The Danish Liability for Damages Act

The Danish Liability for Damages Act The Liability for Damages Act is hereby hereb y promulgated, cf. Consolidation Act No. 885 of 20 September 2005, 20 05, as amended by Act No. 1545 of 20 December 2006 and Act No. 523 of 6 June 2007 Promulgation of the Liability for Damages Act Part 1 Compensation for personal injury and loss of dependency

Personal injury compensation for loss § 1.  A party who is liable in damages for personal injury shall pay compensation of earnings, recovery costs and other losses resulting from the injury together with compensation for pain and suffering. Section 2 If the injury has had lasting lasting consequences, compensation shall shall also be paid for permanent injury and loss or impairment of earning capacity. Section 3 The value of work in the home shall rank equally with earned income.

§ 1a. Compensation for future recovery costs and other future losses arising from the injury, cf. section 1 (1), shall be fixed f ixed at a capital sum that cannot exceed the expected average annual cost multiplied by ten. In the case of perm anent ongoing costs, § 4, section 2 shall apply analogously.

Loss of earnings

§ 2.

Compensation for loss of earnings shall be paid until the injured person can start work again. If it may be assumed that the injured person will suffer a permanent loss of earning capacity, compensation shall be paid u ntil it is possible to assess the injured person’s future earning capacity either provisionally or finally, cf. § 5-8 5 -8 and § 10 plus § 31 of the Protection against the Consequences of Industrial Injuries Act. Section 2 Sick pay, benefits from an employer or the local authority, insurance benefits in the nature of true damages and similar benefits paid to the injured person shall be deducted from compensation.

Pain and suffering

§ 3. Compensation for pain and suffering shall amount to DKK 130 for each day the injured person is sick. In special cases compensation can be paid for pain and suffering even if the injured person is not sick. The compensation cannot exceed DKK 50,000.

Permanent injury

§ 4. Compensation for permanent injury shall be set at a capital sum calculated on the basis of the medical nature and scope of the injury and the inconvenience caused in the injured person’s life. Compensation for 100% disability shall be DKK 573,500. This amount shall be reduced proportionately for lower levels of disability. In special circumstances the compensation for permanent injury can be set at a higher amount not exceeding DKK 687,500. No compensation shall be paid for disability of less than 5%. Section 2 If the injured person had turned 40 years of age when the injur y occurred, compensation shall be reduced by 1% for each year by which the injured person exceeded 39 years of age when the injury occurred. If the injured person had turned 60 years of age, the compensation shall be reduced by a further 1% for each year by which the injured person exceeded 59 years of age when the injury occurred. Compensation shall not be reduced further after the injured person has turned 69 years of age, however.

Loss of earning capacity

§ 5. If a personal injury has resulted in permanent impairment of the injured person’s ability to earn a living, the injured person shall receive compensation for loss of earning capacity. Section 2 The assessment of loss of earning capacity shall take account of the injured person’s prospects of earning a living b y means of such work as can reasonably be expected of the person in question based on his abilities, education, age and opportunities for vocational retraining and rehabilitation or the like. Section 3 The injured person’s loss of earning capacity shall be calculated as a percentage (loss-of-earning-capacity percentage). Compensation shall not be paid if the loss of earning capacity is less than 15%.

§ 6. Compensation shall be set at a capital sum that represents the injured person’s annual pay, cf. § 7, multiplied by the loss-of-earning-capacity percentage, cf. § 5, section 3, then multiplied by 10. Section 2 Compensation cannot exceed DKK 6,020,000.

§ 7. Annual pay shall be the injured person’s total earned income for the year preceding the date on which the injury occurred. Section 2 Annual pay shall be fixed on the basis of an estimate in cases where exceptional income or employment circumstances or other special circumstances have pre vailed, however

§ 8. In cases where the injured person had not turned 15 years of age when the injury occurred compensation shall be fixed as a capital sum that amounts to DKK 276,000 multiplied by the level of disability, cf. § 4, and then multiplied by ten. No compensation shall be paid for disability of less than 5%.

§ 9. If the injured person had turned 30 years of age when the injury occurred, compensation shall be reduced by 1% for each year by which the injured person exceeded 29 years of age when the injury occurred. If the injured person had turned 55 years of age, compensation shall be reduced by a further 2% for each year by which the injured person exceeded 54 years of age when the injury occurred. Compensation shall not be reduced further after the injured person has turned 69 years of age, however.

