Madhulekha Bhowmik

Assistant Professor

Amity University Kolkata

LAW OF TORTS

 The word ‘Tort’ originated from the Latin word ‘Tortum’ which means ‘to twist’ i.e not
straight and correct. It implied conduct that is twisted or tortious.

 The person who commits a tort or wrong is called a ‘tort- feasor’ or ‘wrong doer’. His
wrongful act is called a ‘tortious act’.

 What we now understand by tort is a breach of some duty between citizens, defined by
the general law, which created a civil cause of action.

 The duty must be founded in common right, not in a strictly personal relation such as
those of husband and wife or parent and child.

 It must be a duty assigned by law, not dependant on the will of the parties.

 A breach of contract or of trust is not as such a tort.

 There must be a private right of action.

DEFINITIONS

 The word Tort has been explained in the Chambers Dictionary, thus: “ Tort is any wrong
or injury not arising out of a contract for which there is a remedy by compensation or
damages.

 In Advanced Learner’s Oxford Dictionary of Current English , ‘tort’ means “ private or

civil wrong for which the wronged person may get redress in a law court”.

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INDIAN AUTHORS

 According to Ratan Lal and Dhiraj Lal in their book the “ Law of Torts”, a tort means
“a civil wrong, independent of contract, for which the appropriate remedy is an action for
damages.”

 As per S.P. Singh in his ‘Law of Tort’, “Tortious Liability arises from the breach of a
duty primarily fixed by law which results in an infringement of private legal right of
another, and for which , civil action for unliquidated damages , injunction, specific
restitution of property or even self help, as the case may be, can be maintained”.

 R.K. Bangia defines a ‘tort’ as a civil wrong which is redressible by an action for
unliquidated damages and which is other than a mere breach of trust or breach of
contract.

 P. Ramanatha Aiyer, in his “ The Law of Lexicon’’says that “Tort” may be defined to
be an injury or a wrong committed with or without force to the person or property of
another, and such injury may arise by either the nonfeasance, malfeasance, or
misfeasance of the wrongdoer.

FOREIGN AUTHORS

 Salmond: Tort is a civil wrong for which the remedy is common law action for
unliquidated damages, and which is not exclusively the breach of contract or the breach
of trust or other mere equitable obligation.

 Fraser: A tort is an infringement of a right of a private individual giving a right of

compensation to injured party.

 Winfield: Tortious liability arises from the breach of a duty primarily fixed by law; the
duty is towards persons generally and its breach is redressible by an action for
unliquidated damages.

Thus, on the analysis of the above definition, the following points can be laid
down:

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 Tortious liability arises from a breach of a duty fixed by law. Thus tort is quite
distinct from contract where the duty is fixed by parties themselves.

An important lacunae in the above definitions is that in tort the liability arises
from the ‘’breach of a duty’’, ie., a duty of the person liable. But in tort there are
cases where a person has not committed a breach of duty himself, yet he is held
liable. For example, vicarious liability cases where a ,aster is vicariously liable for
his servant’s tort.

 Unliquidated damages, i.e., damages which is unascertained and is at the discretion of the
court is mentioned as a remedy for a tort. However, unliquidated damage is not the only
remedy for a tort and that for some torts, it is not even the primary remedy. There are
other remedies also which have not been included in the above definitions, viz., self help,
injunction and action for specific restitution of property.

 Sir Frederick Pollock: Every tort is an act of omission not being merely the breach of
duty arising out of personal relation, or undertaken by contract.

(a) It may be an act which without lawful justification or excuse, is intended by

the agent to cause harm, and does cause the harm complained of.

(b) It may be an act itself contrary to law, or an omission of specific legal duty
which causes harm not intended by the person so acting or omitting.

(c) It may be an act violating an absolute right (especially rights of possession and
property) and treated as wrongful without regard to the actor’s intention or
knowledge.

(d) It may be an act or omission causing harm which the person so acting or
omitting did not intend to cause, but might and should with due diligence have
foreseen and prevented.

 Sir A. Underhill: A tort is an act or omission which independent of contract is

unauthorized by law and results either:

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 (a) in the infringement of some absolute right to which another is entitled, or

(b) in the infringement of some qualified right of another causing damage, or

(c) in the infringement of some public right resulting in some substantial and
particular damage to some person beyond that which is suffered by the public
largely, and gives rise to an action for damages at the suit of the injured party.

