i Legal framework
In Danish law, a claim for professional negligence can be brought under a contractual or non-contractual relationship.
Contractual claims usually arise when the professional is required to perform a task under a contract and has failed to do so.
Non-contractual claims usually arise from an act or omission contrary to a profession's standard of good practice. Such a standard can have various sources, such as statute,2 Ministerial Orders and rules of professional bodies.
The general comparator used is that of the reasonably competent professional. However, the comparator when providing specialist advice is usually that of the reasonably competent specialist.
The burden of proof generally lies with the plaintiff. However, under certain circumstances, the defendant will be presumed to be negligent and the burden of proof will thus shift to the defendant. The burden shifts to the defendant on a case-by-case basis, and will often be based on considerations such as which of the parties is in the best position to secure evidence, whether the defendant complied with a rule or regulation, or whether the defendant's act was exceptionally hazardous or dangerous.3
As regards the standard of proof, there is no general rule and it is usually for the court to set the standard.4 The court often appoints an expert to assist in determining whether that standard is fulfilled.
Common defences against professional negligence claims, whether contractual or not, include lack of proof, estoppel and failure to bring a claim in time.
Exclusion of liability is possible only in contract. Such contractual exclusion must be reasonable and is invalidated by gross negligence or intention to cause damage.
ii Limitation and prescription
The Limitation Act5 is the principal act for limitation periods, including claims pertaining to professional negligence. In general, the limitation period is three years,6 from breach of contract for contractual claims,7 or from when the negligent act occurred for non-contractual claims.8 If the plaintiff is factually unaware of the claim, the limitation period normally commences from when the plaintiff becomes or should have become factually aware,9 but the period can only be extended in this way up to a maximum of 10 years (30 years for personal injury claims and environmental damage).10
iii Dispute fora and resolution
Depending on the profession, there are disciplinary boards, which assess whether a professional has or has not acted in accordance with the rules of his or her profession, and there are complaints boards, which assess a professional's service, mainly in cases brought by consumers. Not every profession has a disciplinary board or a complaints board, and certain professions have a combined board.
Where the boards exist, they are often the first step when resolving a professional negligence dispute, and they each have their own rules of procedure.
If a claim of professional negligence is not assessed at a disciplinary or complaints board, or a party is not satisfied with the assessment made by the relevant board, a party can generally bring the claim before the Danish courts according to the standard court rules of procedure. This entails that the Administration of Justice Act applies,11 and the claim normally begins at the competent district court. The court is not bound by a board's decision.12
Arbitration is often used to resolve construction disputes, but arbitration and mediation are not common dispute fora for professional negligence otherwise.
iv Remedies and loss
The remedies generally available to the parties depend on whether a claim is brought in contract or not.
For a contractual claim for professional negligence, a plaintiff generally has two options. The first is to be placed in the position as if the contract had been completed, and the second is for the plaintiff to be placed in a position as if the contract had never been entered into, both through an award of damages.13 If there has been a contractual material breach, termination is also possible.
For a non-contractual claim, the general remedy is to place the harmed party in the position as if the harm had not occurred. Remedies include damages and injunctions.
For all damages for professional negligence, causation and remoteness principles apply, there is a duty to mitigate loss,14 and one cannot be unduly enriched from a negligent act.
ii SPECIFIC PROFESSIONS
Each profession is often distinct and complex in how it approaches professional negligence. For reference purposes, the sector descriptions below highlight specific details. Such details include applicable legislation, professional bodies that represent their members and often lobby on their behalf, standards of good practice that often must be breached to obtain a successful claim, disciplinary and complaints boards, and the required insurance.
The Administration of Justice Act sets out the conduct required of a lawyer admitted to the Danish Bar, which includes performing a task thoroughly, in good conscience and with the appropriate client care.15 The Danish Bar and Law Society is the body that expands upon this standard of good practice to include rules on client privilege, conflicts of interest, fees, confidentiality, etc. The professional body for lawyers is the Association of Danish Law Firms that works for the interests of law firms, their owners and employees.
The Danish Bar and Law Society has a combined board, which handles complaints regarding lawyers' conduct and billing. A decision of the board regarding conduct may only be contested by the lawyer in the courts.
