Law of Torts

is it law of tort or law of torts? : a critical analysis along with related case studies and explanation of pigeonhole theory.

1. Indore Institute Of Law (Affiliated to D.A.V.V. & Bar Council of India) B.B.A.LL.B. (HONS.) TOPIC : Is it Law of Tort or Law of Torts? : A Critical Analysis SUBMITTED TO : Asst. Prof. Vivek Wilson SUBMITTED BY: Aishwarya Gupta

2. Introduction The word “tort” has been derived from the latin term “ tortum ” which means “ to twist”. It connotes any wrongful act or injury which is redressible by an action for damages at the person wronged or injured .

3. Is it Law of Tort or Law of Torts? Writers and authorities on torts have expressed divergent views as regards the correct nomenclature of this branch of law and argued whether the correct terminology is Law of Tort or it is Law of Torts? There are two propositions advanced on this issue, one supported by Salmond and the other by Winfield.

4. Law of Torts According to Salmond it should be called “law of torts” as there is no law of tort. 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.

5. Pigeon Hole T heory By Salmond’s – Pigeon Theory – Law of Torts:   there is a definite number of torts (assault, battery, defamation) outside which liability in tort does not exist According to this theory , the law of torts consists of a set of pigeon holes , each hole contains a specified tort . If the wrong doesn’t fit in any of these pigeon holes , then no tort is said to be committed.

6. Support Professor Jenks : According to him new torts can be created provided they are substantially similar to those which are already in existence and fit into one or the other pigeon hole. Dr . Glanville Williams observed “to say that the tort law can be collected into pigeon-holes does not mean that those pigeon-holes may not be copious, nor does it mean that they are incapable of being added to.”

7. Landmark Cases In   Bollinger v. Costa Brava Wine Co. Ltd. (1960) ch.262, 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.’

8. Criticism The case of damnum sine injuria quoted by Sir John Salmond do not really support his theory. It does not in the least follow that, because all unjustifiable harm is tortious, all harm is tortious, or that anyone who has been harmed by his neighbor can go into a law court within the confident expectation of being accorded a remedy. The case of Rookers v. Barnard , apparently established a new tort called intimidation.

9. Law of Tort By Winfield – Law of Tort – General Liability : all injuries done to another person are torts, unless there be some justification recognized by the law Therefore , this theory conveys that torts not merely consists those torts which have acquired specific names , but also includes the wider perception that all unjustified harm is tortious.

10. Landmark Cases Chief Justice Holt in Ashby v. White , where he observed that if a man will multiply injuries, action must be multiplied too; for every man who is injured ought to have a recompense. Pratt C.J. in Chapman v. Pickersgill , held, “tort are infinite various, not limited or confined.” Supporting Dr. Winfield’s theory Pollock holds that new torts can undoubtedly be created by Courts. Illustrating his point further he stated that deceit as a tort in the present form has its origin from the decision in Pasley v. Freeman .

11. 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. On the whole, if we are asked to express our preference between two theories, in the light of recent decisions of competent courts we will have to choose the broader theory of liability.

12. Thank You