I. Sweden
Mårten Schultz
A. LEGISLATION
1. General comments
1
The Tort Liability Act (Skadeståndslagen 1972:207), which provides the basic
tort rules in Swedish law, was extensively modified in 2002 and no further
modifications were made during 2003.1
B. CASES
1. Decision from Högsta domstolen (The Supreme Court), 6
June 2003, [2003] Nytt Juridiskt Arkiv (NJA), 217:
Compensation for Alleged Violations of Human Rights
a) Brief Summary of the Facts
2
The background of the case was an administrative trial in a tax assessment
case that was initiated in 1991 and decided in 1998. According to the decision
of the administrative court of appeals, the appellant B.S. was obliged to pay
additional taxes for the years 1985-1987, as well as interest and tax surcharge,
skattetillägg (a particular kind of sanction fee for tax offences). B.S. claimed
compensation under Art. 6 of the European Convention (hereinafter the Con1
Concerning the amendments from 2002, see H. Sandell, Sweden, in: H. Koziol/ B.C.
Steininger (eds.), European Tort Law 2002 (2003), 393. It is perhaps useful to mention
in this context that the Swedish Tort Liability Act is a framework statute and that the
development of tort law to a significant degree has been left to the courts.
2
Mårten Schultz
vention), arguing that the administrative courts had not decided the case in
reasonable time. The claim was dismissed without material examination by
the lower courts. (The decisions were based on a rule in the Procedural Code
ch. 42, sec. 4).
b) Decision of the Court
3
The Supreme Court noted that Art. 13 of the Convention stipulates that everyone shall have access to an effective remedy before a national authority and
that this article has had an important role when Art. 6 has been violated as a
result of a trial not being decided in reasonable time. 2
4
A remedy within the meaning of Art. 13 does not necessarily have to be an
examination by the courts. From the jurisprudence of the European Court of
Human Rights, it is also clear that a remedy need not result in economic compensation. In criminal cases it is sometimes a sufficient remedy that the result
of the trial is affected. When it comes to tax law questions, the Supreme Court
noted that issues of tax surcharge fall under the scope of Art. 6 while other issues belonging to tax law fall outside. 3 As a result of this, the Swedish parliament recently decided to introduce a possibility to remove the obligation to
pay tax surcharge when the tax process has taken an unreasonably long time.
5
The Court further stated that in many situations the only remedy thinkable for
a person whose right has been violated is pecuniary compensation. In Sweden
such compensation could be claimed from the State under the rules in the Tort
Liability Act. The rules of this Act should, according to principles of international treatise law, in these cases be interpreted in a manner so that they conform with the European Convention to the greatest extent possible, which entails that, in some circumstances, statements concerning the interpretation of
the Act made, for instance, in the preparatory works must be disregarded.
6
It is a matter of discussion whether a claim for economic compensation may
be based directly on the Convention in cases where the Tort Liability Act does
not provide such a right. Such a claim can in any case not be approved under
Art. 41 of the Convention, since this article is a subsidiary rule for the European Court of Human Rights applicable in cases where the Member States
have not fulfilled their obligations under, for instance, Art. 13. The latter article does not, however, contain any positive obligation for the Member States
to give out economic compensation but only that the State provides an effective remedy. If Art. 13 is to be viewed as a positive rule giving individuals a
right to compensation, it must rather be under arguments similar to those
2
The Supreme Court refers here to the judgment of the European Court of Human Rights
from 26 October 2000, in the case Kudla v. Poland.
3 According to judgments of the European Court of Human Rights from 23 July 2002 in
the cases Västberga Taxi AB and Vulic v. Sweden, and Janosevic v. Sweden.
Error! Use the Home tab to apply Überschrift 1 to the text that you want to appear here. 3
brought forward with regards to the so-called estoppel-principle in EC law.
The Swedish courts have not yet tried whether such arguments could also be
successfully used for holding the State liable for violations of the European
Convention. The Court found that these questions could not be tried within
the examination of the appealed decision since the Supreme Court was prevented from trying the material question as a first instance.
