Gross negligence
For an essay on the related question “why would one use negligence in a legal contract at all?” see the article about “contractual negligence”. For a short answer to that question try this: Unless one has an indemnity, one shouldn’t.
A spiritually bankrupt concept
When negotiating to save the adjective “gross”, the best available tack — and it’s not that good, really — is to say “look, if we muck up we’re hardly going to stand on ceremony, are we? So don’t worry about the legal docs”.
This is not an edifying position for a lawyer to take, implying as it does that you may as well not have a legal document at all. And it begs the question: why bother to insist on “gross” negligence in the first place?
After all, if you’re negligent, you’re negligent. It is hard to maintain your dignity against the complaint of an innocent, irate and out-of-pocket client by saying you’ve only been a bit negligent.
English law
Gross versus ordinary negligence
Is there anything to be gained, under an English law contract from restricting your liability to losses occasioned by your gross negligence — as opposed to your ordinary negligence?
It is hard to sustain in the face of stout objection. On one hand, these days, gross negligence does seem to mean something at English law — obiter — it’s just that it is not entirely clear what:
- “Certainly the last time this issue came before the Court of Appeal they decided that the debate about its meaning was a “somewhat sterile and semantic one.” (Linklaters publication)
What is gross negligence?
What case law there is suggests that, since both terms do get used in English law contracts, there must be some distinction. From the declarers of the common law, this is quite a piece of tail wagging dog work.
The important factors in distinguishing between plain negligence and gross negligence appear to be:
- The seriousness of the error
- The seriousness of the risk which results from the negligence.
- Something more fundamental than a simply failure to exercise proper skill or care.
- A serious indifference to an obvious risk.
- Failing to comply with a duty of care by a significant margin.
Note in particular the seriousness of the risk or loss which eventuates. Put it this way, if your negligence results in a £10,000,000 loss, it is going to be a curious court indeed which concludes this was a mere trifling matter, and the right outcome is for the innocent party to bear the loss.
Wouldn’t you say?