There are two theories with regard to the basic principle of
liability in the law of torts or tort. They are:
# Wider and narrower theory- all injuries done by one person to another are torts, unless there is some justification recognized by law.
# Pigeon-hole theory- there is
a definite number of torts outside which liability in tort does
not exist.
The first theory was propounded by Professor Winfield. According
to this, if I injure my neighbour, he can sue me in tort, whether
the wrong happens to have a particular name like assault, battery,
deceit or slander, and I will be liable if I cannot prove lawful
justification. This leads to the wider principle that all
unjustifiable harms are tortious. This enables the courts to
create new torts and make defendants liable irrespective of any
defect in the pleading of the plaintiff. This theory resembles the
saying, my duty is to hurt nobody by word or deed. This theory
is supported by Pollock and courts have repeatedly extended the
domain of the law of torts. For example, negligence became a new
specific tort only by the 19th century AD. Similarly the rule of
strict liability for the escape of noxious things from one’s
premises was laid down in 1868 in the leading case if
Rylands v.
Fletcher.
The second theory was proposed
by Salmond. It resembles the Ten Commandments given to Moses in
the bible. According to this theory, I can injure my neighbour as
much as I like without fear of his suing me in tort provided my
conduct does not fall under the rubric of assault, deceit, slander
or any other nominate tort. The law of tort consists of a neat set
of pigeon holes, each containing a labeled tort. If the
defendant’s wrong does not fit any of these pigeon holes he has
not committed any tort.
The advocates of the first theory argue that decisions such as Donoghue v. Stevenson shows that the law of tort is steadily expanding and that the idea of its being cribbed, cabined and confined in a set of pigeon holes in untenable. However salmond argues in favour of his theory that just as 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. Neither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted fro an alleged offence or sued fro an alleged tort it is for my adversary to prove that the case falls within some specific and established rule of liability and not fro for me to defend myself by proving that it is within some specific and established rule of justification or excuse. For salmond the law must be called The Law of Torts rather that The Law of Tort.
The advocates of the first theory argue that decisions such as Donoghue v. Stevenson shows that the law of tort is steadily expanding and that the idea of its being cribbed, cabined and confined in a set of pigeon holes in untenable. However salmond argues in favour of his theory that just as 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. Neither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted fro an alleged offence or sued fro an alleged tort it is for my adversary to prove that the case falls within some specific and established rule of liability and not fro for me to defend myself by proving that it is within some specific and established rule of justification or excuse. For salmond the law must be called The Law of Torts rather that The Law of Tort.
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