7
The Court stated that even if the claim presented by B.S. was not “characterized by the clarity one could wish”, the basic arguments behind the claim
were sufficiently clear to be submitted for trial. Whether B.S. should be entitled to compensation for the alleged violation of his rights protected by the
European Convention and what rules in such a case should be applied, should
have been tried within a material examination. Even in consideration of its
unclear formulation, B.S.’s application for a summons could not be regarded
as being incomplete to the extent that it was impossible to submit it to such
examination. The decision to dismiss the claim was therefore removed and the
case was sent back to the first instance court.
c) Commentary
8
The issue of whether the European Convention on Human Rights, primarily
Art. 13, could be directly applied as a basis for liability in Swedish courts
without further support in other domestic sources of law must be seen as one
of the most interesting questions in modern Swedish tort law. The decision of
the Supreme Court in this case cannot be interpreted as taking a stance for either solution, but it is at least clear that a claim founded on the provisions of
the Convention is not as such inadmissable. 4
9
Further indications on how the relationship between the Convention and national Swedish law should be viewed are given in a later case tried by the Supreme Court.5 In this later case the plaintiff A.O. had been convicted of assault and battery. During the criminal trial the courts refused to consider parts
of the evidence referred to by A.O. A.O. sought damages from the individual
judges of the Court of Appeals claiming they had been negligent. One of the
issues at stake was whether Art. 6 of the European Convention could influence the assessment of whether A.O. was entitled to compensation. The Supreme Court stated that Art. 6 was only applicable if the claim could be considered as “real and serious”, and this consideration must, in a case such as
this, be made from the background of national tort law. Under Swedish law it
is well established that a court can only be seen as negligent if the judgment is
obviously incorrect.6 A further rule of interest in a case such as this is the pro4
The case is commented in H. Andersson, Europakonventionen och nationella
skadeståndsmål, [2003] PointLex 26/6.
5 Judgment by Högsta domstolen (The Supreme Court), 10 November 2003, T 3040-03.
6 Last cited in [2003] Nytt Juridiskt Arkiv (NJA), 285.
4
Mårten Schultz
vision on personal liability for employees in the Tort Liability Act (ch. 4,
sec. 1), which says that only in extraordinary cases may compensation be
claimed directly by the employee (in other cases it is the employer which is
primary liable). Against this background the Court found that the claim of
A.O. based on Art. 6 of the European Convention was manifestly unfounded.
Thereafter – however – the Court examined if the claim could instead be approved under a direct application of Art. 13 of the European Convention, that
is, without subsuming it under any rule in the Swedish Tort Liability Act. In
this context, the Court stated the following: “At present it must be considered
an open question whether and if to what extent there is a right in Swedish law
to damages from the State for violations of the European Convention independently of wrongdoing or negligence. In the present case, however, the
claim is not directed against the State but against specific officials. Liability
for these could not be founded directly on the Convention.”
10 With this later judgment from the Supreme Court it can thus be said that the
importance of the European Convention in national tort law disputes is unclear. Other cases are supposedly to be tried by the Supreme Court in 2004,
which may throw further light on the issue.
2. Judgment from Högsta domstolen (The Supreme Court), 6
October 2003, B 4792-00: May the State Claim
Compensation in Tort Law for Losses due to Tax Crimes?7
a) Brief Summary of the Facts
11 Several persons were sentenced for tax frauds and other criminal activities.
Under Swedish procedural law, an injured party may in some circumstances
claim damages in the criminal trial. In this case, the State entered the criminal
trial as a plaintiff and claimed damages in tort law for the losses incurred
through the criminal activities, which entailed that the State was deprived of
the possibility to impose taxes on large sums of money that, according to tax
regulations, should have been taxed. The question for the Supreme Court was
whether the State had a right to claim damages in tort law for the defendants’
tax evasion or if this claim only could be dealt with within the special procedure for tax claims.
7
Jurisprudence from the Swedish Supreme Court is normally referred to by the
designations given in the publication Nytt Juridiskt Arkiv (NJA). This decision, however,
had not yet been published in the NJA when this report was written.
Error! Use the Home tab to apply Überschrift 1 to the text that you want to appear here. 5
b) Judgment of the Court
12 The Court established at the outset that the State’s claim in this case was a
claim for damages but that it also must be seen as a tax claim. The primary tax
subjects were companies but in some circumstances representatives of a company may be held personally responsible for the company’s tax debts. It was
further noticed that the question had been raised before, both in the jurisprudence of the Supreme Court and in works on legislation, and that previously
the State had not been considered to have a right to choose whether to bring
forwards claims of this kind under tort law or tax law. The reasons that had
been invoked for restricting the State’s possibility to tax law is that otherwise
the debtor’s obligations will depend on which choice the tax authority makes
in the case in question. One particular aspect of this is that claims for damages
follow the general rules on limitation, which entail that the creditor through
continuous limitation breaks in principle can keep the claim alive forever,
while the limitation rules in tax law are more favourable to the debtor. The
Court thus found that the State did not have a right to claim compensation in
tort law for losses caused through tax crimes.
