The billion dollar question is, " whether it is a law of tort or only a law
torts?" There are two competing theories in this regard. According to one
theory, there is a general principle that all wrongs are actionable as tort
unless there is any legal justification. The other theory says that there is no
general principle of liability as such but only a definite number of torts as
trespass, negligence, nuisance, defamation etc. and the plaintiff has no remedy
unless he brings his case under one of the nominate torts.
It Is Law of Tort: This theory was propounded by sir Frederick Pollock in
1887 and was vehemently supported by Winfield . he is the chief supporter of
this theory. He says, all injuries done to another person are torts, unless
there is some justification recognized by law. Thus according to this theory
tort consists not merely of those torts which have acquired specific names but
also included the wider principle that all unjustifiable harm is tortuous. This
enables the courts to create new torts. Winfield while supporting this theory
comes to the conclusion that law of tort is growing and from time to time courts
have created new torts.
Supporters of This Theory: The theory given by Winfield has been supported by
many eminent Judges both ancient and modern. Following are some examples:-
· HOLT, C.J. clearly favoured Winfield's theory, by recognizing the principle of ubi jus ibi remedium. He said that, if man will multiply injuries, actions must
be multiplied too; for every man who is injured ought to have recompense [Ref.
case- Ashby v. White (1703) 2 Ld. Raym. 938].
· PRATT, C.J. said that, torts are infinitely various, not limited or confined
[Ref. case- Chapman v. Pickersgill (1762)2 Wils 145].
· In 1893, BOWEN, L.J., expressed an opinion that at common law there was a
cause of action, whenever one person did damage to another willfully or
intentionally without a just cause or excuse.
· LORD MACMILLAN observed that, the common law is not proved powerless to attach
new liabilities and create new duties where experience has proved that it is
desirable [Ref.- Donoghue v. Stevenson (1932) AC 595].
Creation of New Torts: This theory is also supported by the creation of new
torts by courts of law. For example:-
· The tort of inducement to a wife to leave her husband in Winsmore v. Greenbank
(1745) Willes 577 (581).
· Tort of deceit in its present form had its origin in Pasley v. Freeman (1789)
3 TR 51
· Tort of inducement of breach of contract had its origin in Lumley v. Gye
(1853) 2 E & B 216.
· The tort of strict liability had its origin in Rylands v. Fletcher (1868) LR 3
· The tort of intimidation in Rookes v. Barnard (1964) 1 All ER 367
From the above mentioned cases it is clear that the law of tort is steadily
expanding and that the idea of its being in a set of pigeon-holes seems to be
Winfield's Theory And Indian Judiciary: Indian judiciary has also shown a favour
to Winfield's theory. In the words of Justice BHAGWATI, C.J., we have to evolve
new principles and lay down new norms which will adequately deal with new
problems which arise in a highly industrialized economy. We cannot allow our
judicial thinking to be constricted by reference to the law as it prevails in
England... we are certainly prepared to receive light from whatever source it
comes but we have to build our own Jurisprudence. In the same case the Supreme
Court of India established the concept of ABSOLUTE LIABILITY in place of strict
liability [Ref. case-
M.C. Mehta v. Union
of India, AIR 1987 SC 1086].
It Is Law of Torts: Salmond on the other hand, preferred the second alternative
and for him, there is no law of tort, but there is law of torts. According to
him the liability under this branch of law arises only when the wrong is covered
by any one or other nominate torts. There is no general principle of liability
and if the plaintiff can place his wrong in any of the pigeon-holes, each
containing a labelled tort, he will succeed. This theory is also known as
‘Pigeon-hole theory'. If there is no pigeon-hole in which the plaintiff's case
could fit in, the defendant has committed no tort.
According to Salmond, the law of torts may be described as a " a neat set of
pigeon- hole,each containing a specific labeled tort."also he propounded that
"just as the criminal law consists of a body of rules establishing specific
offences, so the laws of torts consists of a body of rules establishing specific
Supporters of This Theory:
· Professor Dr. Jenks favoured Salmond's theory. He was, however, of the view
that Salmond's theory does not imply that courts are incapable of creating new
tort. According to him, the court can create new torts but such new torts cannot
be created unless they are substantially similar to those which are already in
existence [Ref.- Journal of Comparative Legislation, Vol. XIV (1932) p. 210].
· Heuston [Editor of Salmond's Torts] is of the view that Salmond's critics have
· Professor Glanville Williams wrote: To say that the can be collected into
pigeon-holes does not mean that those pigeon-holes may not be capacious, nor
does it mean that they are incapable of being added to.
Criticism of Salmond's Theory:
Professor Dr. Jenks while supporting Salmond's theory observed that the court
can create new torts but such torts cannot be created unless they are
substantially similar to those which are already in existence. Dr. Jenks's view
does not appear to be correct as for example:-
· In Rylands v. Flethcher (1868) LR 3 HL 330 a new tort i.e. strict
liability was created which was not substantially similar to any existing tort.
· Again in Rookes v. Barnard (1964) AC 1027 a new tort i.e. intimidation was
Reception of law of Torts in India:
The subject "law of torts" owes its origin to the common law of England. The
object of law of torts is to provide relief (compensation) to the injured whose
legal right is infringed. It also helps in the administration of criminal
justice by awarding exemplary damages. This subject is well developed and has
attained great importance in U.K.,U.S., and other advanced countries. But in
indie, it is in the process of development of this branch as of triple activism ie. The activism
of people, activism in judiciary and activism in the
Conclusion: Winfield made a modification in his stand regarding his own theory.
He thought that both his and Salmond's theories were correct, the first theory
from a broader point of view and the other from a narrower point of view. In the
words of Winfield, from a narrow and practical point of view, the second theory
will suffice, but from a broader outlook, the first is valid.