Lawyers are required to have liability insurance of a minimum 2.5 million kroner, including for a period of five years after giving up practice.16
ii Medical practitioners
The Act on Complaints and Claims in Healthcare17 covers negligence within the medical profession. Section 19 of the Act states that it generally covers every treatment of a healthcare professional who is a part of the Danish healthcare system. There are various professional bodies in the medical sector that work for the interests of their members, an example for doctors is the Danish Medical Association.
The Act sets out the way in which medical professional negligence differs from other professions. For example, there is a statutory standard of proof for a successful claim for damages, namely more than 50 per cent probability;18 and the Act states that even if the professional is a generalist, the relevant comparator is an experienced specialist.19
There are three boards in the Danish healthcare system: one disciplinary; and two complaints, of which the first is for compensation and the second is for compensation appeals. It is these boards, along with two advisory boards,20 that contribute to the understanding of what is the standard of good practice for medical professionals.
Private medical practices, hospitals and clinics must have liability insurance of a minimum of 20 million kroner per year,21 but public practices (run by the state, municipalities, etc.) are not obliged to have such insurance.22
iii Banking and finance professionals
The relevant standard of good practice is derived from Chapter 6 of the Act, which sets out the requirement for financial businesses to act in accordance with good business practices. As regards specific activities, the standard is at times further developed by Ministerial Orders.25
There are various bodies that further the interests of banking and finance professionals; two examples are the Danish Insurance and Pension Association, and the Finance Society (the latter for banks' employees). There are also different complaints boards for different financial activities (e.g., mortgages and investment funds).
One example of liability insurance within this sector concerns investment advisers, who must be covered at a minimum of 7.5 million kroner per negligent act and at a minimum of 11.2 million kroner for the combined number of negligent acts, per year.26
iv Computer and information technology professionals
There is not one act, standard of good practice or mandatory insurance scheme that applies to the whole sector of computer and IT professionals; disparate pieces of legislation apply. Legislation to bear in mind when looking for a standard of good practice, and if related to the case, includes the Act on Electronic Communications and Services,27 which sets out rights and obligations regarding internet access and the electronic provision of information or content. For considerations of data fraud, the Criminal Code contains relevant sections.28
There are certain bodies such as the Danish ICT Industry Association and the Telecom Industry Association that comment on legislation and play a lobbying role for their members, in a similar manner to the above-mentioned Danish Insurance and Pension Association, and the Association of Danish Law Firms.
There are no disciplinary or complaints boards specifically only for computer and IT professionals, and so disputes would proceed directly to the courts, unless otherwise agreed by the parties. If the case concerns data protection breaches, they can be forwarded to the Danish Data Protection Agency.
v Real property surveyors
Real property surveyors are not known as a specific profession in Denmark. Various professions cater for real property in Denmark and this section focuses on real estate agents and building experts, as these serve functions most comparable to those of real property surveyors.
The tasks of real estate agents include appraising, negotiating sales and purchases, contacting mortgage providers and drafting sale contracts. A principal task of a building expert is to draft the structural survey in connection with a property's sale.
The Danish Association of Chartered Estate Agents represents real estate agents and the Act on Sale of Real Property regulates these agents as regards consumer cases.29 Section 24 of the Act sets out the standard of good practice, and Chapter 5 provides specific rules for areas that could give rise to professional negligence claims (e.g., Section 27 sets out rules for the appraisal of property and Section 35 sets out rules for conflicts of interest). Real estate agents have both a disciplinary board and a complaints board.30
Ministerial Order No. 1537 of 9 December 2015 provides the basis for the requirement that real estate agents must have liability insurance, of a minimum amount of 3 million kroner per year.31 The minimum amount is 30 million kroner per year if real estate agents have 10 or more employees.32
As regards building experts, the relevant legislation is the Act on Licensed Building Experts with its related Ministerial Order.33 Section 11 of the Ministerial Order sets out in specific terms how building experts should conduct their work, which provides a basis when considering the standard of good practice. The Association for Building Experts and Energy Consultants is an applicable professional body.
The building experts' combined board assesses cases regarding whether building experts have or have not fulfilled their obligations pursuant to the Act on Licensed Building Experts and to the Act on Consumer Protection when Buying Real Estate.34 The board can criticise, caution and fine building experts up to 100,000 kroner, as well as assess contested structural surveys.
