Judgment finding Norwegian Refugee Council grossly negligent in 2012 Dadaab Kidnapping (in English)

Translation from Norwegian

Translated by John Richard Stokbak Sciabà, Government Authorized Translator English – Norwegian - Spanish, Candidatus JurisTel. (+47) 917.22.768 • E-mail: [email protected]

OSLO DISTRICT COURT[OSLO TINGRETT]

JUDGMENT

Delivered on: 25 November 2015 in Oslo District Court

Case No: 15-032886TVI-OTI R/05

Judge: Deputy JudgeLena Skjold Rafoss with ordinary powers

The case concerns: Claim for compensation

Steven Patrick Dennis

vs.

Stiftelsen Flyktninghjelpen[the Norwegian Refugee Council]

Advocate Knut Helge Hurum

Advocate Grethe Lillian Gullhaug

No restrictions on publishing


- 2 - 15-032886TVI-OTIR/05Translated by John Richard Stokbak Sciabà, Government Authorized Translator English – Norwegian - Spanish, Candidatus Juris

Tel. (+47) 917.22.768 • E-mail: [email protected]

J U D G M E N T

The case concerns a claim for compensation for economic and non-economic loss following the

kidnapping of Steven Patrick Dennis on 29 June 2012 while he was employed by the NorwegianRefugee Council [NRC] in Dadaab in Kenya.

Background of the caseSteven Patrick Dennis was born in 1975 and is a Canadian citizen. He has a cohabiter who is also aCanadian citizen. Dennis was trained as a graduate engineer during the period 1994-1999; in addition,he took a Masters degree in international relations during the period 2009-2010 at the University of

Toronto. Dennis worked as an engineer in Toronto during the period from November 1999 to June2002. After that he had several assignments as a field worker for Doctors Without Borders (MSF)during the period 2002-2011. These included assignments in the countries of Sri Lanka, South Sudan,

Somalia, the Ivory Coast, the Netherlands and Chad.

The NRC is an independent and private foundation. The NRC is a worldwide aid organization withmore than 5250 employees in 25 countries, including countries in Africa, Asia, the Americas andEurope. The foundation's official English name is the Norwegian Refugee Council (NRC). Its head

office is located in Oslo. The foundation is headed by a Board of Directors, and the Board appointsthe Secretary General. The Secretary General is responsible for day-to-day management of theorganization's activities and reports to the Board of Directors. Elisabeth Rassmusson was Secretary

General in 2012. Jan Egeland has been Secretary General since 2013.

The NRC has had an office in Nairobi since 2006. The office in Nairobi has been NRC's regional officefor the Horn of Africa since 2011. In 2012, the regional office was responsible for NRC's projects in

Ethiopia, Kenya, Somalia and Yemen.

The refugee camp in Dadaab in Kenya was established by the UN High Commissioner for Refugees

(hereinafter "UNHCR") in 1991 and is located in Kenya's North Eastern Province bordering onSomalia. As per June 2012, the camp was divided in five camps. They were Hagadera, Dagahaley,Kambioos, IFO and IFO II. The refugee camp IFO II was established in January 2012 as a

consequence of an increased influx of refugees. The combined population of the five camps is inexcess of 500,000 refugees. The Dadaab refugee camp is the world's largest refugee camp in terms ofpopulation.

The NRC has been present in the refugee camp in Dadaab since 2006. According to an overviewprovided by the UNHCR, the NRC is one of 23 organisations that have operations in Dadaab. TheNRC runs projects within, inter alia, shelter, education, food security, water, sanitation and

hygiene. In June 2012, the NRC had a total of 120 staff in Dadaab, of which 113 were local staffand seven were international aid workers.




Dennis signed an employment contract with the NRC on 20 July 2011. He was employed as a

"Project Manager Emergency Coordinator" in Dadaab in Kenya. The contract period was from 25July 2011 to 24 October 2011. The contract was subsequently extended to 24 July 2012. After that hewas employed in the position of "Area Programme Support Manager" in Dadaab from 01 April 2012

to 24 July 2012. On 23 June 2012, Dennis received an email wherein it was stated that the NRC,because of a lack of financing, would not extend the contract period beyond July 2012. Dennisconfirmed that he had been informed about this in an email of 26 June 2012. In connection with this,

he presented objections to the planned withdrawal of the position.

Because of the drought in the Horn of Africa, the summer of 2011 saw a dramatic increase in theinflux of refugees to Dadaab. The population of the refugee camps increased from approximately270,000 refugees to approximately 500,000 refugees. The UN and humanitarian organisations were

struggling to follow up on the massive increase in the need for aid. In October 2011, Kenyanauthorities declared war on Al Shabaab after several kidnappings of Kenyan and foreign nationals. Asa consequence, Al Shabaab threatened to seek revenge in Kenya and there were several bomb attacks

in Nairobi and the North Eastern Province. The Kenyan police became an explicit target of revengeattacks on the part of Al Shabaab. As a consequence of these circumstances, the security situation inDadaab deteriorated strongly. The UN raised the risk level in Dadaab from level 3 to level 4. In

September 2011, a Kenyan driver from the organisation CARE was kidnapped, and in October 2011two foreign women from Doctors Without Borders (MSF) were kidnapped.

Hanna Vaughan-Lee was hired by the NRC in Nairobi to perform a review of the security situation inDadaab. In January 2012, she presented a report entitled "Context & Risk Analysis: Dadaab January

2012". The report pointed out weaknesses in the handling of security internally within the NRC, andit contained a list of recommended measures to improve the security situation. The security situationin Dadaab and the risk of kidnapping are mentioned in several other reports. The Court has been

presented with reports from the NGO Safety Program (NSP) and the UNHCR. In addition, weeklysecurity reports from Dadaab for the period 2011-2012, the NRC's situational report, as well as the"Security plan NRC Dadaab", last revised in February 2012, have been presented.

The Secretary General of the NRC, Elisabeth Rassmusson, was to visit the Horn of Africa and Yemenin June 2012. Originally, there were no plans for her to visit Dadaab. However, the situation inDadaab was assessed to be so critical that the NRC considered it necessary to have a visit there. The

purpose of the Secretary General's visit was to contribute towards increased attention to the situationin Dadaab, so that donors and others would provide more financial means for the work. In thebeginning of June 2012 it was therefore decided that the Secretary General was to visit Dadaab and

that the visit would take place on 29 June 2015 [sic].

The country director for Kenya, Qurat Ul-Ain Sadozai, the area manager in Dadaab and theregional security adviser were in Dadaab on 22 June 2012 to prepare for the visit.




Originally, the plan was to use an armed escort during the visit; it had also been booked. This isevident from, amongst other things, an email and a memo from the local security adviser on 27 and 28

June 2015 [sic].

However, on 28 June 2012 Sadozai sent an email to the area manager concerning the security plan forthe visit. The same email was later that evening sent to Glenn Pettersen, who was the global security

adviser at the head office in Oslo. The email showed that a decision had been made not to use an armedescort during the visit after all. The decision had been made by Sadozai in consultation with theregional director in Nairobi, Hassan Khaire. The decision had also been approved by Toril Brekke,

head of field operations at the head office in Oslo.

Khaire had tried to get hold of Glenn Pettersen by telephone, but had not been able to contact him. Noother security advisers were contacted in connection with the said decision. Pettersen received the

email regarding the security plan on 29 June 2012, and he immediately sent an email regarding hisconcerns about the security arrangements. The visit was however already in progress and the email wasnot read by the recipients until after the kidnapping. One of the local drivers who had been booked, did

not want to participate when he got to know that no armed escort would be employed. As aconsequence, the NRC hired another driver.

The Secretary General and her entourage arrived at Dadaab in the morning and received a short

security briefing at the airport. The group arrived at the IFO II camp at around 09:30. They stayed forlonger than planned at one of the places, presumably because of a discussion concerning shelters. Thegroup consisted of approximately ten persons, and at about 11:45 they left IFO II through a road with

fences on both sides. The road has been described as a "funnel" that you have to pass through in orderto leave the camp. The convoy consisted of three white Land Cruisers with the NRC logo.

Dennis was placed in the first car together with the driver and another staff member, the "Deputy

Shelter Manager". Secretary General Elisabeth Rassmusson, Khaire, the area manager and AbdullahiKeinan were in the second car together with the driver. Sadozai, a project manager who was an

employee, and communications adviser Astrid Sehl were placed in the third car.

When the convoy entered the fenced road it was attacked by six men firing several shots. The driverof the second car managed to turn the car around and drove off from the scene together with

Rassmusson, Khaire, the area manager and Abdullahi Keinan. The driver in the third car, who hadbeen hired that same day, was shot four times and died on the spot. The driver in the first car was shotand seriously wounded. He was, inter alia, shot twice in the back while lying on the ground outside

the car. Dennis was shot in the thigh. Two other staff members were also shot and injured. Denniswas taken to the rearmost car and placed inside it together with Sadozai, Astrid Sehl and another staffmember. The kidnappers got into the same car and the group of six kidnappers and the four kidnap

victims drove off. The kidnappers later picked up two more persons who participated in thekidnapping operation and who joined them for the drive.




The car with Rassmusson, Khaire, the area manager and Abdullahi Keinan drove to the nearest police

station and later continued to Nairobi. Crisis management teams were set up at the head office in Osloand at the regional office in Nairobi. Glenn Pettersen went to Nairobi and took charge of the crisismanagement team when he arrived.

After four days, a rescue operation was carried out close to the Somali border and all four kidnapvictims were set free. The rescue operation was performed by Kenyan authorities and the Ras Kambonimilitia, upon a commission by the NRC. The militia was headed by Sheikh Ahmed Madobe.

The kidnap victims were flown to Nairobi after the incident and they were given medical treatment.Debriefing meetings were held in Nairobi. After that, arrangements were made for the kidnap victimsto return home. Other employees who were affected or involved in the incident were sent on vacation.

A general staff meeting concerning the case was held in Oslo in late August 2012. After that, agathering was held in Oslo with the kidnap victims from 19 to 21 September 2012.

After the incident, Glenn Pettersen initiated an internal inquiry. Security adviser Chris Allan was asked

to contribute towards this effort. Chris Allan wrote the report "Review of Security Environment, Risk

Management and Recommendations following the 29th June Kidnap of NRC Staff'. Glenn Pettersenwrote the report "After Action Review Report — Dadaab Kidnapping". The report was drafted in a long

and a short version. The report was subjected to an external evaluation by Nicholas Downie. Hesubmitted the report "External and independent evaluation of the Dadaab incident After Action Review

Report authored by Glenn Pettersen". The reports of Pettersen and Downie were reviewed at the NRC

board meeting on 20 September 2012. Christopher Finucane from Humanitarian Policy Ltd. was laterhired to perform a review of the NRC's security systems. On 30 March 2013, he submitted the report"A Review of Security Management Systems of the Norwegian Refugee Council".

The reports were considered and approved by the NRC board at a board meeting on 17 April 2013. Theshort version of Glenn Pettersen's report was made available to all staff members on 07 May 2013through electronic reading access. The NRC has not requested any external review of the case beyond

this.

It has been informed that there is, or has been, an investigation and criminal proceedings against thekidnappers in Kenya. During the main hearing, the NRC informed that the criminal proceedings seem

not to be much prioritized in Kenya and that little has happened in the case.

In 2012, the NRC had insured its staff through a travel insurance with Europeiske, a personal injuryinsurance with IF, as well as a disability insurance with Norben. The insurance with Norben could

provide a disability pension up to the age of 67 years in the case of physical injury, but the insurancecoverage was more limited in the case of psychological injury. A process has been carried out vis-à-visthe insurance companies.




Dennis has received payments in the amount of NOK 477,405 from Norben and NOK 588,102 fromIF. Dennis got a sick leave and salary from the NRC for the remainder of the year 2012 in the

amount of NOK 241,654. The NRC has covered his expenses for a lawyer in the amount of NOK60,000 as well as expenses for coaching in the amount of NOK 12,000. In addition, Dennis hasreceived insurance payment from Europeiske and some coverage of costs relating to medical

expenses.

On 23 February 2015, Oslo District Court received a writ of summons from Dennis with a demand forcompensation to be fixed at the Court’s discretion. The NRC filed a timely reply on 27 March 2015with a plea for acquittal. The NRC did not want judicial mediation. The District Court held a planningmeeting on 10 April 2015. The NRC requested a division of the case to have the question of the legalbasis of liability treated separately, but the Court rejected the request.

Upon a petition by the NRC, on 28 May 2015 the Court issued an order that a medical expert witnesswas to be appointed in the case; see section 25-2 of the Dispute Act. On 17 August 2015, the DistrictCourt sent a letter with the appointment and terms of reference to Are Holen as an expert witness in the

case. Are Holen submitted a written expert opinion on 24 September 2015.

The NRC suggested in a written pleading of 03 September 2015 that the parties nonetheless couldattempt judicial mediation. Judicial mediation took place at Oslo District Court on 30 September 2015,

but the parties failed to agree on a settlement.

On 9 October 2015, Dennis presented a settlement offer. The offer was that the compensation to covereconomic loss, permanent injury and pain and suffering was to be set at NOK 6,900,000 and that the

NRC in addition was to pay NOK 1,000,000 to compensate legal costs. The offer was conditional uponthe NRC making a public statement acknowledging that they had acted with gross negligence. TheNRC did not accept the offer from Dennis.

The NRC presented settlement offers on 1 October and 12 October 2015. The final offer was a totalcompensation of NOK 3,500,000 in addition to what already had been paid out by the insurancecompanies. The NRC offered that Dennis could be allowed to present the case to the NRC board and

that the Refugee [Council] was to issue a specific public statement on the case. Dennis did not acceptthe offer by the NRC.

The District Court held a new planning meeting on 08 October 2015. The main hearing was held at

Oslo District Court on 20 - 28 October 2015. Dennis appeared and testified as a party to the case; theNRC was represented by senior legal advisor Merethe Nedrebø and deputy secretary general Geir OlavLisle. Merethe Nedrebø testified as a party to the case. A total of 15 witnesses were heard. The expert

witness, Are Holen, followed the entire main hearing and testified. During the closing argument, theNRC acknowledged employer's liability due to failing information security; consequently, it submitteda modified plea for judgment. Additional reference is made to the court record.




The plaintiff’s grounds for prayer for relief:In the case at hand, a principle of reversed burden of evidence must apply, for reasons of securing of

evidence. The NRC has held all the documentation concerning the case. The NRC has not wanted toinform on who made decisions and has not provided access to central reports. In any case, the NRC hasthe burden of evidence for its own submissions.