STATUTORY DEFINITION:

 As per section 2 (m) of Limitation Act, 1963 (of India) tort is “a civil wrong independent
of contract”.

SCOPE OF LAW OF TORTS

 1. Tort is a Civil Wrong (Injuria)

 2. Duty primarily fixed by law

 3. Duty is towards persons generally.

 4. Action of unliquidated damages.

1. Tort is a Civil Wrong: ‘Wrong’ means violation of a right or of law. It is any damage or
injury, contrary to right. It is an act causing injury to the other side. ’Civil Wrong’ or ‘Civil
Injuries’ means infringement of private or civil rights belonging to the individuals. It is to be
distinguished from a breach and violation of a public right or duty which affects the whole
community.

Tort belongs to the category of civil wrongs. The basic nature of civil wrong is different from a
criminal wrong. In the case of a civil wrong, the injured party, i.e., the plaintiff, institutes civil
proceedings against the wrongdoer i.e., the defendant. In such a case, the main remedy is
damages. The plaintiff is compensated by the defendant for the injury caused to him by the
defendant.

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2. Duty primarily fixed by law: Salmond says, “ A duty is, roughly speaking, an act which one
ought to do, the opposite of which would be wrong”. The word’duty’ is ordinarily used for two
distinct purposes to establish a relationship in law between the defendant and the plaintiff and to
state the standard of behavior which the law requires of the defendant in a question with the
plaintiff. A duty means that some person has to do something or abstain from doing something in
favour of another person.

The basic principle of tortious liability is that the duty from the very first must be fixed by the
law itself and not by an agreement of parties. Parties, therefore cannot create tortious liability by
contract. For example, a person is under a legal duty not to trespass on other’s land. The duty
has been primarily fixed by the law and has not been created through agreement between
persons. That is why, tort is quite distinct from contract and bailment where the duty is fixed by
the parties themselves.

The first noticeable point in Winfield’s definition is that tortuous liability arises only when there
is a breach of duty. There must be pre- existing legal duty of the defendant towards the plaintiff.
The question of tortious liability can arise only when there is the breach of this legal duty.

3. Duty is towards persons generally: The duty is tort is always general and it is an important
constituent of tort. If the duty is towards specific person(s), it cannot arise from tort. For
example, we have a duty not to defame others or not to trespass upon the land of others in
general.

4. Action of unliquidated damages: Damages is the most important remedy for a tort. After the
wrong has been committed, generally it is the money compensation which may satisfy the
injured party. After the commission of the wrong, it is generally not possible to undo the harm
which has already been caused. The only thing which can be done in such a case is to see what is
the money equivalent to the harm and the sum so arrived at is asked to be paid by the defendant
to the plaintiff. Damages are the remedy for tort. Damages in the case of tort are unliquidated
and not liquidated.

But it should be noted that there are other remedies besides unliquidated damages: (i) self help,
(ii) injunction, (iii) actions for specific restitution of property.

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 PURPOSE OR OBJECT OF LAW OF TORT

 The main object of the Law of Torts is to afford compensation to a person whose legally
protected interest i.e., rights has been violated by another person. It is served as a means
of shifting the loss, caused to a person by wrongful act of another person, from the
injured person to the person causing the injury.

 The purpose of the law of tort is not so much to punish the wrongdoers, but to adjust the
losses in modern living and to afford compensation for injuries sustained by one person
as a result of the conduct of another.

ESSENTIALS OF LAW OF TORTS

 1. There must be breach of some duty or a wrongful act or omission on the part of the
person.

 The wrong act or omission must result in legal damage to another.

 The wrongful act must be of such a nature as to give rise to a legal remedy in the form of
an action for damages.

1. Wrongful Act or Omission or Breach of Duty:

The first essential element in constituting a tort is that a person must have committed a
wrongful act or omission or breach of duty. A wrongful act or omission is said to have been
committed by a person who has not performed his duty like a reasonable and prudent person or
has broken it intentionally.

For instance, if a person drives his car at an excessive speed and with his rash and
negligent driving, injures any person on the road or keeps a dog on his land which escapes and
bites a person in the neighborhood, then such an act of the said person is a positive wrongful act
or omission and he can be held liable for this. If a person commits the act of trespass or publishes
a statement defaming another person, or wrongfully detains another person, he can be made
liable for trespass, defamation or false imprisonment as the case may be.

