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].
· 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.
Winfield’s Theory And Indian Judiciary: Indian judiciary has also shown a favour to Winfield’s 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 plaintiff’s 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 Salmond’s theory. He was, however, of the view that Salmond’s 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 Salmond’s Torts] is of the view that Salmond’s 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 Salmond’s Theory.Professor Dr. 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. Dr. Jenks’s 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 Salmond’s 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.
1. Dr. S.K. Kapoor, Law of Torts and Consumer Protection Act, 6th Edition 2003; Published by Central Law Agency, Allahabad.
2. M.N. Shukla, The Law of Torts and Consumer Protection Act, 18th Edition 2010; Published by Central Law Agency, Allahabad.
3. R.K. Bangia, Law of Torts , 19th Edition, 2008, Publisher: Allahabad Law Agency.
4. Ratanlal and Dhirajlal, The Law of Torts, 24th Edition 1997 Reprint 2002; Published by Wadhwa and Company, Nagpur, India.
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