Tort Law in Sweden. An Introduction

1. Tort Law in Sweden. An Introduction Mårten Schultz 2005 Faculty of Law, Stockholm University marten.schultz@juridicum.su.se

2. What is Tort Law? • The notion of a ”tort” and Swedish law • Different approaches to the subject in different jurisdictions: the law of delict, tort law etc. • The subject of today’s presentation: Liability for damage in non-contractual situations.

3. A Comparative Introduction. General Remarks on Private Law • The division between different legal families: common law family, civil law family, mixed systems • Common law family: UK (except Scotland), US etc • Civil law countries: Continental Europe • Foundations for the division: The historical roots of private law thinking – the importance of Roman law; a civil code or not?; law making in parliament or in the courts? • The Scandinavian countries? Civil law? No c. code!

4. Comparative Remarks. Tort law. • Swedish tort law resembles in reality the common law approach in the way the law is made (even if the structure and content is very different). • General characteristic of Swedish tort law: Case law developed partly within a statutory framework. • The complex interaction between different statutes (general and specific) and case law. • Example: The notion of causation.

5. Legal Sources of Swedish Tort Law • The general and most important statute: The Tort Liability Act (skadeståndslagen, SkL) from 1972 • N.B.: SkL is a framework statute! Lacks definitions and rules on many important issues. • Specific legislation in different areas, dealing with particular types of damages. Ch. 32 of the Environmental Book (miljöbalken); the Act on Traffic Damages, the Act on Patient Injuries, the Product Liability Act, etc.

6. ”The Swedish Model” • The Swedish system can only be understood if one takes into regard different areas of the law • The Swedish Model – a comprehensive model concerning compensation for damage, particularly personal injury • A general idea underlying Swedish tort law and insurance law: Personal injuries should always be compensated • A complex interaction: Social insurance law, personal insurance law and tort law

7. SkL: Some Definitions • Personal injury (personskada) • Property damage (sakskada) • Pure economic loss (ren förmögenhetsskada – Skl 1:2). Note that the definition of pure economic loss is more narrow than in some other jurisdictions

8. Two Approaches towards Liability • An ongoing discussion not only in Sweden but most jurisdictions. • Negligence liability and strict liability • Negligence liability – a duty to compensate if the damage was caused through a negligent behaviour • Strict liability – compensation duty for all damages caused • Both regimes exist in Swedish law • The general approach of SkL negligence liability (culpa) • Strict liability regimes are stipulated in different specific legislation (for instance environmental damages)

9. General Requirements for Liability • Negligence (fault, culpa) or a rule of strict liability • A legally acknowledged type of damage • Causation and adequacy Even if these requirements are fulfilled liability may still be avoided in some circumstances.

10. Liability Rules in the Tort Liability Act

11. The Culpa Rule • The Main Liability Rule in Swedish Tort Law, SkL 2:1: He/she who intentionally or negligently causes a personal injury or a property damage must compensate for the damage. • Sometimes considered the most important rule in private law altogether, with implications also for contractual situations • Special rules apply for minors and mentally handicapped (2:4; 2:5)

12. The Negligence Test • What is negligent? According to the main work in Swedish tort law this is decided against the background of legal sources. Are there any rules governing the type of situation in: • Legislation? • Custom (for instance sport rules)? • Court Practice?

13. The Negligence Test • If no clear guidelines are given in the legal sources the court must decide the negligence question through an open test. • Often this test is called the Learnad Hand formula (after a famous American judge). • The Swedish take on the Hand test is somewhat different from the original – adds a subjective element to the test.

14. The Hand Test • The risk that the damage would occur • The magnitude or severity of the potential damage • The defendant’s costs for avoiding the risk • (Hellner’s addition): The defendant’s (subjective) possibility to foresee the damage These factors are weighed against each other (in a non-mathematical manner) to evaluate whether a behavior was negligent. This is a theoretical formulation, but the line of reasoning is fairly clear in some court cases

15. Pure Economic Loss • According to SkL 2:2 one is obligated to compensate pure economic loss that one has caused another through a criminal offence (for instance fraud) • The rule does not say that pure economic loss that is not caused by a criminal offence cannot be a ground for liability • Nevertheless this is a general starting point: Pure economic loss compensation in non-contractual situations presuppose criminal behavior (or specific legislation, c.f. for instance copyright law)