The parties do agree that injury exists and that one can rely on the expert witness' conclusionsregarding the said injury. The assessment made by the expert witness is substantiated by otherdocuments concerning Dennis's psychological and physical health. Thus, the parties agree that Dennis

has a lasting PTSD, a mild degree of clinical depression, as well as a limited, but lasting gunshot injuryto his left thigh.

There is a basis of liability pursuant to the rule of employer's liability. The NRC acted with gross

negligence and may also be held liable pursuant to the rule of liability for the actions of managingbodies. Consequently, the conditions for a compensation for pain and suffering are satisfied. In thealternative, it is submitted that there is a basis of liability pursuant to the rules of non-statutory strict

liability and irresponsible arrangement.

Aid organizations are major employers with the same responsibility for their employees as otheremployers. The case might give the impression that the NRC is not to have the same employer's

liability because of its other good deeds. Employees must however know that their employer coverstheir back with a satisfactory handling of their security and that they will be taken care of if anythinghappens. A sound protection of employees will in the long run lead to increased productivity. The

experiences gathered from the rescue operation in the case at hand have shown that it may be morecostly to react after the fact than to prevent it from happening. Security incidents also affect those whoare to be aided, in that programs are stopped or downscaled. Sound security for employees can prevent

this, thus leading to more persons being helped in the long run.

The activities of aid organizations in other countries are not subject to much government control.By way of comparison, if there had been any fatalities or kidnapping at the head office in Norway, the

authorities and the police would have reacted with an inquiry and full investigation. The NRC mustsconfront its culture with regard to internal criticism. An external inquiry should have been performed.In this case, superiors have blamed their subordinates for decisions that were made at higher levels of

the system.

The security situation in Dadaab had deteriorated strongly from the autumn of 2011.The risk level hadbeen set to four. The next level is five, which entails evacuation. No other VIP visits in Dadaab were

carried out during that period. There had been several kidnapping incidents and the risk of kidnappingwas high.




There was also a risk of being hit by an improvised bomb or road bomb, a so-called IED(improvised explosive device), but it is not a given that the risk of such attacks would increasenoticeably in the case of an armed escort being used.

The NRC's handling of staff security had been very weak for some time, both in terms ofunderstanding the security context and in terms of implementing applicable minimum standards.Reference is made to the reports from Hanna Vaughan-Lee, Chris Allan and Glenn Pettersen.

Additionally, responsibilities were unclear and the training of staff in management positions waslacking. The general security handling forms a backdrop that may have influenced incorrectdecisions that were made in connection with the visit of the Secretary General.

The Secretary General's visit should not have been performed. In any case, the visit should not havebeen performed without more specific security measures. The concrete errors relate to the failinginformation security, the fact that the visit was performed with a high profile, that a visit was made to

IFO II, that the duration of the visit exceeded the recommended duration, as well as the lackingpresence of security staff. Nor should the visit have been performed without the use of an armedescort.

In some cases of international aid work, there will be a residual risk after an employer has done all hecan to reduce the risk, and in such cases he can ask for the employee's consent to assume that risk.Here, the NRC had however not implemented reasonable and necessary security measures;

consequently, this is not a case of such a residual risk.

The NRC's negligent acts were a necessary condition for the injury. The requirement for causation isfulfilled.

Dennis is entitled to full compensation for his economic loss, he is also entitled to compensation forhis non-economic loss, including compensation for permanent injury, and pain and suffering.Dennis has in his calculations of the claim for compensation indicated some points of departure,

and then the Court must establish the compensation on the basis of a broad discretionaryassessment. Dennis cannot bear the currency exchange risk.

The plaintiff's prayer for relief:

1. Steve Dennis is to be awarded compensation for economic loss, compensation for

permanent injury and compensation for pain and suffering, to be determined at the Court’sdiscretion.

2. Steve Dennis shall be awarded legal costs.




The defendant’s grounds for prayer of relief:The kidnapping on 29 June 2012 was the most serious incident in the history of the NRC. One person

was killed and four staff members were kidnapped. Fortunately, they were freed four days laterfollowing a successful rescue operation.

Crisis management teams were set up both in Nairobi and in Oslo immediately after the

kidnapping. The next of kin were informed and taken care of. The rescue operation was responsibleand successful. The NRC received the kidnap victims in a good way and they have received goodfollow-up after the incident.

Extensive evidence exists with regard to an incident that happened several years ago. The case is tobe processed pursuant to Norwegian compensation law, but the acts took place in a refugee camp inDadaab in Kenya. The context cannot be compared to compensation cases normally heard by

Norwegian courts.

The Court is not to decide on whether an external inquiry should have been performed.Nor does the case deal with the NRC's handling of the media and nationalization of positions.

The Court is to base its ruling on the facts that seem most probable upon an overall assessment. In thecase of doubt as to what is most probable, the main rule is that the doubt must be to the detriment ofthe one that has suffered injury. The NRC disputes that there is any basis for placing the burden ofevidence on it. The NRC has not intended to be unreasonable, it has only asked questions that any

employer or tortfeasor would have asked in a compensation case.

The NRC has no objections to the main conclusions of the expert witness and accepts as a fact thatDennis has sustained an injury because of the kidnapping incident. He has been diagnosed withPTSD. The injury has caused a 25% reduction of his functional capacity and a medical disability that

indicates placement in group 2. The NRC wants to emphasize that the expert witness has stated thatthere may be prospects of improvement once the court case is over. No information has emerged thatindicates any risk of a worsening.

The NRC acknowledges that there was a breach of information security and that this error may beconsidered to cause liability for compensation under the rule of employer's liability in section 2-1 ofthe Compensation Act. It is acknowledged that the kidnappers may have received information about

the Secretary General's visit because of this failure and that as a consequence causation exists. Theresponsibility for information security is located in several places, but is still not supposed to bedistributed collectively or allocated to the top manager. The concrete failure happened at the office in

Dadaab and cannot be linked to the regional office in Nairobi or the head office in Oslo.Consequently, the information failure does not constitute a basis of liability pursuant to the rule ofliability for the actions of managing bodies.




The submissions with regard to other invoked circumstances are maintained. Weaknesses have beenuncovered with regard to security management, but the errors cannot be considered to constitutenegligence or gross negligence. Since the alleged errors relate to different circumstances, the Court mustin its assessment of the question of liability perform an assessment of each individual circumstance. In theopinion of the NRC, there are no grounds for the submissions that the NRC had an irresponsible securityculture prior to the kidnapping incident.

The visit of the Secretary General was necessary to draw attention to a refugee crisis in which the world

had lost interest. The risk of kidnapping had been identified and assessed. The decision to carry out the

visit without an armed escort was the result of a balancing of different risk-related elements. The

background of the decision was, inter alia, that the NRC wanted to reduce the risk of IEDs and to make

sure that the visit kept a low profile. It was of no significance for the kidnapping that no security staff were

present at the offices in Dadaab and Nairobi during the visit.

The NRC's handling of the risk of kidnapping cannot be considered to be a marked deviation from that

which is responsible; consequently, the organization has not acted with gross negligence. The conditions

for being granted a compensation for pain and suffering do not exist; see section 3-5 of the Compensation

Act.

A judgment based on strict liability may cause enormous ripple effects for the aid industry. The

consequence might be that important aid work is stopped.

If the Court were to conclude that the other invoked circumstances may be considered negligent, the Court

must assess the requirement of causation concretely for each such circumstance.

The NRC disputes the calculations of the claim for compensation. In the compensation, amounts already

paid out by the NRC and the insurance companies are to be taken into consideration. The

compensation is to be calculated and paid in Norwegian kroner.

The defendant’s grounds for prayer of relief:1. The NRC is to pay a compensation to Steve Dennis, which shall be determined at the Court’s

discretion.2. The NRC is to be awarded the part of the legal costs that have been incurred after 12 October 2015.




The Court’s assessment

The basic conditions for compensation - conclusionsAccording to general non-statutory principles of compensation law, there are three basicrequirements for compensation. There must be injury, a basis of liability, as well as a causalrelationship between the basis of liability and the injury.

The Court has found that the NRC is liable for compensation towards Dennis for his economic andnon-economic losses as a consequence of the psychological and physical injuries he sustained

following the kidnapping.

The Court has concluded that the NRC is liable for compensation under the rule of employer'sliability in section 2-1 of the Compensation Act. The Court has furthermore concluded that the NRC

acted with gross negligence and is liable pursuant to the rule of liability for the actions of managingbodies. Consequently, the conditions for a compensation for pain and suffering are satisfied pursuantto section 3-5 of the Compensation Act. The Court has concluded that there is a causal relationship

between the basis of liability and the injury. The specific loss items are discussed individually.

The question of the burden of evidence has not been pushed to an extreme as regards the basic

requirements for compensation. There has not been any such doubt that would indicate that the rulesregarding the burden of evidence have been of any significance. The Court has considered it to be afact that Dennis has the burden of evidence as regards the calculation of the claim for compensation.

The injury requirementThe parties do agree that injury exists and that one can rely on the expert witness' conclusions.

Following the evidence presented, nor the Court sees any reason to dispute the expert witness'assessments and conclusions. In the opinion of the Court, the conclusions are substantiated by otherevidence in the case, including the documents presented concerning Dennis's psychological and

physical health condition.

Dennis has been diagnosed with post-traumatic stress disorder (PTSD) of a chronic nature and amild degree of depression. His psychological health condition is considered to be of a lasting

nature. The expert witness has concluded that the diagnosis was event-triggered and that thesymptoms can be related to the kidnapping event.

As a consequence of the injury, Dennis will for the future have a reduction in his functional capacity

of 25 %. The main cause of his loss of functional capacity is his psychological afflictions andvulnerability. The Court agrees with the expert witness that the thigh injury will be insignificant formost jobs that are of potential interest to Dennis. During the main hearing, the expert witness stated

that there is reason to believe that Dennis for an interim phase of 3 to 5 years after the court casewill have a functional capacity reduction in excess of 50 %.




In this assessment, the need for a certain retraining has been taken into consideration. Following theevidence presented, the Court, like the expert witness, believes that the functional capacity reduction

will be in excess of 50 % during such an intermediate phase.

Dennis has undergone appropriate medical treatment and rehabilitation. His condition has stabilised.He has received competent psychotherapeutic treatment for some time. The expert witness stated that

antidepressants and sleep medication may provide some help, but that he probably cannot obtain muchadditional gain from further psychotherapeutic treatment. It can however provide some help andsupport for mastering his everyday life. In determining medical disability, an overall assessment is to

be made of both the psychological and the physical injury. The Court finds, like the expert witness, thatDennis on the basis of his psychological health condition may be placed in the upper range of group 1and that he, because of the thigh injury, upon an overall assessment may be placed in group 2. This

entails a medical disability of 25 to 34 %. This assessment is in accordance with the guidelines of theRegulations concerning Compensation for Permanent Injury of 21 April 1997 no. 373.

The expert witness emphasised in his statement that good follow-up and information in the wake of

such an incident is of great importance. Persons who experience a kidnap incident like this one, will bevery sensitive to how they are handled. This applies both institutionally and at an individual level. It isimportant that a follow-up is provided that gives individuals a feeling of being taken care of. If they do

not feel that they are being taken care of, it may in general lead to a high degree of aggression andantagonism. Requirements for being able to go on with their lives would include good debriefing, thatthey obtain a clear picture of what happened and that they are given adequate information by their

employer. In connection therewith, the Court notes that Astrid Sehl, amongst others, explained that shecan come to terms with the fact that mistakes were made, but that it is difficult to come to terms withthe fact that they have not received full information. Several witnesses have stated that the incomplete

information has made it difficult for them subsequently to trust the management of the NRC.

The expert witness made reference to the fact that Dennis already has received treatment by way ofcognitive therapy over a period of time. According to the expert witness, there is no documented

method for the treatment of PTSD. The expert witness was a bit surprised that antidepressants and sleepmedication had not been tried, as these may influence symptoms like bad sleep, anxiety andrestlessness. The expert witness emphasized that it would be constructive for Dennis to have his

thoughts concentrate on something else than the case at hand, and that the symptoms of posttraumaticstress may diminish and disappear after the court proceedings are finished. The vulnerability willhowever not disappear. The expert witness underlined that Dennis himself may contribute to his

recovery and that central factors for a better everyday life may be physical activity, good relations, aswell as a good alternation between work and rest, and work and recreation.

Following the above, it is the Court's conclusion that the injury requirement is fulfilled. Dennis has

been diagnosed with lasting PTSD and a mild degree of depression. As a consequence of the injury,Dennis will during a transition phase have a reduction in his functional capacity of 50 %, while he forthe future will have a reduction in his functional capacity of 25 % .




His medical disability is placed in group 2, entailing a medical disability of 25 - 34 %.

The basis of liabilityThe requirements for employer's liabilitySection 2-1 of the Compensation Act imposes upon the employer a strict liability for injury caused byintent or negligence on the part of the employee in his performance of work for the employer. It is clearthat no NRC employees acted with intent. The central issue to be assessed is thus whether NRC's

employees acted "negligently". According to established law, this is to be assessed pursuant to the non-statutory fault-based liability standard ["the culpa norm"]. For the purposes of this assessment, the Actstates that "one must take into consideration whether the requirements that the aggrieved party

reasonably may place upon the undertaking or service, have been set aside". This means, amongstother things, that the employer's liability may also encompass anonymous and cumulative errors. Theemployer may be held liable if several employees have committed the error together or if the sum of

several errors fulfils the liability requirement. There is no doubt that the employer's liability may alsoencompass injury caused to another employee.

The central issue pursuant to the fault-based liability standard is whether the NRC's employees shouldhave acted differently to avert the risk of kidnapping. Central elements of this assessment include the

degree of risk, the nature of the risk, whether the risk of injury was visible or foreseeable, and whethereffective and practicable alternative courses of action existed. In addition, it may be of relevancewhether or not industry standards were violated. On the basis of the said elements, the Court is to

perform a concrete overall assessment of whether the NRC's course of action was negligent.

The Court has not found any case law or examples from legislative preparatory works or legal theorythat may be compared to the NRC's operations. Consequently, there are no clear guidelines for whatrequirements the aggrieved party may reasonably place upon the undertaking within the aid industry. In

the light of this, the Court can at least not see any basis for applying a milder due care standard foremployers within the aid industry than the one that applies to other employers.

The NRC has several projects in high risk areas. It is therefore natural that field workers assume a

conscious risk by staying there. Since the NRC constantly works in high risk areas, it is the Court'sopinion that at the same time it can be required that the organization should be conscious of the risk

situation, implementing necessary and reasonable security measures to limit the risk to the extentpossible. It can also reasonably be required that the NRC should inform employees of the risk thatexists or if specific mandatory security measures are not going to be employed anyway.

