Odger's English Common Law

Chapter VII.
NEGLIGENCE.
Negligence is the breach of a duty to take care, and when
it has caused damage to the plaintiff it is actionable. 1
" 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, without contributory negligence
on his part, has suffered injury to his person or property." 2
In order, then, to succeed in such an action, the plaintiff
must prove three things
— ;
(i.) that the defendant owed him a duty
(ii.) that the defendant neglected to perform that duty or
performed it negligently
(iii.) that he has suffered damage in consequence of the
defendant's neglect.
(i.) There need be no previous relationship between the
plaintiff and the defendant. They may be entire strangers to
one another. The plaintiff need not establish anything
resembling what is called "privity" in the law of contract;
but he must show that the defendant owed him a duty. 3
The duty may be owed either to him individually or to him
as one of the public. The same act may be both a wrong to
the public and a wrong to a private individual. But for the
wrong to the public no private individual can sue, unless he
has sustained some special damage particular to himself.
The fact that a contract exists between two persons does not prevent a
duty arising, which, if violated, would be ground for an action of tort.
But in most cases where such an action lies the duty is wholly indepen-
i Holmes v. Mather (1875), L. R. 10 Ex. 261 ; Tarry v. Ashton (1876), 1
Q. B. D. 314 ; Caledonian Ry. Co. v. Mulhollamd, [1898] A. C. 216.
2 Per Brett, M. R., ia Heaven v. Pender (1883), 11 Q. B. D. at p. 507 ; and
see Evans v. Manchester, $c, Ry. Co. (1887), 36 Ch. D. 626.
3 Austin v. G. W. Ry. Co. (1867), L. R. 2 Q. B. 442 ; George v. Skivington
(1869), L. R. 5 Ex. 1 ; and ante, pp. 431, 432.
;