English law consists of various areas of law with different theories of liability. Under the Law of Torts, there is traditionally no difference between “gross” negligence and simple negligence: Wilson v Brett (1843) 11 M&W 113. However, under Crminal Law “gross” negligence will attract criminal liability but negligence by itself is normally not sufficient for a criminal offence. And, under Contract Law if an agreement expressly refers to gross negligence, modern English case law indicates that the courts will normally try to give effect to the word “gross” as the parties intended it.
Thus, in the case of Tradigrain SA v Intertek Testing Services (ITS) Canada Ltd  EWCA Civ 154 a contract was developed in the English language but was to be governed by German law. The contract referred to the German law concept of gross negligence. The judge held that the defendant’s negligence was not gross, and the Court of Appeal upheld this decision, applying the evidence that gross negligence in German law requires two elements:
1. a failure to exercise ordinary care where the risk of harm was plain for all to see (the kind of situation which “makes one clap one’s hand to one’s head and ask ‘How can it happen?’) and,
2. an absence of anything to make the act or omission in question excusable from the negligent person’s point of vie
Even if the contract had not been under German law, the court would still try to achieve the meaning intended by the parties. But that meaning can be difficult to find. So, long live the definition section!
P.S. If you want to review recent developments in contract law and discuss current issues such as “Contracting with Brexit”, you may like to attand my annual seminar in December.
Masterclass on Contracts in English – Update 2017
Moderator: Stuart Bugg
Venue: Hotel Victoria in Nürnberg (Nuremberg)
Dates: 8-9 Dezember 2017
Registration & Info
For further details on the seminar you can contact us at:
+49 (0) 911 945 8867 or per email: firstname.lastname@example.org