Even though omissions are recognized as grounds for liability in Swedish tort law, they have been described as something special in the legal debate. One way to put it is that liability for omissions is an exception in regard to the general rule of liability for negligence. Nevertheless, the ever-growing mass of regulations in society paired with higher demands for safety can be assumed to give liability for omissions greater importance in the future. The topic for this paper is the difficulties that arise when the general rule of liability for negligence in Swedish tort law is applied on omissions. Amongst the problems treated are the definition of omissions, omissions in relation to causation, the higher degree of normative evaluation needed for establishing liability for omissions, and the general situations in which liability for omissions can be established. The study is centred around some earlier works by Swedish legal scholars and case law from the Swedish Supreme Court. Particularly, the case NJA 2013 s. 145 and some subsequent cases that refer to this case are examined and evaluated. The central conclusions drawn from the examination are collectedly presented in chapter six and are as follows. The distinction between omissions and positive action is vague due to the fact omissions can be rephrased as an active action and vice versa. This poses a reason for not differentiating the general rule of liability for negligence in regard to omissions. Even though the opposing view has been defended by some in the legal debate, practical reasons call for omissions to be viewed as able to cause damage in an ontological sense. This conclusion is based on the fact that the Supreme Court has explicitly discussed omissions and causation in recent caselaw. The special model for tort liability and omissions that was introduced through NJA 2013 s. 145 has a considerable scope of applicability, even though it has been fiercely criticized. The conventional theory for understanding causation leads to a non-satisfactory result when applied on omissions, since its “but for-test” does not demarcate a potential tortfeasor. The solution is a greater degree of normative evaluation of the situation, which is expressed in terms of a requirement of a duty to act for tort liability. A duty to act should be understood as a general requirement of connection between the negligence of the potential tortfeasor and the source of harm or the protected interest.
| Identifer | oai:union.ndltd.org:UPSALLA1/oai:DiVA.org:su-226886 |
| Date | January 2024 |
| Creators | del Rio Diaz, Maxim |
| Publisher | Stockholms universitet, Juridiska institutionen |
| Source Sets | DiVA Archive at Upsalla University |
| Language | Swedish |
| Detected Language | English |
| Type | Student thesis, info:eu-repo/semantics/bachelorThesis, text |
| Format | application/pdf |
| Rights | info:eu-repo/semantics/openAccess |
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