LAW OF TORT or LAW OF TORTS

There are two theories with regard to the basic principle of liability in law of tort or law of torts:

1. All the injuries done by one person to another are torts unless there is some jurisdiction recognized by law.
2. there are a definite number of torts outside which liability is tort does not exist.

The first theory resembles the moral saying, “my duty is to hurt nobody by word or deed”. It is consonance with the principle “ubi jus ibi remedium”(where there is a right there is a remedy).

Winfield and Pullock supported this first theory, Winfield is of the view that it is ‘law of tort’.

The fact that new torts are recognized from the time to time supports this theory.

For instance, negligence became a specific tort by the 19th century A.D. Similarly, the rule of strict liability was laid down in Rylands v. Fetcher (1868) LR 3 HL 330, the rule of absolute liability in relation to hazardous enterprises was laid down in M.C. Mehta case (1987).

According to the Second theory, the ‘ law of torts ‘ consist of a neat/clear set of pigeon-holes each containing a labelled/specific tort like assault, battery, false imprisonment, slander,etc. If the defendant’s wrong will not fit any of these pigeon-hole he has committed no tort.

This theory was supported by Salmond. His book is called the “Law of Torts”. He said : “just as a criminal law consists of a body of rules establishing specific offences, criminal law consists of a body of rules establishing specific injuries.

Salmond supported this theory by stating that in all cases of Damnum sine Injuria parties were not able to get damages although they have suffered substantial losses.

To this objection, Winfield gives the answer that when it is said that all unjustifiable harms are tortious ; a person will recover nothing if he alleges a specific tort and fails to prove some essential ingredients in it, viz, if he sues for the tort of negligence and cannot prove a duty to take care on the defendant’s part.

Conclusion

Each theory bears some truth. If we try to see the position existing at any particular point of time we take into an account only those torts which have been created until that time; from that narrow and practical point of view Salmond’s theory is correct. If, on the other hand, we observe from a broader point of view and look to the present, past and future, Winfield’s Theory is correct.

Because whenever the courts finds that the harm caused is unjustifiable they consider it a tort, and provide compensation for the same even though previously there had been no ‘pigeon-hole’ for the same.