Gross negligence in road transport David Norrbohm Legal expert Swedish Association of Road Haulage Comapnies

What you might think of…

A comparative comparasion of gross negligence CMR Art 29 VTL § 38 European counterparts

Gross negligence in connection with:

VTL - The Swedish act on road transport Its provisions may only be disregarded through agreements that benefits the customer of the carrier CMR Absolute prohibition against deviations

VTL § 38 ”If a carrier intentionally or through gross negligence caused a loss or injury, he may not claim the benefit of the provisions of this Act set out above, which exempt him from liability, limit his liability, or transfer the burden of proof”. Art. 29 CMR ”The carrier shall not be entitled to avail himself of the provisions of this chapter which exclude or limit his liability or which shift the burden of proof if the damage was caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court or tribunal seized of the case, is considered as equivalent to wilful misconduct”.

DEFINITION The Swedish Government report that preceded VTL: “Gross negligence should be considered when the tortfeasor committed a negligent act or omission, and either had a clear awareness of the probability that loss or injury would result, or, regardless of whether or not this awareness can be proven, that probability would be apparent to any reasonable person.”

Gross negligence in connection with theft

The alleging party has the burden of proving gross negligence Burden of proof The alleging party has the burden of proving gross negligence

Burden of proof Tendency: To require the carrier an explanation that appear to be probable cause of the loss or injury.

How theft-prone the goods are Important factors How theft-prone the goods are The Swedish Diamond case

If the goods had been placed in a appropriate place Important factors If the goods had been placed in a appropriate place

Awareness of the area and risk of thefts

Experience of previous thefts in a given area

Failure to follow instructions

Sufficient vehicle

Conclusions

Thank you for your attention!