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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” from the oblivion it so richly deserves, your best tack — and it’s not great — 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 therefore you may as well not have a legal document at all. And it begs the question: if you don’t really mean it, why are you bothering to insist on “gross” negligence in the first place?<ref>The real answer is “because [[negotiation]] is [[performative]].”</ref>
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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. Like many other commonplaces of the ''[[Rechtsadler|Rechtsadlerkanon]]'', legal drafting can dress outright daftitude in sombre vestments. Take the time-worn [[indemnity]] for costs, framed in usual legal ''kapusta'':
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| {{quote|“''Customer hereby agrees to [[indemnify]] and keep indemnified Company on demand for all costs, beyond its ordinary costs of performance, that Company shall incur in the absence of aforesaid Company’s [[negligence, fraud or wilful misconduct]].''”}}
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| Adding the adjective “gross” here seems to add no more than a prudent pinch of pepper to this cabbage:
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| {{quote|“''Customer hereby agrees to [[indemnify]] and keep indemnified Company on demand for all costs, beyond its ordinary costs of performance, that Company shall incur in the absence of aforesaid Company’s '''gross''' [[negligence, fraud or wilful misconduct]].''”}}
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| But now render this same idea in the earthy metre of those who ride the [[Man on the Clapham Omnibus|Clapham omnibus]].
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| {{quote|“''You must [[reimburse]] us for any extraordinary costs we could not [[reasonably]] avoid when providing you our services.''”}}
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| Now it is a bit harder to “hide the weasel” if you’ll indulge the expression: not because the grammar is challenging, but because it sounds so preposterous when you do:
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| {{quote|“''You must [[reimburse]] us for any extraordinary costs we could not, '''without being [[reckless]],''' avoid when providing you our services.''”}} | |
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| ''Not [[reckless]]?'' could you not be a bit more committal than ''that''?
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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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