16. Liability for Children and Mentally Handicapped • Rules in SkL 2:4 and 2:5: Children and mentally handicapped may also be liable for damages they cause • The negligent test is supposed to be more “objective” • These rules stipulate that in assessing liability for a child or someone with a mental handicap one should take into regard factors such as the level of development etc (children) or the nature of the mental disorder • Mental problems that can be considered self-inflicted (for instance through drug abuse) do not exclude someone from liability • It is sometimes said that small children (perhaps under age 4) can never be negligent

17. Employer’s Liability • An important rule in SkL concerns employer’s liability for damages caused by her employees. • SkL 3:1: If someone causes a physical injury or a property damage within the scope of his/her employment, the employer is obliged to compensate the victim • The employer must also compensate a pure economic loss that an employee has caused another through a criminal behavior – if it can be said to have occurred within the scope of his/her employment

18. Employer’s Liability • 3:1 entails that the employer must pay for all damages caused by her employees but an important restriction lies in the requirement that the damage must have been caused within the scope of the employment (“I tjänsten”) – damages caused by an employee in her free time or unrelated to the employment is not covered by this rule • Normally the employer is covered by insurance that covers liability for damages caused by the employee

19. Employee’s Own Liability • In some cases the employee may be liable herself. • The rule in SkL 4:1: An employee is liable for damages caused within the employment in exceptional circumstances • The rule is seldom applied but has different effects (in theory): • A victim may, if such circumstances are at hand, claim compensation directly from the employee. • If such circumstances are at hand and the employer has paid the victim, she may have a right of recourse against the employee.

20. Liability for Public Bodies • 3:2 stipulates that damages caused by public bodies within the negligent exercise of public authority (“myndighetsutövning”) • Such compensation can also be awarded for pure economic loss • A cornerstone is that the damage occurred through the “exercise of public authority” – some examples

21. Strict Liability – Liability even in the Absence of Negligence

22. Strict Liability Regimes • Environmental Damages in the Environmental Code • Dogs • Nuclear Plants • Air Traffic • Railroads Also particular rules on traffic, patient injuries etc.

23. Strict Liability • Entails that the defendant must pay for all damages resulting for the activity for which she is strictly liable • Mostly a liability for enterprises – seldom for private persons • Is normally associated with particular types of insurance • Requires as a general rule support in statute

24. Damage

25. What kinds of Damages are Compensated • Rules in Ch 5 of SkL. Some examples. • Personal Injury – also includes non-patrimonial damage (pain and suffering etc.). • Several rules on the interaction between tort damages and compensation from insurance • Property damages – also includes rather far-reaching costs associated with the damage. Even a temporary loss of a thing is a property damage (cf. unjust enrichment)

26. Causation and the Scope of Liability

27. Causation • The causation requirement follows from unwritten law – no clear rule in legislation (albeit on procedural aspects of causation) • B’s damage must have been caused by A’s negligent behavior. Default test: Was A’s act a necessary criterion for B’s damage? (The cause-in-fact criterion) • Even if B’s damage was caused by A’s behavior, A may be excluded from liability if the damage was unforeseeable or improbable. (The adequacy criterion)

28. Exemptions from Liability

29. Grounds for Exemption (Defenses etc) Under some circumstances may someone be exempted from the obligation to compensate even if the requirements for liability are fulfilled. These exceptions are of different kinds: • Defenses, where the behavior is justified, for instance self-defense • General rules on adjustment (mitigation)

30. Defenses (ch. 24 of the Criminal Code) • Self-Defense. Ex. A attacks B, B protects herself and hurts A in the process – no liability • Necessity. A breaks B:s window to save B:s cat from a fire. No obligation to compensate for the window. • Order etc. (for instance in the military). Ex. Captain A orders soldier B to fire her gun, B is not liable for resulting damage. • Consent and/or undertaking of risk. Ex. A and B are boxers and B is hurt as a result. A not liable.

31. General Rules on Mitigation • The rules on mitigation are typical for Swedish private law. • Means that even if someone is obliged to compensate another for damages, the amount may be lowered (or even set to zero) in some circumstances.

32. Rules on Mitigation • Mitigation in cases of children’s liability: 2:4 • The general (economic) rule on mitigation, 6:2 (If the obligation to compensate is unreasonably burdensome, it may be lowered) • Mitigation in cases of victim’s contributory negligence, 6:1.