Risk som skada : En diskussion om ersättning av förhöjda risker i svensk skadeståndsrätt

Sammanfattning: This thesis critically examines recent developments in Swedish tort law, regarding compensability of an elevated risk of future harm as a distinct injury in itself. The theme of the study is based upon a recent ruling by the Swedish Supreme Court on December 5, 2023, marking the first instance of Swedish legal scrutiny on the concept of elevated risks as compensable injuries. The case involved a compensation claim for personal injury arising from an exposure to PFAS substances and it is highlighting the challenges in both categorizing as well as compensating elevated risks of future harm in a Swedish legal context. The ruling clarified that the mere presence of an elevated risk cannot constitute a personal injury according to traditional Swedish tort law.  The primary objective of this study is to stimulate a broader legal discussion on how Swedish tort law should and could navigate the complex notion of compensating injuries in the form of elevated risks of future injury. The study unfolds in two interconnected parts. Initially, it scrutinizes the conventional concept of personal injury under Swedish law as well as the relationship between the elevated risk of future injury and the traditional personal injury concept. Subsequently, the focus shifts to discussing the need for incorporating the concept of elevated risks as a new category of compensable injury under Swedish tort law, with the legal approach adopted in the United States serving as backdrop for the discussion.  Using a legal dogmatic approach as a primary research method, the study involves an analysis of legal sources to comprehend the current legal landscape and to identify the need for potential reforms. The study also includes a comparative aspect, drawing upon American legal sources, to shed light on how injuries in the form of elevated risks are treated in various American jurisdictions. The American approach, as presented in this study, consists of a two-step process for qualifying elevated risks as compensable injuries. The discussion also touches upon the compensation issue for risk injuries, highlighting the challenge of compensating a potential injury before it manifests. The "loss of chance" doctrine, which is adopted in American law, is introduced to provide a predictable compensation model for lost opportunities as well as elevated risks.  The presentation of the American approach serves as a basis for a discussion of several considerations and issues that the Swedish legislator must address if compensation for risk-based injuries were to be established in Swedish law.  The discussions set forth in this thesis extend to the challenges arising when valuing an elevated risk as a form of personal injury and the complexities of fitting such risks into existing compensation frameworks. The discussions conclude that the concept of an elevated risk as an injury in itself should be classified as a distinct type of compensable injury under Swedish law. After this conclusion the focus of the discussion shifts towards the legislator’s challenging task of establishing a rational compensation model for this type of injury in Swe- dish tort law. The discussion includes some aspects that motivate the need for legislation, as well as reasons speaking against it, which highlights the complexity of balancing the legislator’s considerations in the context of Swedish legal traditions and systems.  In summary, this thesis serves the purpose of contributing to the legal discourse on compensating injuries arising from elevated risks within Swedish tort law. Using a legal dogmatic methodology, including comparative elements, it analyzes recent legal developments, explores challenges, draws comparisons with international practices, and reviews potential legal reforms. The study aims to inform and encourage Swedish legal practitioners, policymakers and scholars to initiate a discussion about the concept of compensating elevated risks, as well as advocate for a nuanced legislative approach to address these challenges effectively.