Järnspikar! - Hur regleras en skada som en entreprenör orsakar en sidoentreprenörs entreprenad?

Sammanfattning: According to the main rule in chap. 5 § 1 st. 1 AB 04, the contractor is considered liable in regard to any damage to any part of the contracted work which has not been subject to a handover. This accountability is sometimes referred to as the contractor's object liability. Exceptions can be made in regard to the contractor's object liability in such instances where a damage might be considered to occur due to the employer, when such damage is considered as a consequential result of the employer's use of a part of the contracted works not yet subjected to a handover or if a damage is considered to have occurred due to force majeure. In such cases, the contractor is not considered as liable for said damage which, among other things, means that said damage, at the point of final inspection is not considered as a fault of the contracted work in regards to the contractor’s liability. Should the employer subsequently desire the contractor to address such damage, this may be arranged between the two parties as an addition to the contracted work. The responsibility to present any exemption or extenuating circumstances which would invoke an exception to the contractor’s object liability rests solely with the contractor. In the arrangement between employer and contractor, the distribution of liability in terms of damages and any obligation of financial compensation or restitution is relatively uncomplicated, theoretically speaking. The main challenge which arises in such cases mostly revolve around the question of evidence. For example, the contractor's task of proving that a damage occurred due to the employer is oftentimes a complex and challenging one. A factor which does make settlement, regarding the distribution of liability when it comes to contracted work, more complex is that the parties involved often entrust additional contractors to carry out different parts of the contracted work. The parties’ liabilities towards one another regarding contractors is regulated in chap. 5 § 12 AB 04. The impact of chap. 5 § 12 and its relation to AB 04 in general has not been made fully clear from a judicial perspective, but in reviewing a number of legal cases and practice, this thesis has arrived at following: When a contractor hired by a party causes or is responsible for damage to another party's contracted work, regardless of which party hired said contractor, what type of damage that occurred or whether the damage occurred as a result of negligence or carelessness, the original party is considered liable in regards to said damage against the other party just as if they would have caused it themselves. If a contractor hired by the employer is considered as having caused property damage via carelessness and the employer is not considered complicit in this, the employer is considered as non-liable for damages according to chap. 5 § 12 sentence 2 AB 04. Being noted as an exception means that this sentence should be interpreted restrictively, however. In cases where another contractor causes damage through negligence though, the employer is subsequently considered liable for this damage in regard to the affected contractor as if though he himself had caused it, which means that the damage can be considered as having occurred due to the employer or constitute a consequential result of his use. In such cases where the employer is considered non-liable for such damages caused by a contractor, the contractor in question shall compensate the affected contractor in accordance with the provisions of the Swedish Tort Liability Act. This means that the contractor receives an unlimited liability in terms of compensation for said damage as well as other costs which may arise as a result of the damage. The employer's obligation to reimburse for any obstacles arising or increased costs as a result of use according to chap. 5 § 2 remains in effect even in this situation. This thesis thus concludes that there might therefore arise issues in terms of contractual regulations – for example, in regard to whether a specific cost occurrence should be considered an indirect cost as a result of damage occurred and thus carried by the liable contractor, or whether the cost should be considered as an increased cost as a result of use, which the employer must be responsible for according to chap. 5 § 2 AB 04.