2.2 Strict liability and illegality/wrongfulness as basis of government liability
Legal academics have debated whether the government has strict liability for unlawful exercise of public authority, or whether the government’s liability is founded on the ordinary bases of liability - in practice being the ordinary employer’s liability based on culpa in section 2-1 of the Torts Act. In administrative law theory, most writers historically tended to consider the government’s liability as being strict, partly based e.g. on the Supreme Court’s decision in Rt. 1965 p. 712 (Rådhushospits or Georges-dommen). By contrast, Viggo Hagstrøm in his doctoral thesis about government liability advocated the view that the government’s liability was, in principle, based on culpa.(1) Viggo Hagstrøm, Offentligrettslig erstatningsansvar (TANO, 1987), p. 43 et seq.
This difference between strict liability and liability based on culpa may in some cases be of limited practical significance, where the exercise of public authority is concerned. The government may in many cases legitimately impose quite considerable economic loss on private parties through its exercise of government power without incurring any liability. Whether the government can be held liable for loss arising from exercise of its authority must in general be determined on the basis of objective standards, relating to the lawfulness of such exercise of government power. In such cases, the assessment may not differ much, whether it is based on strict or on culpa liability as a point of departure.
In what follows, we will focus on section 2-1 of the Torts Act as a basis for government liability.