by the courts on an injured party's own gross negligence when assessing liability could perhaps reduce the number of disputes regarding professional liability.84
The District Court also imposed a requirement to pay considerable compensation on a law firm and one of its partners when awarding the client almost 89 million kroner for negligent advice relating to a stock sale agreement.85 The lawyers argued that clients must ask questions and address unclear issues, and that lawyers must assume that draft agreements and documents are read and understood. The court agreed that lawyers do not have a general duty to double-check that the client has not forgotten or misunderstood an element of an agreement that was subject to negotiations at an early stage; however, in the circumstances of the case, inter alia that one of the partner's colleagues had pointed out the liability-inducing misunderstanding to him twice, the court concluded that it was negligent not to address the issue with the client.
In a recent case from the Court of Appeal, a lawyer was held liable for damages of 1 million kroner in connection with giving advice leading to a settlement. The court assumed that the advice had been clearly irresponsible. The decision is also an example of the court making discretionary assessments relating to the calculation of the loss.86
IV OUTLOOK AND FUTURE DEVELOPMENTS
The tendency is that compensation claims are used to shift financial losses onto professionals to a greater extent than before,87 and that more stringent claims of documentation are applied by the courts. Specialists will probably continue to gather in the large firms or start up smaller specialist firms.
Increased use of mediation and arbitration may lead to decreased publicity.
Ongoing legislative projects may affect professional liability in certain areas.88
1 This chapter is written by Karoline Solheim Kreyberg, a senior lawyer specialising in litigation, tort law and contract law in the Norwegian business law firm Wikborg Rein Advokatfirma AS. Ms Kreyberg is currently on leave, working as an overseas manager for Wilhelmsen Ship Management in Bangkok, Thailand.
2 Truyen, Filip, 'Aksjeanalyse og informasjonsansvar', Tidsskrift for Rettsvitenskap 2007 pp. 101–102.
3 Breach of such rules may be the basis for disciplinary action; see Section 1.1 of the Regulations of 20 December 1996 No. 1161 for advocates.
4 Conduct in accordance with industry practice was not enough to release the insurer from liability in the Supreme Court's case HR-2006-537-a, paragraph (40).
5 LB-2017-95730, see Rt. 2014-422 paragraph 31 and LB-2017-50988.
6 Rt-1995-1350, on p. 1356. See also Ivaran Rt-2003-696 paragraph 43.
8 Hagstrøm and Stenvik, 'Erstatningsrett' (2015) p. 472.
9 As an example, the reservation made by the defendant lawyers in LB-2018-27239 did not exempt them from liability.
10 The Bar Association's comments to Section 3.1.1 of the Regulations for Advocates.
11 The ordinary conditions to be awarded damages will apply regardless of the label of the basis for liability: the claimant must have suffered a financial loss that was predictable to the defendant and caused by his or her negligent actions or omissions.
12 For instance, in Rt-1995-821, a lawyer was acquitted of a compensation claim based on the argument that he should have neglected the duty of care in relation to a party that was not his client.
13 The conditions for such liability are that (1) the information must have been misleading due to negligence on the part of the person who provided the information in a professional context, (2) the injured party must have had a reasonable and justified reason to trust and adhere to the information and (3) it must have been intended for the injured party or a limited group to which he or she belonged, see Grue Savings Bank HR-2016-2344-A paragraph 40.
14 Sections 1,2 3, 9 and 10 of Act No. 18 of 18 May 1979 relating to the limitation period for claims.
15 See the Act of 17 June 2005 No. 90 relating to mediation and procedure in civil disputes (the Dispute Act). The courts of Norway have general jurisdiction and the number of specialist courts is negligible. Some cases must be heard by the conciliation board in the first instance, but the board shall, inter alia, not hear cases against public authorities or institutions, or certain cases decided by a tribunal.
