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Law of Tort or Law of Torts


Authored by - Aman Porwal

Keywords - Tort, Torts, Law of Tort, Law of Torts, Sir Frederick Pollock, Salmond, Pigeon hole theory.


Abstract


When one learns about Tort, one of the prominent questions that arise is whether its the Law of Tort or Law of Torts? This article seeks to talk about the various interpretations, made by different jurists and judges which bifurcate both the theories in their own sense.


Introduction


Law of Tort and Law of Torts are two separate theories but have the same sense, both theories distinct from each other as per the interpretation made by jurists. From time to time, both theories have got different supporters and opposers as well. According to one theory, a basic principle applies that all wrong are actionable as tort unless there is any legal justification, and the other theory says that there is no general principle of liability as such but there is a definite number of tort which include defamation, negligence, trespass, etc. Another theory also says that there is no remedy for the plaintiff unless the case is in the virtue of any of the heads of tort.


Law of Tort


Sir Frederick Pollock is the founder of the theory; all injuries done to another person are torts unless there is some justification propounded by law. This theory in 1887 focuses on the wider aspect. This theory given by sir Frederick Pollock defines that all torts are covered under the same umbrella. This was also supported by Winfield. It created a passage to find new torts and recognize them, depending upon the circumstances as needed from time to time. Winfield also concluded that the Law of Tort is still growing and the Judiciary has created some new torts as well.


In Ashby v. White[1], Justice Holt mentioned the maxim Ubi jus ibi remediumi.e. where there is a right, there is a remedy. If a man with multiple injuries then action must be multiple too.

In Chapman v. Pickersgill[2], Judge said that torts are infinitely various, not limited or confined. In Donoghue v. Stevenson[3], Lord Macmillan declared that the common law is not proved powerless to attach new liabilities and create new duties where experience has proved that it is desirable. M.C. Mehta v. Union of India[4], Chief Justice Bhagwati in this same case leads the principle of absolute liability in place of strict liability. This theory was given by Winfield by marking some words that the evolution of new principles lay down new norms, which adequately deal with new problems that arise in a highly industrialized economy. Justice Bhagwati also added that we have to write our own jurisprudence.


Law of Torts


Salmond supported the second theory which says that there is no Law of Tort but there is the Law of Torts, which means that tort can not be defined as one. Each particular tort is different, every tort has its special identity and that group is known as the Law of Torts. According to Salmond tort is“a neat a set of pigeon-hole each containing a specially labeled tort”. Salmond also claimed that just as the criminal law consists of a body of rules establishing specific offenses, so do the laws of torts comprise of a body of rules establishing specific injuries. According to this theory, liability can occur only when the wrong is covered by anyone of the heads of torts. Professor, Dr. Jinks supported this theory with disagreeing that Courts can make new Tort. Heuston also supported Salmond by saying that his critics misunderstood him. Salmond defined the theory of the Law of Torts as criminal law. As criminal-law consists of a body of rules establishing only specific offenses, just like the law of Tort consists of a body of rules establishing only specific injuries.


In Ryland v. Fletcher[5], A new tort of strict liability was created which is not similar to the earlier torts. In Bollinger v. Costa Brava Wine Co. Ltd.[6], Justice Danckwerts said that the ‘substance was that before a person can recover for loss which he suffered from another person’s actions, it must be shown that his case falls within the class of actionable wrongs.’

Law of Tort and Law of Torts


The Law of Tort and Law of Torts both have their pros and cons. On one hand, the Law of Tort defines and covers the whole tort. Instead, it has a wider concept that there are no specifics to this theory. The Law of Torts talks on point and sticks to the tort which is specified but on the other hand, it narrows the scope of new tort or court to establish new tort. Both have their support and criticism at the same time.

Conclusion


The Law of Tort or Law of Torts is a significant question that arises when a person talks about Tort. Law of Tort, which was propounded by Sir Frederick Pollockwere supported by many jurists and interpreted in many cases by respected judges. Salmond defined a new theory which is termed as the Pigeon Hole theory of the Law of Torts. He received major criticism and backlash from jurists and academic scholars. Over time, he received less support as it narrowed down the scope of the Law of Tort. However, a few jurists have also made statements that the theory given by Salmond is misinterpreted. The Law of Tort and Law of Torts both have their respective points and interpretations made from time to time. This leads to how one can understand the meaning of tort in respect of both the theories.


[1] (1703), 2Ld. Rayl. 938 [2] (1762) 2 Wils 145 [3] (1932) AC 595 [4] AIR 1987 SC 1086 [5] (1868) LR 3 HL 330 [6] (1960) ch.262 at 283

Reference


[1]http://www.legalserviceindia.com/legal/article-396-is-it-law-of-tort-or-law-of-torts.html#:~:text=It%20Is%20Law%20of%20Torts,one%20or%20other%20nominate%20torts.

[2] https://www.legalbites.in/pigeon-hole-theory/

[3]http://www.legalservicesindia.com/article/1716/Pigeon-Hole-Theory:-Aspects-of-Criticism.html#:~:text=In%20Bollinger%20v.&text=of%20actionable%20wrongs.-,',or%20the%20other%20nominate%20torts.&text=According%20to%20Salmond%20just%20as,of%20rules%20establishing%20specific%20injuries.


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