Submission to the National Board of Industrial Injuries

§ 10. Both the injured person and the party causing the injury can obtain an opinion on the question of fixing the level of disability and loss-of-earning-capacity percentage from the National Board of Industrial Injuries, cf. the Protection against the Consequences of Industrial Injuries Act. As far as possible the opinion shall be given within one year and no more than two years of the request for an opinion being made. If the occupational situation has not been clarified, the National Board of Industrial Injuries can give a provisional opinion where special circumstances exist. In such cases the opinion must state that it is provisional. Section 2 The reasons for the National Board of Industrial Injuries’ opinion must be given in accordance with § 24 of the Administration Act. Section 3 The injured person and the party causing the injury shall have right of information in the National Board of Industrial Injuries’ case pursuant to part 4 of the Administration Act.

Reopening

§ 11. A concluded claim for compensation can be reopened at the injured person’s request if the actual circumstances of the case change substantially in relation to those on which the claim was concluded. An assessment of whether a claim can be reopened must be made for each individual item of compensation separately, but cf. section 2 and 3. Section 2 If loss of earning capacity of at least 15% has previously been fixed, compensation cannot be paid for loss of earnings if the claim is reopened. Section 3 A concluded claim for compensation cannot be reopened purely with a view to obtaining further compensation for recovery costs and other losses and compensation for pain and suffering. If the claim is reopened under (1), compensation for recovery costs and other losses and compensation for pain and suffering can be paid, however, if there are substantial unforeseen changes in the injured person’s state of health. Section 4 § 10 shall apply analogously if a claim is reopened.

Loss of dependency, etc.

§ 12. A person who is liable in damages for another person’s death shall pay compensation for reasonable funeral expenses and compensation to those who suffered loss of dependency through the death. Dependency shall also include the value of the deceased’s work in the home.

Compensation for spouse or partner

§ 13. Compensation for loss of dependency for a spouse or partner shall amount to 30% of the compensation that the deceased may be assumed to have received for total loss of earning capacity, cf. § 5-8. Compensation shall amount to at least DKK 644,000, ho wever, unless there are special circumstances. Section 2 If the deceased had turned 30 years of age, compensation shall be reduced in accordance with the provisions of § 9.

Loss of dependency for children

§ 14. Compensation for loss of dependency for surviving children shall be set at an amount corresponding to the total child maintenance that the deceased could have been ordered to pay under the Child Maintenance Act at the time of his death if the deceased had been liable to pay maintenance. If the deceased was the sole provider, compensation shall be increased by 100%.

Transitional payment

§ 14a. The surviving spouse or partner shall receive a transitional payment of DKK 108,000. If the deceased did not leave a spouse or partner, the transitional payment can be awarded to another surviving person if special circumstances so indicate. If a transitional payment is made, the person in question cannot also demand compensation for funeral expenses.

Adjustment of amount of compensation

§ 15. The amounts specified in § 3, § 4, section 1, § 6, section 2, § 8, § 13, section 1, no. 2 and § 14a shall be adjusted annually on 1 January by 2.0% p lus the adjustment percentage for the fiscal year in question, cf. the Rate Adjustment Percentage Act. The amount calculated in this way shall be rounded to the nearest number of Danish kroner divisible by 500 apart from the amount specified in § 3, section 1, which shall be rounded to the nearest number of Danish kroner divisible by five. The adjustment shall be made on the basis of the amount in force on the adjustment date before rounding. Section 2 The Minister of Justice shall announce the adjustments to be made each year. Section 3 Compensation shall be fixed on the basis of the amounts in force in accordance with section 1 on the date on which payment of the compensation could be demanded

pursuant to § 16, section 1. Annual pay according to section 7 and compensation according to section 14 shall be adjusted in accordance with the rules contained in section 1 in the period between the injury occurring and the date on which payment of the compensation could be demanded under § 16, section 1.

Payment, interest and limitation period

§ 16. Payment of compensation and damages can be demanded 1 month after the wrongdoer has been able to collect the information that is required to determine the amount of the compensation. If, before the final calculation can take place, it is given that the wrongdoer must in any case pay a portion of the demanded amount, a demand may be made that this portion be paid in accordance with the rules in section 1.  A demand cannot be made for the repayment of such compensation payment or for compensation payments for temporary compensation for loss or reduction of ability to work, nor can these payments be offset in other compensation awards. Section 2. The amount yields interest from the time at which it can be demanded in accordance with section 1, at an annual interest rate equal to the interest according to § 5 of the Act on Overdue Payments Interest. Section 3. Claims for compensation and damages become statute-barred in accordance with the Act on Limitations, unless otherwise stipulated b y limitations provisions in another law. However, § 2, section 2 of the Act on Limitations does not apply to the payment deadline in section 1.

