Often ‘gross negligence’ is used as a carve-out from a no-liability clause. The Consumer Protection Act expressly provides that a supplier cannot exclude liability for gross negligence.

Negligence is the deviation from the standard of care expected of a reasonable person in the particular circumstances. Clearly more than mere negligence is involved when a person is grossly negligent.

The difference between negligence and gross negligence is one of degree, not kind, and is highly fact sensitive.

The Supreme Court of Appeal in Transnet Limited t/a Portnet v The owners of the MV Stella Tingas & Another [2002] said that gross negligence involves the extreme departure from the standard of a reasonable person which departure must demonstrate complete obtrusiveness of mind or a total failure to take care.

The court said that gross negligence is not an exact concept capable of precise definition. It is not consciousness of risk–taking that distinguishes gross negligence from ordinary negligence. If consciously taking a risk is reasonable, there will be no negligence at all. If a person foresees the risk of harm but acts, or fails to act, in the unreasonable belief that they will be able to avoid the danger or that for some other reason the danger will not eventuate, the conduct in question may amount to negligence or may amount to gross negligence (or recklessness in the wide sense) depending on the circumstances.

Where the risk of harm is foreseen and the person acts recklessly or indifferently as to whether it ensues or not, the conduct will amount to recklessness in the narrow sense but would exceed the bounds of modern-day understanding of gross negligence. On the other hand, even in the absence of conscious risk-taking, conduct may depart so radically from the standard of the reasonable person as to amount to gross negligence. It is necessary in each case to determine whether the deviation from what is reasonable is so marked as to justify it to be condemned as gross.

To qualify as gross negligence the conduct in question must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme. It must demonstrate, where there is found to be conscious risk-taking, a complete obtrusiveness of mind or, where there is no conscious risk-taking, a total failure to take care. If something less were required, the distinction between ordinary and gross negligence would lose its validity.

Also see Public of SA v Fibre Spinners & Weavers (Pty) Ltd [1977] and First National Bank of SA Limited v Rosenblum & Another [2001].

The recent decision of the Supreme Court of Western Australia in GR Engineering Services Limited v Investmet Limited [2019] contains a useful review of the Australian and English law on gross negligence (which is persuasive but not binding) where that court followed the approach adopted in the English Court in Red Sea Tankers Limited v Papachristidis [1997] in the context of exclusion from indemnity clauses:

Gross negligence is clearly intended to represent something more fundamental than failure to exercise proper skill and/or care constituting negligence. But, as a matter of ordinary language and general impression, the concept of gross negligence seems to me to be capable of embracing not only conduct undertaken with actual appreciation of the risks involved, but also serious disregard of or indifference to an obvious risk.”

 Gross negligence in South African law would include a serious disregard of or indifference to obvious risk.

Often the allegation is wrongly made, particularly in disciplinary proceedings, that conduct amounts to gross negligence, ignorant of the high threshold which needs to be cleared to establish gross negligence.