Foundation of Tortious Liability
There is an important question in relation to the nature of Law of torts that,
Is it Law of Tort or Law of Torts?
In this regard two Theories have been formulated to determine the source of the tortious liability, which is rival to each other.
According to the Winfield-
It is the law of tort, according to him, if I injured my neighbour, he can sue me in tort whether the wrong happens to have particular name like assault, battery, deciet,slander, or whether it has no special title at all and I shall be liable if I cannot prove lawful justification.
Second Theory –
According to salmond –
There is no law of tort, but there is law of torts and the liability under this branch of law arises only when the wrong is covered by any one or the other nominate torts. there is no general principle of liability and if the plaintiff can place his wrong in any one of the pigeon – holes, each containing a labelled tort he will succeed. This theory is also known as pigeon – hole theory.
Because of the difference in approach,
Winfield’s book on the subject is entitled ‘law of tort’ whereas Salmond is entitled ‘law of torts’.
Each theory seems to have received some support.
In 1702, Ashby v. White, clearly established in favour of the first theory recognising the principal ubi jus ibi remedium.
Holt C.J. said that “if man will multiply injuries, action must be multiplied too: for every man who is injured ought to have re compense.”
Similarly, in 1762, Pratt, C.J. said that Torts are infinitely various not Limited or confined.”
Pollock also supported this view.
In pasley v. Freeman (1789),The theory is also supported by the creation of new torts by the courts of law. For instance, the tort of deceit in its present form had its origin.
In Lumley v. Gye (1853), inducement of breach of contract,
Negligence as a separate tort in the beginning of the century,
In Rylands v. Fletcher (1868),The rule of strict liability
in Winsmore v. Greenbank (1745) Inducement to a wife to leave her husband And the tort of intimidation in Rookes v.Barnard(1964)
Dr. Jenks favoured Salmond’s theory.
He was, however, of the view that Salmond’s theory does not imply that the courts are in capable of creating new tort. According to him, the court can create new torts but such torts cannot be created unless they are substantially similar to those which are already in existence.
But Dr. Jenks view does not appear to be correct as various new torts like Deceit,The rule in Rylands v. Fletcher and Negligence, which have come into existence, are not similar to any of those torts which are already in existence. Heuston is of the view that Salmond’s critics have misunderstood him. According to him, Salmond never committed
himself to the proposition, certainly untenable now, and probably always so, that the law of tort is a closed and inexpensive system.
Dr. Glanville Williams also makes a similar remark regarding Salmond’s theory. According to him, “To say that the law 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.”
Winfield made a modification in his stand regarding his own theory. He now thought that both his and Salmond’s theories were correct. The Winfield’s theory from a broader point of view & the Salmond’s theory from a narrower point of view.
The SC in Jay Lakshmi Salt Work (P.) Ltd. v. The state of Gujarat, observed that law of torts, being a developing law its frontiers are incapable of being strictly barricaded.
References: Dr. R.K. Bangia’s ‘ Law of Torts’, Allahabad Law Agency