Winfield’s Theory and Salmond’s Pigeon hole Theory of Tortious Liability
This article covers the general concept of Tortious liability and the variant theories of Winfield and Salmond (Pigeon hole theory) on establishing tortious liability.
Tort is a Civil Wrong committed by a person to another. But all civil wrongs are not Torts. Then the question is how we filter Tort from the whole mix of civil wrongs. The solution for this question can be derived from the definitions given by Salmond, Winfield and Fraser. Their definitions of Tort can be summarized as follows:
Tort = Civil wrongs – (Breach of contract + Breach of trust + other merely equitable obligations)
Remedy= Unliquidated damages
Tort = Breach of duty
Remedy =Unliquidated damages
Tort = Infringement of a private right of individuals Remedy = Compensation
So if a duty is fixed by law and a person who violates his duty and thereby infringes the right of another is liable for committing the wrong of Tort. Such kind of liability is Tortious liability. The liability which is not arise from any contract or other obligations of parties but merely due to the breach of duty is known as Tortious liability. It is completely different from criminal liability.
Elements of tortious liability
- Wrongful Act or Omission
- Legal injury (Damage)
- Remedy – Unliquidated damages
To establish tortious liability there should be a wrongful act or omission from the part of defendant .’Wrongful act’ is an act which is prohibited by law and ‘ wrongful omission’ is a duty or act that is supposed to do by persons but due to negligence or carelessness or even with intention omits the same. If the wrong violates the legal rights of another then it is a tort and termed as a legal injury or legal damage. Damage without injury (Damnum sine injuria) cannot be considered as a reason for tortious liability. Only Infringement of legal right ( Injuria sine damnum) amounts to tortious liability. So if one has suffered loss except legal injury he is not entitled for damages. The remedy for tortious liability is an action for unliquidated damages. The term ‘damages’ means compensation. So if the loss is liquidated it should not be treated as a tort. According to winfield Damages are not the only remedy but it is the efficient way to determine whether a wrong is tort or not. The other remedies include Self-help ,Injunction and restitution of property.
Then how we call the subject ;
Is it law of Tort or law of Torts?
This question can be addressed by the theories of Winfield and Salmond (Pigeon Hole Theory).
According to Winfield it is law of Tort. In his view the general principle of liability arises when a person inflict injury to another and where the legal injury is strictly against the recognized law of the land or If a duty is violated and resulted in the legal injury of other person. It is tort and the aggrieved
party has a right of action for unliquidated damages. Winfield leaves space for the creation of new torts. His theory has a wide approach towards tortious liability. New torts originated with changing times can be properly handled by Winfield’s theory. Thereby the extent of torts covered and range of remedy is also wide.
Salmond’s pigeon hole theory
Salmond is the supporter of the ‘Law of torts’. According to him there is no single principle to check the tortious liability. If an affected person can put the tort under any specified tort, he could be eligible for damages. Otherwise there is no wrong and remedy. So the burden of proof is vested on the injured party to establish that the tort is under any particular head or hole of specified torts. This theory is popularly known as Pigeon hole theory. Torts like defamation , nuisance, negligence, trespass etc are examples of already existing pigeon holes. If the injury cannot be placed under any heads ,it should not be considered as a tort and therefore quashed the right of action.
Difference between Winfield and Salmond pigeon hole theory
|1. Law of tort (An injury to another is tort if it is not justified by the law of land)||Law of torts (If the tort can be placed under any pigeon hole or specified head of torts, there is remedy otherwise it is not a tort and no right of action)|
|2. New torts||No new torts|
|3. Single category of tort.||Multiple category of torts.|
|4. General principle of liability||No general principle of liability|
|5. Remedy is available to injuries if it is not accepted by law.||Remedy is available against the existing heads of torts. Beyond it no remedy.|
|6. Broader theory||Pigeon hole theory|
Better theory – Winfield theoty vs Salmond pigeon hole theory
Is it appropriate to choose between these theories. The answer should be considered in the light of judgments of court in various occasions. It is clear that court considers the theories as two sides of a single coin. The reason for that is the nature of this branch of law ie Tort. We know that tort is uncodified and shaped in to today’s form from court precedents and it is more to a judgment law. So generally court is more lenient towards salmond’s pigeon hole theory. But in the following cases court made the foundation stone for new torts:-
- In Ashby V White where first time ‘Ubi jus ibi remedium’ is recognized .
- Pasley V Freeman( tort of deceit)
- Rylands V Fletcher (Strict liability)
- Rookes V Barnard(tort of intimidation) etc are the best examples for the court’s implicit approval to the broader theory of Winfield. In short Court considers the specified torts initially if a matter appears before and when they felt that the precedent law is not enough to decide the adjourned matter, court by its discretion frame rules for a new tort .By this approach Court can make the laws updated. This will greatly contribute to the proper delivery of justice with the emerging new issues.
Tort law is a branch of common law. As it is not codified the Precedents should be considered as a standard to determine the law in question .Sometimes the court needs to think with time and emerging new concerns. Therefore both Winfield theory and Salmond pigeon hole theory have an inevitable and equal role in addressing torts as it is a still growing area of law.
Author – AISWARYA M ,
Government law college, Ernakulam