Putting the gross in ‘gross negligence’

Unlike other jurisdictions, courts in the UK have not normally made a distinction between gross negligence and negligence of any other kind, writes Richard Nicholas, an IT lawyer at Browne Jacobson. This position was restated in a High Court decision in July 2010.

But in a more recent case where a set of terms and conditions excluded liability for negligence “other than gross negligence or wilful default”, the court held that a distinction does exist, and that an (otherwise negligent) failure to exercise proper skill and care might not amount to gross negligence unless there was also an “indifference to an obvious risk”.

It is a distinction that may well be seized upon by those drafting contracts for suppliers and IT contractors – being grossly negligent suggests a greater lack of care than mere negligence, and a greater hurdle to be overcome in the event of a claim.  Perhaps an exclusion of liability along the lines in this case would give the contractor greater protection in situations where the contractor is not being reckless as to the results of his or her actions.

Of course from a customer’s perspective, it’s a distinction worth looking out for if they wish to ensure they also have a remedy for mere (trivial) negligence on the part of those providing services, and to ensure their organisation receives the highest standards of care.  It’s therefore a provision that customers will want to challenge.