Is it Law of Tort or Law of Torts
“Is it Law of Tort or Law of Torts?” is the legal debate that determines whether tort law is founded on one general principle of liability for all unjustified harm (Winfield’s Theory) or consists only of specific recognized torts (Salmond’s Theory).
1. Winfield's View (Law of Tort)
Winfield argued that tort law consists of one general principle.
According to him, every wrongful act that causes harm to another person without lawful justification is actionable, even if it does not fall under a previously recognized tort.
Therefore, courts can recognize new torts whenever justice requires.
This makes tort law broad, flexible, and capable of evolving with changing social conditions.
2. Salmond's View (Law of Torts)
Salmond took the opposite view.
He argued that tort law consists only of a number of specific and recognized torts, such as negligence, nuisance, trespass, assault, and defamation.
A person can succeed in a tort action only if the wrongful act fits within one of these established categories.
This is known as the Pigeon-hole Theory because every case must fit into an existing “pigeon-hole” (recognized tort).
3. The Creation of Brand-New Torts
The law has never been a static or frozen ruleset; instead, it operates under the reality that “torts are infinitely various, not limited or confined.” As society evolves, individuals constantly find sneaky, unprecedented ways to harm one another, forcing the courts to actively invent entirely new legal categories out of thin air.
Historically, when a novel form of misconduct caused clear damage, judges did not turn victims away just because there wasn’t an existing law against it. Instead, they established groundbreaking legal precedents to catch up with changing times:
The Tort of Deceit (Pasley v. Freeman, 1789): Formulated to specifically penalize intentional commercial fraud and cheating.
Inducement of Breach of Contract (Lumley v. Gye, 1853): Created to punish a third party who intentionally messes with or sabotages someone else’s business contract.
Strict Liability (Rylands v. Fletcher, 1868): Established the rule that if you bring something inherently dangerous onto your property and it escapes, you are automatically responsible for the damage—even if it was a complete accident and you weren’t careless.
The Tort of Intimidation (Rookes v. Barnard, 1964): Legalized a remedy against a party who uses coercive, threatening behavior to cause economic harm to another.
4. Dr. Jenks’ "Look-Alike" Theory and Its Real-World Failure
In an attempt to defend the rigid view of the law, Dr. Jenks argued that while courts do have the power to create new torts, these new categories cannot be built unless they are “substantially similar to those which are already in existence.”
Essentially, his perspective was that judges can make new legal boxes, but only if they look like the old boxes already sitting on the shelf.
However, the textbook explicitly rejects Jenks’ view as incorrect.
When we look at history, revolutionary concepts like the rule in Rylands v. Fletcher or the modern standalone tort of negligence were completely unique.
They did not look like any pre-existing legal boxes when they were born; they were entirely new concepts built from scratch to address brand-new societal problems.
5. The Defense of Salmond: Expanding and Creating "Pigeon-Holes"
To prevent Salmond’s famous “Pigeon-Hole Theory” from looking completely outdated, jurists like Heuston and Dr. Glanville Williams stepped in to clarify that his critics drastically misunderstood him.
Salmond never committed to the rigid idea that the law of torts is a “closed and inexpansible system.”
Dr. Williams famously smoothed out this debate by stating: “To say that the law can be collected into pigeon-holes does not mean that those pigeon-holes may not be capacious nor does it mean that they are incapable of being added to.“
In plain terms, think of Salmond’s pigeon-holes like folders on a computer screen.
Just because your files are sorted into specific, labeled folders doesn’t mean those folders can’t expand to hold more data (capacious), nor does it mean you can’t right-click and hit “New Folder” to create a brand-new category when a completely novel situation pops up.
6. Cases of First Impression: Judges as Legal Boundary Referees
When balancing these two schools of thought, Dr. Williams sums up the ultimate reality: Winfield’s school proves that the rules for holding someone responsible (liability) are very wide, while Salmond’s school proves that the rules for letting someone off the hook (absence of liability) are equally wide.
Neither school, however, gives an automatic answer for a “case of first impression”—which is a totally weird, unprecedented scenario that lands in a courtroom fitting absolutely no established rule, or awkwardly hitting two conflicting rules at once.
In these moments, there is no pre-made legal formula directing the court what to do.
Instead, the courts must act like an “unbiased boundary commission.”
Just like a team of surveyors mapping out a border, the judges must look at the facts of the unprovided case and logically decide whether it is fairer to stretch the boundary of the law to hold the wrongdoer liable, or to draw the line and exempt them from liability entirely.
7. Winfield's Modified Theory and the Developing Nature of Tort Law
Winfield later modified his original theory by stating that both his theory and Salmond’s theory are correct, but from different viewpoints.
According to him, Salmond’s theory is valid from a narrow and practical perspective, because courts generally decide cases based on established torts such as negligence, nuisance, trespass, and defamation.
However, Winfield’s theory is valid from a broader and historical perspective, because tort law has evolved over centuries and continues to develop by recognizing new legal rights and remedies as society changes.
Winfield compared tort law to a living tree: although it may appear fixed at a particular moment, it continues to grow over time.
Therefore, the difference between the two theories is primarily one of approach rather than principle.
Supporting this view, D.E. Lloyd observed that tort law has consistently expanded to protect new interests, and the Supreme Court of India in Jay Laxmi Salt Works (P.) Ltd. v. State of Gujarat affirmed that the law of torts is a developing branch of law whose boundaries cannot be strictly limited, making it capable of adapting to new situations and ensuring justice.