In order to be able to impose liability for damages, there must be basis of liability, which in this case was the provisions of the Norwegian Neighbour Act.
Section 9 of the Neighbour Act states that the liable party must bear the financial loss in the event of a breach of Sections 2 and 5 of the Neighbour Act, "whether he himself or someone he is liable for has been guilty of negligence or not". The provision expresses a liability regardless of subjective fault, but requires that one of the provisions in Sections 2 and 5 of the Neighbour Act has been breached. The provisions of Sections 2 and 5 of the Neighbour Act may at first glance seem more lenient towards the developer, but the Supreme Court has now clarified how the wording should be understood.
Section 2 of the Neighbour Act states that no one should "implement anything that unreasonably or unnecessarily is to the detriment or disadvantage to a neighbouring property." For the Supreme Court, the question was whether the liability for damages according to Section 2 is triggered by the fact that a measure has resulted in a damage that is unreasonable, or whether the party liable for the measure, objectively speaking, has acted
in a way that must be characterized as unreasonable or unnecessary towards the neighbour.
Section 5 of the Neighbour Act, on the other hand, obliges the party performing ground work to carry out "necessary precautions" against "settling" etc.. For the Supreme Court, the question was whether liability for damages according to Section 5 may be triggered even if all necessary precautions had been taken.
The aforementioned questions had not previously been decided in Supreme Court practice. After a review of the preparatory works and legal theory, the Supreme Court concluded as follows:
"Liability for damages is triggered by the measure having resulted in damage that it is unreasonable or unnecessary for the injured neighbour to endure, even if the liable party has carried out a risk assessment that satisfies all reasonable requirements, and has taken all precautions that such an assessment would require".
With the Supreme Court's judgment, it is thus clear that as long as the so-called "tolerance limit" has been exceeded, a strict liability applies for the party behind the measure, cf. Section 9 of the Neighbour Act, see also Sections 2 and 5.
In the case before the Supreme Court, the settling damages were extensive. The result of the measure was unreasonable, and thus went beyond what the neighbour had to endure. For the Supreme Court, it was not necessary to decide whether there at all is a tolerance limit for settling damages to buildings.