What is the test to determine gross negligence?
New Brunswick, Canada
The following excerpt is from Holohan v. Dunfield, 1982 CanLII 3009 (NB QB):
The test to be applied to determine gross negligence has been quoted often and is contained in the leading case of McCulloch v. Murray, 1942 CanLII 44 (SCC), [1942] 2 D.L.R. 179 at p. 180, [1942] S.C.R. 141 at p. 145, per Duff C.J.C., which reads as follows: All these phrases, gross negligence, wilful misconduct, wanton misconduct, imply conduct in which, if there is not conscious wrong doing, there is a very marked departure from the standards by which responsible and competent people in charge of motor cars habitually govern themselves. Subject to that, I think it is entirely a question of fact for the jury whether conduct falls within the category of gross negligence, or wilful misconduct, or wanton misconduct.
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