(i) in the Province of Quebec, gross or wilful misconduct on the part of the owner of the land, There have been cases suggesting that a party is grossly negligent only when there is wilful misconduct or wilful indifference to the consequences. While these two factors are compelling indicators of gross negligence, the prevailing view in Canadian law is that gross negligence does not require an element of mental intent. Of course, this is always subject to a legal or contractual definition of gross negligence that expressly or implicitly imposes a mental element (see below) or otherwise the context in which the expression is used. It is not necessary to examine in detail the meaning of the concept of `gross negligence` in the clause concerned. This is clearly more than mere negligence and I would support an approach such as that taken by Justice Mance in Red Sea Tankers Ltd v. Papachostidis. The court may consider factors such as the likelihood of damage and the amount of potential damage when assessing gross negligence. The finding of gross negligence may be based on a series of acts or omissions that alone would not constitute gross negligence. In James Thane Pty Ltd v.
Conrad International Hotels Corp,8 the Queensland Court of Appeal investigated the nature of gross negligence related to compensation under a management contract between Jupiters Limited (owner of a casino complex on the Gold Coast) and Conrad International Hotels. Williams J. noted (with the concurrence of the other members of the Court) the following [73] – [75]: Harmonization requires a distinction between the standard in force in Quebec and the standard applicable in other provinces. In the first case, the term intentionnel in the French version replaces the term voluntary to better reflect civil terminology and the expression “gross or intentional fault” is added to the English version. In the second case, the expression gross negligence or deliberate misconduct is added to better reflect the common law in French. Other “gross negligence” jurisprudence focuses more on the extent of the risks involved, so that if only ordinary caution is exercised, a serious incident is likely (Ogilvie v. Donkin). Article 1.36 of the Association of International Petroleum Negotiators (Association of International Petroleum Negotiators) Model International Operating Agreement 2002 also combines gross negligence with wilful misconduct and defines it collectively as follows: Following these remarks, the Dictionary of Canadian Law (4th ed.) “gross negligence” as follows: A B.C. The decision introduced the concept that the determination of whether gross negligence was a fluid concept and depended on the nature of the standard of care due in the circumstances.
The Court held that even with the contractual definitions of “gross negligence” and “wilful misconduct,” the United Canso trial could have gone on and been lengthy. Substantive disputes may persist even with well-defined terms, and the parties may not agree on the interpretation of the term defined. If no settlement had been found, it would still have been necessary to prove what was done, what was not done, and an assessment by the Court of Justice to determine whether it was wilful misconduct or gross negligence within the meaning of the definition. However, one could conclude that there are very few drawbacks and significant potential for defining terms, if only because it can serve to minimize the costly and time-consuming exercise that can take place. Surprisingly, there is not an overwhelming amount of case law on the subject, probably because it does not happen often. The term is not defined by law. The main case is a 1942 decision of the Supreme Court of Canada that dealt with the question of whether a motor vehicle accident was caused by “gross negligence or willful misconduct.” The Chief Justice defined these terms as follows: As might be expected, there is a higher obstacle for a plaintiff to prove that negligence is “gross”: gross negligence is “lack of light care” or “a deliberate and wilful act or omission with reckless disregard of a legal duty and consequences for another party.” [1] In some jurisdictions, a grossly negligent aggrieved person may receive punitive damages from the person who caused the harm or loss. [2] The main case is Armitage v. Nurse, where Millett C.J. was asked to decide whether an opt-out clause was effective in relieving a trustee of an allegation of negligence in the use of property to beneficiaries. It has been decided that waivers are still in effect (although other remedies may follow, such as UCTA in a contract dispute case in 1977), but in principle all trustees are liable as a standard position for simple negligence. Millett J.
stated: Importantly, Tottle J. noted that in considering the common law meaning of the term “gross negligence” in the context of exclusion and indemnity clauses, Australian courts followed the approach of Justice Mance in The Hellespont Ardent,2 in which His Lordship stated: It would be very surprising if our law drew the line between liability for simple negligence and liability for Negligence. In this respect, English law differs from civil law in that it has always made a clear distinction between negligence, however serious, on the one hand, and fraud, bad faith and wilful misconduct, on the other. The common law doctrine is that “gross negligence may be evidence of bad faith, but it is not the same thing”: see Goodman v. Harvey (1836) 4 A. & E. 870, 876, by Lord Denman C.J. But while we regard the difference between fraud on the one hand and simple negligence, however gross, on the other hand as a difference of nature, we regard the difference between negligence and gross negligence only as a difference of degree. English jurists have always studiously ignored this last distinction. In Hinton v. Dibbin (1842) 2 Q.B.
646, Lord Denman C.J. doubted that there was any understandable distinction; while in Grill v. General Iron Screw Collier Co. (1866) L.R. 1 P.C. 600, 612, Willes J. noted that gross negligence is simple negligence with an abusive epithet. But civilian systems draw the line elsewhere. The doctrine is culpa lata dolo aequiparatur; And although the maxim itself is not Roman, the principle is classic. There is no room for the maxim at common law; it is not mentioned in Broom`s Legal Maxims, 10th edition (1939). A decision of the Alberta Court of Queen`s Bench in the early 1990s also highlighted the potential benefits of establishing a contractual definition and the difference in outcome resulting from the specific liability threshold established.
One of the problems in United Canso arose from the term “gross negligence or willful misconduct” contained in a joint operating agreement between the parties. The term is not defined in this Agreement. While there were other issues, this litigation resulted in a lengthy process involving at least 12 lawyers. That particular question concerned whether Husky, then Asamera and then Lasmer, as management operators, had been grossly negligent or deliberately misbehaved when the payment had been miscalculated and, consequently, the funds had been paid incorrectly. After the court assessed the various circumstances, Husky finally concluded that he had not been grossly negligent and had not misbehaved intentionally, whereas Asamera and Lasmer had done so and were therefore held liable for the consequences. Roman jurists had an axiom that gross negligence amounted to wilful wrong, or culpa lata dolo aequiparatur. [10] In Adeco Exploration Company Ltd. v Hunt Oil Company of Canada Ltd. the Alberta Court of Appeal found that a farmer was grossly negligent under a joint development agreement governed by the 1990 CAPL operating procedure by failing to renew Crown leases for two non-producing parcels.
The operator submitted a renewal application to Alberta Energy but did not include interpretive mapping. Alberta Environment alerted the operator to the defect and granted him a one-month extension. Staff who handled the issue incorrectly determined that the required card was not available and allowed the leases to expire. Reading clause 12.4.1 of the management agreement convinces me that Conrad must lose his right to compensation in order for Conrad to lose his right to compensation that the liability in question was caused directly by gross negligence. An enforcement agent`s liability for gross negligence of hotel employees would not suffice on its own. None of the above definitions are better or wrong. However, a comparison of these two clauses in light of standard common law interpretations illustrates the merits of choosing a definition that clearly establishes a certain level of protection. In the United Kingdom, a conviction for manslaughter by gross negligence requires the prosecutor to prove the existence of a duty of care, the defendant`s breach of that duty resulting in death, and a risk of death that would be obvious to a reasonably prudent person in the position of the accused. [5] With the decision that the Director had acted with gross negligence, His Honour continued:6 After the Deepwater Horizon explosion in the Gulf of Mexico, the legal term gross negligence gained notoriety in the mainstream media. Energy players on both sides of the border and around the world are certainly discussing this.