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 Similarly, where there is a legal duty to do some act and a person fails to perform that
duty, he can be made liable for such omission. For example, the supplier of food must supply the
food according to the standards prescribed by law. The Food Adulteration Act imposes certain
duties upon the suppliers and the manufacturers. If they fail to supply the good food fit for
human consumption, they will be held liable [Donoghue v. Stevenson.]

Industrialists should not pollute the environment by releasing the waste products from
their factories and should not cause injury and harm to the people and animals and plants. If any
industry wrongfully omits this duty, there arises tortious liability.

When a servant in the temple, who had right to get food offered to idol, failed to get food,
when the priest failed to offer the food to the idol, it was held that he was not under legal
obligation to give food to the servant of the temple and it was not a breach of legal duty but a
breach of religious duty.

For example, driving of a motor cycle on the wrong side is a breach of legal duty and is
not actionable in tort, unless somebody is injured.

2. Legal Damage:

Legal Damage is second important element or ingredient in constituting a tort. Damage

means the harm or loss suffered or presumed to be suffered by a person as a result of some
wrongful act done by another person. Hence, the sum of money which is awarded by the court to
compensate ‘injury’ is called ‘damages’. ‘Legal damage’ means an infringement of private legal
right.

It is for the plaintiff to prove that there has been legal demage caused to him due to the
wrongful act of the defendant. Even if, the plaintiff has not suffered any loss, still he can succeed
if his ‘private legal right’ is violated.

Private rights are those rights which vest in a person by virtue of law. For example, right
to reputation, right to property etc. If a person has a legal right, then, in law, others have legal
duty towards him, not to violate his legal right. So, whenever, a person’s legal right is infringed
or violated without lawful excuse, he has a right of action against the person who infringes or
violates it.

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 Public rights are those rights which belong in common to the members of the State
generally. For example, public peace. When a public right is violated by a person, State takes
action against the offender and the offender is punished. However, in cases of breach of public
right, a private action in tort can also be commences, if there is a special, peculiar and substantial
damage to the plaintiff.

3. Legal Remedy:

The third essential element for an action in tort is that the act complained of must give
rise to a legal remedy. In other words, there must be some legal remedy against a wrongful act.
The essential remedy for tort is an action for damages but there are other remedies also. For
example, injunction may be obtained in addition to damages in certain cases of wrongs. Only one
remedy for a tortious act is not the criteria. There may be two remedies for one wrongful act.

To sum up, we can say that “Tort= Wrongful Act + Legal Damage + Legal Remedy.”

Wrongful act signifies a breach of legal duty i.e., a person must commit an unauthorized
act or omission which is independent of contract. Legal damage signifies infringement of private
legal right of another person and legal remedy signifies that there must be altogether one of four
remedies recognized by law i.e., damages, injunction, specific restitution of property and self
help.

Maxims:

Damnum Sine Injuria

Damnum sine Injuria is a legal maxim which refers to as damages without injury or damages in
which there is no infringement of any legal right which are vested with the plaintiff. Since no
legal right has been infringed so no action lies in the cases of damnum sine injuria. The general
principle on which this maxim is based upon is that if one exercises his common or ordinary
rights, within reasonable limits, and without infringing other’s legal right; such an exercise does
not give rise to an action in tort in favour of that other person. Damages can be in any form either
in the form of any substantial harm or loss suffered from respect to the money, comfort, health,
etc.

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It is an implied principle in law that there are no remedies for any moral wrongs, unless and until
any legal right has been infringed. Even if the act or omission such done by the defendant was
intentional, the Court will not grant any damages to the plaintiff.

As was cited in the case of Mayor & Co. of Bradford vs. Pickles (1895) in which the corporation
of Bradford filed a suit against the defendant alleging that the act of defendant by digging a well
in the adjoining land owned by the defendant has cut the underground supply of water in the
corporation’s well hence causing them monetary losses since there was no adequate supply of
water to discharge for the people living under the jurisdiction of the corporation. It was held that
the defendant is not liable since they had not violated any legal right of the plaintiff.

In another case of Gloucester Grammar School in which a schoolmaster, set-up a rival school to
that of the plaintiff and since because of the competition the plaintiff had to reduce their fees
from 40 pence to 12 pence per quarter. Thus claimed for compensation from the defendants for
the losses suffered. It was held that the plaintiff had no remedy for the losses suffered, since the
act though morally wrong has not violated any legal right of the plaintiff.

The court presumes in cases where the legal right has been infringed that damages have to be
awarded, but in cases where no legal right has been infringed, the maxim Damnum sine Injuria
applies & no remedies are available for the same. So, it can be rightly said that an act which is
lawfully or legally done, without negligence, & in the exercise of a legal right, such damages as
comes to another thereby is damage without injury.

