Law of Tort or Law of Torts: Winfield's Theory, Salmond's Pigeon Hole Theory, and Which of Them Indian Law Has Followed

The question is whether the subject has a general principle at its centre or is merely a list. Winfield held that there is a law of tort in the singular: all harm is tortious unless there is some justification recognised by law, so the principle is wide and the defences narrow it. Salmond held that there is a law of torts in the plural: liability arises only where the wrong falls within one of the recognised heads, and if the plaintiff's complaint fits none of them he has no action, however badly he has been treated. That is the pigeon hole theory. The argument is not merely academic: it decides whether a court faced with a novel wrong may create a remedy, and Indian courts have answered that question in the affirmative more than once.

The two theories set against each other, and the cases each side relies on

1. Salmond's Theory: The Law of Torts

• The proposition. Salmond asked whether the law of torts is a body of coherent principle or a mere collection of rules, and answered that it is the second.
• The analogy is with criminal law. Just as the criminal law consists of a list of defined offences, the law of torts consists of a list of defined wrongs. The plaintiff must place his case within one of them.
• Hence the pigeon holes. Each recognised tort is a compartment: trespass, nuisance, negligence, defamation, deceit, conversion, malicious prosecution, and the rest. A wrong that fits no compartment is not a tort.
• Salmond did not say the list was closed forever. He accepted that the courts may create new pigeon holes, and that the number has grown over time. His point was that until a new one is created there is no liability.
• The strength of the theory is descriptive. It is an accurate account of how a case is actually pleaded and decided. A plaint that does not name a recognised tort will not survive.
• The supporting evidence is the settled refusals. The common law has declined to recognise a general tort of unfair competition, and declined for a long time to recognise invasion of privacy as a tort at all, notwithstanding that real harm was being done in both classes of case.

2. Winfield's Theory: The Law of Tort

• The proposition. All injuries done to another person are torts unless there is some justification recognised by law. The general principle comes first, and the defences and immunities cut it down.
• The image is the reverse of Salmond's. Instead of a set of small compartments, there is one wide field with fences across parts of it.
• It explains the growth of the subject. If a general principle exists, a court meeting a novel wrong is not creating law out of nothing; it is applying a principle that was always there.
• The supporting cases are the great extensions. Ashby v. White (1703), where the action lay although no existing form fitted comfortably; Donoghue v. Stevenson [1932] AC 562, where the duty of care was stated as a general principle; Rookes v. Barnard [1964] AC 1129, where the categories of exemplary damages were restated.
• Winfield accepted the force of the objection. He agreed that no court would award damages merely because harm had been done, and treated his proposition as a statement of the direction in which the law moves rather than a rule a plaintiff could plead.
• The weakness is that it states a tendency. A plaintiff cannot go into court and say that he was harmed and that the defendant must therefore justify himself.

3. The Two Compared

4. The Reconciliation

1. The two theories are not answering quite the same question. Salmond asks what a plaintiff must plead today; Winfield asks what the subject is, and where it is going.

2. Both are right from their own standpoint. At any given moment the law consists of the recognised heads, so Salmond is correct as a description. Over time those heads have multiplied, and they have multiplied because the courts were working with a principle rather than a closed list, so Winfield is correct as an account of the process.

3. The image most often used is that Winfield describes the tree and Salmond describes the branches. Neither exists without the other.

4. The practical answer is Salmond's and the historical answer is Winfield's. A junior advocate drafting a plaint proceeds on Salmond's theory; a court asked to extend the law proceeds on Winfield's.

5. The real question is who may add a pigeon hole, and on that both writers agree that it is the courts. The disagreement is only about whether the court is discovering the principle or making a new rule.

5. Which Theory Has Indian Law Followed?

• In form, Salmond's. Indian pleadings name recognised torts, Indian textbooks are arranged by them, and an Indian court will ask which tort is alleged.
• In substance, Winfield's, and emphatically so. Indian courts have twice created liability that no existing pigeon hole contained.
• Absolute liability is the first instance. In M.C. Mehta v. Union of India, (1987) 1 SCC 395, the Supreme Court expressly declined to be bound by the nineteenth century rule in Rylands v. Fletcher and the exceptions attached to it, and laid down a new and stricter rule for enterprises engaged in hazardous activities.
• The constitutional tort is the second. In Rudul Sah v. State of Bihar, (1983) 4 SCC 141 and Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, the Court awarded compensation for the violation of a fundamental right in a writ petition, creating a public law remedy that had no counterpart in the received common law.
• And the Supreme Court has said as much in terms. Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1, observes that in a developed or developing society the concept of duty keeps on changing, and that the law of torts, and negligence in particular, is consistently influenced and transformed by social, economic and political development. That is Winfield's position stated by a court.

6. The Decision That Best Illustrates the Argument

• The case is Winfield's strongest evidence. On Salmond's theory there was no pigeon hole for the consumer against the manufacturer, and the plaintiff should have lost.
• Lord Buckmaster's dissent is Salmond's. He held that the authorities established no such duty, that the two recognised exceptions were exhaustive, and that the majority was making new law.
• Both views were argued in the same case, which is why it is the standard illustration of the whole debate.

7. Why the Argument Still Matters

8. The Position Stated Shortly

1. The question is whether the subject rests on a general principle or on a closed list of recognised wrongs.

2. Winfield held that all harm is tortious unless there is some justification recognised by law, which is the law of tort in the singular.

3. Salmond held that liability arises only under a specified head, which is the law of torts in the plural, and this is the pigeon hole theory.

4. Salmond drew the analogy with criminal law: as there is a list of offences, so there is a list of wrongs.

5. He accepted that courts may create new pigeon holes, but said that until they do there is no liability.

6. Winfield accepted that no court awards damages merely because harm has been done, and treated his proposition as a statement of tendency.

7. The two are usually reconciled as the same law seen from different standpoints, Salmond describing how a case is pleaded and Winfield how the subject grows.

8. Donoghue v. Stevenson is the standard illustration, the majority applying a general principle and Lord Buckmaster dissenting on the footing that the list was closed.

9. Indian law follows Salmond in form and Winfield in substance.

10. M.C. Mehta, Rudul Sah and Nilabati Behera each created liability that no existing head contained, and Jay Laxmi Salt Works states the expansive position in terms.