16 For example, Oslo District Court assisted in a successful judicial mediation for several weeks in the spring of 2015. The case concerned an auditing client's claim for compensation in the billions against one of the 'Big Four'. The mediation thus saved both parties from months or probably years tied up in the court system, with all the procedural uncertainty and use of resources such extensive proceedings usually entail.
17 If a tribunal finds that a professional has breached applicable legislation or standards and the case is not settled, this may encourage the injured party to file a claim for damages before the courts.
18 Section 4-1 of the Act of 13 June 1969 No. 2 relating to compensation in certain circumstances (the Damages Act). There is no room for punitive damages, however, in some cases a more symbolic compensation for non-financial loss may be awarded, see Chapter 3 of the Damages Act.
19 See Section 5-1 and 5-2 of the Damages Act and NOU 2017:15 p. 185. The risk of recourse claims from the professional's insurance company is not decisive.
20 The Bar Association's Disciplinary Council deals with complaints about fees and breaches of the Code of Conduct, and its decisions can be appealed to the publicly appointed Disciplinary Board, see https://www.advokatforeningen.no/om/om-medlemskapet/english/the-norwegian-bar-association/. The Lawyer Licensing Board and the Supervisory Council for Legal Practice also exercise supervisory and disciplinary authority vis-à-vis lawyers, see Sections 225 to 227 of the Act relating to the Courts of Justice of 13 August 1915 No. 5 (Court of Justice Act).
21 NOU 2015:3 p. 311. The discretionary assessment of whether a lawyer has violated the code cannot, however, be assessed by the courts, see NOU 2015:3 p. 317.
22 The security may not be used to cover liability for which the lawyer has provided other statutory security, see Section 222 of the Courts of Justice Act, see Section 2 of the Regulations for Advocates. The collateral must be higher for lawyers who have authorised associates or who are engaged in debt collection activities or real estate brokerage, see Section 2-7 of the Act of 29 June 2007 on estate agency, see Section 2-2 of Regulation No. 1318 of 23 November 2008 on Real Estate Broking.
23 Section 3.6 of the Code of Conduct in Chapter 12 of the Regulations for Advocates.
24 It has been argued that the relationship between the plaintiff and the client must be examined, i.e., whether or not the third party has similar interests with the client, see Husabø, 'Advokatrolleforventningar - med særleg fokus på skatterådgiving', FEST-2002-nn-115, on p. 125.
27 Rt-1989-1318. It is set out in Section 3.1.4 of the Code of Conduct that a lawyer should not undertake a mission when he or she knows or should know that he or she lacks the necessary skills if he or she is unable to consult with a qualified colleague. This does not apply, however, if the lawyer within a reasonable time ensures that he acquires the knowledge or competence that is necessary for a professionally responsible execution of the assignment.
28 Wågheim, 'Advokaters erstatningsansvar' (2009), p. 158.
29 The largest claims received by insurance companies are often linked to inadequate tax advice.
30 Husabø, on p. 121.
31 NOU 2009:4 'Measures against tax evasion', section 10.11.2.2.
32 For example, LE-1996-420 and LB-2013-191777.
33 See the Oslo District Court's judgment of 2 July 2014 (TOSLO-2011-104857-4 – TOSLO-2011-191007).
34 The lawyer was acquitted by the district court and settled with the state before the appeal case, see LB-2013-191777, according to which he paid 800,000 kroner. The amount was deducted from the state's financial loss when calculating its claim against the other defendants.