Injuria Sine Damnum

Injuria sine damno is a violation of a legal right without causing any harm, loss or damage to the
plaintiff and whenever any legal right is infringed, the person in whom the right is vested is
entitled to bring an action. Every person has an absolute right to his property, to the immunity of
his person, and to his liberty & infringement of this right is actionable per se. A person against
whom the legal right has been infringed has a cause of action.

For Example:- If a person is wrongfully detained against his will, he will have a claim for
substantial damages for wrongful imprisonment even if no consequential loss was suffered upon
the detention.

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As was cited in the case of Ashby Vs. White wherein the plaintiff was a qualified voter at the
parliamentary elections which were held at that point of time. The defendant, a returning officer
wrongfully refused to take the plaintiff’s vote. The plaintiff suffered no damage since the
candidate which he wished to vote already won the elections but still, the defendants were held
liable. It was concluded that damage is not merely pecuniary but injury imports a damage, so
when a man is hindered of his rights he is entitled to remedies.

In Bhim Singh v. State of J& K, the petitioner, an MLA of J & K Assembly was wrongfully
detained by the police while he was going to attend the assembly session. He was not produced
before the Magistrate within the requisite period. As a consequence of this, the member was
deprived of his constitutional right to attend the assembly session. There was violation of
fundamental right to personal liberty guaranteed under Article 21 of the Constitution. Exemplary
damages amounting to Rs 50,000 was awarded to him. Here, in this case though he has not
suffered any actual loss but his legal right was infringed so he was entitled to compensation.

Difference between Damnum Sine Injuria and Injuria Sine Damno

Damnum Sine Injuria Injuria sine Damnum

1. It is the losses suffered without the 1. It is an infringement of a legal right where
infringement of any legal right hence creating even if no loss has been suffered by the
no cause of action. plaintiff still creates cause of action.
2. No compensation in the form of damages is 2. Compensation in the form of damages is
awarded by the court. awarded by the court.
3. This maxim is for the moral wrongs which 3. This maxim is for the legal wrongs which
have no action in the eyes of the law. are actionable if the person’s legal right has
been violated.
4. The principle of this maxim is that a person 4. The principle of this maxim is that whenever
exercises in such a manner within reasonable there is an invasion of a legal right there
limits which does not ground action in tort creates a cause of action and the person whose
merely because it causes damages to other right is vested is entitled to bring an action.
people.
5. In this, the plaintiff suffers a loss but has 5. In this, the plaintiff suffers legal injury

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suffered no legal injury. doesn’t matter they have suffered any loss on
that account.
6. Damages without injury are not actionable 6. This is actionable since there is a violation
of a legal right.

Ubi Jus Ibi Remedium

Ubi Jus Ibi Remedium is said in Latin term which suggests ‘Where there’s a right, there’s a
remedy’. This means if there’s any violation of the right; the law provides a remedy to the
affected person. Rights and duties are correlated. Every right has the corresponding duty attached
to it, like a coin that has two sides- Rights and Duties. If the state gives the Right to life to a
citizen, it also constitutes the corresponding duty i.e. duty not to deprive others Right to life.
Therefore if a Right which is recognized by State is violated then the state provides a
remedy. The Legal Maxim Ubi Jus Ibi Remedium means that “Where there’s a right, there’s a
remedy”.

The fundamental elements of the maxim are ‘Jus’ and ‘remedium’. Jus means the legal authority
to do or to demand something; and remedium may be defined as the right of a person to approach
the Court of Law for the wrong done to him, or the means given by law, for the recovery or
assertion of a right. The principle means whenever one’s right is violated, the law provides
opportunities like to recover from the damage caused by the wrong.

For a remedy, there should be a breach of a legal right. And if there’s no legal remedy then there
exists a proof that there is no right. This means if a man has a right, the Law has to provide a
remedy in case of breach of that right. If there is no remedy, it shows us that there is no existence
of the legal right.

Essentials:

 This maxim is applicable only where the right in question is legal.

 The wrongful act must violate the legal right of a person; only then the cause of action
may arise.

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  In case, no legal injury is done to the person then the maxim 'damnum sine injuria' will be
applied.

