Gross negligence is never a good thing. If you look at any of the general terms and conditions of the road transport operator’s liability insurance, you can read that it means the exclusion of the liability of the insurer, and thus the refusal to pay compensation. We are therefore faced with a situation in which there is damage for which the carrier is liable, but the insurer is not. The carrier is, therefore, left alone with the claim.
Gross negligence is the most serious form of unintentional misconduct. In simple language, we can say that it is a situation in which on the one hand the perpetrator behaved worse than recklessly, but on the other hand, it is not yet possible to say that his actions were intentional.
The problem is that there is no statutory definition of gross negligence. In practice, it is necessary to use judicial case law and legal literature. Let us, therefore, take a look at one of the Supreme Court’s rulings of 10 March 2004 (IV CK 151/03):
Ordinary negligence (not yet gross) is defined by the court as follows:
The attribution of negligence to a person shall be considered justified if that person has acted at a particular place and at a particular time in a manner which deviates from his or her due diligence benchmark.”
Whereas gross negligence is defined as follows:
Gross negligence is understood as a failure to observe the minimum (basic) rules of correct behaviour in a given situation.”
How can you tell the difference between a mere mishap and negligence?
Nevertheless, it can be difficult to determine whether or not a case of gross negligence is involved. What are ‘the minimum (basic) rules of correct behaviour’?
In transport, various kinds of inappropriate behaviour occur every day and somehow you have to be able to distinguish between ordinary and gross negligence on your own. Personally, I really like the definition once coined by Professor Witold Czachórski, who stated that gross negligence is a failure to exercise the diligence that can be required of even the least intelligent people.
So let’s look at this through the eyes of the professor:
– if someone’s behaviour was not very wise, but it is still possible to explain and understand it somehow, we will be dealing rather with ordinary negligence,
– if we can say, without a shadow of a doubt, that the perpetrator behaved worse than the least intelligent person, that it is impossible to understand or explain, this behaviour can rather be considered gross negligence.
This is important because, in practice, there are decisions by the insurer to refuse to pay compensation on the grounds of gross negligence, and it is good to know whether the insurer has exaggerated, what sometimes happens, or whether we can actually speak of gross negligence. If we come to the conclusion that the insurer wrongly attributed gross negligence to the perpetrator, then, of course, we should appeal against such a decision.
What are the typical examples of somebody’s behaviour, which are usually treated by insurers or courts as gross negligence? Here are some examples:
– leaving the vehicle with a cargo of significant value unattended,
– vehicle parking without the anti-theft system activated,
– the driver failing to check the address of the place of unloading,
– the driver failing to check the personal details of the recipient,
– change of place of unloading at the request of a person who does not have the first copy of the waybill,
– significant overspeed by the driver,
– significant overload of the vehicle,
– arbitrary change of route by the carrier,
– subcontracting the transport despite the ban,
– entrusting transport to a driver who is not competent.
A clause that might be helpful
Is there an insurance panacea for gross negligence? Something that will make the insurer pay compensation despite such a violation? There is no one hundred percent antidote, but it is good to think about the so-called gross negligence clause (representatives clause). It protects the carrier if the persons for whom he is responsible cause damage as a result of gross negligence (and wilful misconduct). This clause restores insurance cover, but – please note – it does not apply to damage caused by the so-called representatives of the insured (hence the name of the clause), which are considered to be: members of the management board, proxies, directors, owners, partners and other persons who, under the law, the statute or under the ownership law, are authorised to carry out management functions.
In other words, the representatives’ clause only applies to damage caused by ordinary workers.
Forwarders should also expect the representatives’ clause from all carriers, as it is in their interest that the carrier has the widest possible insurance cover.