Tort Law in Sweden.
An Introduction
Mårten Schultz 2005
Faculty of Law, Stockholm University
marten.schultz@juridicum.su.se
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.
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!
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.
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.
”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
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
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)
General Requirements for Liability
1. Negligence (fault, culpa) or a rule of strict liability
2. A legally acknowledged type of damage
3. Causation and adequacy
Even if these requirements are fulfilled liability may
still be avoided in some circumstances.
Liability Rules in the Tort Liability Act
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)
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?
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.
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 nonmathematical 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
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)
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
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
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
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):
1. A victim may, if such circumstances are at hand, claim
compensation directly from the employee.
2. If such circumstances are at hand and the employer has paid the
victim, she may have a right of recourse against the employee.
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
Strict Liability – Liability even in the
Absence of Negligence
Strict Liability Regimes
• Environmental Damages in the Environmental Code
• Dogs
• Nuclear Plants
• Air Traffic
• Railroads
Also particular rules on traffic, patient injuries etc.
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
Damage
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 farreaching costs associated with the damage. Even a
temporary loss of a thing is a property damage (cf.
unjust enrichment)
Causation and the Scope of Liability
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)
Exemptions from Liability
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)
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.
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.
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.