Law of Tort or Law of Torts

The theories agree that courts can create new torts. Salmond says a court may make a new pigeon-hole. Winfield says a court may apply the general principle to a new situation. The result is identical.

They disagree about the starting presumption. On Winfield's view the plaintiff who shows harm and no justification has a case to answer. On Salmond's the plaintiff who cannot name his tort loses at the threshold.

Both must live with damnum sine injuria. No writer says that all harm is actionable. A trader ruined by lawful competition has no action on either theory, because the harm was done without infringing any legal right. Chapter [Damnum Sine Injuria] shows how large that limit is, and it cuts Winfield's principle down a long way.

The Indian answer

India does not have to choose between two English writers, because its own Supreme Court has answered the question twice, once in words and once in action.

In words. In Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1, the Court held that the law of torts is a developing law whose frontiers are incapable of being strictly barricaded, and that since duty is the primary yardstick of tortious liability, the ambit of that duty keeps widening on the touchstone of fairness and the practicality of the situation. That is Winfield's position stated by an Indian court.

In action. In M.C. Mehta v. Union of India, AIR 1987 SC 1086, oleum gas escaped from a plant of Shriram Foods and Fertiliser Industries in a crowded part of Delhi. The Court had to fix the measure of liability of a hazardous enterprise. It set out the rule in Rylands v. Fletcher and then declined to apply it, holding that a rule evolved in the nineteenth century could not govern a modern industrial economy and that Indian courts need not follow English law. It laid down instead that an enterprise carrying on a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community, is absolutely liable for harm caused by an accident in that activity, and cannot rely on any of the exceptions to Rylands v. Fletcher; and it held that the compensation must be related to the size of the enterprise so as to deter.

Why it matters here. A court that creates a rule of liability which exists in no earlier case and in no statute is not working out of a closed list. Whatever the theoretical position, Indian practice is that the categories of tort are never closed.

A worked example

In 2015 a company begins selling a device that copies a rival's manufacturing process. The rival sues. Its complaint fits no named tort: it is not defamation, not deceit, not conversion, not nuisance.

On Salmond's theory the court asks which pigeon-hole this belongs to. Finding none, it dismisses the suit and leaves the rival to Parliament.

On Winfield's theory the court asks whether harm has been done without lawful justification. If it holds that it has, it gives a remedy, and by doing so it creates a new tort, which will thereafter be called by a name.

On the Indian approach the court would begin from the duty: is there a duty here, judged on the touchstone of fairness and the practicality of the situation, as Jay Laxmi Salt Works directs? If the answer is yes, the absence of a name is not fatal. That is Winfield's result reached through Salmond's method.

Distinctions that carry marks

What it does NOT mean

Winfield does not say that all harm is actionable. He says all harm done without lawful justification is. Competition, ordinary use of one's own land and the exercise of a legal right are all justifications, which is why damnum sine injuria is consistent with his theory.

Salmond does not say the law can never grow. He accepts that courts create new pigeon-holes; he denies that there is a general principle waiting to be applied in the meantime.

The debate is not settled by counting torts. Both writers are looking at the same set of cases and disagreeing about what holds them together.

It is not merely academic. It decides what a court does when it meets a harm nobody has litigated before, which is exactly what happened in India in December 1986.

Quick revision

1. Winfield, the wider theory: all harm unless justified is a tort; there is a law of tort.
2. Salmond, the pigeon-hole theory: only specific named wrongs are torts; there is a law of torts.
3. Both accept that courts may create new torts; they differ on the starting presumption.
4. Winfield's evidence is history: every named tort was once new.
5. Salmond's evidence is practice: judgments name a tort.
6. Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1: the law of torts is a developing law whose frontiers cannot be strictly barricaded.
7. M.C. Mehta v. Union of India, AIR 1987 SC 1086: the Supreme Court created absolute liability, which existed in no earlier case and in no statute.
8. Indian practice: the categories of tort are never closed.

Test yourself

1. "Is there a law of tort or a law of torts?" Discuss with reference to the theories of Winfield and Salmond. Winfield's wider theory holds that all injury to another is a tort unless there is a justification recognised by law, so the subject is a body of principle and the categories are open. Salmond's narrower or pigeon-hole theory holds that there is no general principle, only a set of specific wrongs, and a plaintiff who cannot bring his case within one of them fails however unreasonable the defendant's conduct. Winfield's support is historical, that every named tort was once new; Salmond's is practical, that courts decide cases by naming torts. The difference is narrower than it appears, because Salmond concedes that new pigeon-holes may be created and Winfield concedes that harm caused without infringing a legal right is not actionable, which is damnum sine injuria. In India the question is answered by the Supreme Court: Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1, holds that the law of torts is a developing law whose frontiers cannot be strictly barricaded, and M.C. Mehta v. Union of India, AIR 1987 SC 1086, proves it by creating a rule of absolute liability that existed nowhere before.

2. What is the pigeon-hole theory, and what is the strongest objection to it? The pigeon-hole theory is Salmond's: the law provides a set of labelled compartments, each a named tort with its own ingredients, and a plaintiff must place his complaint in one of them. The strongest objection is that it cannot explain how any pigeon-hole ever came into existence. Deceit, the independent tort of negligence, nervous shock and inducing a breach of contract were each new at some point, and each was recognised by a court in a case where the plaintiff could not name an existing tort. If the theory were literally true the first plaintiff in each of those cases would have had to fail.

3. Does the Indian Supreme Court's creation of absolute liability support Winfield or Salmond? It supports Winfield in substance and Salmond in form. In M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Court held that the rule in Rylands v. Fletcher could not govern a modern industrial economy, refused to be bound by English law, and laid down that an enterprise carrying on a hazardous activity is absolutely liable for harm from an accident in it, subject to no exceptions, with compensation measured by the size of the enterprise. In substance that is the general principle at work, because no existing head of liability covered the case. In form it created a new head, which is what Salmond says courts may do. What it cannot be reconciled with is any view that the categories are closed.