Skälighetsbedömningen vid barns skadeståndsansvar

Sammanfattning: In cases where minors cause property damage it should be considered that the liability to pay damages could be limited, or apportioned. The restriction is determined using a fairness assessment, the fact that the perpetrator is a child is taken into consideration since children are not deemed to bear responsibility for their actions to the extent that adults are. Even though the fairness test is performed in accordance with the law there’ll always be a certain measure of subjectivity and unpredictability. Legislature calls for a fairness assessment after fault has been determined to be the child’s in order to assess whether the damages should be apportioned. A potential reduction is done taking into consideration the age, and emotional maturity of the child as well as the nature of the act in matter, liability insurance and a few other circumstances. While considering motive and legislative history in the fairness test, insurance constitutes the most important factor. This means that the outcome of the test is massively influenced by the existence or non-existence of a liability insurance. The main purpose of the study is to problematise around, as well as illustrate and support enforcement of the law in the cases where the fairness test has been conducted without taking into consideration the factor of liability insurance. In addition, the study will investigate the effect on the outcome of the test in cases where liability insurance is not taken into consideration. Whether this decision primarily aids the defendant’s or prosecution’s case. The secondary purpose of the study investigates the reconsideration institute in relation to children and juveniles, motivated by the lack of a right to reconsideration of decisions regarding the child’s liability to pay damages. Such a rule could be coupled with the initial fairness test. The results of the study shows that the courts’ unwillingness to impose liability to pay damages on very small children. Therefore fairness assessments are fairly rare. Children between the ages of 5 and 14 are assessed less harsh. A trial is conducted in accordance with current law where the rule is apportioned damages. This means the victim does not receive full compensation. Juveniles between ages 15 through 17 apportion is done restrictively. In exceptional cases damages can be apportioned on account of economical circumstances or psychological immaturity. Grounds for apportion can also be relevant in cases where full liability to pay damages could have a very negative impact on the juveniles reintegration into society. The results in the secondary part of the study shows that the control of minors liability to pay damages and reconsidering the same liability are hard to unite. The provisions behind motive significantly differ, therefore one would assume it necessary to, in the event of a possible introduction of a reassessment, modify the requisites of the law. A possible solution would be for the legislature to introduce an option for the courts to ex officio reassess the matter of damages after a five or ten year period, in the cases where liability damages have been apportioned.