Building experts' liability insurance for structural surveys is required to be that ordinarily attainable in the insurance market, for a period of five years after the sales connected with the building expert's survey.35
vi Construction professionals
There is no general legislation under Danish law that governs the relationships between the parties in a construction project.36 Instead, a government committee comprising both governmental and non-governmental members has developed sets of default general contractual conditions. The most common standards include a set for building and construction works and supplies (AB 18),37 and a set for design and build contracts (ABT 18).38
Clause 12 of both AB 18 and ABT 18 sets out a standard of good practice that is the default if nothing specific is set out in the contractual terms or otherwise agreed by the parties. The standard is that work must be executed in accordance with the contract, good professional practices and the client's instructions. The assessment of good professional practice depends on each construction profession's requirements regarding applicable legislation, rules, guidelines, customs, etc.
Pursuant to Clause 11(1) of both AB 18 and ABT 18, insurance must be bought by the client for fire and storm damage, and the contractor must have the usual liability insurance.39 However, further insurance can be made part of the agreement.40
Clause 69 of AB 18 and Clause 67 of ABT 18 provide for arbitration at the Danish Building and Construction Board as the default dispute resolution mechanism, which parties often leave unchanged when adapting the conditions.
Outside the general contractual conditions, three complaints boards are relevant. One deals with electricians and plumbers for claims up to 150,000 kroner, and two others deal with construction professionals such as painters, masons and carpenters, for claims up to 1 million kroner.41
The Danish Construction Association is the employers' organisation and its members comprise: major building contractors, small and medium-sized construction companies and manufacturers of building components.
vii Accountants and auditors42
The standard of good practice is influenced by applicable legislation, such as Section 361(2) of the Companies Act43 as regards accountants within limited liability companies and Section 16 of the Act on Approved Auditors and Audit Firms,44 which requires skills of accuracy and swiftness, as adapted to the particular task. The standard is partly defined by the code of conduct of the regulatory and professional body of the Institute of State Authorised Public Accountants. The Institute has an expert committee, to which parties can pose questions, and a court can take the committee's answers into account when deciding the standard.
The disciplinary board for accountants is the Accounting Practices Board,45 to which claims can be brought regarding an accountant's statements and his or her related advice.
Accountants are obliged to hold insurance when acting within the scope of the Act on Approved Auditors and Audit Firms. Accountant companies with fewer than 10 qualified accountants must have a minimum cover of 2 million kroner, and companies with 10 or more must have a minimum cover of 20 million kroner, per year.46
viii Insurance professionals
Insurance companies are included in the Financial Business Act.47 The Act on Insurance Brokerage applies to independent insurance brokers.48 These brokers have a separate standard of good practice49 and a separate professional body, the Danish Association for Insurance Brokerage. The complaints board for independent insurance brokers is the Insurance Complaints Board.
According to Section 3(2) of the Act on Insurance Brokerage, an insurance broker shall hold professional indemnity insurance covering potential financial claims resulting from the business. The minimum cover is 9,717,934 kroner per negligent act and at least 14,382,525 kroner for the combined number of negligent acts, per year.50
iii YEAR IN REVIEW
Two cases in the last 12 months provide particular guidance. The first is a medical case and demonstrates that the standard of proof can be lowered in certain circumstances. The second concerns the real estate sector and highlights the requirement of suffering a loss in order to be indemnified.
The plaintiff was the estate of a deceased patient and the defendant was the Patient Complaints Board. The patient was diagnosed with lung cancer in 2012 but the plaintiff claimed that the patient should have been diagnosed in 2008 when the patient failed to be referred for further examination. Claimed damages came to just under 700,000 kroner.
The Supreme Court found that there clearly had been an error, which had led to a lack of further examination. The court then considered whether this error had caused the cancer diagnosis to be delayed and if so, whether the delay meant that the cancer became incurable or otherwise gave rise to compensation.
