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
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
What is law of torts?
Tort is a word which is derived from the Latin term Tortum 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.
Law of tort - wider base theoryAccording 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.
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 : 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: 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 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
Supporter of the wider base theory of WinfieldThe profound supporter of this theory supports this theory by stating the
principle of Ubi jus ibi remedium 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
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.
Law of Torts - pigeon-hole theoryThis 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.  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
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
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.
Donoghue vs Stevenson :
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 :
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
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- M.C. Mehta Vs Union of India, (1987) SCR (1).
- Ashby Vs White, (1703) 92 ER 126.
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- Ayushi Singh, Salmond Pigeon Hole Theory of Law of Torts, https://www.ourlegalworld.com/salmond-pigeon-hole-theory-of-law-of-torts ,
( Visited on December 25, 2020 ).
- Donoghue vs Stevenson, [ 1932] UKHL 100.
- Bollinger vs Costa Brave Wine co. Ltd, [1961} W.L.R 277.