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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 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].

.. Freeman (1789) 3 TR 51 · Tort of inducement of breach of contract had its origin in Lumley v.Donoghue v.J. · Tort of deceit in its present form had its origin in Pasley v. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England……. Greenbank (1745) Willes 577 (581). In the words of Justice BHAGWATI.· In 1893.J. · LORD MACMILLAN observed that. For example:· The tort of inducement to a wife to leave her husband in Winsmore v. we are certainly prepared to receive light . · The tort of strict liability had its origin in Rylands v. L. Gye (1853) 2 E & B 216. expressed an opinion that at common law there was a cause of action. Stevenson (1932) AC 595]. 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. 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. whenever one person did damage to another willfully or intentionally without a just cause or excuse. the common law is not proved powerless to attach new liabilities and create new duties where experience has proved that it is desirable [Ref. BOWEN. C. · The tort of intimidation in Rookes v.. Creation Of New Torts: This theory is also supported by the creation of new torts by courts of law. Winfield’s Theory And Indian Judiciary: Indian judiciary has also shown a favour to Winfield’s theory. Fletcher (1868) LR 3 HL 330.

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. of the view that Salmond’s theory does not imply that courts are incapable of creating new tort. Union of India. According to Salmond. If there is no pigeon-hole in which the plaintiff’s case could fit in. however.. According to him the liability under this branch of law arises only when the wrong is covered by any one or other nominate torts. so the law of torts consists of a body of rules establishing specific injuries.Journal of Comparative Legislation. but there is law of torts.from whatever source it comes but we have to build our own Jurisprudence. Jenks favoured Salmond’s theory. This theory is also known as ‘Pigeon-hole theory’.C. In the same case the Supreme Court of India established the concept of ABSOLUTE LIABILITY in place of strict liability [Ref. preferred the second alternative and for him. Supporters of This Theory: · Professor Dr. According to him. Mehta v. Vol. XIV (1932) p. the defendant has committed no tort. · Heuston [Editor of Salmond’s Torts] is of the view that Salmond’s critics have misunderstood him. AIR 1987 SC 1086]. 3.M. · Professor Glanville Williams wrote: To say that the can be collected into pigeon-holes does not mean that those pigeon- . just as the criminal law consists of a body of rules establishing specific offences. It Is Law Of Torts: Salmond on the other hand. case. There is no general principle of liability and if the plaintiff can place his wrong in any of the pigeon-holes. 210]. each containing a labelled tort. there is no law of tort. He was. he will succeed.

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. Barnard (1964) AC 1027 a new tort i. each theory is correct from its own point of view. He thought that both his and Salmond’s theories were correct. Flethcher (1868) LR 3 HL 330 a new tort i. 19]. intimidation was created.holes may not be capacious. · Again in Rookes v. the second theory will suffice. Criticism of Salmond’s Theory. 10th Edition. p.. the first is valid [Ref. the first theory from a broader point of view and the other from a narrower point of view. strict liability was created which was not substantially similar to any existing tort.Winfield and Jolowicz. In the words of Winfield.e. Tort. nor does it mean that they are incapable of being added to. Jenks’s view does not appear to be correct as for example:· In Rylands v. 4.Professor Dr. .e. Dr. but from a broader outlook. from a narrow and practical point of view. Conclusion: Winfield made a modification in his stand regarding his own theory. It is thus a question of approach and looking at the things from a certain angle.