The Professional Negligence Law Review: Denmark

Introduction

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 harm 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 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.

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. These 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.

i Lawyers

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 Financial Business Act23 regulates all financial businesses such as banks (both retail and investment), insurance companies, mortgage providers and investment services companies.24

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 information technology (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 AB 18, a set for building and construction works and supplies,37 and ABT 18, a set for design and build contracts.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 accountants 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

Year in review

Three cases in the past year provide highlights. The first is a medical case and demonstrates the scope of the Liability for Damages Act. The second concerns the construction sector and highlights the standard principle that once a plaintiff has satisfied its burden of proof, it is generally for the defendant to prove any defences in order not to be held liable. The third concerns lawyers' professional liability and illustrates how limitation periods can be suspended and is a reminder to be aware of when suspended limitation periods may restart under Danish law.

i Healthcare

The plaintiff had brought a claim51 to the Danish Patient Compensation Association, which subsequently awarded the plaintiff compensation of just under 160,000 kroner for medical expenses and other loss. The plaintiff appealed the award of this compensation to the Danish Agency for Patient Complaints and the agency decided to raise the plaintiff's compensation to just under 340,000 kroner. However, the plaintiff claimed further expenses in court at a total of 1.4 million kroner.

The plaintiff's claim in court was mainly based on three expenses: (1) those relating to a stay at a medical institution in Norway, (2) those relating to a welfare contact and a physical assistant, and (3) those saved when a cohabitant cared for the plaintiff at home.

Pursuant to Section 1 of the Liability for Damages Act,52 a person can be indemnified for loss of earnings, medical expenses and 'other loss' resulting from personal injury. The Supreme Court – in accordance with the Eastern High Court and the district court – found no basis for setting aside the decision made by the agency and confirmed that 'other loss', whether for medical expenses or otherwise, must safeguard or improve the patient's functional ability. The Supreme Court found that the plaintiff's stay at the institution could not be compensated above the amount awarded by the agency because it had not been established that the plaintiff had incurred expenses above this amount that were covered by the act. Furthermore, the Supreme Court agreed with the High Court's reasoning that the plaintiff's expenses relating to the welfare contact and physical assistant were not included in the expenses covered by the Liability for Damages Act. Lastly, the Supreme Court found that the plaintiff had suffered no financial loss in connection with the cohabitant caring for the plaintiff, and so there was no basis for compensation under the act.

The case highlights two points in particular. First, it highlights that complaints boards are widely used in Denmark before use of the courts, including in cases concerning patient injuries regarding medical practitioners' liability. Second, the case highlights the scope of the Liability for Damages Act, including the general requirement of having to suffer a financial loss.

ii Construction

A machine became stuck during a contractor's work on drain pipes. This caused a blockage of waste water and it was necessary, after opening the pipeline to loosen the machine, to remedy the pipeline to avert the risk of damage to nearby school buildings.

The contractor brought an action against its insurer for the costs of the remedial works at just under half a million kroner. The insurer refused recovery of these costs, stating that they were not covered by the insurance policy.

The Supreme Court53 referred to the conditions of the insurance policy and stated that for the contractor to be covered by the policy, the contractor must be liable for damage caused by the machine becoming stuck in the pipeline.

The Supreme Court found that the contractor had provided two counts of negligence that could be the basis for liability and it was for the insurer, if it were to support its case, to prove or render plausible that the damage did not occur owing to the fault or negligence of the contractor. The Court found that the insurer had not so supported its case. The Court also found that there was property damage, which was a requirement of the insurance policy, and so the insurer was to cover the costs of the remedial works.

The case illustrates the standard principle that once a plaintiff has satisfied its burden of proof, it is generally for the defendant to prove any defences in order not to be held liable.

iii Law

The case54 concerned a law firm and its previous client, which the firm represented in an insurance case regarding a traffic injury that the client suffered in 2009. A question in the case was whether the limitation periods for the claims of loss of work ability and loss of earnings expired before the law firm ceased to work for the client in 2016.

