Artikeln är publicerad på Legal 500 – Exclusive Contributor – Country Comparative Guide 2022, skriven av Finn Stenström och Johan Nyberg, delägare på Glimstedt.
This country-specific Q&A provides an overview of product liability laws and regulations applicable in Sweden.
Under the Product Liability Act (SFS 1992:18, the “PLA”), a company may be held liable for personal injury and damage to consumer property caused by a defect in a product manufactured, imported or distributed. Liability under the PLA is strict. The Consumer Sales Act (SFS 1990:932, the “CSA”) applies to movable personal property. Provided the existence of a defect for which the seller is responsible, the consumer may be entitled to compensation for damage suffered. An injured party may also have a basis for claims under the Tort Liability Act (SFS 1972:207, the “TLA”).
The definition of “product” is wide. In principle, all sort of movables is comprised, irrespective of the methods for production or use. Software, on a stand-alone basis, is not comprised by the PLA. However, if a security risk related to a movable product occurs due to erroneous software, the fact that the ultimate reason to the security risk is related to software, would not result in the product not being deemed to be defective within the meaning of the PLA.
Since liability under the PLA is strict, it is not necessary to establish negligence or wilful conduct. However, the claimant needs to establish that there is a defect in the product and that such defect has caused damage. The main rule is that the claimant needs to present evidence to the same degree as is required in other civil cases. However, certain case law and comments in the legal literature support the standpoint that the standard of proof may be somewhat lowered, for example, in relation to complex assessments of causation. Hence, (i) if the defendant reasonable is in possession of information necessary to clarify the course of events (e.g. information about the design of a product and the manufacturing process) but no exculpating circumstances has been invoked or presented and (ii) the claimant presents evidence which to a fairly high degree of probability supports the claim, such conditions may conceivably lead the court to the conclusion that the claimant has met the relevant standard of proof. Further, it may be mentioned that the Swedish Code on Judicial Procedure contains provisions to the effect that where full proof cannot be presented in respect of a loss, or only presented with considerable difficulty, a court may upon request by a party make an assessment of damages in the absence of evidence, such assessment being based on a principle of reasonableness. It should be noted that the aforementioned mechanism for easing of burden of proof is dependent on the claimant first having taken reasonable measures to calculate and prove the loss.
A manufacturer, importer or company marketing a product by applying its own trademark is primary liable under the PLA. In the absence of such identified party, a supplier, who is not able to within one month disclose information sufficient enough to identify the importer or other supplier acting at an earlier level in the distribution chain, may be held liable for the defect.
There are serval explicit grounds for having liability discharged according to the PLA. A defendant may be discharged from liability if it is established: (i) that the defendant did not put the product into circulation, (ii) that it is probable that the defect which caused the damage did not exist at the time when the product was put into circulation, (iii) that the defect is due to compliance with mandatory regulations issued by public authorities, or (iv) that the state of scientific and technical knowledge at the time when the product was put into circulation was not such as to enable the existence of the defect to be discovered.
The period of limitation for a claim under the PLA is three years from the date the claimant knew or ought to have had knowledge about the circumstances underlying the claim. Under all conditions, a claim brought forward later than 10 years from the point of time when the product was put into circulation on the market is barred. Failure to observe these periods will upon objection result in the claim being denied.
A company liable under the PLA cannot opt out from liability by delegating responsibility. The obligation to provide information may, however, depend on the level of the distributor chain in relation to which the company is operating. Hence, a company directly in contact with the end-customer may have certain additional obligations to provide information, compared to an entity more remote from the end-customer.
Contrary to the PLA, liability under the TLA presupposes that damage has been caused by wilful conduct or negligence.
Are punitive damages available? Swedish law does not provide for punitive damages.
A company may be held liable under the TLA based on negligently having contributed to the damage incurred, irrespective of whether a producer has been identified or not. Several companies may be held jointly and severally liable for damage incurred. In situations where joint and several liability applies, the main principle is that liability will be distributed proportionally to contribution and in accordance with a principle of reasonableness.
Although there are no defenses set forth in the TLA specifically related to a product liability claim as such, there are several defenses under general principles of tort law, such as, for example, the lack of causal link or negligence or the occurrence being deemed too remote. Further, liability may be excluded or eased if the injured party has acted negligently or otherwise contributed to the damage.
The general limitation period in Sweden is 10 years according to the Limitations Act (SFS 1981:130). The limitation period will be counted from the day the claim arose. There are several possibilities to have the limitation period extended.
