Understanding Gross Negligence And Wilful Misconduct

The expressions 'gross negligence' and 'wilful misconduct' are used in almost every commercial contract. In most cases, liability arising from 'gross negligence' and 'wilful misconduct' is contractually agreed to be outside the agreed limitations on liability. However, these expressions are seldom defined. An experienced corporate and commercial lawyer provides adequate context in the contract to determine whether 'negligence' or 'misconduct' in question would amount to 'gross negligence' and 'wilful misconduct'. Nevertheless, it would be helpful to evaluate if there is a good case to define the terms 'gross negligence' and/or 'wilful misconduct' or spell out the parameters.

INTRODUCTION