Without any reference being made to comparable cases, it has been presumed in legal theory that therequirements for responsible behaviour become stricter when one ventures into risk areas; see Lødrup,

Lærebok i erstatningsrett ["Textbook in Compensation Law"], 5th edition p. 105.




The reason for this is that the larger the risk of injury, the stricter the requirement that the employershould increase his diligence or assess alternative courses of action.

The Court emphasizes that this case does not concern the security management within the NRC or theaid industry in general. The Court is to decide only on whether employees of the NRC actednegligently in connection with the kidnapping incident in Dadaab.

With this as a point of departure, the Court shall now turn to the above-mentioned elements of theassessment of negligence.

The risk of kidnappingThe security situation in Dadaab deteriorated strongly from the autumn of 2011 onwards. This wasdue to, amongst other things, Kenyan authorities having declared war on Al Shabaab after several

kidnappings of Kenyans and foreign tourists. In addition, there was a dramatic increase in the influxof refugees into the camps in Dadaab. The UN raised the risk level in Dadaab from 3 to 4. The nextrisk level is 5, which would have entailed evacuation.

There had been several kidnappings in the autumn of 2011. A Kenyan employee of the organisationCARE was kidnapped from the Hagadera camp on 19 September 2011, and two employees of DoctorsWithout Borders (MSF) were kidnapped from the IFO II camp on 13 October 2011. The organizations

were not using any armed escort when their employees were kidnapped. In addition, the DanishRefugee Council (DRC) suffered a kidnapping incident in Somalia on 25 October 2011. Theseincidents substantiate that the risk of kidnapping was high and that the risk increased if no armed escort

was used.

Because of the security situation, no VIP visits were performed after the kidnappings in the autumn of2011. According to the witness Daniel Hardy from the Danish Refugee Council (DRC), no other NGOs

carried out any VIP visits at the time. He explained that they had performed VIP visits prior to thekidnappings of employees of CARE and Doctors Without Borders, but that all visits were halted afterthat. He explained that they experienced an escalation of the security situation and that the risk of

kidnapping was considered to be increasing and unacceptable.

Daniel Hardy's statements is supported by Glenn Pettersen's report. On p. 65 of the report it is

stated that:"Previous requests to visit field locations by senior staff from Oslo and Nairobi have routinely

been denied over the last nine months prior to the visit of the SG, and in that time the securitysituation has only deteriorated".

Several reports from the NGO Safety Program (NSP) from the period between the autumn of 2011 andthe spring of 2012 have been presented. In these reports, warnings were given that the risk of

kidnapping was high and increasing. In a report by the NSP of 11 October 2011 entitled 'Advisory: Increased

threat of kidnapping/carjacking in the southern section of the Kenya Somalia Border"




it was stated that the risk of kidnapping had increased. It was stated that:"NGOs operating along the Kenya-Somalia border, particularly between Dadaab and Lamu,

should consider this increased threat of kidnapping and carjacking and adapt their security

plans accordingly."

It was furthermore stated in that same report that:"The use of armed police escorts is recommended between Dadaab and the Somalia border, andin the close proximity of the Dadaab refugee area. If possible these escorts should be clearlyidentified and visible to any hostile element."

Additionally, it was stated that:"Movement in the Dadaab area, particularly with international staffs, should to the extent

possible not be predictable and limited to essential duties."

After that, on 27 October 2011 the NSP presented another report entitled "Increased Threat of

Kidnapping". It stated that:"The last months have seen a dramatic increase of kidnapping-related incidents, in Somaliaand along the Somalia-Kenya border in Kenya."

The recommendations for the area around Dadaab include the following:"The use of armed escort has become mandatory since 26/10. It is imperative that these

escorts travel in separate vehicles, be clearly identified and visible to deter potential

attackers from a distance ".

In addition, the NSP issued another report on 10 April 2012 entitled "Advisory on kidnapping threat

in Dadaab and the border area". It stated that:"Information received from three different and unlinked sources, including embassy source,

referred to 1 or 2 kidnapping groups believed to be potentially operating in Dadaab and/or

along the Kenyan/Somalian border. Depending on the report, target could be international

staff with one report mentioning more specifically German nationals ".

The NSP reports show that the risk of kidnapping was considered to be high. There was concrete

information that 1 to 2 groups were operating in the Dadaab area and that they were waiting for anopportunity to carry out a kidnapping. In addition, the reports show that the use of armeds escortbecame a mandatory part of recommended security measures from the end of October 2011.

Since kidnapping has mainly been financially motivated, international staff and visitors were at ahigher risk. This indicates that the risk of kidnapping increased in the case of an international VIPvisit.




This is supported by Chris Allan's report. On p. 6 of the report it is stated that:"The risk differs between staff: international staff vulnerability is high as they represent the

greatest economic prize, but the vulnerability is reduced as their movement is limited; the

vulnerability Kenyan national staff is lower economically, but higher in terms of exposure ".

It is stated in the NRC's own security plan, last updated in February 2012, that the risk of IEDs andkidnapping was considered to be "possible". Under the description of "possible" it was stated thatthere was considered to be "A reasonable probability of occurring in next 12-24 months to NRC or

Staff'. In the security plan, procedures were established with regard to security, and it was stated that"Expatriate movement beyond Dadaab needs to be completely escorted". It was also stated in theminutes of a staff meeting of the NRC in Dadaab on 18 April 2012 that "Kidnap threat apparent to

still be real".

The information in the NRC's own security plan and minutes from staff meetings show that therewas a high probability that a kidnapping might happen and that this was known to the NRC's staff.

The security plan also shows that the use of armed escorts was a central and mandatory securitymeasure to avert the risk of kidnapping.

Chris Allan has on p. 5 of his report emphasized some common denominators with regard to thekidnappings carried out in Dadaab.The common denominators are that the attacks took place in isolated places, mainly in the IFO IIcamp; that no armed escort was employed; that information was propagated in advance with regard tothe convoy's movement; that the attacks were performed with massive threats of violence; and that the

drivers are killed. This indicates that the risk of kidnapping would increase if one or more of theseelements were present.

There is no information indicating that the risk of kidnapping had been adjusted downwards by June

2012. Khaire explained that no kidnappings had taken place in nine months. However, during thatperiod no VIP visits had been carried out and in addition the use of an armed escort had becomemandatory. The Court believes this may be considered an explanation why no more kidnappings had

happened. The reports from the NSP show that during that same period, concrete information hadbeen received that there were 1-2 groups operating in Dadaab that were waiting for an opportunity tocarry out a kidnapping for economic reasons.

The risk of IEDs had increased during the same period. There is however no information indicating thatthis had made the risk of kidnapping lower than before. Quite the contrary; on p. 26 of GlennPettersen's report it is stated that:

"the risk of IED and kidnap are equally placed in terms of likelihood and impact. However, the

risk of kidnap had verbally been expressed by the Roving Security Advisor in a seniormanagement meeting to be higher, with reference to the nature of




IED attacks, perceived preferred targets, and the limitations one has to reduce the risk of

kidnapping, other than armed escort an reduction in exposure ".

In the view of the Court, it is completely evident that the risk of injury in the case of kidnapping is aserious one, and that in the worst case such events may produce fatalities. It is stated in the NRC's ownsecurity plan, last updated in February 2012, that the risk of kidnapping and IEDs was defined as

"critical". Under the description of "critical" it was stated that the risk of kidnapping or IEDs would be"Death/severe injury/loss of vital equipment/cancellation of activities and risks the survivability of the

program and/or organization". In the report of Chris Allan, the risk of kidnapping is also defined as

"critical". On p. 5 of the report it is stated that:"The impact on the office and individuals of kidnap is critical. Management would be disrupted,programme implementation would be slowed and the team and individuals would suffer bothmentally and physically".

That there is a risk of serious physical and psychological personal injury in the case of a kidnapping, isalso borne out by the very kidnapping incident in June 2012. On that occasion, several shots were fired.One staff driver was killed and four others were shot and wounded. Additionally, in the case ofkidnapping there is a risk of injury and death during the captivity as such and in connection with anyrescue operation.

The review of the reports, which were available to the NRC staff prior to the VIP visit in June 2012,shows that the risk of kidnapping was visible and foreseeable to NRC staff. This is supported by thewitness statements in the case. The Court makes reference in particular to the statements of Sadozai,local staff and other security staff.

Overall, the Court finds that there was a high degree of probability that a kidnapping would take placeand that the risk would increase in the case of an international VIP visit. The risk of serious injury isvery high in connection with a kidnapping incident. The degree and nature of the risk thus stronglyindicate that in the specific situation concerned, there must be strict requirements as to the NRC'shandling of security and as to the implementation of reasonable and necessary measures to reduce andavert the risk of kidnapping.

The use of armed escorts as an industry standardThe use of armed escorts in connection with aid work is debated and cannot be considered to be ageneral industry standard. In connection with this, the Court makes reference to the report from theInter-Agency Standing Committee (IASC) of 27 February 2013 entitled "Non-Binding Guidelines onthe Use of Armed Escorts for Humanitarian Convoys". The Court also makes reference to a statementby the Red Cross in Kenya of 18 June 2015. It appears that the Red Cross has not used nor uses armedescorts in its work in Dadaab. Additionally, a report has been presented from the InternationalCommittee of the Red Cross (ICRC) of 1 December 1995 regarding the use of armed escorts. It statesthat the use of armed escorts as a general principle may conflict with the principles of humanity,independence and neutrality, and that it might contribute to unwanted escalation and a damagedreputation.




It is however evident from the NSP reports that the use of armed escorts had become mandatory in

Dadaab from the end of October 2011. According to the NRC's own security plan for Dadaab, last

updated in February 2012, it was evident that the use of armed escorts was mandatory also for NRC

staff. It stated that "NB: Expatriate movement beyond Dadaab needs to be completely escorted". The

clear and mandatory guideline, also internally within the NRC, was and is thus that an armed escort

should be used for transport between and outside of the camps in the Dadaab area. This was a

standard practice. This is supported by central witness statements in the case. The Court makes

reference to, inter alia, the statements of John Saisi, Dennis, Sadozai and Astrid Sehl, as well as the

security advisors Glenn Pettersen, Chris Allan and Daniel Hardy.

John Nzumbi, who was a security advisor in Dadaab, informed in an email of 28 June 2012 that he

would be away travelling from 28 June 2012 to 30 June 2012. The Court has been presented with a

memo from him of 27 June 2012 with the title "Briefing Notes During My Absence from 28-30 June

12". The memo stated, amongst other things, that an armed escort had been ordered in connection with

the visit and it would be coordinated by John Saisi. The wording of the memo may be interpreted to

mean that only one escort had been ordered. That part of the memo does however come across as

vague. The main message of the memo was, the way the Court understands it, that escorts had been

ordered through the UNHCR and that this was to be coordinated by John Saisi. John Nzumbi has since

died and as a consequence the Court did not get to hear his statement regarding the issue.

Based on the evidence, the Court finds that two escort cars were ordered. In making this

assessment, the Court has attached importance to John Saisi's witness statement. He explained that

it was common and mandatory to use armed escorts in Dadaab at the time. The ordering of escorts

was organized through the UNHCR. John Saisi had discussed the visit with the UNHCR, and the

UNHCR had decided that there were to be two vehicles as escorts since it was a high profile visit.

Consequently, two vehicles had been ordered with four policemen in each car, including the driver.

The drivers of the escort cars were also to be armed.

Sadozai decided on 28 June 2012, in consultation with Khaire and Torill Brekke, that no armed escort

was to be used during the Secretary General's visit after all. Following the presentation of evidence, in

the view of the Court it is unclear what was the cause of this decision and what caused the security

plan to be changed the day before the visit. Sadozai explained that the decision was made because

they wanted to keep a low profile and reduce the risk of IEDs. In addition, a few days before the

decision she had experienced that the escort did not know the way. In any case, the Court finds that

the decision was at odds with the prevailing conditions and advice from the local security advisor in

Dadaab. The decision was also contrary to established and mandatory practice in Dadaab at the time.




Before the decision was made, Khaire had tried to get hold of the global security advisor in Oslo,

Glenn Pettersen, without succeeding. No advice was sought from other security advisors in

connection with the said decision.

This is supported by Chris Allan's report. On p. 14 of the report it is stated that:

"No advice was sought for the changes from the security adviser but appears only to come from

an undocumented conversation between Hassan Khaire and Qurat".

On p. 14 of the same report it is further stated that:

"The changes were not referred to the security adviser in the region and

communicated at a very late hour to the global security manager".

The decision not to use an armed escort was contrary to the prevailing opinion among the security

advisors. This is substantiated by, amongst other things, the email that Pettersen sent in the morning

of 29 June 2012 when the VIP visit was already in progress. It stated that:

"My only concern was whether this was the first time you have gone for no armed escort,

hence no great certainty as to desired targeting of us or nor, although all experience show

with some level of confidence that we are not a desired target! Considering the low level of

unpredictability in the camps and its surroundings for incidents occurring, preparedness as to

quick movement based on effective and strategic sources of information surrounding the visit,

would be important for risk mitigation."

Glenn Pettersen explained in court that the decision-makers had not consulted him on the use of

armed escort before sending the email with the modified security plan. In his view, Khaire, Sadozai

and Torill Brekke should have gathered security advice from him or other competent security

advisors prior to changing the security plan for the visit.

Chris Allan's report states that information security and a deterrent element shall generally be

included in the security measures, and that in reality this indicates that an armed escort should have

been used. He explained that ordinary movements inside the camps normally would take place

without an escort, but that an escort should be used in the case of an international or high profile

visit. Chris Allan also emphasized that the use of an armed escort did not increase the risk of IEDs.

Quite the contrary; an armed escort was a measure to reduce the risk of IEDs. On p. 13 of the report

it is stated that:

"A key function of any police escort is to take this role and mitigate the risk of IED attack faced

by INGO staff. SOP's outlined in the current security plan are designed to reflect this".

Although the decision regarding armed escort was not in violation of a general industry standard

within the aid industry, it was in violation of an established and mandatory practice. The decision was

also contrary to conditions, advice and recommendations from the NRC's own security advisors.




In the opinion of the Court, this indicates that the NRC's decision-makers should have acteddifferently, and they should at least have sought advice from competent security advisorsbefore making the decision.

The Refugee Council's alternative courses of actionThe question is whether effective and practicable alternative courses of action existed for NRC staff

members.

One alternative would of course be to refrain from going through with the VIP visit. This would have

been in accordance with the practice in this area for the past nine months. Daniel Hardy of theDanish Refugee Council explained that no VIP visits had been carried out during that period becausethe risk of kidnapping was considered to be increasing and unacceptable.

