Konkurrerande culpakriterier

The concept of negligence in tort law can be defined in (at least) three different ways. Negligence can be defined in terms of normality, i.e. as failing to act in accordance with custom or failing to meet the level of care taken by normally careful citizens. It can be defined in terms of efficiency. In that case it would mean refraining from taking a precaution that costs less to take than it saves through accident prevention. And it can be defined in terms of safety, implying that the defendant has been negligent if he has exposed the plaintiff to an unacceptable risk.

These three definitions are incompatible. They rest on rival moral theories and conflicting political ideals. The normality criterion of negligence is conservative. It rests on the ideal that the norms in the legal system should be guided by the norms shaped by civil society. The efficiency criterion is neo-liberal. It rests on the standpoint that the purpose of tort law is to promote wealth. The safety criterion is orientated towards a more socialistic form of liberalism. It rests on the view that tort law should redistribute wealth to secure welfare.

In spite of their apparent incoherence these three negligence criteria are used side by side in Swedish tort law. In some cases the Swedish supreme court judges the defendant's behaviour according to one criteria and in other cases according to another criteria. This might seem disturbing, but the way conflicts between the criteria are resolved can be observed to follow a clearcut pattern. If the defendant has caused the accident in his private life he will only be held responsible if he has acted with negligence according to the normality criterion. If the defendant is a company or a government body it will be held responsible if it has acted with negligence according to the normality criterion or the efficieny criterion. If it has caused an injury to the plaintiff's person it is also responsible if it has acted with negligence according to the safety criterion.