FOUNDATION OF TORTIOUS LIABILITY
ISSUES:-
(a) What are the two theories given by Winfield and Salmond regarding the basic
principle of tortious liability?
(b) Reconcile the two theories.
IS IT A LAW OF TORT OR LAW OF TORTS?
Salmond's Question on the Law of Torts
Professor Salmond raised an important question about the nature of tort law: "Does the law of torts consist of a fundamental general principle that it is wrongful to cause harm to other persons in the absence of some specific ground of justification or excuse, or does it consist of a number of specific rules prohibiting certain kinds of harmful activities and leaving all the residue outside the sphere of legal responsibility?" This question presents two theories:
1.Wider Theory: The Law of Tort
Dr. Winfield's View:
Dr. Winfield argued that "all injuries done by one person to another are torts, unless there is some justification recognized by law." According to this theory, if someone causes harm to another, they can be sued in tort, regardless of whether the wrong has a specific name like assault, battery, deceit, or slander. The defendant will be liable unless they can prove a lawful justification. This theory supports the idea that all unjustifiable harms are tortious, allowing courts to create new torts and hold defendants liable regardless of any defect in the plaintiff's pleading.
Support and Expansion:
This theory is supported by Pollock and has been repeatedly extended by courts. For example, negligence became a recognized tort in the 19th century, and the rule of strict liability for the escape of harmful things from one’s premises was established in 1868 in the case of Rylands v. Fletcher. The tort of deceit originated in Pasley v. Freeman (1789), inducement of breach of contract in Lumley v. Gye (1853), inducement to a wife to leave her husband in Winsmore v. Greenbank (1745), and the tort of intimidation in Rookes v. Barnard (1964). Decisions like Donoghue v. Stevenson (1932) show that the law of tort is steadily expanding.
Historical and Judicial Support :
The 1702 decision in Ashby v. White established the principle "ubi jus ibi remedium" (where there is a right, there is a remedy).
Holt C.J. stated,
"If men will multiply injuries, actions must be multiplied too: for every man who is injured ought to have recompense."
In 1762, Pratt C.J. in Chapman v. Pickersgill said, "Torts are infinitely various not limited or confined."
Referring to the expansion of tort law, especially in negligence, Lord MacMillan stated, "The categories of negligence are never closed."
2. Narrower Theory: The Law of Torts
Specific Wrongs :
This theory posits that tort law consists only of specific wrongs, and beyond these specified wrongs, liability under this branch of law cannot arise. This perspective suggests that tort law is limited to a set of defined rules prohibiting certain kinds of harmful activities, and anything outside these rules does not fall under tort law.
In summary, the broader theory, advocated by Dr. Winfield and supported by historical and judicial decisions, suggests that tort law covers all unjustifiable harms, allowing for the creation of new torts. The narrower theory confines tort law to specific wrongs, limiting the scope of liability.
PIGEON-HOLE THEORY
Salmond's Theory: Law of Torts
Salmond's theory, supported by his scholarly work, suggests that there is no overarching law of tort, but rather a law of torts, comprising specific, defined wrongs. This theory proposes that tort law consists of a series of pigeonholes, each labeled with a distinct tort. Liability arises only when the defendant's action fits into one of these pre-defined categories. If a wrongful act doesn't correspond to any established tort, then no tort has been committed.
Key Points of Salmond's Theory:
1. Specific Rules of Liability
Salmond equates the law of torts to criminal law, where specific rules define offences and liabilities. He argued that just as criminal law consists of rules establishing specific offences, tort law consists of rules establishing specific injuries. Therefore, in tort law, it is the plaintiff's responsibility to prove that the defendant's act falls within an established category of liability, not the defendant's duty to justify their action.
2. Early Writ Practice
Salmond's theory draws from historical practices where plaintiffs had to fit their grievances into predefined writs to obtain damages. If their injury didn't align with any existing writ, they would be denied relief.
3. Damnum Sine Injuria
Salmond highlights instances of "damnum sine injuria" (damage without injury), where parties suffered significant losses but couldn't receive damages because their injuries didn't fit into any established tort category.
Salmond’s View on Judicial Innovation:
Salmond's theory does not preclude the possibility of courts creating new torts. Dr. Jenks, a supporter of Salmond, acknowledged this flexibility. This aspect is crucial in adapting tort law to address novel wrongs that arise due to evolving societal contexts and human ingenuity.
Reconciling Salmond and Winfield:
The reconciliation of Salmond's and Winfield's theories suggests a middle ground approach to tortious liability. While recognizing the existence of several specific, nominate torts, courts also acknowledge that not every new claim must fit a pre-labeled category to warrant compensation. Judicial decisions have expanded tort law to include claims like mental pain and nervous shock, reflecting the law's capacity to evolve.
Winfield’s Modified View:
Winfield later modified his theory to align more closely with Salmond's, acknowledging the validity of both perspectives. He stated that while Salmond's narrower, practical view suffices for most cases, his own broader theory remains valid from a comprehensive legal perspective.
Indian Jurisprudence:
An Indian case, Lala Pannalal v. Kasturi Chand Ramaji (AIR 1946 Mad. 147), illustrates this flexible approach. The court pointed out that tort law isn't exhaustively classified, allowing for the recognition of new torts arising from novel rights invasions. This decision supports the notion that tort law is not static but dynamic, capable of addressing new wrongs as they emerge.
In summary, Salmond’s theory emphasizes the structured nature of tort law with specific, labeled wrongs, while still allowing for judicial innovation and adaptation. This balanced view reflects the evolving nature of tort law, accommodating new harms and ensuring that justice adapts to contemporary needs.
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