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    Is It Law of Torts and Law of Tort

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    Shubham Jain Modi
    The document discusses two competing theories on the law of torts - whether there is a general principle of liability (law of tort) or only liability for specific torts like trespass, negligence, etc. (law of torts). Winfield supported the theory of a general law of tort, where all unjustified harm is tortious. Others like Salmond argued there is no general principle and liability only arises under established torts. While both theories have supporters, courts have increasingly recognized new torts that don't neatly fit existing categories, suggesting the law of tort has expanded beyond specific torts and supporting Winfield's broader view.

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    Is It Law of Torts and Law of Tort

    Uploaded by

    Shubham Jain Modi
    3K views4 pages
    The document discusses two competing theories on the law of torts - whether there is a general principle of liability (law of tort) or only liability for specific torts like trespass, negligence, etc. (law of torts). Winfield supported the theory of a general law of tort, where all unjustified harm is tortious. Others like Salmond argued there is no general principle and liability only arises under established torts. While both theories have supporters, courts have increasingly recognized new torts that don't neatly fit existing categories, suggesting the law of tort has expanded beyond specific torts and supporting Winfield's broader view.

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    The document discusses two competing theories on the law of torts - whether there is a general principle of liability (law of tort) or only liability for specific torts like trespass, negligence, etc. (law of torts). Winfield supported the theory of a general law of tort, where all unjustified harm is tortious. Others like Salmond argued there is no general principle and liability only arises under established torts. While both theories have supporters, courts have increasingly recognized new torts that don't neatly fit existing categories, suggesting the law of tort has expanded beyond specific torts and supporting Winfield's broader view.

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    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    3K views4 pages

    Is It Law of Torts and Law of Tort

    Uploaded by

    Shubham Jain Modi
    The document discusses two competing theories on the law of torts - whether there is a general principle of liability (law of tort) or only liability for specific torts like trespass, negligence, etc. (law of torts). Winfield supported the theory of a general law of tort, where all unjustified harm is tortious. Others like Salmond argued there is no general principle and liability only arises under established torts. While both theories have supporters, courts have increasingly recognized new torts that don't neatly fit existing categories, suggesting the law of tort has expanded beyond specific torts and supporting Winfield's broader view.

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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.

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