Wilful misconduct
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Negotiation Anatomy™
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A variation on the similarly ludicrous wilful default, but with some common law heritage:
Forder v Great Western Railway Co [1905] 2KB 532 at 535:
“I am quite prepared to adopt, with one slight addition, the definition of wilful misconduct given by Johnson J. in Graham v Belfast and Northern Counties Ry. Co, where he says:
“Wilful misconduct in such a special condition means misconduct to which the will is party as contradistinguished from accident, and is far beyond any negligence, even gross or culpable negligence, and involves that a person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do, or to fail or omit to do (as the case may be), a particular thing, and yet intentionally does, or fails or omits to do it, or persists in the act, failure, or omission regardless of consequences.”
The addition which I would suggest is, “or acts with reckless carelessness, not caring what the results of his carelessness may be.”
Many bones to pick with this, however venerable its authority. Firstly, by definition, any negligence is “culpable” — see the JC’s liability ladder for a better investigation of that — and gross negligence — being supposedly a status between normal negligence and intention, though never sufficiently explained (is it a civil equivalent of recklessness: namely, actually forseeing a risk and taking it anyway, rather than just culpably failing to?) — is finnicky Americanism that has no place in sensible Anglo-Saxon commercial relations, where one’s mens rea doesn’t typically come into it.
Wilful misconduct has become the de facto American formulation of the sainted triplicate which, in English contracts, is rendered as “the absence of fraud, negligence and wilful default” but in our mind would be better replaced with “breach of contract”.