Recourse against the party liable in damages

§ 17. Benefits under social legislation, including daily cash benefits, sickness benefit, pensions under social pension legislation and benefits under the Industrial Injury Insurance  Act (1), to which an injured person or his bereaved family are entitled cannot form the basis for recourse claims against the party liable in damages. The same shall apply to pension benefits paid out by the State or local authority or under another pension scheme and insurance benefits irrespective of the nature of the insurance policy, cf. §22, section 2. The payment of sickness benefits under the Sickness and Maternity Benefits Act can, ho wever, form the basis for recourse claims against the party liable in damages, cf. the Sickness and Maternity Benefits Act, § 78, section 1. Section 2 An employer who has paid daily cash benefits or sick pay to an injured person or paid associated benefits can claim indemnification from the party liable in damages in so far as the employer has incurred a loss.

Assignment, etc., of claims for compensation

§ 18. Claims for compensation for personal injury and claims for compensation for a person who has suffered loss of dependency cannot be assigned as long as the claim and its size have not been recognised or fixed by the courts.

Section 2 A claim for compensation for personal injury shall devolve if it has been recognised or asserted by the commencement of legal proceedings or in a criminal case by presentation of the claim in court or an indictment or writ submitted to the court. Section 3 Compensation as specified in section 1 that may not be assumed to have been spent shall not be included in the community of property between spouses in the event of administration arising from termination of the marriage, separation or division of community property during the subsistence of the marriage. The compensation shall be included in the community of property, however, if the person entitled to the compensation dies, unless the compensation is separate property under a marriage contract. Section 4 The provisions of section 1 and 3 shall not apply to claims for compensation for loss of earnings.

Part 2 Liability in damages for losses covered by insurance

§ 19. In so far as a loss is covered by property insurance or consequential loss insurance there shall be no liability in damages. Section 2 The rule in section 1 shall not apply if: the party liable in damages caused the loss wilfully or through gross n egligence, or the loss was caused in the performance of public or commercial enterprise or enterprise that can be equated therewith.

Section 3 If an employee has caused a loss that is covered by property insurance, consequential loss insurance or the employer’s liability insurance, the employee shall not incur liability in damages unless the loss was caused wilfully or through gross negligence.

§ 20. The State, a local authority or another public institution that is generally selfinsuring shall be situated as if insurance had been taken out, cf. § 19.

§ 21. § 19 and § 20 shall not apply to liability in damages covered by the provisions of the Road Traffic Act relating to liability for motor vehicles or otherwise covered b y the vehicle’s statutory third-party insurance, the Civil Aviation Act or the Merchant Shipping Act.

§ 22. If there is liability in damages for a loss covered by general insurance, the insur ance company shall be subrogated to the injured person’s rights against the party liable in damages to the extent that it has paid compensation.

Section 2 In the case of life, accident or health insurance or other personal insurance, the company shall have no claim against the party liable in damages irrespective of the nature of the insurance. Part 3

Miscellaneous provisions Employee liability in damages

§ 23. Compensation that an employee has had to pay as a result of an employee’s reckless conduct can only be claimed back fr om the employee to the extent found reasonable taking account of the fault shown, the employee’s job and circumstances in general. Section 2 The employee’s liability in damages vis-à-vis injured parties can be reduced or waived if found reasonable taking account of the circumstances specified in section 1 and the injured parties’ interest. The employee can demand that compensation defrayed by him be paid by his employer to the extent that the liability must ultimately rest with the em ployer in accordance with section 1. Section 3 The rule contained in section 1 shall apply analogously to the employer’s claims for compensation against the employee for losses that the employee otherwise causes the employer while in his service.

General mitigation rule

§ 24. Liability in damages can be reduced or waived if the liability would be unreasonably onerous for the party liable in damages or if very special circumstances otherwise make it reasonable to do so. The decision to do so shall take account of the magnitude of the loss, the nature of the liability, the liability of the party causing the loss, the injured party’s interest, any insurance policies that exist and circumstances in general. Section 2 Under conditions analogous to those specified in (1) it shall be possible to ignore the injured party’s contribution to the loss in full or in part. In the case of a claim for compensation for loss of dependency, the same shall app ly to the deceased’s contribution.

Children’s liability in damages, etc.

§ 24a. Children under 15 years of age shall be liable to pay compensation for wrongful acts in accordance with the same rules as for persons over that age. The compensation can be reduced or even waived completely, however, in so far as it is found reasonable to do so owing to lack of development on the part of the child, the nature of the act and circumstances in general, including the relationship between the ability of the party causing the loss and the injured party to bear the loss and the prospects of obtaining compensation from another source.

§ 24b. A person who was unable to act rationally owing to mental illness, impaired mental development, temporary insanity or a similar condition shall be liable to pay compensation for wrongful acts in accordance with the same rules as for persons of sound mind. The compensation can be reduced or even waived completely, however, in so far as it is found reasonable to do so owing to the person’s state of mind, the nature of the act or circumstances in general, including the relationship between the ability of the party causing the loss and the injured party to bear the loss and the prospects of obtaining compensation from another source. Section 2 If the person causing the loss has temporarily put himself into a state of mind as specified above through the use of intoxicants or by similar means, mitigation of his liability in damages shall be ruled out.

