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| {{a|tort|{{subtable|{{liability ladder}}}}}}''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'''.'' | | {{essay|contract|gross negligence|{{image|Clapham Omnibus|png|''Mrs. Potts Meets the Man on the Clapham Omnibus''. {{vsr|1956}}}} }} |
| ===A spiritually bankrupt concept===
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| 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”.
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| 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?
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| 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.
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| A good way of looking at this is to put it in the language of the laity. Take the time-worn [[indemnity]] for costs, framed in usual legal ''kapusta'':
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| {{quote|''You will indemnify us on demand for all extraordinary costs we incur in the absence of our [[negligence, fraud or wilful misconduct]].''}}
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| It is easy enough to add some pepper to this cabbage:
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| {{quote|''You will indemnify us on demand for all extraordinary costs we incur in the absence of our [[Negligence, fraud or wilful misconduct|'''gross''' negligence, fraud or wilful misconduct.]]''}}
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| But render this same idea in the elegant prose of those aboard [[Man on the Clapham Omnibus|Clapham omnibus]]:
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| {{quote|''You must [[reimburse]] us for extraordinary costs we incur, and could not [[reasonably]] avoid, when providing our services to you.''}}
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| Now it is a bit harder to hide the weasel: not because it is harder to confect the grammar but because it sounds so preposterous when you do:
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| {{quote|''You must [[reimburse]] us for extraordinary costs we incur, and could not avoid without being reckless, when providing our services to you.''}}
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| ===English law===
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| ====“Gross” versus “casual” negligence====
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| Is there anything to be gained, under an English law contract from restricting your liability to losses occasioned by '''''gross''''', as opposed to ''ordinary'', casual, everyday, run-of-the-mill [[negligence]]?
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| It 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]]'' — it’s just that it is not entirely clear what:
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| :''“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>
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| ====What ''is'' gross negligence?====
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| 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.
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| The important factors in distinguishing between plain negligence and gross negligence appear to be:
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| *The seriousness of the error
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| *The seriousness of the resulting risk.
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| *Something more fundamental than a simply failure to exercise proper skill or care: a “serious indifference” to an obvious risk.
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| *Failing to comply with a [[duty of care]] by a significant margin.
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| Note in particular ''the seriousness of the risk or loss which eventuates''.
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| 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, and the one who causes it, by negligence, being allowed to walk away.
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| This outcome might be different in the [[US attorney|American]] courts (see below).
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| ===New York law===
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| Gross negligence ''is'' a thing across the ditch, and it is apparently sheeted directly the ''wantonness of the error'', rather than (as seems to be the case in English law) the ''outcome'' of the carelessness. It requires something more like ''recklessness'' than simple carelessness.
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| {{sa}}
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| *[[Degrees of liability]]
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| {{ref}}
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