Gross Negligence

As a follow-up to my last tip, which was on strictly prohibited and strictly forbidden, what about gross negligence?

This is a term we have imported from US law. Canadian (and English) judges and authors were not keen on it initially.

Linden et al in Canadian Tort Law (2018) cite Baron Rolfe, a famous 19th-century English jurist (later Lord Cranworth LC), who said that gross negligence is merely ordinary negligence ‘with the addition of a vituperative epithet’. A sceptical American judge ‘is reputed to have compared the differences among negligence, gross negligence and recklessness to the distinctions among a fool, a damned fool and a God‑damned fool.’ (Still a fool.)

Over the years, Canadian case law has come to recognise that the term has its uses, however.

Sir Lyman Duff CJ thought gross negligence usefully described ‘a very marked departure from the standards by which responsible and competent people in charge of motor cars habitually govern themselves’, adding that it is ‘not difficult of application by a jury whose minds are not confused by too much verbal analysis’ (Murray v McCulloch, [1942] SCR 141).

As one student suggested to me, it would be grossly negligent to leave Homer Simpson in charge of operations at the nuclear power plant, but probably only negligent to entrust things to any other employee at the same level.

That made perfect sense.

–Neil Guthrie (@guthrieneil)