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Law of Torts


Submitted to Submitted by

Ms. Sumiti Ahuja Harshit Singh (A11911113183)

B.A LL.B (H)

Section B

Semester - 8

I would like to thank Ms. Sumiti Ahuja for allotting me this topic. This
topic motivated me to research on law of tort and theories involved in
this subject. This has enhanced my knowledge in the field of Law of

I am thankful to maam.

1. Introduction

2. Tort and Torts

(a) Law of Tort

(b) Law of Torts

(c) Pigeon Hole Theory

3. Criticism

4. Law of Tort in Indian Context

5. Conclusion

6. Bibliography

The term tort is the French equivalent of the English word wrong and of the Roman law term
delict. The word tort is derived from the Latin word Tortum which means twisted or crooked
or wrong and is opposite to the word rectum which means straight. Everyone is expected to
behave in an acceptable manner and when one deviates from this path into crooked ways he has
committed a tort. Hence tort is a conduct which is twisted or crooked and not normal. As a
technical term of English law, tort has acquired a special meaning as a genre of civil injury or
civil wrong. It was introduced into the English law by the Norman jurists.

Tort means a breach of some duty independent of contract giving rise to a civil cause of action
and for which compensation is recoverable. Various attempts have been made to define tort in a
universal manner but till now no universal definition is there. In general terms, a tort may be
defined as a civil wrong independent of contract for which the appropriate remedy is an action
for unliquidated damages. Some other definitions for tort are as following.

Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily fixed by law;
this duty is towards persons generally and its breach is redressible by an action for unliquidated

Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action for
unliquidated damages, and which is not exclusively the breach of a contract or the breach of a
trust or other mere equitable obligation.

Sir Frederick Pollock- Every tort is an act or omission (not being merely the breach of a duty
arising out of a personal relation, or undertaken by contract) which is related in one of the
following ways to harm (including reference with an absolute right, whether there be measurable
actual damage or not), suffered by a determinate person:-

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 in 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 violation the absolute right (especially rights of possession or property), and
treated as wrongful without regard to the actors intention or knowledge. This, as we have seen is
an artificial extension of the general conceptions which are common to English and Roman law.

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

e) It may, in special cases, consist merely in not avoiding or preventing harm which the party
was bound absolutely or within limits, to avoid or prevent.

Tort and Torts

Law of Tort

We have discussed the meaning and applicability of tort in the introduction part. But two theories
have exists in the field of tort. The theory of Law of Tort was primarily supported by Winfield.
According to him, all injuries done to another person are torts, unless there is some justification
recognized by law. Thus according to this theory tort consists not merely of those torts which
have acquired specific names but also included the wider principle that all unjustifiable harm is
tortuous. This enables the courts to create new torts. Winfield while supporting this theory comes
to the conclusion that law of tort is growing and from time to time courts have created new torts.
This theory has been reiterated in various judicial decisions. The following cases support
Winfields view of law of tort.

Ashby v. White

In this case the plaintiff was denied his right to vote by a constable. The defendant on the other
hand claimed that the plaintiff was not a settled inhabitant. Lord Holt CJ ruled that A man shall
have an action against another for riding over his ground, though it do him no damage; for it is
an invasion of his property, and the other has no right to come there. And in these cases the
action is brought vi et armis. But for invasion of another's franchise, trespass vi et armis does
not lie, but an action of trespass on the case; as where a man has retorna brevium, he shall have
an action against anyone who enters and invades his franchise, though he lose nothing by it. So
here in the principal case, the plaintiff is obstructed of his right, and shall therefore have his
action. And it is no objection to say, that it will occasion multiplicity of actions; for if men will
multiply injuries, actions must be multiplied too; for every man that is injured ought to have his

With these words Lord Holt CJ identified Winfields theory of Law of Tort. His statement that if
man will multiply injuries, actions must be multiplied too; for every man who is injured ought to
have recompense supports Winfields viewpoint.

Donoghue v. Stevenson
In this case plaintiff visited Paisley where she went to the Wellmeadow Caf. A friend who was
with her ordered a pear and ice for herself and a Scotsman ice cream float (a mix of ice cream
and ginger beer) for Donoghue. The owner of the caf brought over a tumbler of ice cream and
poured ginger beer on it from a brown and opaque bottle labeled "D. Stevenson, Glen Lane,
Paisley". Donoghue drank some of the ice cream float. However, when Donoghue's friend
poured the remaining ginger beer into the tumbler, a decomposed snail also floated out of the
bottle. Donoghue claimed that she felt ill from this sight, complaining of abdominal pain. She
later claimed that she consulted a doctor on 29 August and was admitted to Glasgow Royal
Infirmary for "emergency treatment" on 16 September where she was subsequently diagnosed
with severe gastroenteritis and shock.

