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

2. What you might think of…

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

4. Gross negligence in connection with:

5. 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

6. 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”.

7. 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.”

8. Gross negligence in connection with theft

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

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

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

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

13. Awareness of the area and risk of thefts

14. Experience of previous thefts in a given area

15. Failure to follow
instructions

16. Sufficient vehicle

17. Conclusions

18. Thank you for your attention!