According to prof. Winfield the law of torts has been a definite part of
English law for over six hundred years. Tort is a civil wrong and it consists of
those wrong which violates legal rights or causes legal injury to a person for
which law provide damages to them, but there is difference of opinion whether it
is law of tort or law of torts, whether there is any general principle of
tortious liability and in this respect two competing theorists have been
propounded by the jurists which are opposed to each other.
According to the first theory the number of torts are specific beyond which
liability in torts does not arise which can be called the law of torts in other
word. The profounder of this theory is Sir John Salmond. According to him there
was no English law of tort, but it was merely an English law of torts which
consists a list of acts and omissions and which is definitely actionable in
According to the other theory which is opposed by the above one was that all
injurious act which causes harm to the other person are torts until the presence
of any legal justification for it and in other words it can be said as law of
The profounder of this theory is Sir Fredric Pollack and to which Dr. Winfield
supported strongly and criticized Salmond's theory by calling it as Doctrine
of pigeon hole, so to clear the view of Winfield here is an example of his
theory:- If A causes any injury to his neighbor B, he can sue him for the
damages even though there maybe no particular mentioning of wrongful act such as
assault, battery etc.
Lord Mansfield, Lord Comden and Dr. Allen Conven came up to support this theory.
According to Lord Comden Torts are various, nor limited, nor codified.
As Dr. Winfield support this view that law of tort completely relies on the
general principle let's look at the reasons in support of his view:
The entire history of the development of the law of torts is proof that the tort
which was called 'trespass upon the case'in the beginning has now grown up
continuously and is still growing.In the beginning the action could be brought
only on the specific tort known as writ upon the case came into existence.
Tort of malicious prosecution was not in the same form as it exists today.
Deceit which was confined to a narrow view and could not be called as tort
became an independent tort after its separation from law of contract.
In the 19th century many torts such as negligence ,strict liability and deceit
came up as an independent tort in the case of Rylands v. Fletcher (strict
liability) and Rooks v. Bernard (deceit). In 1963 the House of Lords
introduced a new duty in the field of negligence and monetary injury caused due
to negligent statement. By 1979 the scope of the tort of passing off was
considerably broadened and the above example makes it clear that the law of tort
is continuously expanding and it is not confined in a set of pigeon holes.
There are several cases on to which Winfield cites in support of this thesis and
they are Pasley v. Freeman, Rylands v. Fletcher and Brooke v. Bool. Court
recognized the new torts and also widened the scope of tortious liability. As
per Salmonds theory there are certain specific heads of tort outside which there
is no remedy.
Tort is not limited to that hole only, if men increases in the number day by day
the injuries will also be and for every men who is injured has right to get
compensated, for every injury there should be compensation and to get
compensation for every legal injuries or damage there is a need to
recognize each harmful act as tort to which the exception lies is, there
shouldn't be any legal justification for it. From practical point of view the
second theory of Dr. Winfield suffice completely.
His view is more correct and practical.
Let's get an answer to one question;
Does the law of tort consist of a fundamental general principle that it is
wrongful to cause harm to other persons in absence of some specific ground of
justification or excuse or does it consists of a number of specific rules
prohibiting certain kind of harmful act and leaving all the residue outside the
sphere of legal responsibility? So to answer this question i would say that tort
are infinitely various which is not limited only to some extent or confined.