Liability, blame, and causation in Norwegian risk regulation

This paper addresses the mechanisms, processes, and rationales for causal attribution, blame, and liability within the legal context of Norwegian risk regulation, using the petroleum industry as a point of reference. Legalistic and judicial norms and practices have traditionally favored blaming approaches, whereas mature risk management philosophies have gradually abandoned single-cause/human error approaches. A variety of systemic models are developed that analyze accidents and incidents or near-misses as complex interactions between a variety of underlying root causes. Technical failure and human error may be triggering causes, but allowed only by failures in underlying systems, conditions, or barriers. This has created contradictions between legal liability approaches and risk management approaches to industrial failure and accidents. The purpose of the former has been criminalization and punishment, whereas the purpose of the latter has been organizational learning, preferably across sectors and domains. The paper examines how systemic models gradually have entered into the judicial context and discusses different factors that can account for this development. First, a mature model of risk management adapted to complex technologies and encompassing a highly institutionalized no-blame culture within the regulatory domain; second, the combination of close and - in terms of professional expertise - asymmetric relations between the regulators and the police/prosecuting authority; third, available legal rationales and warrants that allow systemic and situational attribution of causes; fourth, national egalitarianism and an institutionalized tripartite regulatory system, including strong unions that actively and effectively resist any attempts to attribute causes of industrial failures and accidents to operational error at the blunt end ('human error').