INTRODUCTION

OVERVIEW

Public authority liability is a topic attracting increasing interest in Danish law. One of the reasons for this is undoubtedly the growth of the public sector which has taken place over the past decades. A consequence of this development is that the number of cases concerning public authority liability has radically increased over the last ten or fifteen years.

Public authority liability falls between private law and public law. Most oft en, however, the topic is addressed in administrative law literature and not in private law literature.

With a few exceptions, public liability has no legislative basis under Danish law. Preparatory work for legislation on public liability was undertaken in the 1960s but legislation was never enacted. Consequently, public liability law is primarily judge-made law under Danish law and is based on the application of general tort law principles.

Exceptions to this starting point include the constitutional rules on expropriation and a few statutes that establish State liability or a right to compensation in certain specific cases.

HISTORICAL EVOLUTION

Originally, Danish law proceeded from the traditional starting point that ‘the King can do no wrong’. Historically, this principle derived from the period of time in which the governing principle in the country was absolute monarchy (1660–1849). Under this system, criticism of the King was inconceivable and since there was no distinction between the King and the State, it followed that there could be no liability of the State. The prerequisite for this rule changed with the introduction of the Danish Constitution in 1849 which established the basic principle of separation of powers. Although there was no general rule which positively made it clear that the State could be held liable, legal literature seems to indicate that from around 1900 such liability was developed in case law. Liability of the State and other public bodies was eventually accepted in the form of vicarious liability as codified in DL 3–19–2.