English law, unlike some other legal systems, does not define ‘gross negligence’. However, this has not stopped contracting parties from using the concept in their drafting, particularly in clauses limiting liability. Typically such a clause may exclude all liability ‘except if arising from [a party's] gross negligence, wilful default or fraud’
In an unreported Court of Appeal decision, Beldam LJ said (obiter) “in the context of [this clause], the words ‘gross negligence’ take their colour from the contrast with ‘wilful neglect’ and refer to an act or omission not done deliberately, but which in the circumstances would be regarded by those familiar with the circumstances as a serious error. The likely consequences of the error are clearly a significant factor. Thus, whether negligence is gross is a function of the nature of the error and the seriousness of the risk which results from it.”
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