35 The Norwegian System of Patient Injury Compensation.
36 NPE determines the contribution amount according to the Regulations on the scope of the Patient Injury Act (FOR-2008-10-31-1166). Complaints on NPE's decision on compensation can be filed for the Patients' Injury Compensation Board within three weeks. A claim for compensation may be brought before the courts within six months of the Board's final decision, see Section 18 of the Patient Injury Act. After this deadline, the decision has the same effect as a legally enforceable judgment. For a graphic presentation of the claim's proceedings, see https://www.npe.no/globalassets/bildearkiv/grafisk/slik-er-saksbehandlingen/slik-er-saksbehandlingen-engelsk_320.jpg. Violations of requirements protecting patients from injuries may be brought before the County Commissioner, who may try if the requirements are broken and direct criticism at healthcare personnel. The contribution obligation follows from Sections 7 and 8 of the Patient Injury Act, see Section 20 of the Health Personnel Act. Anyone who intentionally fails to comply with the notification or grant obligations to NPE is punished by fines or imprisonment for up to three months. Recourse can only be claimed against a person who has failed to pay subsidies or intentionally caused the damage. The compensation will be calculated in accordance with the Damages Act and applicable case law. Financial loss below 10,000 kroner and redress under Section 3-5 of the Damages Act is, however, not compensated by NPE; see section 4 of the Patient Injury Act.
37 Section 2 of the Patient Injury Act.
39 i.e., of a duration of at least 10 years and causing medical disability of at least 15 per cent.
40 See NRK Rt-2006-799, where redress under Section 3-6 of the Damages Act was awarded. The Supreme Court did, however, state that one should be cautious about imposing such liability on professional practitioners who make difficult decisions in pressured situations.
41 See Sections 1-3 and 13-5 of the Act of 10 April 2015 on financial institutions and financial groups and Section 10-9 of the Act of 29 June 2007 No. 75 on Securities Trading. Other relevant legislation includes the Act of 25 November 2011 on Securities Funds and the Act of 20 June 2014 on Alternative Investment Fund Management.
42 Section 29 of the Act of 13 May 1988 No. 26 on debt collection and other recovery of overdue pecuniary claims (Debt Collection Act), see Section 3-2 of the Regulation No. 562 of 14 July 1989 on Debt Collectors.
43 Ideal Rt-2000-679.
44 Fearnely Rt. 2003-400 paragraph 39 and Rt-2003-1524 paragraph 28.
45 Røeggen Rt-2013-388 paragraph 125, with reference to Fokus Bank Rt-2012-1926.
46 https://www.finkn.no/English. When a complaint is being dealt with by the Board, neither party may bring the case before the courts, save from legal enforcements or interim court orders to secure a claim. An institution that does not intend to comply with the advisory decision must submit a report specifying the reasons for refusal.
47 There are some provisions on liability in special legislation, see the Act of 15 June 2018 No. 44 on Electronic Trust Services and the Act of 12 December 2018 No. 116 relating to the processing of personal data respectively. The Norwegian Communications Authority has supervisory authority for electronic trust services, see https://www.nkom.no/aktuelt/nyheter/ny-lov-om-tillitstjenester-. The Norwegian Data Protection Authority supervises compliance with data protection legislation; see Section 22 of the Personal Data Act. The Authority's decisions may be appealed to the Privacy Appeals Board.
48 Pursuant to clause 15-2 of the Norwegian Government's Standard Terms and Conditions for IT Procurement, the contractor shall hold insurance policies that are sufficient to meet the claims from the customer as may arise on the basis of the risks and responsibilities assumed by the contractor pursuant to the agreement. See https://www.anskaffelser.no/verktoy/contracts-and-agreements/utviklings-og-
49 The new ethical rules took effect from 1 January 2019 and are harmonized with current European standards, including the European Valuation Standards (2016), see https://www.norsktakst.no/norsk/om-norsk-takst/regelverk/etiske-retningslinjer-og-regler-for-god-takseringsskikk/, which address ethical issues associated with the appraiser's business and apply as collective regulations for all who certify themselves in the Norwegian Taxation Association, see, inter alia, Sections 2.8 and 6.1.
50 See Section 126.96.36.199 of Prop.44 L (2018–2019).
51 Rt-2008-1078. The liability may also be divided between the seller and the appraiser's insurance companies, see Rt-2015-556.