c) Commentary
13 The Supreme Court’s decision in this case was founded, not on the rules of
the Tort Liability Act or any other concrete rules of tort law or constitutional
law (which the defendants had argued for), but rather on a general balancing
of the interests behind the rules of tort law and tax law. Few commentators
seem to argue that the Court should have reached any other decision.8
3. Judgment from Högsta domstolen (The Supreme Court), 6
November 2003, T 136-02: Compensation to Relatives of
Kidnapped Child
a) Brief Summary of the Facts
14 The defendant kidnapped a four-year-old boy, with intent to commit sexual
offences against him and to raise him until he was an adult. The day after the
kidnapping, however, the defendant changed his mind and returned the boy to
his parents. In the criminal trial, it was established that the defendant had
committed the kidnapping (as well as other crimes) under the influence of a
serious mental disorder and he was sentenced to psychiatric care. The parents
of the kidnapped boy claimed compensation for personal injury in the form of
mental suffering caused by the kidnapping. The only issue tried by the Su8
See comments by H. Andersson, Skattefordran och skattefordran, [2003] PointLex 3/11
2003.
6
Mårten Schultz
preme Court was whether the parents had a right to compensation from the
defendant.
b) Judgment of the Court
15 The Supreme Court stated that damages in situations similar to the present one
have been tried by the Court on several occasions in recent time. In two previous plenary assembly cases9, the Court had established that damages for
personal injury (mental suffering) could be awarded to close relatives of a victim who had been intentionally killed. In a subsequent decision, the Court also
found that relatives of a victim who was killed through an action that was not
intentional but grossly negligent “verging on intentional” (in the case a child
was hit by a car driven by a drunk-driver later sentenced for, inter alia, grossly reckless driving and involuntary manslaughter) was entitled to damages
from the tortfeasor.10 Damages were not awarded in another case, however,
when the action that caused the death of the victim did not amount to gross
negligence but only negligence of the “normal” degree. 11
16 Furthermore, the Supreme Court found a comparison in a case where the
father of a child was sentenced for unlawfully having separated the child from
the mother and retaining the child in his native country. In that case, the Court
found that the crime in question was not only directed towards the child but
also the parent and damages were therefore awarded.12
17 In the present case, the Supreme Court found that the crime could not be seen
as directed against the parents to such a substantial degree that the defendant
on this ground could be held liable. It was stated that the Court, under these
circumstances, had previously restricted the scope of compensation to cases
where the relative had been killed through a criminal act. The question in the
present case was whether there were reasons to extend this possibility to claim
damages also in situations where someone is caused mental suffering as a result of crimes where the primary victim was not killed, such as kidnapping.
The Court stated that there were reasons for widening the right to compensation to these situations since the mental suffering of relatives in cases such as
this must be seen as typical and proximate effects of the crime. In the 1993
plenary decisions, however, the Court had stated that any far-reaching widening of the right to compensation in cases not involving intentional killings
presupposed considerations of a nature that should be left to the legislator.
18 The Court noted that the legislator recently modified the Tort Liability Act so
that relatives of a victim who died from personal injuries in this section was
9
10
11
12
[1993] NJA 41, I and II.
[1996] NJA, 377.
[1999] NJA, 632.
[1995] NJA, 269.
Error! Use the Home tab to apply Überschrift 1 to the text that you want to appear here. 7
given an explicit right to damages (ch. 5, sec. 2). In the preparatory works for
the modification, the legislator stated that the statutory right to damages
should be limited to cases where the victim had died and that the consequences of giving the relatives of someone seriously injured a right to damages was
difficult to oversee.13 But, it was further stated in the preparatory works that
this should not prevent the courts from awarding damages in particular cases
where a close relative has been caused suffering, for instance in situations
where she has witnessed the event when the victim was injured. It was thus
held that the further development of the right to compensation in these cases
was left up to the courts.
19 In the present case, however, the Court found that there were compelling
reasons to stick to the careful approach taken in the decisions from 1993. To
further widen the scope of a right to damages entails economic and other consequences that are difficult to survey in the limited examination that can be
made by the courts in the application of the law. To award damages to the
parents of the kidnapped victim in this case would be to substantially widen
the class of persons entitled to damages. Since such a considerable change
should be left to the legislator, the Court found that the plaintiffs’ claims
should be dismissed.
c) Commentary
20 As noted in the previous volume of the Yearbook, the issue of damages to
relatives of the primary victim has been the subject of interest and vivid debate in Sweden.14 The general tendency in recent years is that the possibilities
for relatives to claim compensation for mental suffering resulting from a tortious act have increased. This case is interesting since it is one of few judgments of the last decade where a clear limit to this general development is laid
down.
