Common Law jurisdictions usually regard the concept of “gross negligence” as existing only outside of contract law and relating to either criminal liability (e.g. gross negilgence resulting in death) or, in matters of torts in U.S. jurisdictions, as one of the requirements for punitive damages claims.
It is therefore of great interest when a Civil Law (e.g. German Law) concept of “gross liability” is used in an English law clause dealing with matters of liability and its exclusion. After having initially struggled with the idea, English courts seem to have once again proven their pragmatic approach and flexibility in Camarata Property v Credit Suisse [2011] EWHC 479. In that case the Court of Appeal acknowledged that whilst gross negligence was not a familiar concept in English civil law, the presence of references to both “negligence” and “gross negligence” in agreed terms and conditions indicated that in this case a distinction must have been intended by the contract parties. The court held that in the context of the contract and what the parties had intended the difference between “simple” and “gross” negligence was one of degree and not kind (indicating that gross negligence is not wholly divorced from simple negligence).
Thus, it would appear possible for parties to introduce liability for cases of gross negligence into their English Law contracts as an exception to other exclusions of liability. But the risk is always ensuring that the concept will be correctly understood and interepreted in context. In the absence of any extensive case law, the intention of the parties is paramount. To this extent it may be worthwhile for contract drafters to consider adding a suitable definition or explanation to the contract. Not to do so, could be rather negligent!