Media has reported a consumer on 2008 .8.01 filed a civil suit in the Colombo District Court claiming Rs.10 million as damages after finding a metal nail wedged into a cheese bar of a reputed brand made in Australia. The petitioner Harini K. Rajadasa who had bought it from a leading supermarket in Nugegoda is claiming damages from the Australian company and the local distributer.

Ms. Rajadasa said she was severely and also suffered nervous breakdown compelling her to obtain medical treatment after the incident.

She said immediately after the incident she made a complaint to the Food Control Administrative Unit of the Ministry of Health care and Nutrition.

According to the media Ms,.Rajadasa said the mental and psychological agony caused to her was due to the negligence of the manufacturer and distributor.

Last year also media has reported several incidents which violated the consumer rights. In one incident a school boy drank a soft drink which included a pentouch battery. Another incident there is a nail in the rice paket which bought by a lawyer at the Colombo law library.

Duty of care is questioned in this case. It is a land mark in Law of Delict. Nail in cheese remembered the famous case Donoghue v. Stevenson.A decomposed snail in Scotland was the humble beginning of the modern English law of negligence

The case of Donoghue v. Stevenson^[2] [1932] illustrates the law of negligence, laying the foundations of the fault principle around the Commonwealth. Plaintiff Ms. Donoghue drank ginger beer given to her by a friend, who bought it from a shop. The beer was supplied by a manufacturer under a certain Mr. Stevenson of Scotland. While drinking the drink, Ms. Donoghue discovered the remains of an allegedly decomposed snail. She then sued Mr. Stevenson, though there was no relationship of contract, as the friend had made the payment .

As there was no contract the doctrine of privity prevented a direct action against the manufacturer, Mr David Stevenson. In his ruling, justice Lord MacMillan presiding over the case defined a new category of tort, (which is really not based on negligence but on what is now known as the “implied warranty of fitness of a product” in a completely different category of tort–”products liability”) because it was analogous to previous cases about people hurting each other. Lord Atkin interpreted the biblical passages to ‘love thy neighbour,’ as the legal requirement to ‘not harm thy neighbour.’ He then went on to define neighbour as “persons who are 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 that are called in question.” Reasonably foreseeable harm must be compensated. This is the first principle of negligence.

In England the more recent case of Caparo v. Dickman [1990] introduced a ‘threefold test’ for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be ‘fair, just and reasonable’ to impose liability. However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges.

In Sri Lanka there are several statutory laws on right to food. One is the Food Act. According to the article 2(1) a if there is some harmful thing include in a food it is prohibited to produce, import, sell and distribute by anybody. In this case the duty of car was not properly implemented. All the authorities were responsible to this negligence. The affected consumer has taken primary steps to seek legal assistance. It is very important that the victim may continue with the legal process to gain proper justice.

The supreme law of the country the 1978 constitution has not enshrined the right to food as a fundamental right. The right to food is an economic right. In our country the economic, social and cultural rights are recognised only as state obligations. So in a violation of these economic, social and cultural right we cannot file a fundamental rights pettion in the Supreme Court. We all as consumer must demand the government to make the right to food as a fundemental right.