There are no specific rules laid down in the TLA which would provide for exclusion of liability. However, as mentioned above, liability may be reduced or even excluded due to contributory negligence by the claimant. Further, information that serve to clarify risks may on a general basis reduce or ease liability.
In contracts between companies there are no compulsory terms implied. However, in the absence of contractual terms between companies, certain terms may be implied, primarily from the Swedish Sale of Goods Act (SFS 1990:931). Terms which may be implied and of relevance to defects in products may concern quality or information relating to the characteristics of the goods or their use which the seller has provided in the context of marketing the goods or otherwise prior to the sale, and which can be presumed to have influenced the sale. The CSA applies to movable personal property. Provided the existence of a defect for which the seller is responsible, the consumer may be entitled to compensation for damage suffered. Unless otherwise provided for in the contract, goods shall, amongst other things, be fit for the general and specific purposes underlying the purchase and conform to the descriptions provided. It is explicitly mentioned that goods shall be considered defective if they are sold in contravention of an injunction issued pursuant to the Product Safety Act (SFS 2004:451) or in breach of other sales prohibition decrees aimed at preventing use of goods which may endanger life or health.
Provided the existence of a defect for which the seller is responsible, the consumer may under the CSA be entitled to compensation for damage suffered.
As a main rule, contractual terms which by comparison to the provisions of the CSA are disadvantageous to the consumer, are not enforceable.
The Swedish Supreme Court has in a recent case elaborated on the concept of “products” and has stated that the way in which a product is manufactured is not decisive for whether it should fall within the scope of the law or not and that supply of unprocessed water should be included in the concept of product.
A counsel which is specialised in the field and experienced in litigation should be engaged. Other important first steps would be to investigate possible insurance coverage, investigate applicable limitations to present claims, to clarify the identity of possible entities or persons liable as well as to secure evidence relevant to the claim or threatened claim.
Yes, the courts are in general adept at handling complex product liability claims. The case will be tried by legally qualified judges without a jury.
Class action is possible but uncommon. In a class action, one party represents a group of members based on common grounds. The representative shall qualify as an appropriate representative of the members considering, amongst other circumstances, interests in the proceedings and financial capability to carry out a class action. A group action may be initiated by individuals or legal entities/organisations or authorities. When the trial is initiated, the group consists of the persons mentioned in the statement of claims. Declaration by a group member that the member wants to be covered by the group action constitutes confirmation of the member’s participation. A group member who has not notified the court in writing within the time period stipulated by the court will be deemed to have withdrawn from the group.
Contingency fees and conditional “no win, no fee” arrangements are in general and as a main rule contrary to the ethical rules of the Swedish Bar Association. The law on class actions allows for a limited form of contingency fees through a so-called “risk agreement” to the effect that if unsuccessful, no or only low compensation will be paid to the counsel, while the counsel may be entitled to extra remuneration in the event of success. A risk agreement shall be approved by the court handling the class action case. Third party funding of claims is possible. There are no particular rules regulating such funding save for the ethical rules of the Swedish Bar Association. The funding of a third party will not have an impact on the court’s allocation of litigation costs as between the parties.
Regulation and market control has a great impact on the frequency as well as possibilities for claimants to obtain funds for legal procedure. Another factor which has an impact is the possibility for consumers to gain information on deviations and faults from other users e.g. via social media.
There is an ongoing discussion regarding burden of proof on the injured person to demonstrate causal links and state of knowledge not least in relation to increasingly autonomous devices adapted and modified beyond producers’ control. Please provide an update of any interesting developments which have taken place in your jurisdiction over the last 12 months. The Swedish Supreme Court case NJA 2018 s. 475 concerned, amongst other things, the question of whether drinking water provided by a municipality would fall within the definition of product. The Supreme Court reasoned that although the PLA was primarily focused on industrially manufactured goods, the concept of product is considerably broader and reasoned further that the way in which a product is manufactured is not decisive for whether it should fall within the scope of the law or not. The Supreme Court concluded in line with this that the relevant supply of water – irrespective of whether it has been processed or not – should be included in the concept of product and that such an application was consistent with the Product Liability Directive (85/374/EEC). Based on NJA 2018 s. 475, the District Court of Blekinge has now examined whether 165 residents in a Swedish municipality have suffered personal injury due to e.g. elevated levels of PFAS in water supplied. The district court concluded that elevated levels of PFAS in the blood had been established and that this condition ought to be considered a compensable “defective condition”, i.e. that a relevant physical injury had occurred involving increased health risks and deterioration of body functions. The verdict of the district court has been appealed to the court of appeal.