Is it the law of Tort or Law of Torts ?

A question is generally asked whether there is any general principle of liability in tort. The question is often posed in the form, “Is there a law of tort or only a law of torts?” The two views are set out in the question that SALMOND asked: There are the following two
competing theories in this regard:

(1) A law of Torts: The chief supporters of this theory were Sir John Salmond and Dr. Jenks. Salmond wrote: “Just as Criminal law of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Neither in one case nor in the other is there any general principle of liability.”

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Salmond had explained his view by saying that there was no English Law of Tort; there was merely law of torts, i.e., a list of acts and omissions which in certain conditions were actionable. Only that harm which falls within one of the specified categories of wrong doings, entitle the person aggrieved to a legal remedy. Every plaintiff must brting his case under one of the recognised heads of tort. Until comparatively recent times the question which arose when a plaintiff used a defendant for some alleged injury was not. “Has the defendant broken some duty which he owed to the plaintiff?” But “Has the plaintiff any form of action against the defendant and, if so, what form ?” If he could not fit his claim into one of the recognised forms of action, he had no legal grievance.

Salmond has supported his view by citation of several cases in which the plaintiff suffered manifest injury and yet was unable to recover any damages in an action in tort, cases in which there was damnum sine injuria.

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Similarly Professor Jenks admitted that new torts can be and have been created; but he contended that this is perfectly consistent with the second theory because new torts cannot come into being unless the courts regard them as substantially similar to torts which they have already recognised. In his view, these new torts do not owe their origin to any general principle that all unjustifiable harm is tortious.

In Baboo Thakur v. Subanshi, it was observed by the Court that no right of action for damage at large lies at law. It is necessary for the plaintiff in every case to bring himself within the four corners of some recognised head of tort. Judges cannot legislate and cannot invent new heads of injury. That is the province of legislature.

Criticism of Salmond’s theory: The following objections may be made against this theory:

(i) The cases of damnum sine injuria quoted by Sir John Dalmond 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 any one who has been harmed by his neighbour can go into a law court within the confident expectation of being accorded a remedy. He will recover nothing if he alleges a specific tort and fails to prove some essential ingredients in it, e.g., if he sues for the tort of negligence and cannot prove a duty to take care on the part of the defendant. Nor can he recover anything if he has under-rated the competing legal interest of the defendant, eg., if the plaintiff has been injured by the defendant’s fair competition in trade, or by the defendant merely using his own land in a manner which the law considers unobjectionable. All the cases cited by Sir John Salmond fall under one or the other of these categories.

(ii) While there is some force in Dr. Jenk’s criticism it seems to be scarcely consistent with facts. It is not really true that all the new, torts known to us are substantially similar to torts which were already in existence. Where is the ‘substantial similarity’ between deceit of the thirteenth century and the ‘deceit’ which become a tort in 1789? or between the old liability for cattle trespass and the enormous extension which it received in the rule in Rylands v. Fletcher? To what tort is the tort of negligence ‘substantially’ similar? Again, conspiracy as a tort has far wider signification then the old combination to abuse legal procedure which was redressed by the writ of conspiracy so far back as Edward I’s reign? The case of Rookers v. Barnard, has apparently established a new tort called intimidation.

(iii) “The Common Law has not proved powerless to attach new liabilities. and create new duties where experience has proved that it is “desirable” (Per Lord Macmillan in Dinoghue v. Stevanson.) There is a cause of action at Common Law whether there is negligence causing damage in circumstances in which a duty is owed to plaintiff to take care and it is for Courts to say when there is a duty to take care. The avenue to the development of the law is the action on the case for negligence. The Courts have complete power to determine whether a duty of care is in the circumstances of the case owed by the defendant to the plaintiffs. “The categories of negligence are never closed”.

(2) A law of Tort: Winfield is the chief supporter of this theory. He says “all injuries done to another person are torts, unless there is some justification recognised by law”. Thus according to this theory tort consists not merely of all those torts which have acquired specific names but also includes the wider principle that all unjustifiable harm is tortious. This enables the courts to create new torts. Winfield while supporting his views comes to the conclusion that law of torts is growing and from time to time courts have created new torts which were sometime regarded innominate torts, concerted behind the shelter of action upon the case now prior nominate tort, e.g., unlawful enticing away a wife, from her husband, the common tort of enticing away a husband from his wife deceit strict liability rule. There does not seem, therefore, a respectable body of opinion and practice in favour of the view that the law of tort is based upon a general principle that all harm to another person is presumptively unlawful. At any rate it is clear from these and other instances that the law of tort is steadily expanding and that the idea of its being clothed, cabined and confined in a set of pigeon holes is untenable.

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 wilfully and intentionally without a just cause of excuse and in 1889 he had stated much the same thing as current law in a passage which earned the approval of Holmes, J., on the other side of the Atlantic. These judicial opinions had the consistent and powerful support of the Late Sir Frederick Pollock in his book on the law of Torts and in his view this theory is now generally accepted.

The rule of strict liability for escape of noxious things from one’s land was laid down in 1868 in Rylands v. Fletcher. Therefore, Winfield says, “At any rate it is clear from these and other instances, that the law of tort is steadily expanding and that the idea of its being in a set of pigeon-holes seems to be untenable”.

More or less Indian Judiciary has also shown a favour to this theory. In the words of Bhagwati, C.J.: “We have to evolve new priniciples and lay down new norms which will adequately deal with new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England… we are certainly prepared to receive light from whatever source it comes but we have to build our own Jurisprudence. In the same case the Court established the concept of “Absolute liability” in place of strict liability.

If we concentrate attention on the law of Tort at this moment entirely excluding the development of the law, past and future then it corresponds to Salmond’s theory. If we take the wider view that the law of Tort has grown or centuries and is still growing, then Winfield’s theory seems to be at the back of it. In Jay Laxmi Salt works v. State of Gujarat, Sahai, J. observed: “Truly speaking, the entire law of Torts is founded on morality that no one has a right to injure or harm another intentionally or even innocently. Therefore, it would be primitive to class strictly or close finally the ever expanding and growing horizon of tortious liability.” It is the difference between treating a tree as inanimate for the practical purposes of the moment and realising that it is animate because we know that it has grown and is still growing. The caution and slowness which usually mark the creating of new rules by the Judges tend to mask the fact that they have been created; for they have often come into come into existence only by a series of analogical extension spread over a long period of time. To vary the metaphor, the process has resembled the sluggish movement of the glacier rather than catastrophic change of the avalanche. But once when a new tort has come into being, it might fairly seem to have done so, if the whole history of its development is taken into account in virtue of the principle that unjustifiable harm is tortious.


The safest conclusion seems to be the one reached by Dr. W.T.S. Stallybrass, the learned editor of Salmond’s ‘Law of Torts’. He says that “although we have not yet descovered any general principle of liability, the Courts, where they are not fettered by any precedent, today have a bias towards holding that, where one man has intentionally or carelessly caused damage to another, he shall recompense him. In consequence as the law develops, we are moving in the direction of a general principle of tortious liability”. In an Indian decision in Lal Punnalal v. Kasturichand Ramji. It was pointed out that there is nothing like exhaustive classification of torts beyond which courts should not proceed that new invasion of rights devised by human ingenuity might give rise to new classes of tort and in that way malicious house search may constitute such a new tort.

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

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