XXVIII. Sweden

a) Brief Summary of the Facts

2 On 31 July 2014, an extensive forest fire erupted in the area of Västmanland. The fire was caused by a forest vehicle engaged in cultivation work on a clear-felled area. The vehicle’s tyres had metal bands attached to them, the vehicle’s speed was approximately 2–3 kilometres per hour, and it was established that some part of the vehicle or the attached gear caused surrounding vegetation to ignite. The fire spread and developed into one of the most extensive forest fires in Sweden in modern times.

3 The vehicle was classified as a heavy terrain vehicle and it was under a duty to be covered by insurance, a duty which it fulfilled with the Länsförsäkringar insurance company.

4 The owner of the property where the forest fire started claimed compensation (SEK 8.5 million, approx € 850,000) from the Länsförsäkringar to cover the damage consisting in the reduction in the value of the property. Länsförsäkringar contested the claim, arguing that the vehicle was not in traffic at the time and that, in any case, there was a lack of an adequate causal link between the traffic and the damage, in the sense that the fire was not a result of a typical traffic risk.

5 The District Court referred the question to the Supreme Court, in order to decide if the damage was caused in traffic in the sense regulated in the Traffic Liability Act.

b) Judgment of the Court

6 The Supreme Court declared that the concept of traffic damage has been given a broad meaning to the benefit of the injured party. As such, the strict liability that is the foundation of traffic liability has come to encompass risks that are not immediately dependent on the particular dangerousness of traffic.

7 However, the applicability of the Traffic Liability Act is limited by the concept of ‘traffic’ and the requirement of causality since its applicability presupposes that the damage was caused ‘in traffic’. The causal link must also be adequate, ie the damage must have occurred as a result of a foreseeable risk in the traffic situation that caused the damage. Since motor driven vehicles can be used in a wide variety of ways, the implied risks can vary.

8 A motor driven vehicle can be considered to be ‘in traffic’ even if the vehicle is not in motion at the time of the damage (the Supreme Court referred to the previous cases^[1]). If, however, a stationary vehicle has not been used as a means of transportation but merely as a tool at the time when damage occurs, the assessment can be different.^[2]

9 The Supreme Court further stated, with reference to the preparatory works, that the concept of ‘damage caused in traffic’ does not imply a requirement that the vehicle was on a public road or on any other established route. This means that damage caused by forest vehicles on a work site in the forest or by a tractor in a field can be included in the concept of traffic damage in accordance with the Traffic Liability Act.

10 Finally, the Supreme Court stated that the Swedish court practice covers a minimum protection that liability insurance should provide to parties according to EU law.

11 Since the vehicle in question was being used in a normal fashion and in accordance with the vehicle’s purpose, the vehicle was used as a means of transportation and thus in traffic when the fire started. It was also undisputed that the fire and subsequent damage were caused by the means of the vehicle. The Supreme Court established that since the damage was a result of a risk closely connected to the use of a terrain vehicle in forestry, the damage can be said to have been caused in traffic and the referred question from the District Court was answered accordingly.

c) Commentary

12 The outcome of this case might not be seen as particularly surprising, especially given the parties’ procedural positions (it was undisputed that the damage had been a foreseeable and calculable risk connected with the use of the vehicle, and it was undisputed that the fire had been caused by the impact of the vehicle). Significant in this case are the points raised by the Supreme Court, which emphasised the general requirement that (a) the damage must have been the result of a risk that can be foreseeable given the traffic situation that caused the damage, and that (b) the variety of ways in which different vehicles can be used also means that the risks connected to the usage can vary.

13 Taking the above-mentioned factors into account, it can be concluded that it is always necessary to pay close attention to the details of each case when deciding questions relating to traffic liability. The mere privilege that the injured party has been granted in court practice, where the concept of damage caused in traffic has been interpreted in a less favourable way for the insurer, does not result in an ‘always award compensation-approach’ from the Supreme Court. If the damage has been caused in a way that cannot be said to be typical in a given traffic situation, or if a vehicle has been used in a way that differs from its typical usage, the outcome might be that the Traffic Liability Act is not applicable.

a) Brief Summary of the Facts

14 The company, Swedavia (owned by the Swedish State), runs the air traffic at Malmö Airport. The disposal of wastewater from the airport is carried out in accordance with a contract between the municipality of Svedala (where Malmö Airport is situated) and the operator of the airport, which from 2011 has been Swedavia.

