law of tort


This article is written by Pooja Lakshmi, studying BBA-LLB at Bennett University, Greater Noida. The article aims to give the research findings regarding the pigeonhole theory. If you put three pigeons in two pigeonholes, at slightest two of the pigeons put a stop to up in the constant puncture; is a noticeable so far underlying attitude of life as it captures the self-same essence of counting. It also discusses the evolution of pigeonhole theory in law with different examples. The information used in this article is from various e-resources, journals, and case laws. This article is explorative in nature.


Law of tort or law of torts is a question faced by every law student in their first semester of law school. According to Salmond- “It is the law of torts that exists and there is no law of tort as it was all specific well-defined wrongs”. A person is liable for a tort committed by him, but in some specific situation when one person is made liable for a tort which was committed by another, a fall-back theory of recovery is used, and the liability is fixed. Strict liability and absolute liability are well recognised in tort.

Any harm causing injurious act is said to be a tort. A person can only escape from being guilty if he or she can prove a legal justification for not committing an offence, or an excuse to it. Pigeon-hole theory was proposed by Salmond which justify tort as any harm constituted as legal injury, must fit into pigeon-holes i.e. specific tort because there is no space for another tort.

The above is contra to the Winfields Utility theory which says, “civil wrongs are actionable per se”. Tort law is a substantial machinery and it gives compensation to all the victims of tortious injury bringing out a mysterious quality. It provides deterrents, kind of a relief for diverse forms of harms like mental distress, economic injuries, and impairment of reputation. This highlights the chief rules and policy of liability relating to the scope of tort, such as trespass to property, wrongful birth and unjust life, legitimacy of the go through of abortion. These are some subjects of petite consensus meeting minds.

The nature, scope and significance of tort law have seen sweeping transformation and radical changes over the past 200 years. With the passage of time, several neutrons have emerged like workplace environment, modern machinery, technology anomalies, and have led to the development of tort law, nowadays called as Modern tort law. A lot of the resulting tort victims’ problems were not solved and might not be adjusted by the rule independently. In such cases, resources are made to the other deterrence rules of public and private law. Comparing to any other century, the 21st century has bought a great expansion of tort law. From product liability to medical malpractices claims, extended liability of corporations, and expansion of information technology, tort law has a wide scope.

Our exploration with the common law principle has entered to bring a great impact. The potential victims have a fundamental interest in Liberty, Privacy and, Security of the fellow members of the society, and have to maintain equality and fairness in our social affairs. As potential injurers, we may not have a fundamental interest in Liberty of others because there are many of us who’s interest may conflict in helping others. The purpose of the tort law is to reconcile, competing with fundamental interests of the family. Favourably, the most injuries that find their own way into the power system are not intentional wrongdoing as happens due to the negligence. 

False imprisonment is considered to be one of the oldest violation of rights. It has been described variously as a tort of trespass, assault, wrongful damage and injury resulting in suits aiming for a remedy.

The real guideposts for assessment against a defendant in an action of tort in future is that, under any condition which cannot be distinguished (except by the conclusion of the defendant), are done at the parallel of wrongdoer that if he escapes the liability just because my good fortune; no injury comes of his action in the instance.


This theory is showcased in case Allen v. Flood[1]. In this case, there would be no fairness to the plaintiff only on the ground that there is no similar case in the past which is acknowledged as a tort. Court also observed that torts are infinitely a choice and not partial or confined.

In Ananta Goswami vs Green Valley Travels (Pvt.) Ltd[2], it is stated that assembling of law into pigeon-holes does not mean that these pigeon-holes may not be spacious.

Here are some case laws mentioning clearly that the law of tort is an emergent subject and we should negate Salmond’s pigeon-hole theory

For example: –

i. The tort of encouragement to a wife to leave her husband evolved in Winsmore v. Greenbank[3]

ii. The tort of deceit in its current form had its origin in Pasley v. Freeman[4]

iii. The tort of inducement of breach of contract had its origin in Lumley v. Gye.[5]

iv. The tort of strict liability progressed in Rylands v. Fletcher. [6]

There is no general principle of liability and if the petitioner is able to put his mistake in any of the pigeon-holes, each with a labelled tort, he/she will succeed. If there is no pigeon-hole in which the plaintiffs’ lawsuit may tally as well, the defendant has committed no tort.