21 The decision could be seen as harsh for the plaintiffs. The Supreme Court
actually put forward some convincing arguments for reaching a contrary solution. The previously mentioned decision, where damages were awarded to a
mother of a child after the father abducted the child and kept it in another
country, speaks in favour of awarding damages also in this case. The cited
statements from the preparatory work to the amendments of the Tort Liability
Act also make clear that it was not the legislator’s intention to prevent the
courts from awarding damages in situations that fell outside the scope of the
statutory rules of compensation. It also seems a bit far-fetched to see the cited
statements of the Supreme Court in the 1993 plenary judgments as restricting
13
14
Regeringens proposition 2000/01:68, 30 et seq.
See H. Sandell (supra fn. 1), 393 et seq.
8
Mårten Schultz
the possibilities of the Court to award damages in a case such as this, especially in light of the subsequent developments in court practice and legislation.15
22 The interesting reasons against awarding damages in situations such as these
are thus mainly the functional arguments. The Supreme Court argued that,
since the economic and other consequences of approving the plaintiffs’ claim
were difficult to evaluate and oversee within the limited examination of the
court, these kinds of claims could not be approved. This argument could be
questioned both from the perspective of efficiency theory and fairness. It
could thus be questioned whether the risks here were particularly higher than
in many other tort cases and even so whether it is reasonable to let the injured
parties pay the cost for this uncertainty. The relevance of some sort of floodgate-argument against awarding damages in these cases is in any case difficult
to evaluate without further arguments. 16
4. Judgment from Högsta domstolen (The Supreme Court), 9
January 2003, [2003] NJA, 9: Retroactive Application of
Widened Right to Compensation for Victim’s Relatives
a) Brief Summary of the Facts
23 The plaintiffs claimed damages under the recently modified section concerning personal injury damages to close relatives of a person who died as a result
of a personal injury (ch. 5, sec. 2 of the Tort Liability Act). The primary victim in this case died in 1994 while undergoing medical treatment under such
circumstances that the doctors treating the victim were considered negligent.
The defendant was the employer of the doctors, the county council district.
The question was whether the new rule in the Tort Liability Act could be applied when the negligent act took place several years before the rule came into
force.
b) Judgment of the Court
24 The Supreme Court dismissed the claim. It stated that the right to compensation under the modified rule on personal injury compensation does not depend
on the basis for the tortfeasor’s liability (which, for instance, means that if a
company is strictly liable for the injuries of the primary victim, it is also strictly liable to compensate close relatives under this rule if the victim dies). It
was further stated that the rule in the Act entailed a widened right to damages,
15
Comments on the development are given in J. Kleineman, Skadeståndsrättens tillväxt –
ett samhällsproblem eller en rättvisefråga, [2003] Svensk juristtidning (SvJT), 319.
16 See concerning this H. Andersson, Trepartsrelationer i skadeståndsrätten (1997), 253 et
seq.
Error! Use the Home tab to apply Überschrift 1 to the text that you want to appear here. 9
in that such a right now exists also in cases where the defendant’s act was
negligent but not grossly negligent or intentional.
25 The Court thereafter noted that the legislator had intented the rule only to
apply in cases where the tortious act occurred after the rule came into force.
The development of the right to compensation for the personal injuries of
close relatives of killed persons in court practice was then examined. The
Court established that it would be incorrect to diverge from this practice in
cases that emanated from before the amendments of the Tort Liability Act. 17
26 The death in this case occurred in 1994 and the negligent treatment was neither grossly negligent nor intentional. In regard of this, the claim of the plaintiffs could not be approved.
c) Commentary
27 This decision further clarifies the limits of the right to damages for relatives of
killed persons.18 It repeats the previously presented jurisprudence on the subject and the Court states that it is not possible to deviate from this practice for
injuries occurring before the modifications of the Act. The decision also
throws some light on the application of the new rule in the Tort Liability Act
and it seems now clear that the rule cannot be applied retroactively to events
before the modifications came into force.
C. LITERATURE
1. E. Strömbäck et al., Trafikskadelagen – Ersättning vid
trafikskada, (6th edn., Norstedts Juridik, 2003); L.
