What's the difference between gross negligence and criminal negligence? A simple example that would show the difference would be appreciated.


Criminal negligence pertains to criminal acts, which are prosecuted by the government and where a defendant can be convicted and punished. There will be a statute explaining where "criminal negligence" is relevant and when it is applicable. Here is the section in Washington law about criminal negligence:

A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation.

There are a number of criminal offenses where being "criminally negligent" in doing the thing is sufficient, for example mistreatment of a child or manslaughter. First degree murder requires "premeditated intent to cause the death of another person" which does not does not include "criminal negligence" (there is a separate clause about "under circumstances manifesting an extreme indifference to human life" which is different from criminal negligence).

"Gross negligence" can arise in a number of other non-criminal circumstances, and is defined (and discussed) here.

Gross negligence is the failure to exercise slight care. It is negligence that is substantially greater than ordinary negligence. Failure to exercise slight care does not mean the total absence of care but care substantially less than ordinary care.

This concept arises under numerous laws such as the gross negligence of government officers in fish and wildlife matters, where the game wardn can be sued and found civilly liable for gross negligence in performance of duties. He can't be imprisoned (it's not a crime), but he can be fired or forced to compensate the damaged party.

There is no clear difference in what level of negligence we are talking about, instead the difference has to do what what kind of law we are concerned with. Usually (?), crimes are intentional acts where the prosecution has to prove that the defendant intended to do so-and-so. But laws are also written so that certain levels of bad behavior also punishable, such as tricking a person into falling to their death as part of a jackass stunt.

One use of "gross negligence" in a civil case is that certain act may be immunized against liability arising from simple negligence (Good Samaritan law for example), but not gross negligence.

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You don't write out your jurisdiction, but for English law, Simester and Sullivan’s Criminal Law (2019 7 ed) p 167 answers your question.

(a) Ordinary or gross negligence?

The criminal law knows two types of negligence: “ordinary” negligence and “gross” negligence. Each of these standards can be imposed by the law either explicitly or implicitly. One example of an offence implicitly requiring ordinary negligence is that of driving without due care and attention, contrary to section 3 of the Road Traffic Act 1988. D commits an offence by making an error while driving that “falls below what would be expected of a competent and careful driver”;192 in other words, by driving in a manner which involves a risk of harm that the reasonable person would regard as unjustifiable to take. A standard of ordinary negligence may also be imported by the requirement that D exhibit “due diligence”, for example in section 21 of the Food Safety Act 1990. Alternatively, there may be a direct reference to the reasonableness of D’s mental state: in rape, and other sexual offences, it is sufficient that D “does not reasonably believe” that V consents.193 In these cases, it is enough that D has failed to exercise a reasonable level of care in forming beliefs about V’s consent.
  nbsp; nbsp; Sometimes, however, the mens rea of an offence cannot be satisfied by anything less than gross negligence. For example, the Road Traffic Act 1988 also contains the offence of dangerous driving, which is committed by a defendant if:194

(a) the way he drives falls far below what would be expected of a competent and careful driver, and
(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

p 168

The standard is that of gross rather than ordinary negligence. The difference between the two is a matter of degree and judgement in each case. Broadly speaking, negligence will be gross if the defendant’s conduct not merely fails to meet the standard set by the reasonableperson test, but falls short of that standard by a considerable margin—i.e. if the defendant’s conduct is not merely unreasonable, but very unreasonable:195

“in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.”

It may be negligent to drive around a particular bend at 50 mph; if so, it is grossly negligent to do so at 80 mph. Hart puts the test another way: “Negligence is gross if the precautions to be taken against harm are very simple, such as persons who are but poorly endowed with physical and mental capacities can easily take.”196

If you want to know more, check out this article. Ashworth's Principles of Criminal Law (2020 9 edn). p 202.

249 For a discussion of different kinds of indifference, in this context, see J. Horder, ‘Gross Negligence and Criminal Culpability’ (1997) 47 University of Toronto Law Journal 495.

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