In this Lord Macmillan acknowledged the fact common law is not powerless to attach new
liabilities and duties. As per the requirements of the facts of the case new liabilities are imposed
and past experiences support such additions. This acknowledgement by Lord Macmillan
reinforces Theory of Law of Tort allowing tort to be an open domain of law allowing addition of
new tortuous liabilities.

Law of Torts
Sir John William Salmond preferred an alternate approach towards law of torts. According to
Salmond there is no law of tort, but there is law of torts. 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 labeled tort, he will succeed. This theory is also known as Pigeon-hole theory. If
there is no pigeon-hole in which the plaintiffs case could fit in, the defendant has committed no
tort. 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.

Pigeon Hole Theory

Number of torts is specific or definite beyond which liability in tort does not arise. In other
words it is the, Law of Torts. The pigeon hole theory refers to Salmonds theory that any
harm in order to constitute a legal injury must fit into some pre-determined spaces or pigeon
holes i.e. the number of torts is specific or definite beyond which liability in tort does not arise
and there is no further space in which the next tort may fit. This is in direct contrast with
Winfields theory, according to whom all civil wrongs are actionable per se. According to this
school of thought there are specific well defined wrongs or there is only a law of torts and no
general law of tort. It is meant that there is a list of acts and omissions, in certain circumstances
which are actionable in a court of law. A person is entitled to file a suit against only that harm
which comes within one of these categories. As there are specific crimes like theft , forgery ,
dacoity , murder and etc. , this theory says that likewise there are certain specific torts and all the
other wrongs fall outside of this purview .The law of torts consists of a set of a neat of pigeon
holes , each containing a specific labeled tort . When the defendants wrong does not fit in any of
these pigeon holes he is said to have committed no tort. Sir Frederick Pollock strongly supported
this theory of pigeon hole.

In the old English case of Allen v. Flood, appreciating this theory of pigeon hole, Court held that
every plaintiff must bring his case under one or the other of the well recognized heads of torts

Professor Dr. Jenks favored Salmonds theory. He was of the view that Salmonds theory does
not imply that courts are incapable of creating new tort. According to him, the court can create
new torts but such new torts cannot be created unless they are substantially similar to those
which are already in existence.

Criticism of Pigeon Hole Theory

The theory of pigeon hole has been criticized by the latter writers. According to the critics if this
theory is accepted then the new categories of liability in tort would be closed. The Courts would
be prevented from recognizing any new torts. The theory limits the working of the judiciary and
transfers extra burden on the legislature. Tort is a civil wrong and every case has different set of
facts depending on which issues are identified. In cases of tort with every new case a new
liability might arise which might be in consonance with the laws of natural justice. The
legislature cannot foresee facts of each and every plausible case hence it is not possible to make
specific provisions for law of tort. Law of tort is closely linked with the principles natural justice
and no one can limit its ambit. It is in the interest of the republic to allow judicial bodies to
determine the scope of law of torts. Basic elements of torts can be used as a basis for this
determination but it should not hinder evolution of new tortuous liabilities. One should not
neglect the basic essence of law i.e. Law is a set of rules made by the society for its preservation
hence no one can stop growth of a society and laws connected to it. The following cases
corroborates this criticism

Rylands v. Fletcher
In 1860, Thomas Fletcher paid contractors to build a reservoir on his land, intending that it
should supply the Ainsworth Mill with water. Fletcher played no active role in the construction,
instead contracting out to a competent engineer. While building it, the contractors discovered a
series of old coal shafts and passages under the land filled loosely with soil and debris, which
joined up with John Rylands's adjoining mine. Rather than blocking these shafts up, the
contractors left them. On 11 December 1860, shortly after being filled for the first time,
Fletcher's reservoir burst and flooded Rylands's mine, the Red House Colliery, causing 937
worth of damage. Fletcher pumped the water out, but on 17 April 1861 his pump burst, and the
mine again began to flood. At this point a mines inspector was brought in, and the sunken coal
shafts were discovered. Rylands and the owner, Jehu Horrocks, brought a claim against Fletcher
on 4 November 1861. The House of Lords acknowledged the claim and the defendant was liable
for this tortuous act. It is to be noted that in this case strict liability was created which was not
substantially similar to any existing tort. The judgment indicates towards unlimited scope of law
of tort and how new tort can be created to indemnify the aggrieved party.

