Home       Top Rated       Submit Article     Advanced Search     FAQ       Contact Us       Lawyers in India       Law Forum     RSS Feeds     

Register your Copyright Online

We offer copyright registration right from your desktop click here for details.

Latest Articles | Articles 2014 | Articles 2013 | Articles 2012 | Articles 2011 | Articles 2010 | Articles 2009 | Articles 2008 | Articles 2007 | Articles 2006 | Articles 2000-05

Search On:Laws in IndiaLawyers Search

Mutual Consent Divorce in Delhi
We provide fast, cost effective and Hassle free solution.
Contact us at Ph no: 9650499965 (Divorce Law Firm Delhi)
File Caveat in Supreme Court
Contact Ph no: +9650499965

Main Categories
 Accident Law
 Animal Laws
 Aviation Law
 Bangladesh Law
 Banking and Finance laws
 Case Laws
 Civil Laws
 Company Law
 Constitutional Law
 Consumer laws
 Contracts laws
 Criminal law
 Drug laws
 Dubai laws
 Educational laws
 Employment / Labour laws
 Environmental Law
 family law
 Gay laws and Third Gender
 Human Rights laws
 Immigration laws
 Insurance / Accident Claim
 Intellectual Property
 International Law
 Juvenile Laws
 Law - lawyers & legal Profession
 Legal Aid and Lok Adalat
 Legal outsourcing
 Media laws
 Medico legal
 Real estate laws
 Right To Information
 Tax Laws
 Torts Law
 Woman Issues
 Workplace Equality & Non-Discrimination
 Yet Another Category

More Options
 Most read articles
 Most rated articles

Subscribe now and receive free articles and updates instantly.


Published : October 26, 2014 | Author : Niloybagchi
Category : Torts Law | Total Views : 22959 | Rating :

LL.M.From University of Burdwan,NET,Lecturer MAB Institute of Juridical Science, Domkal, Murshidabad

Pigeon Hole Theory: Aspects of Criticism

A general question of debate is whether the subject of tort should be called as ‘Law of Torts’ or ‘Law of Tort’. According to Salmond it is law of torts and in his support he proposed the Pigeon Hole Theory.

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

In his support we can propose examples, as in Furniss v. Fitchett (1958) N.Z.L.R. 396 at 401 Barrow C.J. said ‘the well known torts do not 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 a person can recover for loss which he suffered from another person’s act, it must be shown that his case falls within the class of actionable wrongs.’

Pigeon hole theory: Salmond chose the Second alternative, and as per him the liability under this branch of law arises only when the wrong is covered by any one or the other nominate torts. We can presume these nominate torts as pigeon holes with some specific essentials. If the plaintiff can place his wrong in any one of the pigeon hole, each containing a labeled tort, he will succeed.

So, there is no general principle of liability. According to Salmond just as criminal law torts consists of a body of rules establishing specific injuries.

Law of Tort:

Winfield on the other hand was the supporter of the first alternative as posed by Salmond in his book. 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 of not merely of those wrongs which have acquired specific names but also includes the wider principle that all unjustified harm is tortious.

Supporting Winfield’s view we can discuss the matter from another point of view. The general meaning of the word tort is wrong. These specific kind of wrong evolved through a process of exclusion of other kinds of wrongs, i.e. criminal or moral wrongs. So the periphery of tort could be narrow down to civil wrong. 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. As the periphery of tort is certain, it could be used as an argument in support of Winfield’s view. And to do this we have to ascertain the general principles of liabilities in tort.

Generally the essentials of tort are 1. Act or omission 2. Legal damage or injuria. In addition to this tortious liability is generally based on two premises; i.e. negligence in case of ordinary torts and intention or ill motive in cases of intentional torts such as assault, battery, malicious prosecution etc. here we can mention about the doctrine of’ prima facie tort’, developed in America, which could be used as a good support to Winfield’s view; as the theory provides for some 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 prima facie tort doctrine, a wrong which does not fall within a traditional 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 prima facie tort doctrine. That summarized in simple proposition: the intentional infliction of injury without justification is actionable. Holmes & Pollock organized tort into three categories; i. cause of action based on intentional conduct, ii. Cause of action based on negligent conduct, iii. Cause of action based on strict liability.

Holmes saw prima facie tort not merely as another intentional tort, but as the general principle upon which rested all liability for intentional harm. So prima facie tort doctrine is regarded as imposing liability with respect only to conduct not otherwise actionable under any of the nominate torts.