More than 50 per cent probability is the standard of proof in the relevant statute for the medical profession.52 Based on the opinion of the Medical-Legal Council, the court found that there was some but not more than 50 per cent probability that the patient had cancer in 2008 and that this would have been identified if there had been further examination in 2008. Owing to the doubt regarding causation, the court held that the standard of proof could be lowered to the plaintiff's advantage. The court accordingly found that it was sufficiently probable that the error delayed the cancer diagnosis and referred the question of compensation to the relevant patient authorities because there was insufficient information to decide this last issue.53
The case illustrates three points. Firstly, expert bodies such as the Medical-Legal Council are often consulted by the courts to assist in determining whether the standard of proof has been met. Secondly, the standard of proof for the medical profession is, unusually, provided in legislation.54 Thirdly, the court has discretion to deviate from even legislative standards of proof if it is clear that an actionable error has occurred that could have caused harm and there is doubt regarding the causation.
ii Real estate55
The plaintiff bought a property from the first defendant (a couple) in March 2016 for 2.3 million kroner. The price of the property was based on a 28 million kroner assessment of the cooperative housing association of which the property was a part. The second defendant had incorrectly overvalued the association by approximately 7 million kroner and so the property's 2016 purchase price was too high.
The Housing Cooperation Association Act states that a buyer, in certain circumstances, may receive a refund for the amount they overpaid owing to an incorrect property assessment.56 The first instance court found that there had been an overpayment and that the first defendant was to refund the plaintiff. The second instance court agreed that there had been an overpayment but disagreed on ultimate responsibility, finding that the second defendant was to indemnify the first defendant for the refund.
The question for the Supreme Court was who was ultimately responsible. The first defendant argued that the second defendant was responsible because the second defendant's erroneous assessment had caused the first defendant a loss obliging it to pay the refund. The court disagreed and found that the first defendant had not suffered a loss because the purchase price was unlawful. Accordingly, the first defendant could not recover the amount from the second defendant and the first defendant was responsible for paying the refund, despite the second defendant's negligent act.
The case illustrates two points. Firstly, specific statutory provisions can apply to specific negligent acts, such as incorrectly assessing a housing association's value. Secondly, it highlights the general principle that one must suffer a loss in order to be indemnified.
IV OUTLOOK AND FUTURE DEVELOPMENTS
In April 2020, the Danish Tax Agency brought a claim of over 1 billion kroner against a Danish law firm for its alleged role in fraud against the Danish Treasury, the judgment of which may provide guidance for lawyers' standard of good practice. We will also see what impact covid-19 may have on professional negligence claims, such as in the medical or financial sectors.
1 Jacob Skude Rasmussen is a partner and Andrew Poole is a dispute resolution consultant at Gorrissen Federspiel. The authors acknowledge the valuable assistance of assistant attorney Louise Parker in producing this chapter.
2 For example, regarding lawyers, see Section 126 of the Administration of Justice Act, No. 938 of 10 September 2019.
3 See Andreas Bloch Ehlers, Grundlæggende erstatningsret (Copenhagen: Karnov, 2019), p. 91.
4 See Bo Von Eyben and Helle Isager, Lærebog i Erstatningsret, 8th ed. (Copenhagen: Jurist-og Økonomforbundets Forlag, 2015), p. 129f.
5 Consolidated Act No. 1238 of 9 November 2015.
6 See Section 3(1) of the Limitation Act.
7 See Section 2(3) of the Limitation Act.
8 See Section 2(4) of the Limitation Act.
9 See Section 3(2) of the Limitation Act.
10 See Section 3(3)(1)–(4) of the Limitation Act. The limitation period for damages caused by pollution of the environment will run from the time the environment is polluted.
11 Consolidated Act No. 938 of 10 September 2019.
12 For example, regarding accountants, see Lars Bo Langsted, Paul Krüger Andersen and Lars Kiertzner, Revisoransvar, 8th ed. (Copenhagen: Karnov, 2013), p. 500.
13 See Mads Bryde Andersen, Grundlæggende Aftaleret, 4th ed. (Copenhagen: Gjellerup Forlag, 2013), p. 100f.
14 See Vibe Ulfbeck, Erstatningsretlige Grænseområder, 2nd ed. (Copenhagen: Jurist- og Økonomforbundets Forlag, 2010), p. 113.
