TORT 124 Negligence and Gross Negligence — Law of Torts Notes for Judiciary

Negligence and Gross Negligence: A Difference of Degree That the Law Sometimes Treats as One of Kind

Gross negligence is not a separate tort, and in the ordinary civil action the adjective makes no difference whatever: a plaintiff who proves negligence recovers his loss, and proving that it was gross adds nothing to the decree. The classical view, stated by Baron Rolfe, is that gross negligence is the same thing as negligence with a vituperative epithet added. But the law has given the epithet work to do in a small number of contexts, and in the most important of them, criminal liability, it is the whole of the difference between a decree in damages and a conviction.

1. The Classical Objection

Wilson v. Brett, (1843) 11 M and W 113. Rolfe B. said he could see no difference between negligence and gross negligence, and that the latter was the same thing with the addition of a vituperative epithet.
The objection is that negligence is already a relative standard. What reasonable care requires varies with the danger of the activity, the magnitude of the risk, the seriousness of the possible harm and the cost of precautions, so the standard already rises and falls with the circumstances and no separate category of gross negligence is needed to accommodate a serious case.
And the civil consequence does not vary. Damages are compensatory and measure the plaintiff's loss, not the defendant's blameworthiness, so a grossly negligent defendant pays exactly what a slightly negligent one pays for the same injury.
The objection is sound so far as it goes, and it disposes of any attempt to plead gross negligence as a separate cause of action in a civil suit.

2. The Comparison

	Negligence	Gross negligence
The standard	The omission to do what a reasonable man would do, or the doing of what he would not	A very high degree of departure from that standard; a disregard of an obvious risk
The degree	Any departure, however slight	Gross, culpable, or showing recklessness
In an ordinary civil action	This is the only question. Liability follows	The degree affects nothing. The same damages are payable
In the criminal law	Not an offence by itself	An offence, where the statute so provides
For a professional	Founds a civil claim	Required before a prosecution is justified
Against an exemption clause	May be excluded by clear words	Read strictly, and may not be excluded
For exemplary damages	Not a ground	May support an award within the recognised categories
The classical view	The only real category	Negligence with a vituperative epithet

3. Where the Adjective Does Real Work

The context	What the distinction decides
Criminal liability	Simple negligence is not a crime. For an offence the negligence must be gross, of a very high degree, or the act so rash as to import a disregard of consequences: TORT 125
Prosecution of a professional	A doctor is not to be prosecuted on a bare allegation of negligence, and an independent and competent medical opinion is required before a case is registered: Jacob Mathew
Exemption and limitation clauses	A clause excusing liability for negligence is construed strictly against the party relying on it, and clear words are needed; a clause will not readily be read as covering gross negligence or a fundamental breach
Bailment and gratuitous undertakings	The degree of care expected varies with the nature of the undertaking, and a gratuitous bailee or a person acting without reward is judged less strictly than one acting for hire
Exemplary damages	Gross and contumelious conduct may support an award within the Rookes v. Barnard categories, though the categories and not the degree of carelessness are the test
Directors, trustees and fiduciaries	Statutory and equitable provisions relieving a person who acted honestly and reasonably will not assist one whose conduct was grossly negligent
Statutory formulae	Wherever a statute itself uses the words gross negligence, wilful neglect or wilful default, the degree is an element of the provision

4. The Criminal Threshold

📖 Jacob Mathew v. State of Punjab, (2005) 6 SCC 1

Facts A patient in a hospital had difficulty in breathing. A doctor attended and an oxygen cylinder was connected which was found to be empty. The patient died. A prosecution was launched against the doctors under the provision then corresponding to causing death by a rash or negligent act.

Held The prosecution was quashed. Guidelines were laid down for the prosecution of medical professionals.

Ratio Negligence which is not gross is not criminal. To prosecute a medical professional for negligence under the criminal law it must be shown that the accused did something or failed to do something which, in the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken must be of such a degree that the injury was most likely imminent. The standard applied to determine civil liability is not the standard for criminal liability, and a mere error of judgment or an accident is not culpable. A private complaint should not be entertained unless the complainant produces prima facie evidence in the form of a credible opinion given by another competent doctor, and the investigating officer should obtain an independent and competent medical opinion before proceeding.

