Abstract
When this report was written, no commercial production of genetically modified crops had yet taken place in Sweden. The commencement of commercial growing of GMOs may, however, be expected in the relatively near future. About 115 field trials have been conducted over the past 17 years, the vast majority of which have involved potato, rape seed or sugar beet. There is no special liability regime for GMOs in force in Swedish law. A commission appointed by the Swedish legislator has recently reviewed the applicable legislation in order to prepare for the commencement of the commercial utilisation of GM crops.1 This has so far included inter alia the elaboration of draft regulations pertaining to the coexistence of GM and non-GM potatoes and maize and the appointment of a commission that would, inter alia, look into the need for a special regime for liability in connection with the admixture of GMO and non-GMO crops.2 The commission has, more specifically, investigated whether there is need for a special strict liability regime or if the present rules are sufficient to deal with these liability issues. The investigation was limited to economic loss only. The commission concluded that this situation could be handled through traditional tort law rules and did not therefore suggest any special legislation, or any amendments of existing legislation. There are as of yet no indications on what the results of the suggestions by the commission will be. We will therefore hereinafter consider the question of liability for pure economic loss for GMOs under different existing liability rules.
SOU 2007:46: Ansvarsfrågan vid odling av genmanipulerade grödor.
Direktiv (= directive) 2006:38, from 27 April 2006.
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References
The writer is Jan Hellner, see J. Heller/ S. Johansson, Skadeståndsrätt (6th ed. 2000) 170. The Swedish attitude here contrasts with that in other Scandinavian countries (Norway and Denmark) where the courts have been more favourable to establishing strict liability regimes for different types of dangerous activities.
See Nytt Jurisdikt Arkiv (NJA) 1991 720, NJA 1997 684 and NJA 2001 368.
See, for the following, M. Schultz, Kausalitet (2007).
See, inter alia, J. Hellner/ S. Johansson (supra fn. 6) 12.1.2; H. Andersson, Skyddsändamål och adekvans (1993) 290 ff.; R. Hager, Värderingsrätt (1998) 250 ff.; U. Persson, Skada och värde (1953) 93 ff. and 190 ff.; B. W. Dufwa, Flera skadeståndsskyldiga (1993) no. 2419; M Radetzki, Orsak och skada (1998) 88 ff.; M. Schultz, Further Ruminations on Cause-in-Fact, in: P. Wahlgren (ed.), Scandinavian Studies in Law 41 (2001) 467 ff.
See NJA 1981 622. The circumstances are perhaps interesting here since there are some affinities with the present topic. The plaintiff owned a fish farm in the municipality of Västervik. A sewage station owned by the municipality discharged phenol into a ditch, which thereafter poured into the fish farm. The plaintiff claimed damages from the municipality under the argument that trout in the fish farm died as a result of the phenol discharge. The municipality opposed the claim and argued that the actual cause of the trout’s death was a lack of oxygen in the pond. The Supreme Court found that the parties had presented no other possible causes than the phenol discharge and the lack of oxygen. It was further established that full certainty of what actually caused the death of the trout could not be obtained, but stated that this did not preclude a successful claim. In some claims concerning damages where the issue of causation is disputed between the parties it may be sufficient that the causal connection proposed by the plaintiff appears to be clearly more probable than any other explanation proposed by the defendant and if it seems probable also in regard of the other circumstances of the case. The Court further stated that the lowered threshold for the burden of proof was especially motivated in cases of environmental damage and similar types of damage. After consideration of the evidence in the case the Court found that the plaintiff’s explanation seemed substantially more probable than the defendant’s proposition. The plaintiff was awarded damages.
In NJA 1988 226 two persons A and B were held criminally responsible for having received stolen property. The property was returned to the owner, but some of it was damaged. A and B argued that the property had been damaged already when they received it, which implicated that the damage had been caused by the thief (or thieves). The Supreme Court established that since there were no indications that the property had not been damaged while it was in the possession of A and B, the “inconvenience” that full certainty regarding when the damage occurred could not be obtained should be borne by the defendants and not the plaintiff.
See, inter_alia, J. Hellner, Compensation for Personal Injury: The Swedish Alternative, 34 American Journal of Comparative Law, 613 ff. (1986); J. Hellner, Compensation for Personal Injuries in Sweden — A Reconsidered View, in: P. Wahlgren (ed.), Scandinavian Studies in Law 41 (2001) 249 ff.; C. Oldertz, Security Insurance, Patient Insurance, and Pharmaceutical Insurance in Sweden, 34 American Journal of Comparative Law, 635 ff. (1986).
The influence of Hellner’s textbook could not be exaggerated. The book is often considered one of the best textbooks in Swedish civil law and its influence is also apparent on court practice. On the question of negligence, see J. Hellner/ S. Johansson (supra fn. 6) 125 ff.
See for instance NJA 1976 379 where the defendant caused a personal injury when he walked on a road where pedestrians were not allowed. The Court found the defendant negligent but only after having taken into regard his behaviour; especially that he had failed to take notice of a sign by the road.
See, inter alia, NJA 1981 683.
The main work on pure economic loss in Sweden is J. Kleineman, Ren förmögenhetsskada (1987).
See especially NJA 1987 692 and NJA 2005 608.
This was established by the Swedish Supreme Court in 1969 (NJA 1969 163).
13 ILM (1974) 511.
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Langlet, D., Schultz, M. (2008). Economic Loss Caused by GMOs in Sweden. In: Koch, B.A. (eds) Economic Loss Caused by Genetically Modified Organisms. Tort and Insurance Law, vol 24. Springer, Vienna. https://doi.org/10.1007/978-3-211-77988-0_30
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DOI: https://doi.org/10.1007/978-3-211-77988-0_30
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