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IS IT LAW OF TORT OR LAW OF TORTS: THE CONTROVERSY

AND THEORIES
question is generally asked in the form, is there a law of tort or
only a law of 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.
2. It Is Law Of Tort: Winfield 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 Winfields 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 HL 330.
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 untenable.
Winfields Theory And Indian Judiciary: Indian judiciary has
also shown a favour to Winfields 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].
3. 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 plaintiffs case could fit in, the defendant has committed no
tort.
According to Salmond, just as the criminal law consists of a body
of rules establishing specific offences, so the law of torts consists
of a body of rules establishing specific injuries.
Supporters of This Theory:
Professor Dr. Jenks favoured Salmonds theory. He was, however,
of the view that Salmonds 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 Salmonds Torts] is of the view that Salmonds
critics have misunderstood him.
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 Salmonds Theory.Professor Dr. Jenks while
supporting Salmonds 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.
Jenkss 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 created.
4. Conclusion: Winfield made a modification in his stand
regarding his own theory. He thought that both his and Salmonds
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
[Ref.- Winfield and Jolowicz, Tort, 10th Edition, p. 19]. It is thus a
question of approach and looking at the things from a certain
angle. each theory is correct from its own point of view.