The English formulation is to the same effect. In R. v. Adomako, [1995] 1 AC 171, the question for the jury is whether the defendant's conduct departed from the proper standard of care so far, and involved such a risk of death, as to amount in their judgment to a crime.
Andrews v. Director of Public Prosecutions, [1937] AC 576 is the source of the formula usually quoted in India: a very high degree of negligence is required, and simple lack of care such as will constitute civil liability is not enough.

5. Why the Criminal Law Requires More

The consequences differ in kind. A civil decree transfers money from one person to another and is usually met by an insurer. A conviction attaches a stigma, may take away liberty, and in the case of a professional may end a career.
The purposes differ. Compensation asks who should bear a loss that has already occurred; punishment asks whether the defendant deserves condemnation.
The standard of proof differs, and a state of affairs that is more probable than not is not the same as one proved beyond reasonable doubt.
And a rule that made every careless act a crime would be intolerable. Almost every adult is negligent about something every day, and a criminal law that reached ordinary inadvertence would be both unenforceable and unjust.
In the professions the argument is stronger still, since a practice which exposes doctors to prosecution for ordinary error produces defensive medicine, discourages difficult cases and harms the patients it is meant to protect. That is the reasoning of the Jacob Mathew guidelines.

6. How It Affects a Pleading

In a civil plaint, plead negligence and give particulars. The word gross may be used in the narrative but establishes nothing, and no cause of action is founded on it.
Plead the degree where it bears on a defence, as where an exemption clause is relied on, or where the defendant is a gratuitous bailee, or where relief for honest and reasonable conduct may be claimed.
Plead it where exemplary damages are claimed, together with the facts bringing the case within one of the recognised categories: TORT 093.
In a complaint or a criminal proceeding, the degree is an element and must be pleaded and proved, with the facts showing that no competent practitioner would have acted as the accused did.
And for a professional, obtain the independent opinion before the complaint is filed, since its absence is by itself a ground on which the proceeding will be quashed.

⚠ Why the classical objection is right about the civil law and wrong about everything else

Rolfe B. was making a point about the law of negligence as a cause of action, and within that field he was right: there is no category of gross negligence, no separate set of ingredients, and no different measure of damages, and the adjective is doing nothing but expressing the speaker's disapproval. The mistake is to carry the observation outside that field. Wherever the law is asking not whether a loss should be shifted but whether conduct deserves condemnation, restricts a person's liberty, or forfeits a protection the law would otherwise give, the degree of the departure from the standard becomes the whole question, because those consequences are not proportionate to the harm caused but to the quality of the conduct. A doctor whose momentary inattention kills a patient has caused the gravest possible harm by the slightest possible fault, and the civil law will make him pay for all of it while the criminal law will not touch him. That is not an inconsistency; it is the difference between a system that allocates losses and a system that assigns blame, and the adjective which is empty in the first is indispensable in the second.

7. The Position Stated Shortly

1. Gross negligence is not a separate tort, and in an ordinary civil action the degree of carelessness affects nothing.

2. Rolfe B. in Wilson v. Brett described it as the same thing as negligence with a vituperative epithet.

3. The objection is sound because negligence is already a relative standard which rises with the danger, and because damages measure the loss and not the blame.

4. The adjective nevertheless decides questions in criminal liability, in the prosecution of professionals, in the construction of exemption clauses, in gratuitous bailment, in exemplary damages and wherever a statute uses the words.

5. Simple negligence is not a crime; the negligence must be gross or of a very high degree.

6. Jacob Mathew v. State of Punjab lays down that the accused must have done or omitted something that no medical professional of ordinary prudence would have done or omitted.

7. The hazard taken must have been of such a degree that injury was most likely imminent, and an error of judgment or an accident is not culpable.

8. A private complaint against a doctor requires a credible opinion from another competent doctor, and the investigating officer must obtain an independent medical opinion.

9. Andrews v. Director of Public Prosecutions and R. v. Adomako state the same threshold in England.

10. The criminal law requires more because a conviction condemns rather than compensates, the standard of proof is higher, and a law reaching ordinary inadvertence would be unjust and unenforceable.