Glenn Pettersen received the decision from Sadozai regarding the security arrangement on the samemorning that the visit was to take place. Pettersen explained that it caused him some concern, which

he relayed by email and by telephone to Khaire. Pettersen did however consider that it would bedifficult for him to cancel the visit, since it was already in progress. He explained that if he hadknown of the breaches of the information security, seen in conjunction with the amended security

plan, he would have asked for the visit to be cancelled.

The need for staff security must be weighed against the need to create awareness of people in wars,

crises and distress. Jan Egeland explained that it was important that the Secretary General, being thetop operational manager of the NRC, should visit such places to understand the realities and to obtaina focus on and increased attention to crisis situations. This might in turn lead to increased aid funding

and more assistance to people living there. Considering the difficult situation in Dadaab in thesummer of 2012, it was thus understandable that the NRC chose to send its Secretary General there.

However, it had been an established practice for several months that because of the serious security

situation, no other VIP visits had been carried out. Against this backdrop, it was to be expected thatthe organizers of the visit would contemplate the security situation with utmost seriousness, and at

least implement necessary and reasonable security measures when it was decided that the visit was tobe carried out.

Before the visit was carried out, there was concrete information that there was an insufficient

understanding of security handling in Dadaab. In connection with this, the Court makes particularreference to the report from Hanna Vaughan-Lee entitled "Context & Risk Analysis: Dadaab

January 2012". The report contains a list of several weaknesses in the handling of security, and a listof several recommended measures to improve security. She explained in court that there weredeviations in the understanding of the security situation and that those responsible had to understand

that context analysis is a tool to make it possible to reach good decisions concerning securitymeasures. She explained that in the wake of the report, context and analysis training was performed,but that that the other recommended measures were put on hold.




She reported both to Khaire and to central persons at the head office in Oslo that the other measures

should be followed up on, but this was not done.Hanna Vaughan-Lee went on to explain that in

reality there was no security management in Dadaab and that the NRC did not have sufficient

information to be able to reach a decision on removing the armed escort for the visit. In her opinion,

the kidnapping could have been averted if the NRC had had a better security understanding and

thinking in advance; if the information security had been better; if they had followed the

recommendation not to visit the IFO II and if they had used an armed escort. She explained that the

NRC had operated in Dadaab for some time and that as a consequence, the understanding of the

context should have been better. In her view, the reports regarding the incident and the decisions that

were made in connection with the visit should have stated that "We didn't really know what we were

doing", or "We did our best, but it could have been better".

Security advisor Chris Allan confirmed in court that he knew of the report by Hanna Vaughan-Lee

before the kidnapping incident and that there had been a need for security improvements. He

explained that security had not been taken as seriously as it could have been, and that the

implementation of security measures ought to have been better.

Based on the evidence, the Court is of the opinion that there should have been a stronger security

thinking and understanding in the Dadaab area. A more conscious and professional handling could

have contributed both to increased security in general and to well-founded decisions on security

measures in connection with the specific visit of the Secretary General.

This is supported by Glenn Pettersen's report. On p. 3 of the report it is stated that:

"NRC Kenya failed, in this particular situation to acknowledge the relevance of kidnap risk,

and to introduce appropriate, principled, best practice preventive and reactionary measures

to reduce this risk".

On p. 3 of his report, Chris Allan also concluded that:

"The recent critical incident demonstrates strongly that NRC is not currently fulfilling its duty

of care to staff. This is clearly the case in Dadaab and may also be relevant in missions

elsewhere ".

On p. 15 of the same report it is further stated that:

"A background of ignoring key security requirements, failing to implement, maintain and

adhere to security procedures, cancelling of the purchase orders of key equipment coupled with

a reliance on a gut feel of key managers may also have allowed staff to 'just go along" with the

changes in procedure. "If Hassan is there it will be alright" was the phrase used by one

member of staff and this was clearly demonstrated not to be the case".




Furthermore, the NRC has itself acknowledged that there was a failure in the information security andthat as a consequence the kidnappers may have come to know that a VIP visit was to take place on the

day in question. This acknowledgment is supported by other evidence in the case.

Information security and low profile go hand in hand. These may be central measures to mitigate andavert kidnap risk. Lars Christian Finstad, who has a background as a police officer and a security

advisor at the NRC, explained that an important element with regard to both information security andlow profile is that as few as possible should know about a VIP visit. This will reduce the risk ofkidnapping and other attacks. This assessment is supported by other evidence and witness statements

in the case. Sadozai explained that information security and low profile were the only ways ofpreventing the risk of kidnapping. Other witnesses with a professional security background andcompetence explained that this is one of several central means for reducing the risk of kidnapping. In

connection with this, reference is made to the testimonies of Glenn Pettersen, Daniel Hardy and ChrisAllan.

The evidence presented has shown that prior to the visit, notice was given that a high profile

visit would arrive. It is unclear whether it was specifically stated that it was the SecretaryGeneral who was to arrive, but in any case it was informed that the visit would be a highprofile one.

This is supported by the information in Glenn Pettersen's report. On p. 6 of the report it is statedthat:

"Information security was inadequate, from the outset in late May many staff knew of theproposed visit and increasingly third parties were informed. The choice of date wasinappropriate, it called people in on a day that was normally a non working day and as suchincentive staff members were given a week's notice of a VIP visit".

On p. 25 of the report it is further stated that:"It must have been apparent to numerous people in Dadaab that a high profile visit was

underway. A number of measures were set in motion in order to prepare for thevisit, measures that inevitably must have alerted the community to the fact that something

out of the usual was to take place."

Additionally, on p. 28 of the report it is stated that:"Information security was not sufficiently prioritized and the failure to acknowledge theimportance of information security is probably the most important contributing factor that led

to NRC being targeted".

Glenn Pettersen explained in court that the greatest security failure concerned the information

security. After the kidnapping incident there has been more awareness raised in the NRCregarding the need to prioritize information security.




Chris Allan has in his report reviewed when it was that information about the Secretary General's visitwas provided. On p. 11 of the report he concluded that:

"It is clear that from any number of sources the kidnappers could have gained information thata significant visit by NRC management was due to be undertaken. Information is released far

too early in the planning of visits and unnecessary changes to programme acitivity are madethat only go to further flag the importance of certain visitors. It is clear that the high profilenature of the visit was signaled to all levels of the community with little regard for the affectthis had to security."

The Court makes further reference to Yann La Bohellec's testimony. He worked for the NRC inDadaab from the beginning of 2012. He explained that there was a coordination meetingapproximately 10 days prior to the visit, where all the managers of the different fields were present.

They were then informed that the Secretary General would arrive. He explained that all staff membersin Dadaab were informed five or six days before the visit and that there was no particular mentioningof the visit having to be kept secret. He explained that the area was upgraded in preparation of the

visit and that amongst other things, stones were painted, fences were raised, a special menu wasprepared, etc.

Sadozai explained that she started her job in Kenya on 4 June 2012 and she was then informed of the

visit. She was involved in the planning of the visit from that point onwards. She explained that it hadbeen communicated that a high profile visit was to arrive, but that it was being kept secret that it was

the Secretary General who was to arrive. She explained that the refugees who worked at the IFO IIwere informed two days before the visit that they were to come in and work on their day off. Sheexplained that they were all then informed that a high profile visit would come. She furthermore

explained that it was only a few that should have been informed of the visit but that the informationalready had "started to float" when she took up her position. She explained that despite this, she didnot give any instructions with regard to maintaining information security.

John Saisi worked as a logistics coordinator for the NRC in 2012-2013. He explained that he got toknow about the visit of the Secretary General at a general meeting with the entire staff in Dadaab a

few weeks in advance. He explained that they were about 70-80 persons present at the meeting andthat it specifically concerned an upcoming high profile visit. It was his understanding that it was theSecretary General who was to arrive. He explained that the meeting was chaired by the NRC area

manager in Dadaab and that no instructions were given as to the information being confidential. Heexplained that this meeting was held before Sadozai came to visit Dadaab. According to Saisi, no staffmembers from the regional office in Nairobi were present at that meeting. He explained that as part of

the preparations for the visit, the area was cleaned and upgraded.

Overall, the Court finds that there were several breaches of information security and that this led to anincreased risk of kidnapping. The Court considers it a fact that the kidnappers, because of the

information security breaches, were able to know about the visit in advance. This is also in line withthe assessments and witness statements that the kidnapping attack gave the impression of having beenplanned.




In the Court's assessment, there were several practicable alternative courses of action that could haveensured improved information security, thus reducing the risk of kidnapping. By comparison, theNRC had a very different approach to information security in connection with the Secretary General's

earlier visit to Yemen in June 2012. It was stated in the security plan that information about theidentity and itinerary of the visitor would be kept restricted to key persons involved. Specifically, itwas stated that "Identity/itinerary of the visit team will be kept restricted to only key individuals

involved".

In the view of the Court, the management and organizers at the NRC should have provided equally

clear guidelines and instructions on how information security was to be preserved. This should havebeen part of the security plan. In connection with this, the Court makes reference to the fact that theNRC after the incident also has changed its practice, making an assessment of information security a

standard part of such security plans.

Sadozai explained that the information about the visit "was floating" when she took up her positionon 4 June 2012. In the view of the Court, she then should have considered whether the visit ought to

be cancelled. In any case, possible changes to the programme and security measures should havebeen considered, and clear instructions should have been given with regard to information security.She should have informed the security advisors of the breaches of information security, so that they

could have recommended any necessary measures.

Both Sadozai and Khaire explained that they wanted to keep a low profile for the visit and that thiswas a central reason why they decided not to use an armed escort. The Court can however not see that

any other measures were implemented for the visit to keep a low profile or to reduce the risk ofkidnapping. Nor can the Court see that the removal of the escort was an adequate measure for the visitto keep a low profile. Chris Allan concluded on p. 15 of his report that:

"change to SOPs — these were changed to possibly mitigate against IEDs although theireffectiveness was questionable but nothing was reinstated to mitigate the kidnap threat and as a

result this risk was increased".

The evidence presented has shown that the visit was not performed with a low profile. Quite thecontrary; it was launched and carried out as a high profile visit. There were massive informationsecurity breaches. It was made known several days in advance that a high profile visit would come.

Several dozens of refugees were called in to work on their day off, and prior to the visit severalupgrading measures were performed.

Chris Allan said in a statement that a relevant measure for keeping a low profile would be to use

other kinds of cars. However, during the visit the entourage drove in a convoy of three white LandCruisers that were clearly marked with the NRC logo.




By comparison, no cars marked with logos were used during the Secretary General's visit to Yemen.

No other measures were implemented for the visit to Dadaab to keep a low profile, apart from the

removal of the armed escort. In connection with this, the Court mentions that the security advisorswho gave evidence in the case stated that the removal of the escort was not an adequate measure foraverting neither the risk of kidnapping nor IEDs. This is also clear from an email from Pettersen of

29 June 2012 as well as Chris Allan's report.

Overall, there were several specific security measures that should have been implemented to ensure

sufficient information security and that the visit would keep a low profile. Such alternative courses ofaction must be considered practicable and effective with regard to reducing the risk of kidnapping. Inlight of the tense security situation and the high risk of kidnapping with a serious potential for injury,

such actions must in the view of the Court clearly be considered to be reasonable and necessarysecurity measures.

Another central alternative course of action would be to stick to the plan of using armed escorts in

connection with the visit. The escorts had already been ordered and this course of action wouldobviously be practicable. The use of escorts would be in line with established practice, internal

security routines and the clear advice of security advisors, including both internal and externalpersons with security competence. Also, armed escorts were being used in Dadaab several times aday.

Additionally, the Court makes reference to the fact that no armed escort had been used during thekidnappings in the autumn of 2011, and to the fact that there had not been any kidnappings afterarmed escorts became mandatory and after VIP visits were halted.

Sadozai and Khaire explained in court that a central part of the grounds for the decision not to usearmed escorts was to reduce the risk of IEDs. However, the security advisors that gave evidence

stated that there was nothing to indicate that the risk of IEDs would diminish if one refrained fromusing armed escorts. Nor is there any other information to indicate that the risk of IEDs increasedwith the use of an armed escort. In the email of 29 June 2012, Pettersen stated that the NRC was not

a target for IEDs. Chris Allen stated in his report that it was the escort's job to mitigate the risk ofIEDs, and that the risk of such attacks against NRC staff did not increase with the use of armedescorts. He has made reference to the fact that by experience it was the police escort, not the

convoy, that would be a target for IEDs.

In the email of 28 June 2012 from Sadozai concerning the security plan, it was stated that:"The first car will stay at a significant distance ahead to ensure they are assessing the

situation and are able to alert car 2 and car 3 of any changes in the situation to allow for

appropriate reaction time".




Sadozai explained in court that the idea was that the first car was to be sent in front and notify the

others if it observed any movements out of the ordinary. An additional intention was to secure the

most important delegation with the Secretary General, which was placed in the second car. Sadozai

explained that if the first car was hit by an IED attack, the other two cars of the convoy could avoid

the attack and escape.

Chris Allan has concluded that Sadozai's decision entailed an unacceptable risk. The decision entailed

that the staff in the first car in the convoy was sent out ahead of the others to avert the risk of IEDs for

the rest of the group. None of the staff in the first car, including Dennis, were informed neither of

their function as warners with regard to unusual movements nor the risk they assumed by being

placed in the first car. Chris Allan has in his report commented on Sadozai's assessment of this. On p.

13 of the report it is stated that:

"Quite separately to the incident of kidnapping that actually occurred this exposure to risk of

staff without their informed consent demonstrates an extreme dereliction of NRC's duty of care

and in contravention of NRCs current security instructions and policies ".

All of this indicates that the removal of the armed escort was not a suitable security measure for

reducing the risk of either kidnapping or IEDs. Quite the contrary; the risk of both kidnapping and

IEDs to staff members in the convoy increased substantially when the decision was made to remove

the escort.

In summary, it would have been practicable to use an armed escort during the visit. Moreover, in this

particular security situation it must be considered an altogether necessary and reasonable security

measure. This is supported by all witness statements from the security advisors with a professional

security background, as well as by other central witnesses.

Another alternative course of action would have been to make the visit to a different camp than IFO II.

It can be seen from an email correspondence on 26 June 2012 that the regional security advisor

commented that for reasons of security, one should consider visiting Hagadera rather than IFO II. The

IFO II camp was less established and more dangerous than several of the other camps in Dadaab. The

kidnapping of two staff members of Doctors Without Borders (MSF) in October 2011 had also taken

place in IFO II. Security advisor Chris Allan explained in court that the said camp was less structured,

that the police were not in full control there, and that kidnappings had taken place there before. The

other camps were more structured and safer. In Chris Allan's report on p. 15 it is stated that:

"The location for the visit is exposed and vulnerable to attack by criminal elements.

