• Legis Scriptor

Pigeon Hole Theory

Authored By- Ekta Choudhary

Keywords: Law of Torts, Pigeon Hole Theory, Prima Facie, Offence, etc.


The “Pigeon Hole Theory- Salmond’s Theory of Law of Torts” is an attempt to analyze one of the foundational theories in torts i.e. Pigeon hole theory proposed by Salmond. It further deals with the justifications and criticisms of this theory and finally established its connection with the Indian Jurisprudence of torts.

Pigeon Hole theory is one of the very profound theories in the field of law especially, in the law of torts. This theory is given by Salmond. There were many different theories regarding tortuous liability, different people have penned down different opinions.


Foundational Theory

There are two major theories which are based on the basic principle of liability in the law of tort or torts:

• Wider and narrower theory: Under this theory, all the wrongs that are committed by one party to another are considered to fall under the law of tort without any proper and legal justification.

• Pigeon Hole theory: Many such torts are present which does not fall under the liability of torts.

Pigeon Hole Theory

According to Salmond, if one person commits any wrong and that wrong can be placed in a pigeon hole or, he opines that there is no general principle, and if the plaintiff can by any mean put that wrong in the pigeon-hole, which has all the labeled torts, then the plaintiff could succeed.

He also states that the way criminal law has certain offenses that are listed; similarly torts law should also have certain injuries, which are legally verified and justified. There is no general principle in case of torts neither in one or another case.

According to Salmond

There are only certain well-defined wrongs that are to be listed as torts & are confined in a small box called Pigeon Hole. He is against the idea of generalizing tort as the law of tort. He further states that any wrong which falls under the well-constructed definition of torts only for those wrongs, the remedy will be available. For more significantly explaining the theory, he compared torts with pigeon hole, where each wrong is mentioned under smaller holes such as Negligence, Assault, Battery, Deceit, Slander, and if any wrong does not fit under these holes then those are not torts.

Many people say that confining this law of torts, when it is expanding at an exponential rate is not just.

Case Law

'Donoghue v. Stevenson', a snail was found at the bottom of the ginger bottle and a complaint was lodged against the seller. However, since the injury could not be foreseen, so the owner was not held liable, instead the manufacturer was made liable for the negligence.[1]

In defence, to the above statement, Salmond states that just as criminal law has certain listed and well-defined offences similarly, the law of tort also has certain defined 'injuries', there is no justified principle either in one, or another case. Salmond encouraged the concept of 'law of torts' rather than 'law of tort'.

Supporters of this Theory

Salmond’s theory was favored by Jenks who said that Salmond did not restrict the court to create new torts; every new wrong created by the court should have qualities similar to already existing torts and must fall under the definition setup to be called torts. Salmond’s Editor has pointed out that all the critics of this theory have not understood and Salmond being misunderstood, as he did not ask the court to stop or did not closed the pigeon’s hole for further upcoming wrongs.

Criticism of theory

As this theory has already been criticized, there are still many mindful people and they are still questioning the future development in the field of law.

Winfield theory

According to the theory of torts, as given by Winfield, there is no division in law of torts every action. In other words, every word not only those which are specified but, also, those which are included are termed under the law of torts. Winfield has developed this and compared it with the tree which has several branches and everything is covered under it.

It is also imagined that society develops at an exponential rate, and the crime is increasing day by day. A very famous case in Mexico called Schmitz V. Smentowsk[2] that tort is created prima facie as a remedy.

The Prima Facie torts as prescribed by courts are:-

● The intention of injuring the plaintiff

● None availability of justification

● Injury to the plaintiff

● Defendant does an intentional act

These are also called the general principles of torts and these are the conditions which when qualified; the plaintiff can file a prima facie complain against any tort being committed. There exists no hard and fast rule that every case get fits under the pigeon hole.

Reception of Law of Torts in India

Winfield proposes that "every injury is a tort unless justified", whereas Salmond said that "no injury can be said to be tort until unless they satisfy the condition of Pigeon Hole". That’s why the book explaining this concept of tort written by Winfield is called ‘law of tort’, whereas book by Salmond is called ‘law of torts’.

The concept of “law of torts” has emerged in England. The main aim of this law is to provide a remedy to the person whose rights have been infringed. It is also the second hand of criminal justice by awarding exemplary damages. This concept has been a famous and secure place in the United States and the United Kingdom and many different countries. But still, it is a growing branch, if the tree is developing in India. This tort is active in litigation, Judiciary, and people.

Case Law

Lala Punnalal v. Kasthurichand Ramaji, it had been observed that there's nothing like a specific classification of torts beyond which courts shouldn't proceed, that new invasion of rights devised by human ingenuity might cause to new classes of torts. Even the recent decisions of competent courts give the impression that the courts have preferred to follow the first theory of liability. Thus, it's a matter of interpretation of courts so on select between the two theories.[3]


However, Winfield made clear that he's not completely opposing what Salmond has said. He has just taken a unique point of view than that of Salmond. While one seems to be a broader perspective the opposite signifies a narrower approach.

In the words of Winfield, from a narrow and practical point of view, the pigeon hole theory will suffice, but from a broad outlook, the opposite theory is valid. If we concentrate attention on the law of tort at the instant, entirely excluding the development of the law, past, and future, then it corresponds to the second theory. If we take the broader view that the law of tort has grown for and remains growing, then the primary theory seems to be at the back of it.

The law of torts has grown over the years giving rise to new areas of torts like strict liability, absolute liability, and defamation. Etc. Whether these will be seen as new branches of a growing tree or a new array of pigeon holes, both approaches will be accommodated as valid viewpoints. Thus, it's an issue of approach and looking out at the things from a particular angle. Each theory is correct from its point of view of the foundation and basis of tortious liability.

[1] [1932] UKHL 100. [2] 785 P.2d 726. (1990). [3] (1945) 2 MLJ 461.