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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.
1st Theory
The first theory maintain that all injuries done to another person is a tort unless
there is justification recognised by law. This view is supported by Sir Frederick
Pollock and eminent judges and it also supported by Professor Winfield.
According to Professor Winfield, if I injure my neighbour he can sue me in court
whether a wrong happen to have a particular name like assault, battery, deceit,
slander or whether it has no such name at all and I shall be liable if I cannot prove
lawful justification.
He added tort are infinitely various and therefore are not limited or confined and
therefore a the court can create new tort as it was stipulated in Chapman v. Picker
S. Gill.
It follows that the Courts are free to create new torts whenever in their discretion
they consider that this is desirable. This theory is supported by two chief arguments.
The first is that some eminent Judges, both ancient and modem, have expressed this
view. Thus Lord Camden said in 1762, “Torts are infinitely various, not limited or
confined and therefore courts have full power to create new torts (or more
consistently with judicial caution) to extend the law of torts without any baptismal
ceremony for each extension.
Professor Winfield’s second argument is based on the incontrovertible fact that the
law of torts to-day is wider than it was one hundred and fifty years ago. New torts
have been created to which specified names have been given. This must prove
according to him that the Courts assume that they have the right to create new torts.
But does it ? No one can deny that the Courts have created new torts by the gradual
and sometimes almost imperceptible extension of old torts, but this differs
fundamentally from the view that they have the right deliberately to create new
ones based on a general principle of liability.
Generally this theory 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. Court’s 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.
2nd Theory
The second theory is known as Pigeon-hole theory. It resembles the ten commandments
with their precise specification of sins.
According to the theory the law of tort consist of net-set of pigeon holes, each containing
a specific tort. If is the defendants wrong doesn't fit in any pigeon holes he has committed
no tort.
Sir John Salmond is a chief supporter of this theory. He argued that just as the criminal
law consist of a body of rules establishing specific offences, so the law of tort so the law
of tort consist the body of rules establishing specified injuries.
Whether am prosecuted for an alleged offence or sued for an alleged tort, its for my
adversary to prove that the case fills with a specific and established rule of liability and not
for me to defend myself by providing that it is within some specific and established rule of
justification or excuse1.
For Salmond the law must be called The Law of Torts rather that The Law of Tort.
1
S.P.Singh: Law of Tort: Universal Law Publishing. At p. 10
2
S Deakin, A Johnston and B Markesinis, Tort Law (2003) 5th Ed. Oxford University Press
In a case of first impression that is, a case that falls under no established rule or that falls equally
under two conflicting rule, there is no ultimate principle directing the court to find for one party
or the other.