Compensation for breach of the duty to give way

The insurance company's obligation to pay compensation in motor vehicle liability cases following traffic accidents is based on strict liability, which means that the tortfeasor's behaviour and negligence are often not taken into account in this type of case.

If the injured party submits a claim for compensation for damages pursuant to section 3-5 of the Damages Act, the responsible insurance company is liable for the compensation for damages pursuant to section 4 of the Motor Vehicle Liability Act. Many personal injuries occur as a result of the tortfeasor breaching their duty of care. We are therefore often asked whether a breach of the duty of care entails gross negligence and whether the injured party is then entitled to compensation for damages.

The Supreme Court has defined gross negligence as a marked deviation from normal responsible behaviour. In the assessment of whether there is a marked deviation from prudent behaviour, an important factor will be whether there are clear rules of conduct in the area. In a case before the Supreme Court in November 2018, the Supreme Court stated in relation to the penal conditions that when it comes to duty of care, there is a «increased standard of care and that the driver is required to exercise special care».

A review of case law shows that a breach of the duty to give way is often considered grossly negligent. There are examples of general specifications stating that drivers crossing lanes, pedestrian crossings, the centre line, etc. have a special obligation to ensure that the crossing can take place without danger to oncoming traffic. The reason for this is that a crossing without sufficient care involves an obvious risk of a collision with a fatal outcome.

Furthermore, case law shows that the requirement for the driver's diligence is heightened in the event of confusing traffic conditions. If, for example, there is a heavily congested stretch of road, difficult driving conditions or a complex intersection, these are factors that indicate that the tortfeasor should have paid extra attention.

The assessment of whether the tortfeasor has acted with gross negligence is highly discretionary and must be assessed specifically on the basis of the factors set out in case law in conjunction with the road traffic regulations. An overview of case law in this area is therefore an important aid in assessing whether the conditions for redress compensation have been met. The personal injury department at Halvorsen & Co works with this type of issue on a daily basis, and is happy to assist in assessing whether the injured party may be entitled to redress compensation.