Author : Monalisha Singh

A general question of debate is whether or not the topic of tort should be called as ‘Law of Torts’ or ‘Law of Tort’. Consistent with Salmond it’s law of torts and in his support he proposed the Pigeon Hole Theory.

Salmond in his book asked an issue – ‘Does the law of torts consists of a fundamental general principle that it’s wrongful to cause harm to other persons within the absence of some specific ground of justification or excuse, or does it consists of variety of specific rules prohibiting certain sorts of harmful activity, and leaving all the residue outside the sphere of legal responsibility?’

In his support we will propose examples, as in Furniss v. Fitchett (1958) N.Z.L.R. 396 at 401 Barrow C.J. said ‘the documented torts don’t have their origin in any all embracing general principle of tortuous liability.’In Bollinger v. Costa Brava Wine Co. Ltd. (1960) ch.262 at 283, Danckwerts J.said ‘ the substance was that before an individual can recover for loss which he suffered from another person’s act, it must be shown that his case falls within the category of actionable wrongs.’

Pigeon Hole theory: Salmond chose the Second alternative, and as per him the liability under this branch of law arises only the incorrect is roofed by anybody or the opposite nominate torts. We will presume these nominate torts as pigeon holes with some specific essentials. If the plaintiff can place his wrong in anybody of the pigeon hole, each containing a labelled tort, he will succeed. So, there’s no general principle of liability consistent with Salmond even as legal code torts consists of a body of rules establishing specific injuries.

Law of Tort:

Winfield on the opposite hand was the supporter of the primary alternative as posed by Salmond in his book. He says, all injuries done to a different person are torts, unless there’s some justification recognized by law. Thus consistent with this theory tort consists of not merely of these wrongs which have acquired specific names but also includes the broader principle that each one unjustified harm is tortious.

Supporting Winfield’s view we will discuss the matter from another point of view. The overall meaning of the word tort is wrong. These specific quite wrong evolved through a process of exclusion of other forms of wrongs, i.e. criminal or moral wrongs. Therefore the periphery of tort might be narrow right down to tort . Further not all civil wrongs are tort, but it becomes so only after the exclusion of breach of contract, breach of trust and other equitable obligations. Because the periphery of tort is for certain , it might be used as an argument in support of Winfield’s view. And to try to to this we’ve to determine the overall principles of liabilities in tort.

Generally the essentials of tort are 1. Act or omission 2. Legal damage or injuria. Additionally to the present tortious liability is usually supported two premises; i.e. negligence just in case of ordinary torts and intention or ill motive in cases of intentional torts like assault, battery, malicious prosecution etc. here we will mention about the doctrine of’ clear tort’, developed in America, which might be used as an honest support to Winfield’s view; because the theory provides for a few general principles of liability for tort.

In the 19th century J. Holmes & Pollock developed this doctrine whereby intentional infliction of injury of any kind without justification was made actionable.

Prima facie tort theory: Under the clear tort doctrine, a wrong which doesn’t fall within a standard tort category may nevertheless be actionable if the wrongdoer without just cause or excuse has willfully and intentionally caused injury.

In the final decades of 19th century Pollock and Holmes proposed a general theory of intentional tort, known by the courts as clear tort doctrine. That summarized in simple proposition: the intentional infliction of injury without justification is actionable. Holmes & Pollock organized tort into three categories; i. explanation for action supported intentional conduct, ii. Explanation for action supported negligent conduct, iii. Explanation for action supported strict liability.

Holmes saw clear tort not merely as another intentional tort, but because the general principle upon which rested all liability for intentional harm. So clear tort doctrine is considered imposing liability with respect only to conduct not otherwise actionable under any of the nominate torts. In simple, the common law doctrine; that if an individual had a right to interact in an activity, one injured thereby, had no explanation for action against the actor, no matter the motive prompting the actor. But this certainty of common law was abandoned by the American jurists with the event of clear tort doctrine.

In support of this we will mention the landmark decision of the New Mexico Supreme court in Schmitz v. Smentowski, whereby it had been said that the clear tort is to supply a remedy when alleged conduct doesn’t come within the intendment of 1 of the established classes of torts. The court also provided the weather of clear tort which are:-

i. an intentional lawful act by defendant,

ii. An intent to injure the plaintiff

iii. Injury to plaintiff

iv. Absence of justification.

These elements might be seen because the general principles of liability for tort. And if during a case these elements are satisfied the plaintiff can plead clear tort in alternative to other established torts. Pronouncement of this judgment provides sound support to Winfield’s concept of tort whereby we will assure some general principles of liability for tort cases. And there remains no got to fit every case of tort in one among those nominated pigeon holes.

Further the event of latest torts is often wont to support Winfield’s theory.

For example:-

i. the tort of inducement to a wife to go away her husband developed in Winsmore v. Greenbank

ii. Tort of deceit in its present form had its origin in Pasley v. Freeman.

iii. Tort of inducement of breach of contract had its origin in Lumley v. Gye.

iv. Tort of strict liability developed in Rylands v. Fletcher. Etc.

From the above mentioned cases it becomes clear that the law of tort may be a developing subject and those we can easily negate Salmond’s Pigeon Hole Theory.

To conclude we will quote Holt, C.J. who while giving judgment in Asbhy v. white clearly favoured Winfield’s theory. He said that, if man will multiply injuries, action must be multiplied too, for each man who is injured need to have recompense. At last we should always mention that Indian Judiciary also shown a favour to Winfield’s theory. In M.C. Mehta v. UOI Justice Bhagwati said — “we need to evolve new principles and lay down new norms which can adequately affect new problems which arise during a highly industrialized economy. We cannot allow our judicial thinking to be constricted by regard to the law because it prevails in England. We are certainly prepared to receive light from whatever source it comes but we’ve to create our own jurisprudence.” within the same case the Supreme Court established the concept of absolute liability.