In simple, the common law doctrine; that if a person had a legal right to engage in an activity, one injured thereby, had no cause of action against the actor, regardless of the motive prompting the actor. But this certainty of common law was abandoned by the American jurists with the development of prima facie tort doctrine.

In support of this we can mention the landmark decision of the New Mexico Supreme court in Schmitz v. Smentowski, whereby it was said that the prima facie tort is to provide a remedy when alleged conduct does not come within the intendment of one of the established classes of torts. The court also provided the elements of prima facie 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 could be seen as the general principles of liability for tort. And if in a case these elements are satisfied the plaintiff can plead prima facie tort in alternative to other established torts. Pronouncement of this judgment provides sound support to Winfield’s concept of tort whereby we can assure some general principles of liability for tort cases. And there remains no need to fit every case of tort in one of those nominated pigeon holes.

Further the development of new torts can be used to support Winfield’s theory.

For example:-
i. the tort of inducement to a wife to leave 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 is a developing subject and we can easily negate Salmond’s pigeon hole theory.

To conclude we can 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 every man who is injured ought to have recompense.

At last we should mention that Indian Judiciary also shown a favour to Winfield’s theory. In M.C. Mehta v. UOI Justice Bhagwati said --- “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 established the concept of absolute liability.
i. R.K. Bangia, Law of Torts,
ii. D.D. Basu, Law of Torts,
iii. W V H Rogers, Windfield & Jolowicz on Tort.
iv. St. John’s Law review, vol. 52,
v. A History of Prima facie Tort: The Origin’s of a General Theory of Intentional Tort. By Keneth J.Vandevelde. Hofstra Law review, vol: 19, Issue 2.
vi. Prima Facie Tort Comes to New Mexico: A Summary of Prima Facie Tort Law by James P. Bieg.

1 2 3 4 5
Rate this article!     Poor

Most viewed articles in Torts Law category
Vicarious Liability in India
Nuisance: A Tort
Negligence As A Tort: Meaning Essentials And Defences
Suit For Damages
Is It Law of Tort or Law of Torts
Strict and Absolute Liability
Malfeasance, misfeasance and nonfeasance in Tort Law
Trespass: Tortious Liability
Concept of Trespass To Person
Pigeon Hole Theory: Aspects of Criticism
Quantum of damages in Tort Law
Private Nuisance in Tort Law
Liability of State In Contract And In Torts
Law of Tort And Sports Litigation
Confidentiality, An Emerging Tort In India
Most recent articles in Torts Law category
Torts Against Secular Communal Group: A study of Communal violence in India
False Imprisonment-of the Defences
Strict and Absolute Liability
Applicability of Volenti Non Fit Injuria In Sports
Liability of State In Contract And In Torts
Malicious Prosecution
Libel - An estimation of Damages
Pigeon Hole Theory: Aspects of Criticism
Personal Capacity of husband & wife, alien enemy and corporation in Torts
Administrative and other Possible Solutions to Settlement of Mass Tort Claims
Vicarious Liability in India
Confidentiality, An Emerging Tort In India
Negligence As A Tort: Meaning Essentials And Defences
Malfeasance, misfeasance and nonfeasance in Tort Law
Is It Law of Tort or Law of Torts

Article Comments

there are no comments...

Please login or register a new free account.

Random Pick
Contract is made between the parties who are intended to bind together in a legal obligation i.e.to serve the interest of both the parties...

» Total Articles
» Total Authors
» Total Views
» Total categories

Law Forum

Legal Articles

Lawyers in India- Click on a link below for legal Services

lawyers in Chennai
lawyers in Bangalore
lawyers in Hyderabad
lawyers in Cochin
lawyers in Pondicherry
lawyers in Guwahati
lawyers in Nashik

lawyers in Jaipur
lawyers in New Delhi
lawyers in Dimapur
lawyers in Agra
Noida lawyers
lawyers in Siliguri

For Mutual consent Divorce in Delhi

Ph no: 9650499965
For online Copyright Registration

Ph no: 9891244487
Law Articles

lawyers in Delhi
lawyers in Chandigarh
lawyers in Allahabad
lawyers in Lucknow
lawyers in Jodhpur
Faridabad lawyers

lawyers in Mumbai
lawyers in Pune
lawyers in Nagpur
lawyers in Ahmedabad
lawyers in Surat
Ghaziabad lawyers

lawyers in Kolkata
lawyers in Janjgir
lawyers in Rajkot
lawyers in Indore
lawyers in Ludhiana
Gurgaon lawyers


India's Most Trusted Online law library
Legal Services India is Copyrighted under the Registrar of Copyright Act ( Govt of India) 2000-2017
 ISBN No: 978-81-928510-1-3