Whilst the courts have opined on the meaning of the phrases "wilful misconduct", "deliberate breach" and "gross negligence", the better approach is fully to articulate in the contract the type of conduct which the parties intend will prevent reliance upon the limitation or exclusion. Willful misconduct is a step further in the negligence spectrum. Rather, it is closer to willful misconduct, and thus, it is different in kind, not just degree. In tort liability cases, for example, the following acts can qualify for punitive damages: In this section, let’s clear up any confusion with respect to legal terms or jargon used to describe different shades of negligence. This type of conduct typically involves a careless mistake or some form of inattention resulting in an injury to another. A lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety. If you enjoyed this article on ‘gross negligence’, we recommend you read the following articles that you may equally enjoy: Save my name, email, and website in this browser for the next time I comment. Compensatory damages include actual losses such as: In a gross negligence lawsuit, the court can also award general damages or non-economic damages such as: Punitive damages represent an amount awarded to punish a party’s outrageous conduct or deter the party or others from repeating the harmful act. The concepts of wilful misconduct and gross negligence(2), although sometimes conflated in contractual definitions, are very different and should always be treated separately. Ordinary negligence is when a person failed to exercise the standard of care that a reasonably prudent person would have adopted in a similar situation. In situations where they are treated interchangeably or as synonyms then this can lead to significant interpretive issues in relation to insurance cover. In some jurisdictions a person injured as a result of gross negligence may be able to recover punitive damages from the person who caused the injury or loss. To move the needle from “negligence” to “gross negligence”, a plaintiff must also prove that the defendant acted in serious disregard for the right, safety, security or well-being of others or show a marked deviation from the actions of a normally prudent person. In medical malpractice, gross negligence can be found where surgeons remove the incorrect limb or leave medical instruments inside a patient after surgery. I've practiced law in a boutique law firm, worked in a multi-national organization and as in-house counsel. Gross negligence can be situated between “negligence” and “recklessness”. A property owner fails to block off access to an important construction site resulting in severe bodily injuries to someone on the premises. In essence, to be grossly negligent, it is to be extremely careless. It is suggested that the terms “wilful misconduct” and “deliberate default” are better understood under English law, though This Practice Note discusses how courts in various jurisdictions have defined negligence, gross negligence, and willful misconduct, which can affect how the parties to a contract allocate risk. This paper analyses the terms ‘gross negligence’ and ‘wilful misconduct’ which continue to be used regularly as carve-outs from exclusion or limitation clauses in construction contracts. Gross negligence also focuses on the magnitude of the risks involved, such that, if more than ordinary care is not taken, a serious mishap is likely to occur. Typically, gross negligence includes conduct that demonstrates “reckless indifference” or a “complete disregard” for the rights or safety of others. Willful, wanton reckless conduct takes place a shade below actual intent. Enjoy! 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