In particular the NGO sub office compound in Ifo II although fenced has no guard force and

there are compounds that are unoccupied. This allows infiltration by armed actors. The

kidnap of MSF staff took place in the same area with a very similar modus operandi".




On p. 13 of the same report it is further stated that:"No consideration has been given in these measures to the kidnap incident that tookplace in October 2011 within a few hundred meters of where the kidnap incident against

MSF occurred".

Witnesses explained in court that it was of no significance for the programme work and mediaexposure of the Secretary General's visit whether it took place in the IFO II camp or in one of the

other camps. The Court makes particular reference to communication advisor Astrid Sehl'sstatement. She explained that there was no particular point in going to IFO II, where they mainlywere going to observe how bricks were made. She explained that they could have obtained the same

benefit by visiting one of the other camps.

Overall, the Court finds that the organizers of the visit were warned in advance against visiting the

IFO II camp and that the risk of kidnapping could have been reduced by visiting one of the othercamps instead.

In advance it was also recommended and planned that the visit to IFO II was to be limited to 30

minutes. This was also presupposed in the security plan, as is evident from the email from Sadozaiof 28 June 2012. It would have been a practicable alternative course of action in order to limit the

risk of kidnapping. The visit did however extend beyond the recommended duration. In GlennPettersen's report on p. 28 it is stated that:

"it is assumed that the length of the visit and mode of exposure has given the attackers timeto assess how the convoy was organized and also confirm the high-level nature of the visitthereby contributing to the kidnap being carried out".

In addition, security staff should have been present during the visit. However, no security advisors werepresent.In Glenn Pettersen's report on p. 68 it is stated that:

"This led to the responsibility for security being delegated to staff with limited knowledge

and skills, reducing the ability to undertake responsible and good operational judgmentsalong the way".

In any case, the decision-makers should have continuously consulted security staff. Chris Allan has inhis report presumed that this could have led to improved coordination and security planning, and thus

also to improved security.

Nor should the NRC have had so many key persons in the same convoy. In Chris Allan's report on p.15 it is stated that:

"Number of management staff exposed to risk was reckless. The entire management chain wereplaced in one convoy in a high risk location ".




In Glenn Pettersen's report it is stated that it took time to establish a crisis management team inKenya following the incident, since several key persons were involved in the convoy that was

attacked. Additionally, on p. 3 of his report it is stated that:"The amount of key Senior Managers in the convoy should have been questioned by most

members of the convoy. It should have been obvious that a serious incident occurring to that

convoy would severely limit the organisations ability to manage a critical incident."

The kidnapping would probably have been carried out independently of the number of key persons in

the convoy. If the persons in the second car, including the Secretary General, Khaire and the areamanager, had not managed to escape, there would however be few decision-makers left in the area togive notice of the attack and to establish a crisis management team.

Overall, the Court has found that there were several effective and practicable alternative courses ofaction that would have reduced and averted the risk of kidnapping.

Overall assessmentOverall, the Court finds that the staff could reasonably expect that the NRC would implementnecessary security measures in connection with the visit of the Secretary General. The risk ofkidnapping was concrete and high. In addition, the risk was visible and foreseeable. The potential for

injury in the case of kidnapping is serious and may in the worst case entail fatalities or seriousinjuries. Kidnapping may also impact programme activity. Considering the degree and nature of therisk, the requirements for diligent handling of security must be considered to be heightened. The

Court has found that there were several effective and practicable alternative courses of action thatwould have improved security. The security plan that was applied was however contrary toapplicable guidelines and advice from persons with competence in the field of security. Upon a

concrete overall assessment, in the Court's view there is no doubt that NRC staff acted negligentlyand that the requirements for employer's liability under section 2-1 of the Compensation Act arefulfilled.

The Court's conclusion is that the NRC may be held liable under the rule of employer's liability insection 2-1 of the Compensation Act.

Compensation for pain and sufferingThe requirements for compensation for pain and sufferingThe plaintiff has submitted a claim for compensation for pain and suffering pursuant to section 3-5 ofthe Compensation Act. It is a requirement for a compensation for pain and suffering that the tortfeasormust have acted with intent or gross negligence.

In order to establish liability for pain and suffering, it must be possible to link the matter to theemployer's managing bodies, which then will be considered to have caused the injury; see, inter

alia, [the Supreme Court judgment reported in] Rt 2012 p. 1062.




The Court must therefore decide both whether the NRC may be held liable pursuant to the rule ofliability for the actions of managing bodies and whether the NRC acted with gross negligence.

Liability for the actions of managing bodiesThe question is who may be identified with "the body". In legal theory, it has been presumed thatliability for the actions of managing bodies should be established when the injury caused is due to

failure in "management functions"; see the book by Hagstrøm and Stenvik, Erstatningsrett["Compensation Law"], 1st edition p. 250. The Supreme Court has linked the liability to the one whohas the highest authority to make decisions in each individual field; see Lødrup, Lærebok i

erstatningsrett ["Textbook in Compensation Law"], 6th edition p. 203. This means that thedelimitation can be based more on teleological arguments of compensation law.

In legal theory, see Lødrup, Lærebok i erstatningsrett ["Textbook in Compensation Law"], 6th

edition p. 204, it is stated that: "The concept of management does however encompass more

than the company's top management, as it may also include lower levels with the highest

independent decision-making authority, which not uncommonly is found at a section manager

level. Depending on the enterprise's tasks and size, it may well happen that there are many

who must be identified with the enterprise. It is thus the person's function as a manager that is

of interest, not only his position in the organizational structure, and the liability-causing act

or omission must be a manifestation of the managerial function."

The NRC has acknowledged that there was a failure in the information security. The NRC has

however submitted that the failure happened locally in Dadaab where the area manager wasresponsible, and not at management level, and that consequently the requirements for liability for theactions of management bodies are thus not present.

In June 2012, Hassan Khaire was regional director at the office in Nairobi. Qurat Ul-Ain Sadozai tookup her position as country director for Kenya on 4 June 2012. The area manager in Dadaab wasMarco Buono. Toril Brekke was head of field operations and acting Secretary General in the absence

of Rassmusson.

Dennis had previously functioned as a so-called "Security Focal Point" in Dadaab, at least up until 2

April 2012. The role as Security Focal Point meant that he was the local contact person for thesecurity advisors of the NRC. The Court cannot see that this role entails neither decision-makingauthority nor management responsibilities. Dennis was asked to be Security Focal Point in connection

with the visit, but he did not want to. During the visit as such it was another person who held that role.It was Abdullahi Keynan. He was employed as shelter coordinator and did not have any securitycompetence either. During the visit he also acted as an interpreter and guide for the Secretary General.

Apart from that, there were no other security staff present in connection with the visit in Dadaab.

The Court notes that Dennis had no responsibility for or influence on the security plan for the visit,and that it was only a short time in advance that he was given the task of providing a short security

briefing at the airport.




At that point in time, Dennis had not seen security documents or participated at meetings regarding

safety in the past four months. He had been informed of the decision concerning armed escort on

the day before the visit and had protested against it. The area manager had then informed that the

decision was made at the Nairobi office and had been assessed by security staff. As a consequence,

those present had "swallowed" the decision.

The evidence presented has shown that the security plan was established by the country director

Sadozai in an email of 28 June 2012. This is also substantiated by Glenn Pettersen's report, wherein it

is stated on p. 64 that Sadozai was "Responsible and decision maker. Established the SOPs for the visit

in agreement with the RD (Khaire) ". The security plan was established in consultation with regional

director Khaire, following approval by head of field operations Toril Brekke, who also was the acting

Secretary General. Consequently, they were responsible for the security plan. They were responsible

for the decision not to use an armed escort. They were also responsible for the decision that the first

car in the convoy was to look for IEDs and assume the risk for such an attack.

Upon direct questions by the Court, different answers were given as to who were responsible for

information security. Jan Egeland explained that preservation of information security is a management

responsibility, but that each individual is also responsible for it. Sadozai explained that she herself had

the overall responsibility for security. She explained that Astrid Sehl was the communications advisor

and that as a consequence she was the one who should have assumed responsibility for limiting the

spread of information. Sadozai did however not have any contact with Astrid Sehl with regard to the

preservation of information security. Torill Brekke explained that the responsibility for information

security was distributed among country director Sadozai, regional director Khaire, communications

advisor Astrid Sehl and the area manager in Dadaab. Former police officer and security advisor Lars

Christian Finstad explained that it was the organizers of the visit; that is, the regional office in Nairobi

and the head office in Oslo, who were responsible for preserving information security.

In the view of the Court, it must be considered a management responsibility to provide guidelines

concerning information security. The manager is also responsible for implementing other measures if

it becomes known that instructions have not been followed. This is supported by the fact that it was

country director Sadozai and the managers above her who had the overall responsibility for the

security planned, and the fact that the requirement of information security after this incident has been

included as a mandatory part of such security plants. Sadozai explained that she was aware that there

was a failure in the information security. Despite this, she did not to give any instructions with regard

thereto; nor did she implement any other measures that could have compensated the error. The

decision-makers with regard to the security plan had, in the view of the Court, themselves the

responsibility for securing a satisfactory basis for decision-making, including securing advice from

advisors with security competence.




Country director Sadozai and regional director Khaire were responsible for carrying out the visit andwere thus responsible for the implementation of necessary and reasonable security measures.

Jan Egeland explained that risk must be handled in the best possible way, while at the same time the

organization is to help as many as possible. He explained that this is a balance between programmework and security concerns and that as a consequence, decision-making authority lies with the line

manager. Country director Sadozai, regional director Khaire and head of field operations Brekke wereline managers with independent decision-making authority. They had decision-making authority andresponsibility for the implementation of necessary security measures. The decisions regarding the

security plan and security measures in connection with the visit in Dadaab were made by these threepersons. In the view of the Court, this indicates that the NRC may be held liable pursuant to the ruleof liability for the actions of managing bodies.

Country director Sadozai, regional director Khaire and head of field operations Brekke held differentinformation about the situation and had different premises for assessing reasonable and necessary

security measures. Since the decisions were made by them jointly, the Court can however not see therebeing any grounds for performing a differentiated assessment of them.

The Court does however note that country director Sadozai previously had been "Programme

Director" in Kenya and Somalia. After that, she was country director for Pakistan for a period oftime before she took up her position as country director for Kenya in June 2012. It is stated in Chris

Allen's report on page 4 that the context in Dadaab had changed "significantly" during the period shehad been away from the area. Since she was new to the job, she should have made sure that shecollected sufficient and updated information on the security situation from others.

Head of field operations Brekke confirmed that she was not familiar with central security reports fromDadaab, including, inter alia, the report by Hanna Vaughan-Lee. She explained that they had been

sent to the regional office in Nairobi and Glenn Pettersen and not to her. In the view of the Court, thishighlights the importance of line managers consulting security staff before decisions are made.

The Court's conclusion is that the NRC may be held liable pursuant to the rule of liability for the

actions of managing bodies.

Gross negligenceFollowing the above, the question is whether country director Sadozai, regional director Khaire andhead of field operations Brekke acted with "gross negligence"; see section 3-5 of the CompensationAct. There is no sharp dividing line between simple and gross negligence. In the case of gross

negligence, the deviation from the responsible conduct must be greater than in the case of ordinarysimple negligence. The act or omission must be considered to be clearly blameworthy and mustprovide grounds for strong reproach for lack of due care. The elements of the assessment are the same

as those of the general fault-based liability standard.




What is decisive is whether the conduct represents a clear deviation from responsible conduct.

The risk of both kidnapping and IEDs was very high, and both had a serious and considerable

potential for injury. This indicates that strict requirements had to apply in terms of implementing

reasonable and necessary security measures to avert or mitigate the risk.

Sadozai, Khaire and Brekke were seasoned staff members and experienced in work at the NRC. This

heightens the expectation that they should know what would be relevant information and a sufficient

basis for decisions to allow for a well-founded decision with regard to the security plan and necessary

security measures.

Since the amended security plan deviated from established guidelines and practice with regard to the

use of armed escorts, they should have made sure to confer with persons that are competent in the

field of security before the decision was made. When Khaire failed to obtain contact with Glenn

Pettersen by telephone, they should have contacted other security advisors, including for instance

the local security advisor, the regional security advisor or security advisor Chris Allan.

The NRC has acknowledged that there was a failure in the information security and that this may

have led to the kidnappers having information about the visit. Sadozai was aware that information

about the visit was "floating" and that it had been made known that a high profile visit would arrive.

Despite this, no instructions were issued with regard the handling of information, nor were other

measures implemented to compensate this.

In the security plan it was stated that the visit was to keep a low profile. However, no measures were

implemented to keep a low profile beyond refraining from using an armed escort. Quite the contrary;

it was widely made known that a high profile visit would arrive. All staff members in Dadaab were

aware of this and several dozen refugees were summoned to work on their day off in connection with

the visit. No other moves were made to ensure unpredictability or a low profile. On the other hand,

the convoy consisted of three white Land Cruisers with the NRC logo.

The decision not to use an armed escort was reached the day before the visit. In the view of the Court,

it appears unclear what were the grounds for that decision and what led to the decision being made the

day before the visit. Sadozai and Khaire explained that the decision was made to give the visit a low

profile and reduce the risk of IEDs. In addition, Sadozai explained that she a few days before the visit

had experienced that the escort did not know the way and got lost. Torill Brekke explained that it was

a difficult ponderation. She explained that what was decisive for her approval of the decision was that

the greatest risk was that of IEDs, and that Kenyan police were a target for such attacks.




In any case, the decision was contrary to a mandatory and established practice in the area, internal

guidelines and the plan that had been provided by the security advisor the day before. The decision

was also made without them having conferred with advisors with security competence. The security

advisors and other persons with competence in the field of security have unambiguously stated that

the removal of the armed escort was not a suitable measure for reducing the risk of IEDs. Quite the

contrary; they have explained that the use of an armed escort would reduce the risk of both

kidnapping and IEDs. The Court also notes that no other reasonable and necessary measures were

implemented for the visit to keep a low profile. Several other witnesses have in addition, as opposed

to Sadozai, explained that the escorts were professional and knew the area well. On the basis of this,

the Court finds that Sadozai, Khaire and Brekke either had failed to secure a sufficient basis for

making decisions or that the decision was based on flawed assessments. This also substantiates that

they should have conferred with security staff before making the decision.

