the breach of a legal duty to take care which results in damage

the judgment of the Orissa High Court in the case of Prabir Kumar Das Vs. State of Odisha and Others in W.P.(C) No.12553 of 2012 and the Orissa High Court held as follows: “19. Negligence as a tort is defined by Winfield as "the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff." The existence of a duty-situation or a duty to take care is, therefore, essential before a person can be held liable in negligence. In the classical words of Lord Atkin: Page 7 of 37 W.P.No.2191 of 2015 “At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of "culpa", is no doubt based upon a general public sentiment of moral wrong doing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, who is my neighbour, receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be-- 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 which are called in question.” Page 8 of 37 W.P.No.2191 of 2015 It is now an obsolete view that "the duty to be careful only exists where the wisdom of our ancestors has decreed that it shall exist". In Donoghue v. Stevenson itself the House of Lords recognized a new duty situation and a manufacturer was held to owe a duty of care not only to the wholesale dealer, but also to the ultimate consumer of his product. As stated by Lord Macmillan in that case: “The conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed. [p.619].” Then in Hedley Bryne and Co. Ltd. V. Heller and Partners Ltd. (1964) AC 465 (HL), again a new duty-situation was recognized. It was held that the law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts him to exercise due care and that a negligent, though honest, misrepresentation in breach of this duty may give rise to an action for damages apart from contract or any fiduciary relationship. Lord Pearce in that case said: “How wide the sphere of the duty of care in negligence is to be laid depends ultimately upon the Page 9 of 37 W.P.No.2191 of 2015 Courts' assessment of the demands of society for protection from the carelessness of others.[p.536].” The principles governing the recognition of new duty-situations were more recently considered in the case of Home Office v. Dorset Yacht Co. Ltd. (1970) All ER 294 (HL). In that case, some Borstal trainees escaped due to the negligence of Borstal Officers and caused damages to a yacht. The owner of the yacht sued the Home Office for damages and a preliminary issue was raised whether on the facts pleaded, the Home Office or its servants owed any duty of care to the owner of the yacht. It was held that the causing of damage to the yacht by the Borstal trainees ought to have been foreseen by the Borstal Officers as likely to occur if they failed to exercise proper control or supervision and, therefore, the officers prima facie owed a duty of care to the owner of the yacht. It was argued in that case that there was virtually no authority for imposing a duty. This argument was rejected and in that connection, Lord Reid made the following pertinent observations: “About the beginning of this century most eminent lawyers thought that there were a number of separate torts involving negligence each with its own rules, and they were most unwilling to add more. They were of course aware from a number of leading cases Page 10 of 37 W.P.No.2191 of 2015 that in the past the Courts had from time to time recognized new duties and new grounds of action. But the heroic age was over, it was time to cultivate certainty and security in the law; the categories of negligence were virtually closed. The learned Attorney-General invited us to return to those halcyon days, but, attractive though it may be, I cannot accede to his invitation. In later years there has been a steady trend towards regarding the law of negligence as depending on principle so that, when a new point emerges, one should ask not whether it is covered by authority but whether recognized principles apply to it. Donoghue v. Stevenson may be regarded as a statement of principle. It is not be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion.”