Pursuant to the Limitation Act,55 the limitation period is three years and runs from the breach of contract or the harm.56 A limitation period can generally be suspended by various actions, such as the parties' initiating negotiations regarding the claim or the victim of an injury reporting the claim to his or her insurer, and the limitation period restarts one year after the completion of the negotiations or the insurer's full or partial rejection of the claim respectively in the given examples.57 The Supreme Court found that the limitation periods had expired before the law firm ceased work for the client and that the law firm should pay its former client just under 3 million kroner plus interest and costs. The Supreme Court found that the temporary suspension of the limitation periods for the claims ceased on 11 November 2013, when the insurer sent a letter that maintained its rejection of the claims.

The case illustrates the ability to suspend limitation periods under Danish law through such actions as initiating negotiations or reporting a claim to an insurer, and it is also a reminder to be aware of when such suspended limitation periods may restart.

Outlook and future developments

As regards the medical sector, by 17 February 2021 the Danish Patient Compensation Association had received 268 claims for compensation related to covid-19. The vast majority of cases have yet to be concluded, but in at least one case compensation has been awarded, although not yet quantified. The case was of an older woman living in a nursing home who was infected with the coronavirus in the spring of 2020 and subsequently died from covid-19. Although there was no indication that the nursing home disregarded the guidelines in force at the time, the woman's surviving next of kin is to receive compensation.

As regards the legal sector, the case concerning over 1 billion kroner brought by the Danish Tax Agency against a Danish law firm in April 2020 for its alleged role in fraud against the Danish Treasury began court proceedings in May 2021. The judgment is highly anticipated and may provide guidance for lawyers' standard of good practice.

Footnotes

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 attorneys Jutta Thomsen and Phillip Ballieu Martens in producing this chapter.

2 For example, regarding lawyers, see Section 126 of the Administration of Justice Act, Consolidated Act No. 1445 of 29 September 2020.

3 See Andreas Bloch Ehlers, Grundlæggende erstatningsret (Copenhagen: Karnov, 2019), p. 91.

4 See Bo Von Eyben and Helle Isager, Lærebog i Erstatningsret, 9th ed. (Copenhagen: Jurist-og Økonomforbundets Forlag, 2019), p. 136f.

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.

11 Consolidated Act No. 1445 of 29 September 2020.

12 For example, regarding accountants, see Amalie Kjær Hassager, Jakob Lentz and Lars Kiertzner, Revisoransvar, 9th ed. (Copenhagen: Karnov, 2021), pp. 631–632.

13 See Mads Bryde Andersen, Grundlæggende Aftaleret, 4th ed. (Copenhagen: Gjellerup Forlag, 2013), p. 100f.

14 See Vibe Ulfbeck, Erstatningsretlige Grænseområder, 3rd ed. (Copenhagen: Jurist- og Økonomforbundets Forlag, 2021), p. 129.

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 Consolidated Act No. 1447 of 11 September 2020.

24 See Sections 1 and 5 of the Financial Business Act.

25 For example, see Ministerial Order No. 752 of 23 April 2021 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, Consolidated Act No. 1650 of 17 November 2020.

29 Consolidated Act No. 510 of 24 February 2021, 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. 1587 of 10 November 2020.

34 Consolidated Act No. 1123 of 22 September 2015.

35 See Section 4(1)(5) of Ministerial Order No. 1587 of 10 November 2020.

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 Clause 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. 25 of 8 January 2021.

45 See Ministerial Order No. 952 of 24 June 2020, pursuant to Section 47 of the Act on Approved Auditors and Audit Firms.

46 See Sections 3(1)(7) 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 The Supreme Court, 22 April 2020, Case 105/2019, U.2020.2448 H.

52 Consolidated Act No. 1070 of 24 August 2018.

53 The Supreme Court, 20 January 2021, Case BS-13662/2020-HJR, U.2021.1811 H.

54 The Supreme Court, 21 September 2020, Case BS-28620/2019-HJR, U.2020.4147 H.

55 Consolidated Act No. 1238 of 9 November 2015.

56 See Sections 3(1), 2(3) and 2(4) of the Limitation Act.

57 See Section 21(5) of the Limitation Act and Section 29(5) of the Insurance Contracts Act, Consolidated Act No. 1237 of 9 November 2015.

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