15 See Section 126 of the Administration of Justice Act.
16 See Section 61 of the articles of association of The Danish Bar and Law Society, which implements Section 127 of the Administration of Justice Act, and is approved by Ministerial Order No. 150 of 24 February 2020.
17 Consolidated Act No. 995 of 14 June 2018.
18 See Section 20(1) of the Act on Complaints and Claims in Healthcare.
19 See Section 20(1)(1) of the Act on Complaints and Claims in Healthcare.
20 One for the disciplinary board and one for the complaints boards, see Sections 12 and 12a of the Act on Complaints and Claims in Healthcare respectively.
21 Subject to further qualifying factors, see Section 8 of Ministerial Order No. 488 of 3 May 2018.
22 See Sections 30 and 31 of the Act on Complaints and Claims in Healthcare, and Kristina Sprove Askjær, Peter Jakobsen and Niels Hjortnæs, Erstatning inden for sundhedsvæsnet, 2nd ed. (Copenhagen: Karnov, 2017), p. 383.
23 Act No. 937 of 6 September 2019.
24 See Sections 1 and 5 of the Financial Business Act.
25 For example, see Ministerial Order No. 1581 of 17 December 2018 on good business practice in real estate credit lending.
26 See Section 3(2) of Ministerial Order No. 653 of 30 May 2018.
27 Consolidated Act No. 128 of 7 February 2014.
28 For example, see Section 279a of the Criminal Code, Act No. 976 of 17 September 2019.
29 Consolidated Act No. 526 of 28 May 2014, see Sections 1 and 2.
30 See Chapter 7 of the Act on Sale of Real Property for reference to the disciplinary board. The complaints board is a private one, approved by the Ministry of Business and Industry.
31 See Section 4(1) of Ministerial Order No. 1537 of 9 December 2015.
32 See Section 6(2) of Ministerial Order No. 1537 of 9 December 2015.
33 Act No. 1532 of 21 December 2010 and Ministerial Order No. 1426 of 30 November 2016.
34 Consolidated Act No. 1123 of 22 September 2015.
35 See Section 4(1)(5) of Ministerial Order No. 1426 of 30 November 2016.
36 See Torsten Iversen, Entrepriseretten (Copenhagen: Jurist- og Økonomforbundets Forlag, 2016), p. 50.
37 AB 18 is intended to replace the earlier AB 92, which may still be agreed between parties.
38 ABT 18 is intended to replace the earlier ABT 93, which may still be agreed between parties. For reference, ABR 18 also replaced the earlier ABR 89, which concerns consultancy services for building and construction works.
39 See Section 11(3) of both AB 18 and ABT 18. 'Usual' suggests the market standard.
40 See Torsten Iversen, Entrepriseretten (Copenhagen: Jurist- og Økonomforbundets Forlag, 2016), p. 278.
41 See the respective articles of association of the boards, namely Ankenævnet for Tekniske Installationer, Byggeriets Ankenævn and Håndværkets Ankenævn, including as regards any minimum value of claims accepted.
42 For the purposes of this section, auditors fall under the description for accountants.
43 Consolidated Act No. 763 of 23 July 2019.
44 Consolidated Act No. 1287 of 20 November 2018.
45 See Ministerial Order No. 727 of 15 June 2016, pursuant to Section 47 of the Act on Approved Auditors and Audit Firms.
46 See Sections 3(1)(6) and 3(4) of the Act on Approved Auditors and Audit Firms and Section 8(2)–(3) of Ministerial Order No. 1536 of 9 December 2015.
47 See Section II.iii of this chapter.
48 Consolidated Act No. 378 of 2 April 2020.
49 See Ministerial Order No. 1143 of 15 November 2019.
50 The insurance rules are set out separately and in more detail at Section 3(1) of Ministerial Order No. 696 of 26 May 2020.
51 Supreme Court, 27 August 2019, Case 204/18, U.2019.3916 H.
52 See Section 20(1) of the Act on Complaints and Claims in Healthcare.
53 This case of five judges included one dissenting, who found that no easement of the standard of proof was necessary.
54 The more than 50 per cent probability is also generally lower than that required in other professions.
55 Supreme Court, 7 February 2020, Case 75/2019, U.2020.1529 H.
56 See Sections 5 and 16 of Consolidated Act No. 1231 of 11 October 2018.