Tort is an act that is not straight or lawful instead it is a wrong act that is twisted, unlawful, crooked, and not straight.

Table of Content:

1. Introduction
2. Law of Tort v. Law of Torts

• Law of Tort
• Theory
• Supporters of the theory
• Common examples
• Criticism
• Law of Torts
• Theory
• Supporters of the theory
• Criticism
• Reception of Law of Torts

3. Conclusion
4. Case Laws

• Lala Punnalal vs Kasturichand Ramaji
• Ashby vs White [(1703) 2 Ld. Raym, 938]
• Chapman vs Pickersgill [(1762) 2 Wils. 145]
• Donoghue vs Stevenson [(1932) AC 595]
• Mexico in Schmitz vs Smentowski [785 P.2d (1990)]
• Ryland Vs. Fletcher [(1868) L.R. 3 H.L. 330].
• Winsmore vs Greenbank [(1745) Willes 577]

INTRODUCTION

The word tort is derived from the Latin word ‘tortum’ which means to twist. It is also treated as a synonym of the English word ‘wrong’. Therefore we can say that tort is an act that is not straight or lawful instead it is a wrong act that is twisted, unlawful, crooked, and not straight. For instance, if A while driving rashly and negligently injured B, then A was held to be liable for the tort of negligence. The person who commits the tort is known as tort feasor whereas against whom the tort is committed known as the aggrieved party. The aggrieved party, i.e., the plaintiff can seek the damages from the tort feasor, i.e., the defendant, and those damages are unliquidated in nature which means these damages are not pre determined unlike the damages awarded under the law of contract. 

To term a wrong as a tort following elements must be fulfilled:-

• It must be a civil wrong;
• The wrong is not merely a breach of contract or breach of trust.
• The wrong is redressed through unliquidated damages (though there are other reliefs can also be granted)

Law of Tort V. Law of Torts

This question is the most controversial question in the history of tort. Various jurists have their own different theories regarding this question but the two most popular theories were recognized by the scholars.

Law of Tort:

Theory

The terminology was propounded by jurist Winfield. According to him the subject of tort is a very vast subject. He believed that with the passage of time different wrong commits in a different way and therefore it very difficult to categorize it under various heads. He said that every wrong act will be redressed by the court if that wrong results in the violation of legal rights and thus stated that the law of tort is based on the maxim Ubi Jus Ibi Remedium which means where there is a right there is a remedy. He made the analogy of this terminology with a growing tree with its branches. His theory of tort has wider because whenever a case comes in front of the court the final decision pronounce by the court if emerges a terminology for new wrong then such a wrong would be constituted as a tort. He said the law of tort is uncodified.

Supporters of his theory:

• Holt CJ:- in 1702, he supported the theory of Winfield in the case of Ashby vs White [(1703) 2 Ld. Raym, 938] in which he held that in case a plaintiff suffered multiple injuries then the remedy or recompense will also be multiplied.
• Pratt C.J.:- in 1762, he supported this theory in the case of Chapman vs Pickersgill [(1762) 2 Wils. 145]. He held that the law of tort cannot be limited or confined.
• Lord Macmillian:- he supported this theory in Donoghue vs Stevenson [(1932) AC 595].
• Bowen L.J.:- in 1893 he opined in the purview of the common law a cause of action arises due to which one person suffers from the damages caused him by someone with malice intention.
• The landmark judgment of the Supreme Court of Mexico in Schmitz vs Smentowski [785 P.2d (1990)] where the court held that the prima facie of a tort is to provide relief against the wrong even if doesn’t fall under any established category. Further, the court held that to constitute prima facie tort following conditions must be satisfied:-

1. The intention of a wrongdoer, i.e., the defendant is malice;
2. The intention must be to injured the plaintiff;
3. The injury must be caused to the plaintiff; and
4. Without any legal justification

Common Examples of tort created from judicial decisions

• Rule of Strict Liability:- it originated from the landmark judgment of Ryland Vs. Fletcher [(1868) L.R. 3 H.L. 330].
• Inducement to a wife to leave her husband:- this concept emerges from the judgment of Winsmore vs Greenbank [(1745) Willes 577].
• The tort of intimidation:- the tort was propounded from the judgment of Rookes vs Barnard [(1964) A.C. 1129]
• Inducement of breach of contract:- it emerges from the judgment of Lumley vs Gye [(1853) 2 E & B 216].
• The tort of Deceit:- originates from the judgment passed in Pasley vs Freeman [(1789) 3 T.R. 51].

Criticism of theory

His theory was criticized on the ground that his intention behind the definition given by him to differentiate tortious liability from that of the other liabilities doesn’t serve his purpose and his definition was mainly criticized by Salmond.

Law of Torts: 

Theory

This concept is propounded by a famous Jurist Salmond. He believed that like other laws, the law of torts is also categorized and codified under different heads. According to him, there is no general principle of liability. Therefore if the aggrieved party is successful to establish that a civil wrong that happened with him/ her is covered under any of the given or labeled heads then he will be successful to claim damages and if he fails to fit his case in any of the labeled torts then it is presumed that defendant, i.e., the tortfeasor has committed no tort. This theory of Salmond is known as the Pigeon hole theory. He compares the law of torts with the criminal law by stating that just like in criminal law there is a list of well defined crimes similarly in the case of the law of torts the civil wrong must be one among the listed torts.

His theory was recognized in the landmark judgment of Bollinger vs. Costa Brava Wine Co. Ltd. [(1960) ch. 262] Justice Danckwerts said, “ 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.”

Supporters of his theory 

• Jenks:- according to him, the court is not bound to create a new tort but the creation of such tort must be substantially similar to the existing tort. His view doesn’t appear to be correct as new torts were created which is not substantially similar to any existing tort.
• Heuston:- opined that the critics of this theory have misunderstood the intention of Salmond. The existence of pigeon holes doesn’t mean that new tort can’t be introduced under these heads.
• Glanville Williams:- he was in the support of Heuston’s view.

Criticism of theory

His theory was criticized on the ground that when a particular case comes before the court then it is the primary duty of the court to provide the remedy to the aggrieved and therefore if the aggrieved is failed to establish his case under any of the given heads then also he is entitled to get justice.

Reception of law of torts

Winfield opined that every injury must be constituted as a tort where a legal right of an individual is violated and that violation is legally justified that’s why his book known as ‘Law of Tort’ whereas Salmond has an opinion that every injury must be constituted as a tort if it falls under any of the labeled categories and hence his book is known as ‘Law of Torts’. The theory propounded by Salmond has first evolved in England. But later his view is also taken up and followed by the United States; the United Kingdom and many other countries.

In India, there is no such difference between the two theories it is also propounded in the case of Lala Punnalal vs Kasturichand Ramaji. This law is created by the judiciary and not by the legislature and therefore, it is interpreted by the judiciary timely as the case may be.

CONCLUSION

Winfield stated that he is not completely denying Salmond’s view on tort. Both his as well as Salmond’s theory is correct though both of them have a completely different approach. If we see a narrower aspect then Salmond’s view is more reliable but on the other hand, if we see a wider aspect then his theory should be more reliable.

As time passes, the law of torts is growing and developing. Now its one’s point of view to see that whether the emerging new torts such as medical negligence, rule of strict liability or tort of deceit, etc. termed as a new tort or known as a new pigeon hole. It is entirely depend on individual to individual. Both of the theories are valid in the eye of law.