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Analysis: Salmond And Winfield Theories In Law Of Tort Or Law Of Torts

Jurist and various other authorities of law have expressed many different views about the correct nomenclature of the civil wrong and deliberated on the issue whether it is the law of tort or law of torts. But in the end, there are majorly two opinions which prevail over the question of the broad principle of all tortious liability. These both terminologies are different in interpretations of the common law which are proposed by Percy Henry Winfield and Sir John Salmond respectively.

There was a major conflict between two questions whether there are specific wrongs only which once established cannot be altered or there is a broader virtue for interpretation of wrongs which is to be constantly updated with the inclusion of new wrongs of tort. Below is the critical analysis of both the theories in detail. Before it let us understand what torts and tortious act mean.

What is law of torts?

Tort is a word which is derived from the Latin term Tortum[1] means to twist. It is the counterpart to the English term wrong. A tort is a civil wrong. It is not a codified law so it is very important to rely on precedents to guide future actions if the facts of the cases are similar. It is a wrong against an individual which is redressed by legal action to get compensation against the wrongdoer. At the same time, we should remember that not every civil wrong is a tort such as breach of contract, breach of trust etc.

Tort deals with a dispute between individuals. In torts intention and malice are of no great importance as it could occur even when someone deliberately or through carelessness or recklessness causes harm or loss to another person.

Law of tort is a modern concept in India. It is a common law created by the judges or similar quasi-judicial authorities by virtue of being stated in the written opinion. Law of tort finds its root from the courts of the English kings, following the Norman Conquest in the year 1066. Before 1066, cases were heard in a very unsystematic and disorderly manner in the English king's court. This made England adopt law of torts and inspired by this, India followed this law to resolve civil cases among individuals.

What is a tortious act?

Tortuous act refers to that conduct which violates the legal right of the person in general. In this, the person who commits tort is called the tortfeasor and the person whose legal right is violated is called the plaintiff or complainant. In this article, the main focus will be on the theories of law of tort and law of torts and will further see the basic principle of liability in it.
  1. Law of tort - wider base theory

    According to the acumen of Percy Henry Winfield, Law of Tort is a general liability which originates from the violation of duty determined by the law. In other words, he means that for every wrongful act for which there is no valid justification, then the person is liable for committing law of tort. For example when X hits his friend Y while walking on the road, Then X can be liable for specific tort like assault, battery, nuisance etc or if he committed any tort which does not have a particular name or category, still he would be held liable for the tort.

    In this kind of interpretation, there is no need for specific kind of tort to be committed, and only wrongful act which injures the third party would satisfy this theory of the law of tort. This law of tort uses a broader approach which helps to expand various decisions given by the courts. Sir Winfield was in favour of these kinds of new rules which are created in the evolving society and help in tackling legal challenges on current issues.

    Law of tort is an evolving concept as when new torts are identified, they are then incorporated into this theory. The theory of the law of tort is very renowned among many scholars across the globe. This theory is often called the wider base theory or growing tree, according to it all injuries caused by one person to another is unjust/unlawful unless justified by statue, this wider interplay of the statue makes this theory named wide base theory. The most widely attractive part of this theory is that this theory helps in the creation of new torts.


    M.C. Mehta Vs Union of India [2]:

    The most prominent case of India judicial history is of M.C. Mehta Vs Union of India. It is a case related to the oleum case leak from the Shri Ram Gas Factory which results in numerous deaths. This case led to the principle of a very new concept of Absolute liability which means that a person can be liable for a wrong even when he exercises proper care and caution on his part. Absolute liability does not allow the defendant to take any defences to absolve him from any liability.

    Justice Bhagwati while delivering the judgement, in this case, opined that in this evolving jurisprudence of law, there is a need for the creation of new rules and values according to the new problems that emerge in highly developing and advanced economies. She also remarked that Indian jurisprudence cannot be limited in its dealing with evolving problems just as it happened in England. Sir Winfield was in favour of these kinds of new rules which are created in the evolving society and help in tackling legal challenges.

    Ashby Vs White[3]:

    It is the foundational case of English tort law in which Mr Ashby, the plaintiff was stopped from voting in an election by defendant policeman, Mr White. This case is concerned with the person right to vote. The judgement of this case leads to the formation of the principle of injuria sine damno [4]which states that if a person's legal right is violated, then he does not have to prove any damages. In short, it means the only legal injury is pre-requisite to invoke this principle. This method of making new rules according to the situation is the main ingredient of the theory of the wider base of Sir Winfield. Legal scholars recognise this kind of winder interpretation of the law as a good means to achieve the object of society at large.

    Supporter of the wider base theory of Winfield

    The profound supporter of this theory supports this theory by stating the principle of Ubi jus ibi remedium [5]which means that when there is a wrong caused to a plaintiff, there is a remedy with the plaintiff to compensate for that damage. In other words, there always arises a cause of action in the tort of law whenever a person knowingly or deliberately hurts another person without any cause. Further people also articulate their point of view by stating that common law is not a law which is restricted in attaching new rules and principle in its various new cases. Legal scholars recognise this kind of winder interpretation of the law as a good means to achieve the object of society at large.