Multiple liability in damages

§ 25. The compensation burden shall be divided between several persons who are jointly liable in damages on the basis of what may be considered reasonable taking account of the nature of the liability and circumstances in general. Section 2 If one or more of the persons liable in damages are covered by liability insurance, § 19, section 1 and 2 and § 21 shall apply. In the cases specified in § 19, section 2, no. 1 and 1 and § 21 the division of the compensation burden between the persons causing the loss can take account of any liability insurance policies that may exist. § 20 shall apply analogously.

Compensation for injury to a person’s feelings or reputation

§ 26. A person who is responsible for the unlawful violation of another party’s freedom, peace, honour or person shall pay the aggrieved party compensation for injury to feelings or reputation. Section 2 When compensation is fixed, importance can be attached to the violation being committed by means of a crime that involved an infringement of the provisions of part 23 or 24 of the Penal Code. Section 3 Even if no injury to feelings or reputation was suffered, the person responsible for an unlawful violation against another part y shall pay the aggrieved party compensation, however, if the violation was committed by m eans of a crime that involved a particularly gross attack on another party’s person or freedom. Section 4 § 18, section 1 – 3 shall apply analogously to compensation under section 1 – 3.

Compensation to surviving relatives

§ 26a.

 A person who intentionally or by gross negligence causes the death of another person may be ordered to pay compensation to the deceased's closest next of kin. Section 2 In the assesment of whether compensation must be paid in accordance with section 1, and in determining the amount of such compensation, particular consideration must be given to the nature of the wrongdoer's actions and to the suffering or offence that it must be assumed was inflicted on the closest next of kin.

Variation of the provisions of the Act

§ 27. Agreements relating to variation of the provisions of § 1-16, § 24, section 2 and § 26 that are entered into before a loss or injury occurs shall be invalid in so far as the variation is to the detriment of the person entitled to compensation. Section 2 Agreements relating to variation of § 17, section 1, § 19, section 1 and 3, § 20, § 22, section 2, § 23, § 24, section 1, § 24 a, § 24b, section 1 and § 25 that are entered into before a loss or injury occurs shall be invalid in so far as the variation is to the detriment of the party liable to pay compensation. The provision in § 25 can be varied, however, for losses caused in the performance of public or commercial enterprise or enterprise that can be equated therewith.

Part 4 Commencement provisions, etc.

§ 28. The Act shall come into force on 1 October 1984 and apply to losses that occur after its commencement.

§ 29. The following statutory provisions are repealed: § 25 of Act No. 129 of 15 April 1930 relating to insurance contracts. § 15 of the Commencement of the Civil Penal Code Act, cf. Consolidation Act No. 277 of 30 June 1965. § 14, section 3, no. 2 of the Inheritance Act, cf. Act No. 215 of 31 May 1962. § 53, section 3, no. 2 of the Seamen’s Act, cf. Act No. 420 of 13 June 1973. § 67, no. 2, of the Seamen’s Act, cf. Consolidation Act No. 353 of 1 July 1974.

§ 30. (Omitted) § 31. (Omitted)

§ 32. The Act shall not apply to the Faroe Islands and Greenland, but can be put into force for these parts of the country by Royal Ordinance with the variations dictated by the particular circumstances in the Faroe Islands and Greenland.  Act No. 73 of 1 February 1995 (2) contains the following commencement provision: §3 Section 1 The Act shall come into force on 31 January 1995, but cf. section 2 and 3. Section 2 (Omitted) Section 3 The amounts specified in § 3, § 4, section 1, § 7, section 3, and § 13 , section 1, no. 2 of the Liability for Damages Act shall be adjusted for the first time on 1 April 1995 on the basis of the amounts fixed with eff ect for injuries and losses that occur between 1 April 1994 and 31 March 1995.  Act No. 349 of 23 May 1997 (3) contains the following commencement provision: §4 The Act shall come into force on 1 June 1997.  Act No. 463 of 7 June 2001 contains the following commencement provisions, etc: §4 Section 1 The Act shall come into force on 1 July 2002 (4). §1 (15) (5) and § 2 (2)  – (4) of the Act shall come into force on 1 January 2002, however. For commencement on 1 July 2002 the compensation amounts shall be adjusted in accordance with § 1 (11) on 1 January 2002 (6). Section 2 Sections 1 and 2 of the Act shall apply to liability in damages for losses or injuries that occur after commencement of the Act. Section 3 (Omitted) Section 4 (Omitted) §5 A policyholder cannot cancel an insurance contract owing to an increase in the premium that is purely due to the change in the size of compensation for personal injury and loss of dependency resulting from this Act.

The Danish Ministry of Justice, 4 September 2002 Lene Espersen