Rookes v. Barnard

Douglas Rookes was a draughtsman, employed by British Overseas Airways Corporation

(BOAC). He resigned from his union, the Association of Engineering and Shipbuilding
Draughtsman (AESD), after a disagreement. BOAC and AESD had a closed shop agreement,
and AESD threatened a strike unless Rookes resigned also from his job or was fired. BOAC
suspended Rookes and, after some months, dismissed him with one week's salary in lieu of
proper notice. Rookes sued the union officials, including Mr. Barnard, the branch chairman (also
the divisional organizer Mr. Silverthorne and the shop steward Mr. Fistal). Rookes said that he
was the victim of a tortuous intimidation that had used unlawful means to induce BOAC to
terminate his contract. The strike was alleged to be the unlawful means. The House of Lords
reversed the court of appeal, finding in favor of Rookes and against the union. Citing a case from
the eighteenth century called Tarelton v. M'Gawley (1793) Peake 270 where a ship fired a
cannonball across the bows of another, Lord Reid said the union was guilty of the tort of
intimidation. It was unlawful intimidation 'to use a threat to break their contracts with their
employer as a weapon to make him do something which he was legally entitled to do but which
they knew would cause loss to the plaintiff. Here also a new tort i.e. intimidation was created.

Law of Tort in Indian Context

Tort law in India is a relatively new common law development supplemented by codifying
statutes including statutes governing damages. While India generally follows the UK approach,
there are certain differences which may indicate judicial activism, hence creating controversy.
Tort is breach of some duty independent of contract which has caused damage to the plaintiff
giving rise to civil cause of action and for which remedy is available. If there is no remedy it
cannot be called a tort because the essence of tort is to give remedy to the person who has
suffered injury.

The Gujarat High Court reiterated the theory of law of tort in the case of Ushaben Tribedi &
Another v. Bhagyalaxmi Chitra Mondir & others. In this case the plaintiffs sued for a
permanent injunction against the defendants to restrain them from exhibiting the film named Jai
Santoshi Maa. It was contended that the film hurt the religious feelings of the plaintiff in so far
as Goddesses Saraswati, Laxmi and Parvati were depicted as jealous and were ridiculed. It was
observed that hurt to religious feelings had not been recognized as a legal wrong. Moreover, no
person has a legal right to enforce his religious views on another or to restrain another from
doing a lawful act, merely because it did not fit in with the tenets of his particular religion. Since
there was no violation of a legal right, request of injunction was rejected. But in its judgment the
Honorable Gujarat High Court observed that it is true that tort is not defined. Torts are infinitely
various and not limited and confined. The novelty of claim may arise and Court may recognize a
novel claim. India is a country where various religions are followed, and this has to be kept in
mind while evolving a new tort.

The aim of any decent tort legal system is to ensure a certain degree of fair stability in the
society, which could not be achieved if people were free to assault or beat each other, or falsely
or wrongfully imprison and confine each other without justifiable cause, or steal their chattels, or
trespass their land, send fumes to their household or publish in the eyes of third parties
something defamatory and hence unacceptable; whether a particular tort fits into the Salmonds
pigeon-hole theory or is left to the Winfields Criterion of Tort-theory. The tort of negligence
may be described as a two-in one tort. Thus, by recognizing new torts the courts have widened
the scope and ambit of tortuous liability exponentially. A reference may be made to Holt, J; who
has observed: If men multiply, injuries, actions must be multiplied too, for every man who is
injured ought to have recompense. This observation seems to be more correct and clear in letter;
and hence whether a particular tort fits into the pigeon-hole theory or not, should not be material.
However, the subtle distinction between the two theories is not immaterial too. In summary, a
historical view of the tort reveals its own flexible and remedial nature. This was seen in the
genesis of the tort to provide relief for the procedural and substantive disadvantages faced by
plaintiffs in the actions of trespass to goods. Thus, flexible and remedial nature of the tort is of
vital importance, and the discussion on the same is warranted and is not futile. I am in favor of
the view that, If men multiply injuries, actions must be multiplied too, whether a particular tort
fits into the Pigeon-hole theory or not.




Journal of Comparative Legislation and International Law Vol. 14, No. 2, 1932