15 At the airport, fire drills are regularly carried out at a designated area. From this area, wastewater was previously pumped through a pipe system that ended up in the municipality’s wastewater treatment plant. One of the foams used in fire drills at the airport contained PFOS, a type of perflouroalkyl substance (PFAS), which is toxic.

16 Svedala municipality sued Swedavia for damages citing the Environmental Code, ch 32. According to Svedala, the existence of PFOS in the wastewater had contaminated the silt separated in the treatment plant, which in turn had resulted in costs for the municipality.

17 Swedavia contested the claim and argued, among other things, that the contract between the parties meant that the rules on liability in the Environmental Code cannot be applied. The Supreme Court granted leave of appeal to decide on this matter.

b) Judgment of the Court

18 The Environmental Code, ch 32, contains provisions pertaining to liability and damages for injury and loss caused by pollution, noise, vibration and other similar disturbances. Liability is, as a main rule, strict. The provisions on liability stem from the polluter-pays principle, and the purpose of strict liability in the Environmental Code is to encourage individuals, employers, and other parties to implement the means to prevent injuries and damage, as well as to ensure plaintiffs compensation for harm suffered. There are no provisions in the Environmental Code on if – and if so how – the existence of a contract relates to the applicability of the liability provisions. The Supreme Court stated that the regulation must be considered as non-obligatory, which gives the parties the option to agree on something other than what follows from the Code.

19 The Supreme Court then referred to a controversial issue in legal doctrine, namely whether a contractual party who has suffered harm can choose to support a claim on non-contractual rules rather than contract rules when the latter path would be disadvantageous to the plaintiff.^[3] With reference to a previous case (NJA 2014, 760), the Supreme Court stated that it depends on the contract, and an interpretation of the same, in each individual case, if a party to a contract can claim damages based on the Tort Liability Act instead of the contract.

20 The Supreme Court then stipulated that merely the fact that a provision on non-contractual damages prescribes strict liability does not justify another approach on the significance of the contract. The fact that the Environmental Code is based on the polluter-pays principle is not a reason to disregard the non-obligatory character of the provisions, or to render a general influence on the principles of contract interpretation. The question if a party to a contract can claim that the tort regulation in the Environmental Code should apply instead of the contract shall therefore be decided on the basis of an interpretation of the contract.

21 The municipality had had the possibility to calculate the risks and costs of unexpected pollution before entering into the contract, and the contract between the parties to the dispute contained detailed provisions on which material would be accepted in the sewage water. There was also a specific provision on tort liability between the parties. The Supreme Court therefore found that the damage that had occurred had such a close connection to the principal obligations of the contract that the rules on liability in the Environmental Code could not be applied.

22 The question that had been given leave to appeal – ie whether a contractual relation can exclude the application of the rules on liability in the Environmental Code – was thus answered in the affirmative.

c) Commentary

23 The judgment from the Supreme Court stipulates a rather heavy responsibility on the parties entering into a contract to pay heed to the risks and necessary precautions connected with environmental hazards. In this case, as can probably be said for a number of other situations, the risks of certain substances might not be known at the time of entering into a contract. It must also be taken into consideration by the parties that science in retrospect shows that something that at one time was considered not to be harmful can subsequently turn out to be harmful or even poisonous.

24 Since the Supreme Court placed so much importance on what could have been regulated in the contract, as well as what was actually regulated, one possible interpretation of the ruling could be that the municipality would not have been better off by not regulating the matter of tort liability at all. Since both parties are interested in clarifying mutual liability when entering into a contract, complete silence from one of the parties could be interpreted as an expression of knowingly accepting a risk and the responsibility for covering any costs emanating from this risk.

25 It is difficult to say how the contract should have been formulated in order to provide that the municipality could be compensated for the damage in question, but it is rather safe to say that the ruling from the Supreme Court establishes the theoretical principle of the priority of contracts over legislation, even when the legislation that could be applied includes provisions on strict liability.

26 However, the Supreme Court also stated that a contract must be interpreted with caution when the meaning is unclear and, for example, when subsequent research results in new knowledge about the environmental consequences of a substance. A situation can also arise where the contract should be adjusted due to the contents of the contract, the circumstances when entering into the contract, later conditions occurred and circumstances in general (see the Law of Contracts, sec 36).