It is stated on p. 16 of Chris Allan's report that:

"Changes to SOPs need to be considered more comprehensively before making changes and

must involve the security management team in country with a chance for the security adviser

to give his or her input."

The removal of the escort increased the risk of both kidnapping and IEDs. The staff were however

not informed of this increased risk in a satisfactory way. Astrid Sehl explained that she would not

have participated if they before the commencement of the visit had been informed that it was to be

carried out without an armed escort. This is further substantiated by the fact that a UN driver who

had been hired, pulled out when he got to know that no armed escort would be employed. The driver

who was hired instead was killed in the attack.

Several staff members in the convoy did not receive sufficient information about changes to security

measures or any chance of withdrawing from the visit. It is stated on p. 14 of Chris Allan's report that:

"It is clear that not all staff travelling with the convoy were aware of the change to

security measures and no opportunity was given to challenge the decision or to withdraw

from the visit in light of the changes".

This is also supported by Glenn Pettersen's report. It is stated on p. 67 that:

"Not all staff were informed that the armed escort had been excluded. All staff participating

in a convoy should be briefed on threats and individual actions to be taken upon the

materialisation of these threats, as well as critical measures which are introduced for

mitigation of the risk".

The staff in the first car, including Dennis, were not informed of their role with regard to the risk of

IEDs. In the view of the Court, the security plan entailed an unacceptable increased risk to the staff

members in the first car.




It is stated on p. 13 of Chris Allan's report that:

"The procedures proposed by Qurat identify the main perceived threat as one of IED attack and

the significance of the monitoring vehicles and lead vehicle would appear to be to try and spot

IEDs which is extremely difficult to do or be in a position where they would detonate the IED

ahead of the SG's vehicle. At no point were any NRC staff in the monitoring vehicles or lead

vehicle informed of their role in IED detection. None of the NRC vehicles are currently

equipped to withstand even the smallest of IEDs."

Additionally, on p. 13 of the same report it is stated that:

"Quite separately to the incident of kidnapping that actually occurred this exposure to risk of

staff without their informed consent demonstrates an extreme dereliction of NRC's duty of care

and in contravention of NRC's current security instructions and policies."

Upon an overall assessment, it is the Court's opinion that the course of action of Sadozai, Khaire and

Brekke must be considered to represent a clear deviation from a responsible course of action. In making

this assessment, the Court has in particular attached importance to the existence of specific information

that it was probable that a kidnapping could take place and that in the worst case, this could have a fatal

outcome. Several practicable and effective alternative courses of action existed. Despite this,

reasonable and necessary security measures were not implemented. Quite the contrary; the changes to

the security plan made the risk of kidnapping increase substantially. Staff were not notified reasonably

in advance of changes to the security measures, and as a consequence thereof they were exposed to

increased risk. Consequently, the decision-makers acted with gross negligence both when establishing

the security measures and in that staff members were not informed of their role and the increased risk

to which they were exposed.

The Court's conclusion is that the NRC's conduct was grossly negligent. The requirements for a

compensation for pain and suffering are satisfied; see section 3-5 of the Compensation Act.

Strict liability

In the alternative, Dennis has submitted that the NRC is liable pursuant to the non-statutory rule of

strict liability and irresponsible arrangement. He has submitted that the risk of kidnapping was

continuous, typical and extraordinary, and that the NRC is the most obvious one to bear the risk of

the injury that occurred. It has been submitted that the kidnapping incident could have been avoided

through practically manageable, effective and reasonable measures.

The Court has concluded that the NRC may be held liable under the rule of employer's liability

in section 2-1 of the Compensation Act. The Court has also concluded that the NRC's conduct

was grossly negligent and that the NRC may be held liable pursuant to the rule of liability for

the actions of managing bodies.




Following the above, it is not necessary to decide on the alternative submission of non-statutory

strict liability.

The requirement of causation

The third fundamental requirement for compensation is that there must be factual and legal causal

relationship between the basis of liability and the injury. The causation requirement is normally

satisfied if the injury would not have occurred if one imagines that the act or omission is removed.

The act or omission is then a necessary condition for the injury to occur; see [the Supreme Court

judgment reported in] Rt 1992 p. 64. The negligent course of action must be perceived to be a

sufficiently essential element of the causal landscape for it to be reasonable to attach liability to it; see

Rt 2001 p. 302. There is a requirement that the ensuing injury must be foreseeable and that it must not

be too remote and derivative; see, inter alia, Rt 2000 p. 418.

The NRC has acknowledged that there was a failure in the information security and that this most

probably was a necessary condition for the kidnappers becoming aware of the visit. Consequently,

the NRC has acknowledged that the requirement of factual causation is satisfied.

The Court agrees that the failure in the information security must be considered a necessary condition

for the kidnappers becoming aware that a high profile visit was to take place that day. This is

substantiated by the subsequent assessments that the kidnapping gave the impression of having been

planned.

In addition, the Court has found the NRC's conduct to be negligent on grounds of several other

circumstances. They include, in addition to the information security breach, also the decision not to

use an armed escort; that a visit was made to IFO II camp; that the visit to the camp extended beyond

the recommended time; as well as the lacking presence of security staff. No other measures were

implemented for the visit to keep a low profile or to reduce the risk of kidnapping and IEDs.

The basis of liability is thus founded on the existence of several negligent acts and omissions. Since

the NRC is liable for all negligent acts and omissions with regard to the handling of security, the

Court finds that the circumstances must be assessed as a whole.

Daniel Hardy worked as a security advisor at the Danish Refugee Council in 2012. In his opinion, the

kidnapping would have been averted if information security had been preserved, if security staff had

been present and if an armed escort had been used. In addition, in his opinion it was shocking that so

many key persons were placed in the convoy and that the one in charge of security was absent

travelling during the VIP visit.




The purpose of an armed escort would be to deter attacks, while at the same time the escort could havedefended the convoy if an attack nonetheless materialised. Two escort cars had been ordered with fourarmed policemen in each car. The evidence presented substantiates that these two escort cars with eightpolice officers would have had a deterrent effect and would have afforded the convoy good protection.

Security adviser Chris Allan explained that it is difficult to speculate whether the attack would havebeen prevented if an armed escort had been used. He however presupposed that only one escort car withthree policemen had been ordered.

Lars Christian Finstad and Walter Scott Raelser stated that two cars with eight police officers probablywould have had a deterrent effect. If the kidnappers had attacked despite this, the first escort car wouldhave had the possibility to respond to the attack, allowing the cars behind to get away. Finstad and

Raelser explained that it was less probable that the rest of the convoy would have been injured in apossible crossfire, or that the kidnapping would have been carried out if an armed escort had been used.The police officers could also have looked for and observed any danger signs prior to the attack. Raelser

made further reference to the fact that the police officers had better guns and were more professional,and that they were better trained than the kidnappers with regard to using guns. This is substantiated bywitness statements that the kidnappers gave the impression of not being well trained in the use of guns.

For instance, the kidnappers fired at one of the drivers at close range while he was lying on the ground,without managing to kill him.

On the basis of the above, the Court finds it is probable that the kidnapping would not have happened if

an armed escort had been used. In any case, the Court finds that there is a clear preponderance ofprobability that the NRC's overall negligent conduct was a necessary condition for the kidnapping to

happen. The kidnapping would not have happened if there had not been any failure in the informationsecurity and the visit had kept a low profile, and if it had been performed with an armed escort in adifferent camp within the recommended time frame, and if security personnel had been present.

Taking into consideration the risk situation in Dadaab at the time, the kidnapping and the plaintiff'sinjury must be considered a foreseeable consequence of the NRC's negligence conduct.

The NRC's negligent conduct was such an essential part of the causal landscape that it is reasonable toattach liability to it.

Following the above, the conclusion of the Court is that there is both factual and legal causation

between the basis of liability and the injury.

Determination of the compensationIntroductionThe point of departure is that Dennis is entitled to full compensation for his economic loss. TheSupreme Court has however found that the expenses must be foreseeable, necessary and reasonable, and

that the victim must fulfil certain reasonable demands of limiting his costs; see, inter alia, [the Supreme

Court judgments reported in] Rt 1975 p. 670, Rt 1993 p. 1547 and Rt 1996 p. 958.




The Court shall discuss specific loss items individually. The Court shall discuss the claims for currencyrisk and interest on overdue payments last.

Compensation for loss sufferedThe plaintiff has claimed compensation for "loss suffered"; see section 3-1 first subsection of theCompensation Act. The dividing line between loss "suffered" and future loss is the date of thejudgment. Consequently, a compensation shall be determined for the period from 28 June 2012 up to

the date of the judgment in November 2015. The expression "injury suffered" encompasses bothexpenses and loss of income in the time up to the delivery of the judgment.

When determining the compensation, a deduction shall be made for salaries received during sickness

and similar benefits, as well as insurance benefits; see section 3-1 third subsection of the CompensationAct. Dennis has received payments in the amount of NOK 477,405 from Norben and NOK 588,102

from IF, respectively. Dennis got a sick leave and salary from the NRC for the remainder of the year2012 in the amount of NOK 241,654. The NRC covered expenses for a lawyer in the amount of NOK60,000 as well as expenses for coaching in the amount of NOK 12,000. In addition, Dennis has

received insurance payments from Europeiske and some coverage of expenses relating to medicalexpenses.

Dennis has claimed NOK 24,568 as compensation for medical expenses. These expenses include

treatments received from a psychologist, from a psychiatrist, as well as other medical follow-up, withregard to both the psychological and the physical injury. The NRC has not disputed this claim. The

Court finds that the claim may be considered necessary and reasonable, and the claim is accepted.

Furthermore, Dennis has claimed NOK 124,500 as compensation for expenses in connection with the

follow-up of the case. It has been informed that this encompasses travel costs. No documentationsupporting the claim has been presented and it has been stated that the claim is based on an estimate.The NRC has not had any objections to the claim, apart from the fact that it has not been documented.

The Court notes that it is Dennis who has the burden of evidence for the claim, and that it would havebeen simple to document it by means of receipts, bank statements and the like. The Court does howeverconsider it a fact that Dennis has had to travel to Norway and stay here in connection with meetings

with the NRC, for the expert witness' examination of him, in connection with the judicial mediation andin connection with the court proceedings as such. Since the claim has not been documented, the Courtfinds that the claim may discretionally be set to NOK 100,000. These are considered necessary and

reasonable expenses for the follow-up of the case.

Dennis has presented a claim of NOK 200,000 as compensation for lawyer's fees before the writ of

summons was issued. According to the plaintiff, a deduction has been made for lawyer's fees thatalready had been covered. The NRC has previously covered NOK 60,000 for lawyer's fees. The Courtagain notes that it is Dennis who has the burden of evidence for the claim for compensation, and that

also this claim easily could have been documented by means of for instance timesheets, invoices orsimilar.




It must however be considered reasonable and necessary to have legal expenses during this period beyondwhat already has been covered. Since the claim has not been documented, it is discretionally set to NOK100,000.

On the basis of the above, it is the Court's conclusion that Dennis is entitled to NOK 224,500 as

compensation for expenses up to the date of the judgment.

In addition, a compensation shall be determined for loss of income suffered. The parties disagree on the

calculation with regard to what Dennis would have earned with and without the injury.

Dennis got a sick leave and salary from the NRC for the remainder of the year 2012 in the amount of

NOK 241,654; consequently, he had no loss of income that year.

Dennis has submitted that he without the injury would have earned NOK 633,275 in 2013, NOK 655,440

in 2014 and NOK 678,380 in 2015. This is based on an increase in income of 3.5 % after a deduction for

inflation. The NRC has made reference to Dennis previously having applied a 2.2 % inflation rate, giving

a real wage growth for these years of 5.7%. The NRC has submitted that the wage growth in the

calculation therefore is too high.

Dennis has submitted that his income with the injury may be calculated as NOK 133,518 in 2013, NOK

222,562 in 2014 and NOK 110,500 in 2015. No factual income information has been submitted for these

years and the calculation is based on an estimate. The difference that is claimed covered thus amounts to

NOK 1,500,515.

In 2012, Dennis had an annual salary of NOK 373,300 with the NRC. In addition, he was entitled to

several allowances. The salary and allowances totalled NOK 611,860 as annual payments. Dennis has

made reference to the fact that he also had other benefits and insurance coverage. If this is to be

included, the salary, allowances and job benefits totalled NOK 832,790. A part of this can however not

be considered pensionable earnings, and may therefore not be included in the calculation of the

compensation.

According to the plan, the employment contract between the NRC and Dennis was to be terminated at

the end of July 2012. Dennis explained that he had not applied for or entered into any agreement about

other engagements or work assignments after that. If the kidnapping had not happened, Dennis would

therefore probably have had an interim phase without any salary before obtaining a new assignment or

employment.

It has not been contested that Dennis's salary increased when he started with the NRC. The salary level at

Doctors Without Borders (MSF) was lower. Also, Dennis worked on average only 60% of the time during

the 10 years he worked for Doctors Without Borders. By comparison, the NRC is considered to be the

leader within the aid industry as far as salary levels are concerned.




This is supported by, amongst other things, the statement of Merethe Nedrebø, senior legal advisor of the

NRC.

Considering Dennis's previous work experience and career development, it is in the Court's viewprobable that he would have continued as a field worker during the period from 2013 to 2015. It has notbeen substantiated that Dennis would have started working with the UN in the course of this period. Hehad no concrete job offers and has had only a limited assignment for the UN.

In the view of the Court, it is probable that he would have started in another aid organization andpossibly would have a reduced salary level. Based on the 10 years he worked for Doctors WithoutBorders (MSF), it is probably that he would have been hired for different assignments and that he only

would work parts of the year.

In total, it is considered probable that the plaintiff without the injury would have had an annual salaryof approximately NOK 600,000 in the period from 2013 to the end of 2015. During this period, the

reduction in his functional capacity has been approximately 50 %. In addition, deductions shall bemade for insurance and disability pension payments received. The compensation for suffered incomeloss during the period 2013 to 2015 is discretionally set to NOK 500,000.

On the basis of the above, it is the Court's conclusion that Dennis is entitled to a total of NOK 724,500as compensation for "injury suffered"; see section 3-1 first subsection of the Compensation Act.

Compensation for future income lossDennis has claimed compensation for "future income loss"; see section 3-1 first subsection of theCompensation Act. This encompasses loss of future income from employment as a consequence of theinjury, from the date of the judgment and until the general retirement age, which is 67 years.

