Definitions of gross negligence and intentional misconduct vary from country to country and the conduct that the courts consider to fall within these definitions depends on the facts of each case. And what is “laxity” in a contract where two traders looked each other in the eye and agreed exactly on the duties they owe each other? Wouldn`t a breach of these obligations be “negligent”? Since we have a treaty, we know exactly who our “neighbour” is – the adversary – and we know exactly what our duty is: it is written in the Treaty. If we do not fulfill the treaty in accordance with its conditions, we will not have fulfilled an explicit duty to our “neighbour.” Where an obligation is contractually or unauthorized, the applicant must prove that there is a breach. In this regard, the applicant must show that the tradesman did not meet the due standard. Serious negligence is found only if the professional has made an error that no reasonable member of his profession would have made in his or her circumstances. Clients should carefully assess the exceptions to liability limitations contained in their outsourcing agreements. Although national legislation may imply an exception in cases of gross negligence or intentional misconduct, losses resulting from such conduct should be an explicit exception to the limitations of liability of the outsourcing agreement in order to avoid the need to define the exception to public order and to seek the question of any state law. In addition, a client must consider how difficult and costly it will be to prove to a judge or jury that the conduct of a service provider meets the high standards necessary to detect gross negligence or intentional misconduct. In one case, a computer software developer authorized its core software to the client and was forced to make improvements.12 The client refused two extensions provided by the developer and a pricing dispute broke out, resulting in the developer halting the service as part of the agreement. In accordance with the limitation of liability clause of the agreement, the promoter was acquitted of any liability for certain indirect damages. An exception to the limitation of liability was made, among other things, for damages resulting from intentional acts or gross negligence on the part of the promoter. The Tribunal found that the parties to the agreement did not intend to conclude that the developer`s termination of services constituted an intentional act or gross negligence and therefore upheld a decision to apply the limitation of liability clause.
A complainant who wishes to sue a professional advisor must consider the pre-recourse protocol for professional negligence. The protocol applies when an applicant intends to sue a professional (other than a construction professional or health service provider) for alleged negligence in that occupation or an offence or equivalent trust obligation.