27 In this particular case, the municipality might have been more successful if it had argued that the contract should have been adjusted due to changes in the factual circumstances rather than to claim that the Environmental Code and its provisions on strict liability should have priority over the contract.

a) Brief Summary of the Facts

28 A car owner claimed compensation from her insurance company after her car was stolen. The car was ‘lost’ for about one year and was found in a damaged condition. The car owner sold the car as it was (ie no repairs were made). Her insurance claim was based on the estimated cost of repairs (approx SEK 60,000)^[4], while the insurance company argued that compensation should be calculated as the difference between the purchase price and the selling price (approx SEK 40,000)^[5] since no repairs had been made.

b) Judgment of the Court

29 The Supreme Court set out by describing the relevant provision in the Insurance Act. According to ch 6, sec 2, the main rule states that the estimated value of damaged or lost property should be calculated as the difference between the replacement value immediately before the insured event, with a deduction for, inter alia, age and usage. This is often referred to as ‘market value’. The provision does not presuppose repair; the policyholder can use the insurance compensation as he/she wants.

30 The Supreme Court continued by noting that the main rule, as described above and according to the preparatory works, is firstly applicable in cases of total damage, but can also be applied in cases of partial damage. In the latter cases, the property might be repaired, and if so, another paragraph of the provision in the Insurance Act stipulates that the insurance should cover the repair costs instead of the replacement value.^[6]

31 According to the Supreme Court, the provision cannot be interpreted in a way that gives the policyholder a right to compensation exceeding the loss in market value caused by the insurance event. This interpretation is in line with the principle of insurance law that insurance events should not result in a profit for the policyholder.

32 If the market value can be established to be less than the repair costs, the market value sets the bar for the compensation from the insurer. However, more often than not, the repair costs are the only known basis for calculating the compensation sum. The Supreme Court then confirmed that even when calculated repair costs are used as a basis for the compensation from the insurer, the policyholder can freely dispose of the compensation.

33 In accordance with the reasoning above, the Supreme Court ruled that the insurance company should pay compensation to the policyholder for the loss in market value that was caused by the theft, ie approx SEK 40,000 (approx € 4,000).

c) Commentary

34 The outcome of the case cannot be described as surprising in any way, but rather serves to reinforce the fact that well-known principles within tort law are also applicable within insurance law.^[7] The fact that policyholders can claim compensation based on estimated repair costs (while never actually repairing the property) can, in those cases where repair costs exceed the loss in market value, result in a profit for the policyholder. This is however in line with the fact that the policyholder, in situations of total damage to property, can use the compensation from its insurer to purchase replacement property at a lower cost than the estimated market value of the damaged property, and as a result ultimately gain a financial benefit.

a) Brief Summary of the Facts

35 A man had sexual intercourse with a woman although he suspected that she did not consent. The woman had offered him the possibility to spend the night at her apartment. She had, in their conversations via Snapchat, clearly stated that she did not want to have sex with him. The man testified that nothing happened during his stay in the apartment that gave him reason to believe that the woman had changed her mind. According to the man, he interrupted the intercourse when ‘it didn’t feel right’, while the woman claimed that the intercourse ended when the man ‘was done’.

36 The man was convicted of negligent rape by the Supreme Court (NJA 2019, 668) since the court could not with sufficient certainty conclude that the man had been indifferent as regards the circumstance that the woman did not participate voluntarily (the lower courts found the man guilty of rape with intent).

37 This was the first case tried by the Supreme Court where the new, criminal law statute of negligent rape, was applied. The Supreme Court therefore granted leave to appeal to decide on the matter of damages since this was the first time that such a case had to be dealt with by the courts. The lower courts had awarded damages for pain and suffering and non-pecuniary damages for criminal violation based on the crime being classified as intentional rape.

b) Judgment of the Court

38 The Supreme Court began by explaining that the new statute in criminal law of negligent rape aims to clarify that everyone has an undisputed right to personal and sexual integrity as well as sexual autonomy. The stipulation of gross negligence as a prerequisite of criminal liability means that liability should be imposed on acts that are clearly punishable although not intentionally committed.

