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Chapter 4 - Risk in Swedish Tort Law: Of Models and Muddles

from Part I - Risk Overviews

Published online by Cambridge University Press:  13 October 2018

Mia Carlsson
Affiliation:
Stockholm University
Sandra Friberg
Affiliation:
Uppsala University
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Summary

The concept of risk is a prominent feature of the Swedish legal system, and of Swedish tort law in particular. Risk was a prime concern in the development of the welfare state as well as the concern of the wide-ranging regulations instigating the safety nets that continue to be such a characteristic feature of Swedish society. Addressing risk has involved a division of labour between private law and public law, with public law taking on key overt measures to regulate risks to the public, as discussed further in the Swedish Part II chapter (Ch. 13). While the issues of the concept of risk and the regulation of risk are covered, the focus of the present chapter is on risk in generating liability from the perspective of Swedish tort law.

Swedish private law can be characterised as striving to limit various risks of harm in society. We will focus on tort and compensation law to present how the Swedish legislator has made different choices in regulating risks, and how courts and other legal agencies interpret that legislation, decide on the boundaries between acceptable and non-acceptable risks and, in turn, create law concerning risks. The choices can be seen as prioritisations: first, amongst separate kinds of harm – in the sense of ‘ which types of damage should be compensated by someone other than the injured party?’ – and second, ‘when – that is, under which circumstances and to what extent – should liability be assigned?’ A third question is, ‘who should bear the costs in those situations?’

Swedish doctrine does not explore risk as a specific legal topic, but risk is clearly an element in broader discussions of liability and why certain areas of society should be subject to attempts of behaviour control by legal instruments. The most important elaboration of rules for risk has flowed from courts interpreting tort law's open-textured norms. It is fair to say that the legislator has great trust in the courts’ ability to develop legal concepts in line with societal developments and to do so swiftly enough to deal with new problems as they arise.

Perhaps part of the reason for tort law's doctrinal discussion about risk being undeveloped is Sweden's distinctive emphasis on insurance solutions, particularly for personal injuries.

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Publisher: Intersentia
Print publication year: 2018

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