Development of Ubi Jus Ibi Remedium:

The law of civil wrong is alleged to be the development of the maxim Ubi jus ibi remedium. The
Case Ashby v. White established for the first time the principle of ‘ubi jus ibi remedium’ and it
was laid down by Lord Holt C.J that “if the plaintiff has a right, he must of necessity has a means
to vindicate and maintain it, and a remedy if he is injured in the exercise of enjoyment of it, and
indeed it is a vain thing to imagine a right, without a remedy, for want of right and want of
remedy are reciprocal.

The maxim supplies legal remedy in case of violation of legal right. On the basis of maxim,
moral rights of the individuals were not enforced. Moreover, in its application to the law of torts,
this excludes the wrongs for which statutory penalty is proved e.g., law of crimes. The maxim
only means that legal wrong and legal remedy are corrective terms and it would be more
correctly stated, if it were reversed so as to read, “ where there is no legal remedy, there is no
legal wrong.”

In D.K. Basu v. State of West Bengal, this is one of the landmark cases. This case is related to
the cruel and inhumane condition of the detained persons. Mr. D.K.Basu who was the chairman
of legal aid services, West Bengal wrote a letter to Chief justice of India describing the death of a
person in police custody which was published in the newspapers namely, the India Express and
The Telegraph. Thereafter some guidelines regarding the arrested persons were issued by the
Supreme Court. The court further held that violence in police custody is the violation of legal
right of that person and the compensation in the form of remedy must be given in such cases.

In Bhim Singh v. State of Jammu & Kashmir, this case was regarding the wrongful detention of
a MLA of Jammu and Kashmir who was arrested by a police officer while he was in his way to
parliamentary assembly. He was detained and was not allowed to attend the parliamentary
session. Moreover, he was also not produced before the magistrate in time. There is a clear cut
violation of Article 21 of the Constitution of India. The Supreme Court held that the defendants
were responsible and awarded Rs.50,000 as compensation to the petitioner for the infringement
of his fundamental right.

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Sardar Amarjit Singh Kalra v. Promod Gupta & Ors., in this case the court recognized the
maxim ubi jus ibi remedium as fundamental principle of law. It was held by the Supreme Court
that it is the duty of courts to protect the rights of people and to grant reliefs to the aggrieved
party rather than denying it.

Where the statutory laws do not provide any remedy, the legal principle, 'where there is a right
there is a remedy' shall be applied (Shivkumar Chadha v. Municipal Corporation of Delhi).

Therefore, law has guaranteed us certain rights and privileges then, law also ensures certain
remedies for the protection of such rights. If there is the existence of legal right then there is
legal remedy also available. This doctrine of common law in England also establishes the fact
that there is remedy for each and every wrong.

Difference between Tort and Breach of Contract

Tort Breach of Contract

1. In tort, the duty is fixed by law itself. 1. In Contract, the duty is fixed by the parties
themselves.
2. Law of Tort is uncodified law. It is a judge 2. Law of Contract is codified law.
made law.
3. In tort, there is a duty towards persons 3. In contract, there is duty towards specific
generally. persons.
4. In tort, there is right in rem. 4. In contract, there is right in personam.
5. In case of tort, the suit is for unliquidated 5. In a breach of contract, the measure for
damages. damages is determined by the stipulation
between the parties or is fixed by law. The
action is therefore, for liquidated damages.
6. In tort, a person injured may be entitled for 6. In breach of contract, the party is entitled
such damages which he has not actually only for actual damages.
suffered.
7. In torts, there is no privity between parties. 7. In contract, there is privity between parties.
A third party can sue for tort even though there A third party to a contract cannot sue for
was no contract between the person causing breach of contract except in some exceptional

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 injury and the person injured. cases.
 8. A tort is inflicted against or without consent. 8. A contract is founded upon consent.
 9. In tort, damages can be both compensatory 9. In case of contract, the damages are
and exemplary.
compensatory and not punishing or exemplary.


Difference between Tort and Crime

Tort Crime
1. A tort is an infringement of private rights 1. A crime is an invasion of public rights or
belonging to an individual. duties affecting the whole society/community.
2. In tort the civil action is brought by the 2. In crime, the proceedings are conducted in
injured party himself. the name of the State.
3. In tort, the intention of the wrong-doer is of 3. In crime, the intention is of primary
secondary importance and in some cases, it is importance.
of no importance at all.
4. Tort is considered as a private wrong. 4. Crime is regarded as a public wrong.