52 The Complaints Board for Appraisers deals with consumer complaints against association members in connection with appraisal assignments relating to housing and holiday homes. See www.takstklagenemnd.no/.
53 See the Act of 14 June 1985 No. 77 on Planning and Building and the Act of 27 June 2008 No. 71 relating to Planning and the Processing of Building Applications (the planning Part).
54 Section 12 of the Act of 13 June 1997 No. 43 on contracts with consumers regarding the construction of a new building site.
55 The Housing Dispute Committee has been established by agreement between the Housing Producers' Association and the Consumer Council in accordance with Section 64, Paragraph 3, of the Building Act. For the Consumer Disputes Commission, see Section 1, Paragraph 1 b) of the Act of 17 February 2017 No. 7 relating to consumer complaints. See also https://www.forbrukerklageutvalget.no/information-in-english/. The Consumer Disputes Commission's decisions become binding and enforceable one month from the time the decision is served, unless one or both parties file a suit to the District Court within the deadline, see Section 12, see Section 7 of the Consumer Complaints Act, see Section 6-2, Paragraph 1 e) of the Dispute Act.
56 Section 7 of the Act of 13 June 1997 No. 43 on contracts with consumers regarding the construction of a new building site and Section 5 of the Act of 16 June 1989 No. 63 on craftsmen services, etc., for consumers.
57 See Bori Rt-2015-276 (dissenting judgment: 3-2), Bori 2 HR-2017-1834-A, LB-2017-184360, and LF-2018-91155.
58 NOU 2017:15 p. 17.
59 See the role description of auditors in Section 1-2 of the Auditing Act (No. 2 of 15 January 1999).
60 Liability for negligence is set out in Section 8-1 of the Auditors Act. An audit firm shall be jointly and severally liable with an auditor who has performed an assignment on its behalf. Chapter 3 of the Regulations No. 712 of 25 June 1999 on auditing and auditors; see Section 3-7 No. 4 of the Auditors Act, set out security requirements.
61 For example, correct processing of questions about the calculation of value added tax lies within the auditor's primary responsibility, see HR-2008-1154-A paragraph 39. See also Grue Savings Bank HR-2016-2344-a paragraph 58.
62 Ivaran Rt-2003-696 paragraph 47; see Section 5-2 of the Auditors Act.
63 NOU 2009:4 'Measures against tax evasion', section 10.11.2.2 and LB-2013-191777. Arguments against alleviation may be that the actions/omissions have a great ability to create damage and have damaged public interests, that preventive considerations strongly oppose alleviation and that auditors have insurance opportunities, security and capital reserves. For liability towards other third parties, see Grue Savings Bank HR-2016-2344-a.
64 The preparation of annual accounts shall be carried out in accordance with generally accepted accounting principles, see Section 4-6 of the Act of 17 July 1998 No. 56 relating to Annual Accounts.
65 NOU 2017:15 Appendix 1 Section 2.
66 NOU 2017:15 p. 31.
67 Section 5-3 of the Auditors Act.
68 Section 1 of the Act of 7 December 1956 No. 1 on the Supervision of Financial Institutions etc. (Financial Supervision Act). The Authority conducts audits on the basis of its own risk assessments, reports and other signals such as media reports.
70 The Act of 10th June 2005 No. 41 on Insurance Mediation (the Insurance Mediation Act) applies to the mediation of direct insurance and reinsurance, including insurance brokers, see Section 1-1 and 1-2.
71 In case LB-2008-87925, the Court of Appeal found that the conditions for compensation were fulfilled, since the broker had not done enough to investigate the market conditions before giving advice. An example of the insurance broker being acquitted of liability is the Court of Appeal's case LB-2005-150175. The appeal was denied to the Supreme Court, see HR-2007-1282-U. In Dombås Hotel Rt-2011-1198, the Supreme Court held that the insurance broker, who had given incorrect information to the insurance company about the area measurements of a hotel that had burned down, had held a dual role because he not only represented the hotel, but also performed an extensive amount of work for the insurance company. He could therefore not be said to have acted only on behalf of the hotel and there was no basis for identification between the broker and the hotel.
