Bygherre/hovedentreprenørs hæftelsesansvar for deres selvstændigt virkende tredjemænd ved graveskader

Abstract

This thesis analyses the vicarious liability of main contractors on behalf of their subcontractors, when subcontractors perform digging-related tasks with damages as a result. The thesis analyses the current legal position, the economic consequences it creates as well as analysing possible changes to the legal position. The thesis starts with a thorough legal analysis of case law on the subject of vicarious liability. Through the analysis it is determined which criteria are significant for a main contractor to incur vicarious liability for their subcontractor’s actions, and the derived damages of the actions. After determining the significant criteria’s it is analysed whether the criteria’s are applied differently on public and private principals respectively. It is concluded that different criteria are used only regarding fault-based liability for subcontractor’s for the two types of principals. However, it is found that the two types of principals more often are found liable through different types of liability. Through the differences in criteria and how they are used on public and private principals it is concluded that the current legal position is unclear. An economic analysis of the current legal position is conducted. The transaction costs associated with the current legal position as well as a theoretical scenario with regulated liability for subcontractors are analysed. It is concluded that the current position has high transactions cos t, while the theoretical scenario has low costs. Based on the two scenarios a simultaneous game is created and it is concluded that the parties won’t choose the socially efficient result. Finally, it is concluded that the efficient result can’t be reached through negotiation, as the transaction costs associated with the current legal position is too high. In the integrated part of the thesis a legal proposal is made. After analysing two different proposals it is concluded that joint and several liability is the best proposal. The transaction costs associated with the legal proposal are analysed and it is concluded that they are low. A new simultaneous game is created with the legal proposal taking the place of the theoretical scenario. The parties still won’t choose the socially efficient result, but the low transaction costs associated with the legal proposal makes it possible for the parties to reach the efficient result through negotiation. It is therefore concluded that a legal proposal of joint and several liability will create a more socially efficient result, than the current legal position.