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Gross negligence: Difference between revisions
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''For an essay on the related question | ''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: '''one shouldn’t'''.'' | ||
Is there anything to be gained, under an English law contract, from insisting your liability be restricted to losses occasioned by your '''''gross''''' negligence? | Is there anything to be gained, under an English law contract, from insisting your liability be restricted to losses occasioned by your '''''gross''''' negligence? | ||
This correspondent is of the view that that is hard to sustain in the face of stout objection. On one hand, these days, {{tag|Gross negligence}} ''does'' seem to mean something at English law – ''obiter'' - but it is not entirely clear what: | This correspondent is of the view that that is hard to sustain in the face of stout objection. On one hand, these days, {{tag|Gross negligence}} ''does'' seem to mean something at English law – ''[[obiter dicta|obiter]]'' - but 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”'' <small>([http://www.linklaters.com/Publications/Publication1403Newsletter/TMT_Newsletter_March_2011/Pages/08_UK_When_Does_Negligence_Become_Gross_Negligence.aspx Linklaters publication])</small> | :''“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”'' <small>([http://www.linklaters.com/Publications/Publication1403Newsletter/TMT_Newsletter_March_2011/Pages/08_UK_When_Does_Negligence_Become_Gross_Negligence.aspx Linklaters publication])</small> | ||
When negotiating {{tag|documentation}} the tack one gets obliged to take is “look, if we muck up we’re not going to stand on ceremony here, so don’t worry about the legal docs” – which isn’t the most 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 does beg the question: why is one then bothering to make an argument about this in the first place? After all, if you’re negligent, | When negotiating {{tag|documentation}} the tack one gets obliged to take is “look, if we muck up we’re not going to stand on ceremony here, so don’t worry about the legal docs” – which isn’t the most 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 does beg the question: why is one then bothering to make an argument about this in the first place? After all, if you’re negligent, you’re negligent. It is hard to maintain your dignity defending yourself against the complaints of an innocent, irate and out-of-pocket client by saying you’ve only been a ''bit'' negligent. | ||
What case law there is suggests that, since both terms do get used in English law contracts, there must be some distinction - which from the declarers of the common law, is quite a piece of tail wagging dog work if you ask me. | What case law there is suggests that, since both terms do get used in English law contracts, there must be some distinction - which from the declarers of the common law, is quite a piece of tail wagging dog work if you ask me. | ||
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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. | 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? | |||