Skälen bakom införandet av ett strikt skadeståndsansvar - En jämförelse mellan lagstiftarens och rättstillämparens motiv

Sammanfattning: Strict liability implies liability without fault. Therefore, the strict liability is a deviation from the fault liability that has been the general rule in Swedish tort law for a long time. Strict liability is interventional but has according to the legislator been justified in some cases. In those cases, the strict liability has been codified. Case law of the Swedish Supreme Court has shown that the adjudicator has also been able to impose strict liability, without basis in the legal provision; however, it is uncertain under what prerequisites this can be done. In this essay, I will examine when strict liability can be imposed without basis in the legal provision. I will be reviewing the similarities and differences between the legislators’ and the adjudicators’ grounds for an imposition of strict liability. Furthermore, I will investigate to what extent the adjudicator has followed the legal grounds and the reasoning that has been set out by the legislator when imposing strict liability. The conclusion of this thesis is depicted through the following statement; the legislator has in most cases imposed strict liability on an operator for an activity that is considered dangerous. This has in my opinion been the case when an activity has been extraordinary, has caused a significantly high risk of damages, or when the potential damages caused by the activity can become very serious and extensive. The grounds for the imposition stem from legal-technical, economical and reparative aspects, but have also been based on thoughts about prevention and neighborly responsibilities. When the adjudicator has imposed strict liability without basis in the legal provisions, the grounds for this have to a large extent corresponded with the grounds set out by the legislator for an imposition of strict liability. Strict liability has been imposed partly for dangerous activities with regard to the risk that the activity carries, and partly for operations that are not considered dangerous but can cause very serious and extensive damages due to the permanent risk that exists. Therefore, the reasoning has conformed with the legislators’ in these cases as well. In addition, other grounds have presented regarding legal-technicality, economical reasons and prevention, which have also been considered by the legislator. Although an imposition of strict liability requires for restrictiveness, the adjudicators’ decision to impose such liability has been justified in regards to the legal grounds that have been the basis of such an imposition by the legislator. The adjudicator has followed the reasoning set out by the legislator for imposing strict liability, both in cases where the present activity has been a dangerous one, and in those cases where the activity has not been considered dangerous.