Dennis has submitted that he without injury would have had a yearly real wage growth of 3.5 %, andthat he would have had some wage jumps of 10 to 20% in connection with him transferring to other andbetter paid positions. In the calculation it has been presumed that he would have gotten a 20 % wage

increase in 2022 and that he would have gotten a 10 to 20 % increase in 2032. Dennis has submittedthat he with the injury will have four more years with re-training and limited salary in the period 2015to 2019. Dennis has submitted that he with the injury will have a salary of NOK 415,690 in 2020 and

that he thereafter will have the same wage increase as if he did not have the injury. He has submittedthat the 3.5 % yearly real wage increase must be considered to be reasonable. He has accepted that thediscount rate is set to 4 %.

According to Dennis's calculations, the difference in income with and without the injury amounts toNOK 4,264,988.In addition, he has submitted that he in the future probably would have had a job with the UN, and that

he thus would have received a higher salary and more benefits. Dennis has submitted that he does nothave the same opportunity with the injury and that the loss as a consequence of this can be calculated toapproximately NOK 2,000,000.




The total claimed compensation for future income loss is thus stated to be NOK 6,264,988.

The NRC has submitted that Dennis's calculation cannot be used as a basis. It has in particular been

submitted that the stated salary without the injury is too high, the salary with the injury to low, and

that it has not been shown to be probable that Dennis would have gotten a job with the UN.

The Court has concluded that Dennis will have a reduction in his functional capacity of somewhat

more than 50 % during an interim phase of 3 to 5 years following the date of the judgment, and that

he after that will have a lasting reduction in his functional capacity of 25 %. In this assessment, the

need for a certain retraining has been taken into consideration. Dennis is however trained as a

graduate engineer and has work experience as such. In addition, he has a Masters degree in

international relations, as well as more than 10 years of experience in the aid industry. He speaks both

English and French. His work experience from the aid industry can most probably be transferred to

and be useful within other industries. As a consequence, Dennis has both training and work

experience that would indicate that the need for retraining is limited and that there should be several

job options available to him. This is substantiated by the fact that he after the kidnapping has received

good testimonials from both the UN and the NRC.

The NRC has presented an overview of possible wage development with a career within the

organisation. This overview presupposes a career with a position as "Area Manager" in Dadaab

from 2013 to 2019, a position as "Nairobi Head of Support" from 2020 to 2022, a position as

'Nairobi Country Director" from 2023 to 2027, a position as "Special Advisor" in Oslo from 2028 to

2030, a position as "Head of Regional Support" in Oslo from 2031 to 2033 and a position as "Head

of Section" from 2034 and until retirement age in 2042.

The overview indicates a steady and rather steep career development, where it is presumed that he

will experience a steady rise in positions and salary. The NRC has informed that the career

development and salary increase are based on the CVs of some other NRC employees. If this career

development is to be applied as a basis, the net present value of the income loss would have been

NOK 2,541,251 with a reduction in functional capacity of 25 %. For the purpose of the calculation, a

tax rate of 25 %, inflation rate of 2.5 % and discount rate of 4 % have been applied.

In addition, the NRC has, with the assistance of IF Forsikring, prepared a calculation with [the

software application] Compensatio. The calculation has taken Dennis's salary as a starting point. The

payments received as pension and salary he has received as a consultant have been included for the

years 2013 and 2014. The calculation has furthermore been based on a 25 % reduction in functional

capacity. According to this calculation, the total suffered and future income loss would amount to

NOK 1,455,730. The NRC has informed that the loss would amount to approximately NOK

2,400,000 if a compensation for tax calculated in Compensatio is given.




In the view of the Court, it has not been shown to be probable that Dennis would have a real wagegrowth of 3.5 % without the injury, or that he a couple of times would have a wage jump of 10 to 20

%. Based on his training and experience, as well as his own testimony and plans for the future priorto the kidnapping, it is probable that he would have continued as a field worker within the aidindustry. It is probable that he would have been hired for other assignments within the NRC or other

organisations with similar salary levels, or he would have been given new assignments withinDoctors Without Borders or other organisations that have somewhat lower salary levels. The NRC'spresentation of a possible career development within the organisation is therefore a relevant

comparison. Based on that comparison, the net present value of the loss would be approximatelyNOK 2,500,000. This calculation is in line with the loss calculation in Compensatio if acompensation is granted for calculated tax.

On the basis of the evidence presented, it appears uncertain whether Dennis with time would haveobtained a job with the UN, thus obtaining a higher salary. Dennis was registered in a kind of job

pool system and was contacted by email when there were potential jobs for which he could apply. Hehas also presented a testimonial from UNDSS Somalia of 23 April 2015, in which it is stated that hecould have gotten a job with the UN if he still could work as a field worker. Dennis had however

only had assignments for Doctors Without Borders (MSF) before he was employed by the NRC. Inthe course of those 10 years, he worked on average 60 % of the time. This amounts to workexperience within the aid industry totalling approximately six years. Dennis has not had any

assignments or job offers from the UN previously. Dennis was 37 years old at the time of the injuryand had so far not received any job offers from the UN. It is attractive to work for the UN and it isuncertain whether he would have gotten such a job. In this respect, the Court makes reference to

Merethe Nedrebø's testimony. She explained that it is difficult to get a position as an advisor with theUN and that on average there are 100 to 150 applicants per position with the UN.

At the same time, considering Dennis's qualifications and work experience, there is a certainprobability that he at a later point in his career would have been given the opportunity to work within

the UN system. However, in any case it has in the view of the Court not been shown to be probablethat the future income loss as a consequence of such a potential opportunity may be calculated to NOK2,000,000. Also, it is possible to work within the UN system without having to be in the field, and as a

consequence Dennis may get a job within the UN system also with the injury. This is substantiated bythe fact that he has been engaged by the UN as a "Consultant Instructor" after the kidnapping incident.

In total, the Court finds that the compensation for future income loss discretionally may be set toNOK 3,000,000. This calculation takes into account that Dennis during an interim phase of 3 to 5

years from now will have a reduction in his functional capacity of somewhat more than 50 %, andthat he thereafter will have a lasting reduction in his functional capacity of 25 %. It has also beentaken into consideration that he is not subject to the Norwegian tax system, and that he for a period in

the course of his career possibly would have been able to obtain a job within the UN system.




It is the Court's conclusion that the NRC shall be ordered to pay NOK 3,000,000 as compensation for loss offuture income.

Compensation for expenses that the victim presumably will incur in the future because of his personalinjury

Dennis has claimed compensation for "expenses that the victim presumably will incur in the future becauseof his personal injury"; see section 3-1 first subsection of the Compensation Act. Under the said provision,compensation may be claimed for future medical expenses. A distinction must be drawn between this andcompensation for loss of social functioning, enjoyment of life, or expenses to enable the person concernedto function at work. Those elements are encompassed by the compensation for permanent injury, or mayserve as a measure of the loss of work capacity.

Dennis has claimed compensation for future expenses for psychologists, medication and treatment ofsequelae of the gunshot injury. He has stated that the claim must be discretionally set to NOK 830,000. TheNRC has contested the claim, submitting that it has not been documented. Dennis previously stated that theclaim could be set to NOK 323,700. Then the NRC had no objections to the claim, apart from the coverperiod.

The expert witness has stated that antidepressants and sleep medication may improve Dennis'spsychological health condition somewhat, but that he probably cannot obtain much additional gain fromfurther psychotherapeutic treatment. The expert witness stated however that treatment by a psychologist inany case might provide some help and support for mastering his everyday life. Although it has not beendocumented, Dennis will probably also have some limited medical expenses in the future as a consequenceof the gunshot injury to his thigh.

The Court notes that no compensation can be determined on the basis of potential unforeseen expenses. It isDennis who has the burden of evidence for the claim. The claim must be limited to foreseeable, necessaryand reasonable expenses.

The Court has concluded that the compensation for future medical expenses discretionally may be set toNOK 300,000.

Compensation for pain and suffering

Dennis has submitted a claim for compensation for pain and suffering and has argued that the compensation

should discretionally be set to NOK 500,000; see section 3-5 of the Compensation Act.

The Court has concluded that the requirements for a compensation for pain and suffering are fulfilled. The

NRC acted with gross negligence and is liable pursuant to the rule of liability for the actions of managing

bodies.

Pursuant to section 3-5 of the Compensation Act, a compensation for pain and suffering found to be

reasonable by the Court "may" be granted. Consequently, an assessment of reasonableness must be made. In

case law it has been presumed that central elements of the assessment will be "the objective grossness of the

act, the guilt of the tortfeasor, the victim's subjective perception of the violation and the nature and scope of

the harm inflicted"; see, inter alia, [the Supreme Court judgment reported in] Rt 2012 p. 1576.




The purpose of ordering the payment of a compensation includes both preventive and punitive concerns,but in case law it has been presumed that the most important concern is the victim's need for compensation;see, inter alia, Rt 2005 p. 289; see also Hagstrøm and Stenvik, 1st edition pp. 522-523.

Pursuant to Norwegian case law, the level of compensation for pain and suffering is rather modest. TheCourt has not found any comparable cases in case law. To illustrate the level of compensation for painand suffering under Norwegian law, reference is made to, as an example, that a compensation for pain

and suffering was ordered in the amount of NOK 80,000 in a serious violent crime case where threepersons hit and kicked a victim that was lying on the ground; see Rt 2012 p. 1576. The standard levelfor rape is currently NOK 150,000 kroner; see Rt 2011 p. 743. In a criminal case regarding human

trafficking for the purpose of forced prostitution, an aggravated case of handling of the proceeds of acrime, etc., the victim's compensation for pain and suffering was set to NOK 200,000; see [the Court of

Appeal judgment reported in] LG-2014-116579.

In the view of the Court, it must be taken into consideration that the kidnapping as such was carried outby others and that the NRC is not the tortfeasor in the traditional criminal law sense. The NRC did notact with intent and is only liable for the fact that the organization as an employer through gross

negligence failed to implement necessary and reasonable security measures to avert the risk ofkidnapping.

The kidnapping was a very traumatic event to Dennis. The Court makes reference to his description of

the kidnapping as such, the captivity and the rescue operation. He was subsequently diagnosed withlasting PTSD, a mild degree of depression and a gunshot injury to his thigh. In addition, the Courtmakes reference to the expert witness' description of how the plaintiff experienced the incident and the

symptoms he has displayed after the incident.

Dennis and the other kidnap victims were well taken care of by the NRC in Nairobi after they werefreed. Arrangements were made for them to travel home and they were later summoned to a debriefing

in Oslo. Dennis had his contract extended for the remainder of the year 2012 and they covered someexpenses for lawyer and coaching, as well as medical expenses.

The evidence presented has however shown that Dennis and some of the other staff members involveddid not receive answers to questions asked about the incident, nor were they given access to central

reports on the case. The short version of Glenn Pettersen's report was made electronically available toall NRC staff on 07 May 2013. However, several of those who were affected by the kidnapping werenot given access, since there were no longer employees.

Although it is of no direct consequence to the plaintiff's case, the Court makes reference to the fact thatduring the presentation of evidence some criticism was presented by others who were affected by thekidnapping in terms of how they were treated by the NRC after the incident. Amongst other things, theCourt makes reference to the fact that persons who presented criticism and asked for an external

inquiry, have been characterized as "troublemakers" and that they shortly afterwards were told thattheir employment contracts with the NRC would be terminated.




The NRC was underinsured with regard to psychological injury and the insurance process was time-consuming. At first, the NRC was not willing to meet Dennis to discuss a claim for compensationbeyond this, nor did they want to appear for judicial mediation until a month before the main hearing.

The NRC presented the settlement offer shortly before the main hearing, and acknowledged partialliability as late as during its closing argument following a seven-day main hearing. As a consequence,Dennis had to go through a long resource-demanding and burdensome legal process to have his claim

for compensation accepted.

Following a concrete overall assessment, the Court finds that the compensation for pain and suffering

may discretionally be set to NOK 100,000.

Compensation for permanent injuryDennis has submitted a claim for compensation for permanent injury in the amount of NOK 268,903;see section 5-2 of the Compensation Act. He has stated that the Court may establish a highercompensation. The NRC has not had any objections to the basis or size of the claim. Dennis has

sustained a "lasting and substantial injury of a medical nature". The requirements for a compensationfor permanent injury are satisfied; see section 3-2 of the Compensation Act. In making thisassessment, the Court has attached importance to the expert witness' assessments and conclusions.

The compensation shall be determined taking into consideration "the permanent injury's medical

nature and scope and its significance for the personal enjoyment of life"; see section 3-2 of theCompensation Act. Dennis has a medical disability that can be placed in group 2. This gives an

established degree of disability of 25-34 %; see section 3 of the Regulations concerningCompensation for Permanent Injury in the Case of Occupational Injury. This entails that he is entitledto 12 % of the National Insurance Scheme's basic amount per year and that the compensation for

permanent injury shall be increased by one-third. Dennis has on the basis of the above presented acalculation showing that as a starting point, the compensation for permanent injury shall be calculatedto be NOK 268,903. In the view of the Court, in the case at hand there are no grounds for adjusting

this amount neither upwards nor downwards.

It is the Court's conclusion that the NRC shall be ordered to pay NOK 268,903 as compensation for

permanent injury.

Late payment interestDennis has submitted a claim for late payment interest at a rate of 9 % from one month after a demandfor payment is presented. He has submitted that the late payment interest must be calculated from theplaintiff's third-party notice of legal proceedings dated 7 April 2014.

According to section 2 of the Act relating to Interest on Overdue Payments, the creditor may

demand late payment interest when the claim has not been paid when due. Interest accrues from thedue date if it has been established in advance and otherwise from 30 days after the creditor has sentthe debtor a written reminder requesting payment.




It was stated in the third-party notice of legal proceedings from Dennis of 7 April 2014 that he demanded

compensation for economic loss, provisionally calculated to amount to USD 1,500,000, and that he in

addition demanded compensation for pain and suffering in the amount of NOK 300,000. The NRC was

encouraged to state its opinion on the claim and its basis, and in connection therewith to assess whether

there was any basis for an amicable settlement of the case. In addition, notice was given that Dennis would

commence legal proceedings if they failed to reach an agreement.

Although the calculation of the claim later has been somewhat modified, the Court has found that the notice

of legal proceedings may be considered a written reminder requesting payment.

Consequently, the Court's conclusion is that Dennis is entitled to ordinary late payment interest pursuant to

the Act relating to Interest on Overdue Payments on the entire claim to be calculated from 7 May 2014.

Currency riskDennis has submitted that it is the NRC that must carry the currency risk. He has made reference to him

having stated his claim for compensation in US dollars and that he during most of his career would have

received salaries paid in US dollars. Dennis has calculated that he, because of the current exchange rate for

Norwegian kroner, would lose approximately NOK 2,500,000 if the compensation were to be calculated in

Norwegian kroner.

