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ARTICLE · 13 JANUARY 2020

Gross negligence revisited

Norton Rose Fulbright Australia
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Overall, a party seeking to establish that the conduct of a counterparty constitutes gross negligence faces a high bar.

AustraliaCorporate/Commercial Law
Jeffrey Goldberger
Jeffrey Goldberger
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The recent decision of Tottle J in the Supreme Court of Western Australia in GR Engineering Services Ltd v Investmet Ltd1 reactivated the debate as to the meaning of the expression "gross negligence" where used as a carve out from a no liability clause.

Tottle J usefully identified the principal Australian case law on the subject.

The expression "gross negligence" is problematic and presents legal advisors with the practical difficulty of characterising particular conduct.

Importantly, Tottle J noted that the Australian courts in considering the common law meaning of "gross negligence" in the context of exclusion and indemnity clauses followed the approach of Mance J in The Hellespont Ardent2 in which his Lordship said:

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