Grönwall/L-G. Hessmark, Arbetsskadeförsäkring – ett statligt
personskadesskydd, (6th edn., Prisma, 2003)
28 The two books are the leading commentaries on two areas covered by special
insurance systems, which often make the general rules of tort law superfluous,
namely traffic insurance and occupational injury insurance.
17
18
See cases discussed supra.
Further comments on the case are given in J. Sandstedt, Weiteres zum schwedischen
Angehörigenschmerzensgeld, [2003] Versicherungsrecht Beilage Auslandsinformation
(VersRAI), 43. See also J. Sandstedt, Schmerzensgeld für Angehörige - Kommentar zu
der neuesten schwedischen Entwicklung -, [2002] VersRAI, 11.
10
Mårten Schultz
29 The commentary by Strömberg et al. on the Motor Traffic Damage Act is a
standard handbook in Swedish legal literature. The rules of the Act are commented in an accessible way and the book addresses many of the questions
connected with traffic damages, such as issues of compensation for damage to
vehicles damaged in traffic and injury compensation. The book also includes
relevant legislation and charts.
30 Grönwall’s and Hessmark’s book comments on the oldest Swedish social
insurance legislation, occupational injury insurance, which was first introduced in 1901. The present legislation came into force in 1977 but has since
undergone several modifications. The book comments on the present legislation but also provides comments on earlier formulations of the Act, which is
of interest since compensation claims under the Act are tried according to the
legislation that was valid when the injury was sustained. In addition to this,
the book also accounts for other legislation with similar purposes, such as the
special act on compensation for injuries suffered by persons doing mandatory
military service.
2. B. Bengtsson, 21 uppsatser. Skadestånd och försäkring.
Grundlag, fastighetsrätt och miljö. Ur domarens synvinkel,
Juristförlaget, (2003)
31 The book is a collection of former Justice of the Supreme Court and professor
of civil law Bertil Bengtsson’s articles on tort law and related subjects. The
author is one of the leading authorities in Swedish tort law.
3. Brottsoffermyndighetens referatsamling 2003,
(Brottsoffermyndigheten 2003)
32 Every year since 1998, the Swedish Crime Victim Compensation and Support
Authority (the Authority) has published a report with summaries of the cases
tried by the Authority during the year, and the presented book is the report
from 2003. The collection is now also available without charge on the Internet.19 One of the tasks of the Authority is to handle claims from crime victims
in situations where compensation cannot be recovered from the offender. In
such cases, the State will in some circumstances – particularly in cases of personal injury – give out compensation to the victim from public funds.
19
The 2003 report can be found on:
http://www.brottsoffermyndigheten.se/referatsamling/referatsaml%202003.pdf.
Error! Use the Home tab to apply Überschrift 1 to the text that you want to appear here.11
33 The Annual Report from the Authority provides a good insight into how different kinds of claims for personal injuries are considered and it also illustrates the development of the levels of damages for different kinds of injuries.
As a result, the Swedish courts often use the report as a reference work when
assessing damages for personal injuries, although a general impression is that
sometimes the courts consider the Authority to be too generous towards the
victims.20
4. J. Kleineman, Skadeståndsrättens tillväxt, [2003] SvJT
319.
34 Jan Kleineman’s article is one of few articles published in the major Swedish
law reviews during 2003 dealing primarily with general tort law. In the article,
Kleineman examines whether the development of Swedish tort law can be
seen as an expansion – perhaps an americanization – of the discipline.
Kleineman uses the much-discussed development of the right to compensation
for close relatives of crime victims as one point of departure in an analysis,
which has the difficult goal of coming to grips with general tendencies of
Swedish tort law: Should the tort law developments be seen as a retreat from
the previously dominant welfare state-approach in favour of individualistically oriented justice-concerns?
5. M. Schultz, Kausalitetskriteriet i svensk skadeståndsrätt
och det europeiska harmoniseringsarbetet, [2003] Nordisk
Försäkringstidskrift (NFT), 276
35 The article addresses the issue of how the requirement of causation in Swedish tort law may be affected by the tendency towards a harmonized European
tort law. The ambiguous understanding of the causation criterion in Swedish
law and the skeptical attitude towards more theoretical tools for dealing with
causal questions in the law is discussed and criticized. It is argued that this attitude towards the issue of causation may prove to be a problem in the negotiations and evaluations of different proposals on a European level.
20
See, inter alia, the comments by the Authority concerning compensation for rape victims
in the annual report, 32 et seq.