The Court cannot see there being any legal or factual basis for calculating the compensation in US dollars or

for the NRC to carry the currency risk.

When making this assessment, the Court has attached importance to the fact that the NRC pays all of its

salaries in Norwegian kroner and that Dennis also received his salary from the NRC in Norwegian kroner. It

is an established practice that employers within the aid industry pay their salaries in the currency of their

head office. For instance, Dennis received his salary from Doctors Without Borders in euros. The NRC has

informed that the compensation must be taken from the foundation's equity capital that is kept in Norwegian

currency.

In addition, the claim for compensation is aimed against a Norwegian employer before Norwegian courts of

law and the determination of the amount is to be done pursuant to Norwegian law.

The Court's conclusion is that there is no basis for increasing the amount of the compensation as a

consequence of the currency risk.

Legal costsBoth parties submitted, by consent of the Court, cost statements after the court had been adjourned. The cost

statements were submitted on 03 November 2015. This was an error of procedure, but the Court has

concluded that section 20-5 sixth subsection of the Dispute Act in this case can be restrictively interpreted,

so that legal costs can be awarded nonetheless; see Rt 2009 p. 1522. The Court makes reference to the factthat the consent was granted at the request of both parties and that both parties received the same

consent.




The counsels have in subsequent pleadings commented on the cost statements.

The general rule is that a party that is successful in an action, is entitled to full compensation for its

legal costs from the opposite party; see section 20-2 first subsection of the Dispute Act. The question iswhether the Court has "found in favour of" Dennis "in the whole or in the main"; see the Dispute Act,section 20-2 first subsection second sentence1. It is considered that the Court has found in favour of a

party in the main if that party has prevailed on essential points and if the opposite party has notobtained anything of significance. According to case law, one must consider where the main thrust ofthe de facto items in dispute has been; see Rt 2010 p. 727. A deviation from the indicated maximum

[claimed] amount may be compatible with the case having been won in the main if the dispute mainlyconcerned the question of the basis for compensation for loss or pain and suffering; see Rt 2010 p. 508.In legal theory, see Skoghøy, Tvistemål ["Civil Disputes"], 2nd edition p. 1272, it is stated that:

"if most of the legal costs in a compensation case are linked to the question of the basis of

liability, and the court agrees with the victim that there is a basis for compensation, he may

be awarded legal costs even if the amount awarded to him is quite far from what he has

demanded".

In case law, legal theory and the preparatory works of the Act it is stated that the rules regardinglegal costs shall stimulate to reasonable modesty in cases regarding monetary claims if these are not

substantiated, and that it is desirable that a party should substantiate its claim by specifying it throughconcrete items instead of demanding that the claim be determined at the Court's discretion; see, inter

alia, Proposition to the Odelsting no. 51 (2004-2005) p. 44.

The Court has concluded that a basis of liability exists under the rule of employer's liability in section2-1 of the Compensation Act, and that the requirements for compensation for pain and suffering arefulfilled.

Consequently, the Court has fully found in favour of Dennis when it comes to establishing a basis ofliability. During its closing arguments, the NRC acknowledged that there was a breach of information

security and that as a consequence, liability existed pursuant to section 2-1 of the Compensation Act.The NRC did however not acknowledge other negligent circumstances, nor did it acknowledge theexistence of liability for the actions of managing bodies and of gross negligence. The establishment of

a basis of liability has been the most significant issue in dispute during both the preparation of the caseand during the main hearing. In the view of the Court, this suggests that Dennis has won in the main.

The Court has concluded that Dennis is entitled to compensation for all of the items of loss submitted,

but has found that the compensation is to be set to a substantially lower amount than that of thecalculation he has presented. During the preparatory phase of the case, Dennis presented varyingcalculations of the claim. According to the last calculation, the total claim for compensation was of

approximately NOK 11,600,000. In the view of the Court, the difference between the submitted claimand the amount awarded is so significant that Dennis cannot be considered to have won in the main.

1 Should probably be "section 20-2 second subsection first sentence". Translator's remark.




Pursuant to section 20-3 of the Dispute Act, a party that has succeeded to a significant degree withoutwinning the case, may be awarded legal costs from the opposite party in whole or in part if "weighty

reasons" so suggest. According to the Act, regard shall be had to the factors mentioned in section 20-2

third subsection second sentence of the Dispute Act. In addition, particular regard shall be had to theextent to which the court has found in favour of the party and the proportion of the legal costs thatrelate to that part of the case.

Since the Court has found in favour of the plaintiff with regard to the establishment of a basis ofliability and existence of a basis for all items of compensation, it is the Court's opinion that he hassucceeded to a significant degree without winning the case. The question is whether there are "weighty

reasons" suggesting that he should be awarded legal costs from the opposite party in whole or in part.

The NRC presented a settlement offer on 12 October 2015, offering a payment of NOK 3,500,000. Inaddition, the NRC was willing to make a public statement about the case, but would not acknowledge

gross negligence. On his part, Dennis presented a settlement offer on 9 October 2015 with a claim ofNOK 6,900,000 as compensation for economic and non-economic loss, as well as NOK 1,000,000 tocover legal costs. The settlement offer was conditional upon the NRC being willing to acknowledge

gross negligence.

The Court has concluded that the NRC shall be ordered to pay NOK 4,393,403 as compensation foreconomic and non-economic loss. In terms of the amounts, the amount awarded is closer to the

compensation that was offered by the NRC. Seen in conjunction with the fact that the Court has foundin favour of Dennis's submission that the NRC acted with gross negligence, the Court can however notsee that he can be reproached for having rejected a reasonable offer of settlement; see section 20-2 third

subsection b) of the Dispute Act.

In addition, the case is of great importance to Dennis in terms of his welfare, and there was good reasonto have the case heard; see section 20-2 third subsection a) and c) of the Dispute Act. A substantial part

of legal costs relate to the very basis of liability and not to the concrete determination of thecompensation.

Overall, in the view of the Court there are weighty reasons suggesting that Dennis may be awarded

partial legal costs from the opposite party; see section 20-3 of the Dispute Act. The Court can howevernot see that he is entitled to full compensation of his legal costs. In this assessment, importance hasbeen attached to the difference between the claimed compensation and the amount awarded, as well as

the NRC's offer of settlement and partial acknowledgment of liability.

Dennis's counsel has submitted a cost statement with a total claim of NOK 1,890,500 inclusive ofVAT. Dennis has also claimed that the expenses for the expert witness, interpreters and his own work

on the case should be covered. The Court presumes that the work on the case has been extensive andresource-demanding. The NRC has not had any objections to the size of the claim. In light of the factthat Dennis's expenses for a lawyer prior to the writ of summons already have been covered, the Court

perceives the number of hours to be high; see section 20-5 of the Dispute Act. Nor can the Court findany grounds for awarding a remuneration for his own work on the case beyond the compensation thathe is awarded; see section 20-5 first subsection last sentence of the Dispute Act.




In any case, the Court finds that Dennis is entitled only to a partial compensation of his legal costs.

The Court has concluded that the claim can be discretionally set to NOK 1,200,000 inclusive of VAT.

The expert witness has submitted a cost statement in the case. The total claim of the expert witness

amounts to NOK 112,464. None of the parties has had any objections to the size of the claim. The NRC

has previously made an advance payment towards the expert witness costs in the amount of NOK 40,000.

In the Court's assessment, the costs of the expert witness should be covered by the NRC. In this

assessment, importance has been attached to the fact that the NRC petitioned that an expert witness should

be appointed, as well as the fact that Dennis has succeeded to a significant degree. The Court will issue a

separate invoice for payment of the claim.

The Court appointed a total three interpreters in the case. One of them was dismissed before the main

hearing started. Dennis is a foreign national without any permanent residence in Norway. The general rule

is then that he should cover interpreting costs; see section 13 of the Dispute Act Regulations. However,

following a concrete assessment of reasonableness, the Court finds that the interpreting costs are to be

covered by the public purse. In making this assessment, the Court has attached importance to the nature

and scope of the case, it's outcome, as well as Dennis's financial situation.

The judgment has not been delivered within the statutory time limit. The reason is the nature and scope

of the case, as well as the processing of other cases.




CONCLUSION OF THE JUDGMENT

1. The foundation NRC is ordered to pay to Steven Patrick Dennis NOK 4,024,500 as compensation

for injury suffered, for loss of future income and for future expenses, within 14 days from the

service of the judgment.

2. The foundation NRC is ordered to pay to Steven Patrick Dennis NOK 100,000 as compensation forpain and suffering, within 14 days from the service of the judgment.

3. The foundation NRC is ordered to pay to Steven Patrick Dennis NOK 268,903 as compensation

for permanent injury, within 14 days from the service of the judgment.

4. The foundation NRC is ordered to pay late payment interest pursuant to the Act relating toInterest on Overdue Payments on the claims in points 1 - 3, to be calculated from 7 May

2014 and until payment is made.

5. The foundation NRC is ordered to pay to Steven Patrick Dennis NOK 1,200,000 as compensation

for legal costs, within 14 days from the service of the judgment.

6. The foundation NRC is ordered to pay to the public purse NOK 112,464 to cover the expert witness

costs. A deduction of NOK 40,000 shall be made for the advance payment already made.

Court adjourned

Lena Skjold Rafoss

Deputy Judge

Information about the possibilities of appeal in civil cases is enclosed.

Document in agreement with signed originalOslo District Court, 25.11.2015

Mette Aaseby



Information about the possibilities of appeal in civil cases

The provisions of chapters 29 and 30 of the Dispute Act concerning appeal to the court of appeal andto the Supreme Court regulate the parties’ possibilities of having court decisions reviewed by ahigher court. The Dispute Act has different provisions for appeals against judgments, appeals againstinterlocutory orders and appeals against decisions.

The time limit for appeal is one month from the day the decision was served on or communicated tothe person concerned, unless the court has expressly decided otherwise. The time limit is interruptedby the court holiday. The court holiday is as follows: The court holidays last from the last Saturdaybefore Palm Sunday to Easter Monday, both inclusive; from the 1st of July to the 15th of August,both inclusive; and from 24th of December to the 3rd of January, both inclusive, cf. section 140 ofthe Courts of Justice Act.

The one making the appeal must pay a processing fee. The court that delivered the decision canprovide further information on the size of the fee and how to pay it.

Appeal to the court of appeal against a judgment delivered by the district court.The court of appeal is the appellate court for decisions issued by the district court. An appeal may bebrought against a judgment delivered by the district court on the grounds of error in the assessment ofthe facts, error in the application of law or error in the procedure upon which the ruling is based.

The Dispute Act establishes certain limitations on the right to appeal. An appeal against a judgementin an asset claim will not be referred for hearing without leave of the court of appeal if the value of thesubject matter of the appeal is less than NOK 125,000. In determining whether to grant leave, the courtshall have regard, among other things, to the character of the case, the parties’ needs for review andwhether there appear to be flaws in the appealed ruling or the hearing of the case.

Moreover, the court of appeal may – independently of the value of the subject matter of the appeal– refuse leave to appeal against a judgement if it finds it clear that the appeal will not succeed.Such refusal may be limited to certain claims or grounds of appeal.

Appeals are submitted by a written notice of appeal to the district court that made the ruling. Partieswho are not represented by counsel may submit appeal orally by appearing in court in person. Thecourt may permit other counsel than advocates to submit appeal orally.

The notice of appeal shall specifically state the issues in the appealed ruling that are contested, andany new factual or legal grounds or new evidence.The notice of appeal shall state:

the name of the appellate courtthe names and addresses of the parties, their party representatives and counselthe ruling that is appealedwhether the appeal applies to the ruling in its entirety or only to certain parts thereofthe claim to which the appeal relates, and a prayer for relief that states the outcome the appellantis claimingthe errors in the appealed ruling that are allegedthe factual and legal grounds for the alleged errorsthe evidence that will be presentedthe basis upon which the court may hear the appeal, if there can be any doubt as to thisthe appellant’s views of the on the further hearing of the appeal



Appeals against judgments are normally determined by a judgment following an oral hearing in the court ofappeal. The appeals hearing shall focus on those parts of the district court’s ruling that are in dispute andsubject to doubt when the case is pending before the court of appeal.

Appeal to the court of appeal against interlocutory orders or decisions of the district courtAs a general rule, an order may be appealed on the grounds of error in the assessment of the facts, error inthe application of law or procedural errors. If, however, the interlocutory order is a ruling on a question ofprocedure which pursuant to statute shall be made on an assessment of what is appropriate and necessary forthe proper conduct of the case, the order may, as far as the discretionary assessment is concerned, only beappealed on the grounds that the ruling is unsound or clearly unreasonable.

A ruling that is made in the form of a decision may only be appealed on the grounds that the court has basedthe decision on an incorrect interpretation of the types of rulings that the court may make pursuant to thestatutory provision that has been applied, or on the grounds that the ruling is obviously unsound orunreasonable.

The requirements as to the contents of the notice of appeal are generally the same as for appeals againstjudgments.

After the district court has ruled on the matter by judgment, the district court’s ruling on procedure cannot beappealed separately. In such a case, the judgment may instead be appealed on the grounds of proceduralerror.

Appeals against interlocutory orders and decisions shall be submitted to the district court which made theruling. Appeals against interlocutory orders and decisions shall normally be decided by an interlocutoryorder following a written hearing by the court of appeal.

Appeal to the Supreme CourtThe Supreme Court is the appellate court for rulings of the court of appeal.

Appeals to the Supreme Court against judgments always require the leave of the Appeals Committee ofthe Supreme Court. Such leave shall be granted only if the appeal concerns issues whose significanceextends beyond the scope of the current case or if it is important for other reasons that the case isdetermined by the Supreme Court. — Appeals against judgements shall normally be determinedfollowing an oral appeal hearing.

The Appeals Committee of the Supreme Court may refuse leave to appeal against an interlocutory orderor a decision if the appeal does not raise issues whose significance extends beyond the scope of thecurrent case and there are no other considerations that suggest that the appeal should be tried on itsmerits, or that the appeal in the main raises extensive questions of evidence.

When an appeal against an interlocutory order or a decision by the district court has beendetermined by an interlocutory order issued by the court of appeal, the ruling may normally notbe appealed by way of a second-tier appeal to the Supreme Court.

Appeals against interlocutory orders and decisions by the court of appeal shall normally bedetermined following a written hearing by the Appeals Committee of the Supreme Court.

Government & Nonprofit

Judgment finding Norwegian Refugee Council grossly negligent in 2012 Dadaab Kidnapping (in English)