72 See Section 2-2 No. 3, 4-1 and 4-2 of the Insurance Mediation Act; see Section 2-1 of the Regulations No. 1421 on Insurance Mediation (2005-12-09 No. 1421).
74 Section 5-2 of the Insurance Mediation Act. In addition, the ethical guidelines apply to members of the Norwegian Insurance Brokers Association.
75 Sections 5-4 and 5-5 of the Insurance Mediation Act; see Section 3-1 of the Insurance Mediation Regulations. In LB-2005-77427 the Court of Appeal found that the negligent act had been committed within what must be regarded as the core of the brokerage business; to convey an acceptance or a refusal from an insurance company to an insured person. The appeal was denied to the Supreme Court, see HR-2006-2125-U.
gjenforsikringsmeglingsvirksomhet/. As long as a dispute is considered by the board, it cannot be brought before the courts; see Section 5-2 of Regulations No. 1421 on Insurance Mediation and Section 9-1 of the Insurance Mediation Act.
77 The Supreme Court's case HR-2006-537-a concerned compensation for loss as a result of delayed transfer of an individual pension agreement to another pension facility, which should have been transferred when this was practically possible. A misunderstanding does not exempt the insurer from liability for loss resulting from misconduct regarding contractual obligation towards the customer. The insurer had to replace losses arising from the savings amount being remained in equity funds in a market with falling prices.
78 FinKN-2018-698; see FinKN-2012-646.
79 HR-2018-2080-A. See https://lovdata.no/pro/#document/HRENG/avgjorelse/hr-2018-2080-a-eng.
80 LB-2018-27239. The case has been appealed to the Supreme Court.
81 KPMG Rt-2002-286.
82 The rationale of damages is to place the loss where it reasonably belongs. This should not be reduced to a question of documentation where an injured party is considerably to blame for the damage. Contrary to auditors, lawyers do not have a set of statutory acts that should be performed. It is difficult to know beforehand what a court in hindsight will consider important information that should have been documented. Fear of claims can lead to unnecessary work for the lawyer and a higher bill for the client. Not everyone will appreciate extensive emails, which also have the potential of drowning in the client's inbox. Although this documentation may come in handy in the event of a later claim for damage, lawyers should be able to adapt their work on a case-by-case basis, without running an unacceptable risk of becoming liable when the client later claims he or she never heard about a risk-posing clause, although spelled out in the contract.
83 In LB-2005-150175, the Court of Appeal's opinion was that there was no reason for the insurance broker to document in writing what was considered and not recommended or what was recommended beyond what the policyholder chose for insurance coverage. The Court of Appeal thus took a more pragmatic stand to the question of documentation of advice.
84 The injured party's deeds may not only be relevant to reduce damages, but also to eliminate the basis of liability, see Nygaard, 'Skade og ansvar' (2007) p. 303. The case referred to in RG-1988-468 may serve as an example. The Supreme Court briefly addressed the question in Grue Savings Bank HR-2016-2344-A paragraph 64 and stated that the role expectations to the professional will be relevant.
85 LB-2018-28987. The case has been appealed to the Supreme Court.
86 LB-2018-28987. The deadline to appeal expired on 6 June 2019.
87 See for example https://www.advokatforeningen.no/radgivning/klientforholdet/profesjonsansvar/ and LF-2018-91155, where the Court of Appeal found that the neglect of the architectural firm was grossly negligent. There was a causal connection between the negligence and the loss, and the claim for compensation could be pursued by the home buyers as third parties in accordance with the Supreme Court's directions in Bori Rt-2015-276. See also LF-2016-114800.
88 e.g., the new acts for advocates and auditors, see respectively NOU 2015:3 and NOU 2017:15, including section 8.1 of Attachment 1.