@misc{9247978,
  abstract     = {{It has long been acknowledged in procedural law that hypothetical sequences
of events are difficult to prove. However, in the recent cases NJA 2025 p.
1231 ”Konsignationsavtalet” and the Swedish Supreme Court’s judgment of
09–07–2026, in case no. T 8371-24 ”Innovationen”, the court stated that a
hypothetical sequence of events does not, in itself, constitute grounds for an
alleviation of evidentiary burden. Hypothetical sequences of events frequently
arise in damages cases, both when assessing causal connection and
the size of damage. Against this background, the aim of this thesis is to contribute
knowledge regarding how a party should formulate hypothetical sequences
of events and when an alleviation of evidentiary burden applies in a
damage case before general courts. The two research questions addressed in
the thesis are: i) are there differences in how procedural rules handle causal
connection versus damage? and ii) how should a party specify a pleading of
causal connection pursuant to Section 17, Subsection 3, second sentence of
the Swedish Code of Judicial Procedure?

The thesis maps out the established law by interpreting source materials such
as legislation, precedents, preparatory works, and legal scholarship. It analyses
seven cases involving issues of hypothetical sequences of events and
alleviations of evidentiary burden. The case law analysis focuses on the assessment
of causal connection in cases of omission and the valuation of damage.
In addition to the cases mentioned above, it also covers NJA 2013 p. 145
“Landskronabranden”, NJA 2014 p. 272 “BDO”, NJA 2017 p. 9 “Multitotal”,
NJA 2021 p. 473 “Grannhusets vattenskada”, and NJA 2021 p. 1050
“Hoppgropen”. The method used can be described as legal dogmatic.

In summary, the thesis demonstrates that the "Landskronabranden" case introduced
a method whereby the injured party need not plead and prove a hypothetical
sequence of events in which the alleged material facts regarding
the damage are omitted. The general rule states that the injured party must
identify an active measure that the party under a duty to act ought to have
performed (a hypothetical act). However, if the injured party is granted the
established alleviation of evidentiary burden, they need only demonstrate the
existence of possible and appropriate risk-reducing measures that the party
under a duty to act could have taken. Even if the injured party succeeds in
this, the party under a duty to act may still avoid liability for damages by
demonstrating that the measure would not have been effective. Subsequent
case law to the ”Landskronabranden” case has, in its own right, consolidated
and developed the legal position and clarified the scope of the burden of proof
rule. This rule applies to the assessment of causal connection in tort cases
based on an omission. Moreover, the conclusion is drawn that a party specifies
a pleading of a causal connection in accordance with Section 17, Subsection
3, second sentence of the Swedish Code of Judicial Procedure by making
concrete allegations regarding the causal connection.

The critical issue in cases concerning the valuation of damages is what would
have occurred had the alleged damaging event not taken place (a hypothetical
scenario). The difference method is applied when formulating this hypothetical
sequence of events, whereby an actual scenario (factual statement) is
compared with a hypothetical scenario (counterfactual statement). The Swedish
Supreme Court sometimes divides the damage into different components,
leading to the conclusion that damage should not be viewed as a single
material fact. Furthermore, it is insufficient for a party merely to plead a general
prognosis regarding the valuation of damage. The party should instead
plead actual circumstances and present evidence that supports this. It can be
concluded that procedural rules distinguish between the handling of causal
connection in cases of omission and the handling of damage (valuation of
damage) by the introduction of a specifically designed alleviation of evidentiary
burden for the former.

It is established that, in hypothetical sequences of events, the injured party
need only prove the circumstances serving as the basis (factual statement) for
the court’s assumptions (counterfactual statement) concerning a possible sequence
of events. These assumptions are a matter for the court’s assessment.
It is further noted that the injured party bears the burden of pleading material
facts only with respect to the circumstances in question. The interest of a uniform
and predictable burden of proof argues for maintaining the general rule
concerning the burden of proof and the evidentiary requirement, even in cases
involving hypothetical sequences of events. The reasoning in the ”Innovationen”
case can be interpreted as favouring a lowered evidentiary requirement
over a reversed burden of proof when evidentiary difficulties arise.
However, for an alleviation of evidentiary burden to apply, it is necessary that
another injured party in a similar situation would also have found it difficult
to put forth full proof. Furthermore, there is a general difficulty in the procedural
handling of causal connection, as it often involves articulating something
not visible to the eye – particularly in cases of omission. Yet, these general
evidentiary difficulties do not exist with all hypothetical sequences of
events. In conclusion, it is therefore determined that it is the issue of causal
connection that entails complex evidentiary assessments, rather than hypothetical
sequences of events as such.}},
  author       = {{Olsson, Ella}},
  language     = {{swe}},
  note         = {{Student Paper}},
  title        = {{Hypotetiska händelseförlopp och bevislättnader — En studie om orsakssamband och skadevärdering}},
  year         = {{2026}},
}