    Criticism of the wider base theory of Winfield
    Although with regard to the basic principle of liability of tort, Winfield theory did not receive any major criticism from scholars but there is one component which is debated in much detail, that there is no uniformity or pre-decided wrongs were established in law of tort rather its ever-evolving jurisprudence allows it to include new wrongs according to various cases and sometimes it can be very subjective and can prove to be arbitrary. There can be misuse of torts of law and people can be subjected to it from case-to-case basis. This flexible approach is completely opposite to the wrong which is established already in the criminal procedural code of crime.
  2. Law of Torts - pigeon-hole theory

    This theory is formulated by Sir John William Salmond. In this kind of theory, not just wrongful act must occur but that act must originate from specific which is already established under torts. For example: if X commits a wrong which does not have a specific name attached to it, then X cannot be held liable for the same. This concept is very narrow and codified in nature. Law of torts theory is also called a pigeon-hole theory. [6] This theory is one of the most profound in the field of law, especially in law of tort as in this theory, there is generally no principle of liability and its upon the plaintiff to put his wrong in a specific pigeon- hole or specific law of tort, to make the defendant liable.
According to the interpretation of Sir Salmond, it is important for the wrongs to be concise and have the body of rules establishing specific principle just like our criminal law system is codified and have specific names of various offences.

According to this theory, the burden is always on the plaintiff to prove that the act of the defendant falls under the bracket of a specific wrong and not on the defendant to prove the other way around. Sir Salmond was one of the very few scholars who were against the idea of a generalization of torts. He further noted that the remedy would be available for any wrong that comes under the well-constructed notion of torts but only for such wrong.

Case laws

Donoghue vs Stevenson [7]:

In the case of Donoghue vs Stevenson, a snail was found at the bottom pit of the ginger beer bottle and plaintiff lodged a complaint against not only the seller but against the manufacturer also. In this case as injury to the plaintiff was unforeseeable from the eyes of the seller as the bottle lid was opaque, that is why only the manufacture was held liable for the tort of negligence. This case led to the formation of a new set of rules that everyone has a duty of care confined to their final and proximate neighbour. Sir Salmond was completely against this kind of wider interplay of new rules in the law of tort.

Bollinger vs Costa Brave Wine co. Ltd [8]:

This case of Bollinger Vs Costa brave Wine Co. Ltd was related to trademark infringement right in which judges of the case opined that before a person makes a claim for damages in law of tort, he/ she must prove that the case is well within the sections or the pigeon- hole of actionable wrongs. This judgement marks the evolution of Sir Salmond theory of the law of tort.

Supporter of pigeon-hole theory of Salmond

Scholars who support this theory states that the principle of Salmond does not mean that the court's power was restricted to establish new wrongs rather they held that this theory support in the creation of new torts rule but unless they are significant to those that are already in place, such new wrongs cannot be formed and to claim that pigeon-hole theory is not capricious is its form is a blatantly false interpretation of this theory proposed by Sir Salmond.

Criticism of pigeon-hole theory of Salmond

With regard to the basic principle of liability in the law of torts, one aspect which was highly criticised in debates among scholar was the limited scope categorizing wrongs of tortious liability. This led to torts which are per se wrongs, cannot be held wrongs because they cannot fit into the narrow boxes of pigeon-hole sections of wrong. The profound principle on which scholar argues their stand for this theory also plays the role of its criticism too.

From the entire analysis of these two - profound theory with regard to the basic principle of liability in the law of tort and law of torts of Sir Winfield and Sir Salmond respectively, it is pretty much clear that both of these theories are different in their interpretation, interplay and implications. Both the theories have their own supporters and critics but both were used while deciding and delivering various judgement in the tort of law in England as well as India.

Winfield and Salmond's theories were not in a major conflict with each other rather they were the faces of the same coin. The slight difference between them was that Winfield theory was broader and Salmond`s theory was narrower and restricted. If we study tort from the point of view of the current or present moment (not considering any new or past development) then Salmond theory will suffice but if we take a broader point of view which includes rapid growing past rules and theories, then Winfield theory will suffice.

Therefore, it is just and only about the matter of approach and of looking at different aspects and perspective from certain flexible lens or viewpoints. Neither of the theory has supremacy over other and hence if we have to choose any theory to express our preference, then it cannot be a single theory as both of them are unique in nature and complete with each other in the modern-day scenario. After this complete overview, it has been concluded that if we consider the point of view of both the theories in terms liabilities, then they are absolutely right about the basis of wrong and tortious liability in their own virtue.

  1. Various Definitions Of The Term Tort By Pradhan, ( Visited on December 15, 2020 ).
  2. M.C. Mehta Vs Union of India, (1987) SCR (1).
  3. Ashby Vs White, (1703) 92 ER 126.
  4. Sakshi Raje, Injuria Sine Damno and Damnum Sine Injuria, ( Visited on December 24, 2020 ).
  5. Seng, Lee Kiat.Ubi Jus Ubi Remedium? Insurer's Duty To Disclose  Time For Another Look? Singapore Journal of Legal Studies, 1997, pp. 185-239. JSTOR.
  6. Ayushi Singh, Salmond Pigeon Hole Theory of Law of Torts, , ( Visited on December 25, 2020 ).
  7. Donoghue vs Stevenson, [ 1932] UKHL 100.
  8. Bollinger vs Costa Brave Wine co. Ltd, [1961} W.L.R 277.

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