April 25, 2024

By Ragini Sehgal

The author is a first year law student at UILS PU.


The word ‘tort’ is derived from Latin word ‘tortum’ which means crooked. Tort, in simple terms, refers to an act or omission which gives rise to an injury/harm to another party. There is a general confusion that is it ‘Law of Tort’ or ‘Law of Torts’ and various thinkers at various times have tried to solve this controversy by putting forth their theories relating to the ambit of torts. Those who support the theory of ‘Law of Tort’ are of the point of view that there is no fixation of categories of torts and new categories can be added under torts. Whereas, the supporters of the ‘Law of Torts’ claim that there are fixed categories of torts and those acts which don’t fit under any of these categories are not torts. The question of holding one of these theories right can be answered by an in-depth study of both the theories and how they are supported and criticized.


John Salmond was a legal scholar, public servant, and judge in New Zealand who authored the book named ‘Law of Torts’ published in the year 1996.[1] In his book, he stated that there is no ‘Law of tort’ but there is ‘Law of Torts’ and the liability under this theory arises only when the wrongful act is covered in one of the torts of the other. There is no general principle of liability and the plaintiff has to fit the act of defendants under one of the already existing torts to claim compensation. His theory is popularly known as the ‘Pigeon-Hole Theory’, according to which the plaintiff has to place the defendant’s act in one of that ‘pigeon-holes’ each labeled as a category of tort, and if the plaintiff fails to do so, the defendant gets free from any sort of liability.[2] He compared the law of torts with the criminal law by stating that as in the criminal law, the categories of offenses which are termed as crimes are rigid, in a similar way, torts for which damages can be claimed should be specified.[3] His theory implied that it is the tension of the plaintiff to decide under which established category the alleged tort committed by the defendant falls.  

Criticism to Salmond’s Theory

Salmond’s theory of ‘law of torts’ was criticized for not being comprehensive as, over the period of time, many new categories of torts came into existence. A few civil wrongs which were later added to the category of torts are as follows:

  • If a woman is induced by a third party to leave her husband, then this act will be considered a tort which was held in the Winsmore v. Greenbank [4]case in 1745.
  • Deceit, i.e. an untrue or false statement of facts which are made by a person, recklessly or knowingly, with an intention that is shall be acted upon by the other person, was included in the category of tort in the Paisley v. Freeman[5] case of 1789.
  • If any third party induces either of the party to the contract to breach the contract, then this inducement will be considered a tort which was held in the Lumley v. Gye case in 1853.
  • The principle of holding a person strictly liable for an escape of any dangerous substance from his premises, even if it was due to the negligence of a third party, evolved from the Rayland’s v. Fletcher[6] case of 1868.
  • Intimidation, i.e. the defendant using an unlawful threat to compel another to obey his wishes to harm the claimant, was included in the category of torts in the Rookes v. Barnard[7] case of 1964.

Support to Salmond’s Theory

Even after criticism, there were a few supporters of the ‘Pigeon-Hole Theory’. One among them was Dr. Jenks who gave a different interpretation of Salmond’s Theory by stating that his theory did not mean that the courts are incapable of creating new torts but what he meant was that the courts can create new torts but such torts should not be similar to the already existing torts in any ways.[8]

Another supporter of Salmond’s theory was Heuston, who was also the co-author of Salmond’s book ‘Law of Torts’. He stated that Salmond’s critics have misunderstood him as he never committed himself to the rigid idea of torts being a close and inexpansible system.[9]

Another legal scholar named Dr. Glanville Williams supported Salmond’s theory and gave similar remarks, i.e. the pigeon-holes in Salmond’s theory are not incapable of addition and have the capacity of more acts being added under certain existing categories.[10]

Even Winfield, the propoundor of the theory of ‘Law of Tort’ provided support to Salmond’s theory by modifying his stand and stating that both his and Salmond’s theories are correct in their own ways. It is just that Winfield’s theory has a wider basis than Salmond’s theory. He stated: “From a narrower point of view, the second theory will suffice, but from a broader outlook, the first is valid. If we concentrate attention on the law of tort at the moment, entirely excluding the development of law, past, and future, then it corresponds to the second theory. If we take a wider view that the law of tort has grown for centuries and is still growing, then the first theory seems to be at the back of it.”


P.H. Winfield was an English law professor and a renowned author. He authored a book named ‘Law of Tort’ published in 1937. According to him, the defendant has to be made liable to compensate for damages caused by any wrong act done by him even if that act has not been included in the list of torts. His theory of ‘Law of Tort’ provides a wide framework in which new acts which cause damage to the plaintiff can be categorized under torts. According to him, no special title like assault, negligence, intimidation is required by the plaintiff, if the plaintiff is hurt he is liable to be compensated. There always arises a cause of action in the law of tort whenever a person knowingly hurts another person without any cause. Common law is not a law that is restricted in attaching new rules and principles in its various new cases.

Criticism to Winfield’s Theory

There was not a widespread criticism to his theory but still, there was a major element of debate in his theory, i.e. the flexibility to add new torts without any uniformity based on different cases and their judgments can prove to be arbitrary and can be very subjective, thus, leading to misuse of plaintiff’s powers.[11]

Support to Winfield’s Theory

Winfield’s theory is widely appreciated for being comprehensive and upholding the principle of ubi jus ibi remedium[12] as established in the Ashby v White[13] case of 1702 which means ‘where there is a right, there is a remedy’. For example, in India, with the passage of time, various privileges, even the minute ones, have been added under the category of fundamental rights and legal rights. If any of these rights are infringed, then a person can sue the one who caused such infringement and because of the diversity in the range of rights, flexibility in scope of adding new torts is required. A very popular saying, i.e. “Modern problems require modern solutions” can be stated to support this point.

