UK Post – Putting the “Gross” in Gross Negligence


Historically, and unlike other jurisdictions, English Courts have seen no difference between negligence and gross negligence as a legal concept. In 1843 it was “the same thing, with the addition of a vituperative epithet” (Wilson v. Brett) and in 1997 it was said that “the difference between negligence and gross negligence [is] merely one of degree.” (Armitage v. Nurse). However this does not necessarily mean that that the term “gross negligence” cannot have an effect in English law.   

More and more recently the English courts have needed to interpret “gross negligence” because it frequently appears in commercial contracts.  There is often an underlying commercial justification for limiting (or excluding) negligence: essentially making it knock-for-knock, but not gross negligence.  And in the commercial setting it is also arguable that if parties have chosen to use such words then they must be given some meaning. Thus, in The Hellespont Ardent (1997) the High Court held that the distinction between negligence and gross negligence was potentially material – the contractual term being clearly intended to represent something more than a failure to exercise the standard of care that would ordinarily constitute “mere” negligence.

More recently, in Camarata Property v Credit Suisse Securities (2011) the Court held that the concept of gross negligence had to be considered in view of the parties’ agreement as a whole as opposed to being a defined concept under English law. Thus a distinction might exist where gross negligence means more than simple negligence (although the difference, for English Courts, may not be easy to define or even describe).

In Camarata there was the presence of both “negligence” and “gross negligence” in the agreement: a factor that indicated some distinction must be intended. Ultimately, however, the difference was found to be one of degree and not kind.  In any event the point became moot as it was decided the bank could not have predicted Lehman’s collapse: so it was neither negligent nor grossly negligent.

Thus, for businesses or claims handlers in the UK (or where there is an English jurisdictional clause) the distinction may be that 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). Similarly it is a distinction worth looking out for if businesses want to ensure they have a remedy for mere (trivial) negligence on the part of those providing services and where they want to ensure they receive the highest standards of care.

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