5. In tort, the wrongdoer has to pay the 5. In crime, a wrongdoer is punished by the
damages to the injured party. State in the interest of the society.
6. Whatever amount paid for tortious acts in 6. The amount of the fine imposed in criminal
the form of compensation goes to the injured acts goes to the Government treasury.
person.
7. Most of the Law of Torts is judge- made- 7. All the crimes are defined and codified.
law. It is not codified.
8. The purpose of awarding compensation to 8. The purpose of the criminal law is to protect
the injured party is to make good the loss the society by preventing and deterring the
suffered by him. offender from committing further offences.

9. The nature of punishment is light, that too in 9. The nature of punishment is heavy and
the form of awarding damages. serious from death to fine as per severity of the
offence.

10. Mens rea has no place in tort. 10. Generally an act shall not be punished as a
crime, unless there is mens rea actually present
in the wrongdoer.

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11. Burden of proof lies on the complainant/ 11. Burden of proof lies on the State.
injured.
12. Tort is of recent origin. 12. Crime exists from ancient times.

IS IT LAW OF TORT OR LAW OF TORTS?

Law of Tort:

This theory has been propounded by Winfield. He is the main supporter of this theory.
According to him all the wrongful acts done against a person shall come under tort unless it has a
legal justification. Therefore all the wrongs done shall be a tortious act irrespective of whether it
comes under a specified tort. It does not need to fall under a specific name. This theory is a wider
concept as it tries to include all kinds of wrongs.

There are various other supporters of this theory such as:

Holt C.J favored Winfield’s theory by recognizing the principle ubi jus ibi remedium
which means where there is a right there is a remedy.

Pratt C.J., said that torts are indefinitely various, not limited or confined.

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.

According to Lord Macmillan “the common law is not proved powerless to attach new
liabilities and create new duties where experience has proved that it is desirable with reference to
the case Donoughe vs. Stevenson (1932) AC 595.

The Indian judiciary also supports the Winfield theory:

According to Justice Bhagwati “we have to evolve new principles and lay down new
norms which will adequately deal with new problems which arise in highly industrialized
economy. We cannot allow our judicial thinking to be constricted by reference to the law as it

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prevails in England….. We are certainly prepared to receive light from whatever source it comes
but we have to build our own jurisprudence.” (M.C Mehta vs. Union of India, 1987 (SCR) 1 819,
AIR 1987 965)

This case originated after the oleum gas leak from Shriram Food and Fertilisers ltd which
killed one person and injured a few persons. In this case the principle of absolute liability was
introduced.

This was an example that new torts could be introduced and that the Indian judicial
system supported the Winfield theory.

Law of Torts:

Salmond theory of torts/ Pigeon Hole Thoery: Salmond was the supporter of the law of
“torts”, according to him the liability under this law arises only when the wrong is covered under
one or other nominate torts. This theory is also known as Pigeon hole theory. In order to succeed
under this theory, the plaintiff should place the wrong under the already present torts.

Under this theory there is no general principle of liability but the plaintiff has to place the
wrongful act in any one of the pigeon holes i.e. a specified tort such as defamation, trespass etc.
only then can he claim any damages. If the plaintiff cannot place the wrongful act in any
particular pigeon hole then it means the defendant has not committed any tortious act.

This theory is a more narrow theory because in most cases the plaintiff maybe unable to
classify the wrong done against him into a specified tort. He may not be able to place the wrong
in any of the pigeon holes and this would make it easier for the defendant to escape from
liability.

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 he was a supporter of Salmond though according to him new torts
could be created provided that they were similar to the already existing ones.

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 Heuston is of the view that Salmond’s critics have misunderstood him.

Professor Glanville Williams wrote: To say that it 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 Salmonds’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 views does not appear to be correct as for example:

In Rylands vs. Fletcher, a new tort i.e., strict liability was created which was not substantially
similar to any existing tort.

CONCLUSION:

There are two theories to determine whether it is law of tort or law of torts one is the
Winfield’s theory and the other is Salmond’s theory also known as the pigeon hole theories.
From these two theories we can understand that the former is a broader concept while the latter is
a narrow concept. According to Winfield both the theories are correct however it depends on the
way we look at these theories. While one is a broader concept and new torts can be created the
other is a narrow concept with specified labeled torts and only those wrongful acts which come
under the labeled tort can be used by the plaintiff to claim damages. It depends on the person to
see which one is better. However Winfield’s theory is used because of its broader concept. Even
the Indian judicial system prefers the Winfield’s theory as they can create new torts which can be
seen in the case of absolute liability.

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