Winfield’s theory has been upheld and supported in various cases and instances. Justice Holt said, “If man will multiply injuries, action must be multiplied too. For every man who is injured ought to have recompense.” In 1762, justice Pratt said, “Torts are indefinitely various, not limited or confined.” D.E. Lloyd supported this theory by saying, “the entire history of the development of the tort law shows a continuous tendency, which is naturally not uniform in all Common Law countries, to recognize as worth of legal protection, interests which we previously not protected at all or were infrequently protected and it is unlikely that this tendency has ceased or is going to cease in future.” The emergence of various new torts like negligence, inducing a wife to leave her husband, deceit, as discussed earlier, also provide support to this theory.

In India too, this theory has been widely appreciated, supported, and upheld in several cases and incidents. For instance, the Supreme Court in the Jay Laxmi Salt Work Pvt. Ltd. the State of Gujrat [14]observed, “Law of torts, being a developing law, its frontiers are incapable of being strictly barricaded.”

Justice Bhagwati supported Winfield’s theory by stating, “We have to evolve new principles and lay down new norms which will adequately deal with new problems which evolve in a highly industrialized economy.” during the M.C. Mehta v. Union of India case, from which the concept of absolute liability evolved as a separate category of tort.[15]

Recent Happening in India embracing Winfield’s Theory

Someday in April 2017, a woman was slapped by an Additional Superintendent of Police while she was protesting against the establishment of a government-run liquor shop in Tirupur district of Tamil Nadu, which generated widespread protests in the district and there were consequent demands from the authorities to take proper action in this direction. The jurists suggested that the proper way to deal with such situations is to file a civil suit for fixing separate tortious liabilities on the state and its officials.[16] This incident reflected the need for a flexible system of torts where liability for all sorts of damages can be added to the already existing list.


Both Salmond and Winfield have given theories based on their own logical reasoning. The ever-changing society has provided better support to Winfield’s theory because it is as dynamic as our society. But both Salmond and Winfield have given theories based on their own logical reasoning and neither of these theories can be held wrong as both can be comprehended to suit one’s interests and needs.

[1] Diane Langmore, ‘Salmond, Sir John William (1862–1924)’ (Australian Dictionary of Biography) < https://adb.anu.edu.au/biography/salmond-sir-john-william-8329> accessed on 5 December 2021.

[2] Monalisha Singh, ‘PIGEON HOLE THEORY’ (E-Justice India, 11 August 2020) < https://www.ejusticeindia.com/pigeon-hole-theory/> accessed on 5 December 2021.

[3] Advocate Aayushi Gupta, ‘Law of Tort v. Law of Torts’ (Law Wallet, 26 July 2021) < https://lawwallet.in/law-of-tort-v-law-of-torts/> accessed on 5 December 2021.

[4] Winsmore v. Greenbank 125 E.R. 1330.

[5] Paisley v. Freeman (1789), 3 T. R. 51.

[6] Rayland’s v. Fletcher 3 H.L. 330 (1868).

[7] Rookes v. Barnard (1964) AC 1129.

[8] Rajib Hassan, ‘Is It Law of Tort or Law of Torts’ (Legal Services India)<http://www.legalservicesindia.com/article/1260/Is-It-Law-of-Tort-or-Law-of-Torts.html> accessed on 5 December 2021.

[9] Aparna Ramamoorthy, ‘Pigeon Hole Theory– Salmond’s Theory of Law of Torts’ (Legal Bites, 10 June 2020) < https://www.legalbites.in/pigeon-hole-theory/> accessed on 5 December 2021.

[10] Niloy Bagchi, ‘Pigeon Hole Theory: Aspects of Criticism’ (Legal Services India) http://www.legalservicesindia.com/article/1716/Pigeon-Hole-Theory:-Aspects-of-Criticism.html accessed on 5 December, 2021.


[11] Sheel Singhal, ‘Analysis: Salmond And Winfield Theories In Law Of Tort Or Law Of Torts’ (Legal Services India) <https://www.legalserviceindia.com/legal/article-4840-analysis-salmond-and-winfield-theories-in-law-of-tort-or-law-of-torts.html> accessed on 5 December 2021.

[12] Ms. Nidhi Chillar, ‘Ubi Jus Ibi Remedium’ (B&B Associates LLP) https://bnblegal.com/ubi-jus-ibi-remedium/ accessed on 5 December 2021.

[13] Ashby v White (1703) 92 ER 126.

[14] Jay Laxmi Salt Work Pvt. Ltd. the State of Gujrat 1994 SCC (4) 1.

[15] Tanya Singh, ‘Rule of Absolute Liability’ (Law Corner, 25 October 2020) < https://lawcorner.in/rule-of-absolute-liability/> accessed on 5 December 2021.

[16] Mohamed Imranullah S., ‘Fixing tort liability is right way to deal with police brutality: Jurists’ (The Hindu, 13 April 2017) https://www.thehindu.com/news/cities/Madurai/fixing-tort-liability-is-right-way-to-deal-with-police-brutality-jurists/article17965095.ece> accessed on 5 December 2021.

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