Editing Negligence (section)

===Breach of duty===
{{See also|Breach of duty in English law}}
Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled.<ref>{{cite web |title=Breach of Duty in Negligence |url=https://ipsaloquitur.com/tort-law/breach-of-duty/ |website=IPSA LOQUITUR |date=18 July 2019 |access-date=23 October 2019}}</ref> The test is both subjective and objective. The defendant who knowingly (subjective, which is based on observation and personal prejudice or view) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any "[[reasonable person]]"(objective, which is totally based on ground facts without any personal prejudice or point of view) in the same situation would have realized, also breaches that duty.<ref>{{cite AustLII|HCA|12|1980|litigants=Wyong Shire Council v Shirt |parallelcite=(1980) 146 [[Commonwealth Law Reports|CLR]] 40 |courtname=auto |date=1 May 1980}}.</ref><ref>{{cite AustLII|NSWCA|151|2005|litigants=Doubleday v Kelly |parallelcite= |courtname=auto |date=}}; see also {{cite AustLII|NSWCA|222|2006|litigants=Drinkwater v Howart |parallelcite= |courtname=auto |date=}}.</ref> However, whether the test is objective or subjective may depend upon the particular case involved.

There is a reduced threshold for the standard of care owed by children. In the Australian case of ''McHale v Watson'',<ref>{{Cite AustLII|HCA|13|1966|litigants=McHale  v Watson |date=7 March 1966 |courtname=auto}}.</ref> McHale, a 9-year-old girl was blinded in one eye after being hit by the ricochet of a sharp metal rod thrown by a 12-year-old boy, Watson. The defendant child was held not to have the level of care to the standard of an adult, but of a 12-year-old child with similar experience and intelligence. Kitto J explained that a child's lack of foresight is a characteristic they share with others at that stage of development. The same principle was demonstrated to exist in English law in ''Mullin v Richards''.<ref>''Mullin v Richards'' [1998] 1 WLR 1304</ref>

Certain jurisdictions, also provide for breaches where professionals, such as doctors, fail to warn of risks associated with medical treatments or procedures, such as an obstetrician did not warn a mother of complications arising. In ''[[Montgomery v Lanarkshire Health Board]]'', the UK Supreme Court (hearing a Scottish [[delict]] case) decided that doctors are under a duty to ensure patients are aware of material risks in the treatment they recommend, and to make them aware (if possible) of any other reasonable treatment option<ref>{{Cite book| edition = 9| publisher = Sweet & Maxwell| isbn = 978-0-414-09040-8| last1 = Jackson| first1 = Rupert M.| last2 = Powell| first2 = John L.| title = Jackson & Powell on Professional Liability| location = London| series = The Common Law Library| date = 2022 |at=13-055 }}</ref>—a form of [[informed consent]].<ref>{{Cite book| edition = 6| publisher = LexisNexis| isbn = 978-1-4743-0715-4| last = Buckley| first = Richard A.| title = The Law of Negligence and Nuisance| location = London| series = Butterworths Common Law Series| date = 2017 |at=7.16}}</ref> Under Queensland's Civil Liability Act, doctors owe both objective and subjective duties to warn—breach of either is sufficient to satisfy this element in a court of law.<ref>{{cite Legislation AU|Qld|act|cla2003161|Civil Liability Act 2003|21}}.</ref>

In ''Donoghue v Stevenson'', Lord Macmillan declared that "the categories of negligence are never closed"; and in ''[[Dorset Yacht Co Ltd v Home Office|Dorset Yacht v Home Office]]'' it was held that the government had no immunity from suit when they negligently failed to prevent the escape of juvenile offenders who subsequently vandalise a boatyard. In other words, all members of society have a duty to exercise reasonable care toward others and their property. In ''[[Bolton v. Stone]]'' (1951),<ref>''[[Bolton v. Stone]],'' [1951] A.C. 850 see also {{cite AustLII|HCA|42|2007|litigants=Roads and Traffic Authority of NSW v Dederer |parallelcite= |courtname=auto |date=}}.</ref> the [[Judicial functions of the House of Lords|House of Lords]] held that a defendant was not negligent if the damage to the plaintiff were not a reasonably foreseeable consequence of his conduct. In the case, a Miss Stone was struck on the head by a cricket ball while standing outside a cricket ground. Finding that no batsman would normally be able hit a cricket ball far enough to reach a person standing as far away as was Miss Stone, the court held her claim would fail because the danger was not reasonably or sufficiently foreseeable. As stated in the opinion, "reasonable risk" cannot be judged with the benefit of hindsight.{{citation needed|date=March 2017}}  In ''[[Roe v Minister of Health]]'',<ref>''[[Roe v Minister of Health]]'' (1954) 2 AER 131; see also ''Glasgow Corporation v Muir'' (1943) 2 AER 44.</ref> Lord Denning said the past should not be viewed through rose coloured spectacles, finding no negligence on the part of medical professionals accused of using contaminated medical jars, since contemporary standards would have indicated only a low possibility of medical jar contamination.

*''[[United States v. Carroll Towing Co.]]'' 159 F.2d 169 (2d. Cir. 1947)
''For the rule in the U.S., see [[Calculus of negligence]]''

====Intention and/or malice====
Further establishment of conditions of intention or malice where applicable may apply in cases of [[gross negligence]].<ref>{{Cite journal |pmc = 1618741|year = 2006|last1 = Thornton|first1 = R. G.|title = Malice/gross negligence|journal = Proceedings (Baylor University. Medical Center)|volume = 19|issue = 4|pages = 417–418|pmid = 17106507|doi=10.1080/08998280.2006.11928212}}</ref>