Further, if there is no pigeon-hole in which the plaintiff’s case could fill in; the defendant has carried out no tort. The aforesaid pigeon-hole can be anything like the invasion of privacy, defamation, negligence (duty, breach, causation, proximate cause, damages), strict liability, conversion, assault, trespass, battery, fraud conversion, etc.

Salmond’s Theory and Winfield’s Theory in more Depth

According to Salmond’s, its a specific well-defined wrongs and there is only a law of torts and no law of tort. A person is entitled to file a suit against only that harm which comes within one of the categories of this law.

Specific verse like forgery, murder, etc. has certain specific torts and all other wrongs fall outside of this preview. Law of torts is always considered to be a set of need pigeon-holes which contains specific labelled torts. If the defendant’s wrong does not fit in any of these holes, he said to have committed no tort even though it is possible that he has committed a wrong in the eyes of the society. This is the nature of pigeon-hole theory and many people had supported this theory including Sir. Frederick Pollock.

On the other hand, Winfields failed to distinguish between crime, tort, breach of contract, and the breach of trust. According to him, any breach of duty always amounts to tort and he considers it to be the law of tort. Winfield’s also supported Salmond’s first alternative. Moreover, he stated that all injuries done due to another person are torts unless there is some justification recognised by the law to exclude. Therefore, this theory states that tort consists of nearly those wrongs which have acquired specific names and include the wider principle which says, “all unjustified harms are tortious”.

Supporting the Winfield’s view and keeping in mind the general meaning of tort- as a wrong, some specific kind of wrongs evolved through a process of exclusion of other kinds of wrongs like criminal and unjust life. Thus, the periphery of tort could be a civil wrong. All the civil wrongs are taught, but it is so only after the exclusion of breach of trust, breach of contract, and other obligations that are equal in nature. We have to ascertain the general principles of liabilities in tort to support Winfield’s view of certain tort. Essentials of a tort are an act or an omission and legal damage or injuria. Similarly, liability is also based on two premises that are negligence in case of ordinary torts, and intention oral motive in case of intentional tort such as an assault, malicious prosecution, battery, etc. The Doctrine of Prima Facie tort developed in America could be used as a good support to the Winfield’s view as the theory gives some general principles of liability for tort.

The lowest point of any sufficient legal official system of tort law is to guarantee a selection of scale of decent stability in the society.

Decent stability of society may possibly not be achieved if the associates feel free to assault or beat each other or incorrectly and wrongly imprison and confine each other without a justifiable cause or steal their chattels and infringe to their land, fume/burn the household, defaming in front of the third part is not acceptable. This kind of behaviour from the public and officials are unacceptable.  Whether specific tort fit into Salman’s pigeon-hole theory or is left out to Winfield’s criterion of tort theory. This is called 2 in 1 tort.


Courts have widened the scope and Ambit of tortious liability exponentially after recognising these. “If men multiply, injuries, actions must be multiplied too, for every man who is injured ought to have recompense”. This quotation seems to be more accurate and therefore, whether specific torts fits into pigeon-hole theory or not, should not be material.

However, the faint excellence between the two theories is not immaterial. The Chronological view of the tort reveals it as its individual flexibility and its corrective nature. This illustrates the utility of remedy for conversion, that is the measure of damages in a claim for allowing the recovery of the full value of property and goods converted.

A flexible and remedial nature is giving vital importance to the nature of tort and it is mandatory to have a discussion on the same. Being a pot-lid theory, there should be a number of lids as to the number of pots, to cover the pots in order to show the consistency of a particular tort system requiring a particular result, but it is not all.

In conclusion, though the pigeon-hole theory seems to be simple, this subject matter is dreadfully expedient in ration a celebrity to devise and silky the growth of control and proving steps for many central exact problems. This belief is incredibly handy in our vivacity though it appears therefore simple. This principle furthermore can also be functional in our everyday life, whether we realize it or not. 


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