According to ‘Heaven v. Pender(1883) 11 Q.B.D. 503) “actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury, to person or property”.In an action for negligence the plaintiff has to prove that the defendant owed a duty of care to the plaintiff, the defendant made a breach of that duty and the plaintiff suffered damage as a consequence thereof. By Duty of care to the plaintiff, we mean a legal duty rather than a moral, religious, or social duty. The Plaintiff has to establish that the defendant owed to him a specific legal duty to take care of which he has made a breach. There is no general rule of law defining such duty. It depends in each case whether that duty exists. Lord Atkin propounded the following rule in ‘Donoghue v. Stevenson’ and the same has gained acceptance: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor”. He then defined “neighbors” as “persons so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are being called in question.” In this case, the defendant raised the defense of “Privity of Contract Fallacy” quoting from the case ‘Winterbottom v. Wright(1842) 10 M ) In that case Lord Abinger, C.B., said, “unless we confine the operations of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, will ensue.” Since an action for tort is quite independent of any contract, there seems to be no reason why for an action in tort, a contractual relationship between theparties can be insisted.
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