Decisional and Operational Negligence
(2018) 34(4) Journal of Professional Negligence 171-189
22 Pages Posted: 14 Aug 2018 Last revised: 2 Jul 2020
Date Written: May 31, 2018
This article draws a distinction between “decisional negligence”, which concerns the negligence exhibited by a professional advising his client in a decision to pursue a course of action, and “operational” negligence which concerns the manner in which a professional acts upon his client’s instructions to pursue a course of action. With the advent of Montgomery, the distinction between the two kinds of negligence has been thrown into focus in the context of medical negligence. The distinction is an important one for two reasons:
1) the “standard of care” test to be applied; and
2) the measure of damages.
With respect to the applicable test, it is submitted that while the Montgomery principle is applied in “decisional negligence” cases in the medical negligence context, the fundamental basis of the Montgomery principle is very much confined to medical law and the Bolam test should continue to be applied in “decisional negligence” cases in the non-medical professional negligence context. As for the measure of damages, this article cautions against the blind application of the “loss of a chance” measure of damages and proposes a framework laying out the kinds of damages that should be available in “decisional negligence” and “operational negligence” situations.
Keywords: Tort Law; Professional Negligence
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