Principalansvarets tolkningsproblem, en kritisk studie av rekvisitet "i tjänsten"

Detta är en Kandidat-uppsats från Lunds universitet/Juridiska institutionen

Sammanfattning: Summary Since the end of the 19th century the so-called vicarious liability has developed in Sweden. The vicarious liability means responsibility for someone else´s causing. This is an exception from the principal rule in the law of tort that says that a tortfeasor is liable to pay damages only because of his/her own actions. In 1972 the Liability for Damages Act was established and the vicarious liability was codified through chapter 3 § 1. Regarding an employer´s responsibility for an employee´s causing of damage to property, personal injury or pure economic loss, a necessary condition is that the damage/injury/loss has to be caused ”during work”. The expression "during work" is not explained further in the section of law, but in the legislative history to the Liability of the Damages Act it says that the interpretation of the necessary condition shall be left to the application of the law. The intentions behind the vicarious liability are, for example, a rational placement of costs and insurance opportunities, prevention against employees´ damage causing, effective protection for the victim of the damage, and also internalization of costs. In the light of these intentions The Supreme Court and the Labour Court have, in a number of decisions, interpreted and applied the expression “during work”. Since the rule of vicarious liability existed before it was codified, the decisions from before the introduction of the law still give guidance. The question of how the necessary condition “during work” shall be applied has recently been put to the test through two judgements from The Supreme Court in year 2000 and one from The Labour Court in year 2013. Through the decisions, importance has been attached to different interests. An interest that has been prominent is the victim of damages´ interest of compensation. Since it is generally the employer who has the greatest opportunity to compensate arisen damage, the expression “during work” is usually interpreted in a broad sense. In one of the judgements the opposite interest appears – the interest of the employer. If the opportunities to discover an employee´s recklessness or intentional causing of damage are small, the employer should not be held responsible for the damage. Since a lot of different interpretations of the expression “during work” can be done, there is a risk that the rule of law is affected and that the predictability is reduced.

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