39 Damages for a criminal violation aim to compensate the victim for feelings of fear, humiliation, shame, etc that are not medically detectable. The harm is defined as the violation of a person’s protected interest (personhood, liberty, peace and honour), Tort Liability Act, ch 2, sec 3. It is the momentary experience of the crime that is compensated and not subsequent suffering or other consequences.

40 The amount of damages in such cases should be decided on what is fair, considering the nature and duration of the criminal act, and the starting point is a discretionary assessment based on prevailing social and ethical values. It is mainly an estimation based on objective factors connected to the typical harm associated with the crime in question. In practice, damages are determined by a template set out and applied by the Swedish Crime Victim Compensation and Support Authority (Brottsoffermyndigheten).

41 According to the Tort Liability Act, ch 2 sec 1, anyone who with intent or negligence causes personal injury shall pay damages. Chapter 5 sec 1 para 1 (3) states that such damages include compensation for pain and suffering. Damages are in general determined by a template set out by the Road Traffic Injuries Commission (Trafikskadenämnden). Suffered harm must be proven by a medical examination, but as regards psychological harm caused by a sexual offence, a standardised assessment is made. If the victim can show that he/she has suffered to a greater extent than this assessment would show, a larger sum in damages can be awarded.

42 After having set the legislative scene, the Supreme Court established that not only intentional crimes, but also crimes committed with negligence under certain circumstances can give right to non-pecuniary damages. When a person recognises the risk that consent to sexual activities might be lacking, but still proceeds (and perhaps hopes that he/she is mistaken about the question of consent), already the conscious risk-taking is considered to be such a serious violation of the victim’s sexual integrity that non-pecuniary damages can be awarded, according to the Supreme Court.

43 As regards an assessment of the damages, the Supreme Court stated that negligent rape is a serious violation, but not as serious as intentional rape. Therefore, the standardised sum of non-pecuniary damages in cases of negligent rape is set at SEK 75,000 (approx € 7,500) while intentional rape normally results in non-pecuniary damages of SEK 100,000 (approx € 10,000).

44 Concerning damages for pain and suffering, the Supreme Court declared that the standardised sum in cases of intentional rape is SEK 15,000 (approx € 1,500), which is considered to correspond to six months of sick leave with treatment other than hospital care. According to the Supreme Court, the nature of the crime can have a significant influence on the intensity of the psychological harm. The standard sum of damages for pain and suffering caused by negligent rape should therefore be set at a lower level, namely SEK 10,000 (approx € 1,000), than for cases of intentional rape. If the victim can prove, for example, by means of a medical certificate, that their suffering exceeded the threshold for sick leave, a higher sum can be awarded.

45 Since the victim had provided no evidence that motivated the Supreme Court to deviate from the general assumptions of correctness in the standardised sums, the victim was awarded damages for pain and suffering and non-pecuniary damages for violation in accordance with these.

c) Commentary

46 As mentioned above, this is the first case in which the Supreme Court had to address the issue of the amount of damages that should be awarded in cases of negligent rape. The circumstances in the criminal case show that, only by the smallest possible margin was the offender convicted of negligent rape instead of intentional rape. It can therefore be disputed if the degree of harm that the victim suffered and the violation of her integrity were less serious to the extent reflected in the levels of damages.

47 In cases of non-pecuniary damages for criminal violations, there is a well-established practice of standardising the assessment of damages, and one can sympathise with the idea of a generalised assumption of the typical harm caused by negligent rape (as is the case with other crimes that can lead to an award of non-pecuniary damages according to the Tort Liability Act, ch 2 sec 3). However, given the circumstances of the case, the rather substantial reduction in damages that the Supreme Court ordered (SEK 25,000, approx € 2,500) could perhaps have been deviated from in this individual case.

48 When discussing the level of damages for pain and suffering, the reduction is even more questionable. There is no actual support in the preparatory works or previous precedents from the Supreme Court to assume that the nature of the crime is significant for the intensity of the psychological harm in cases such as the one under discussion. It is difficult to see why the period of sick leave that the level of damages is supposed to correspond to would be two months shorter merely due to the fact that the offender is convicted of negligent rape instead of intentional rape. It was established that the offender was well aware of the risk that the woman did not consent to have sexual intercourse with him, but he did not abstain anyway. The pain and suffering caused by this sexual offence cannot really be distinguished from that which would have been caused if the Supreme Court had reached the same conclusions as the lower courts in the matter of criminal liability.