Winfield’s Theory and Salmond’s Pigeon hole Theory of Tortious Liability

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. 

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: 

Salmond  

Tort = Civil wrongs – (Breach of contract + Breach of trust +  other merely equitable obligations) 

Remedy= Unliquidated damages 

Winfield 

Tort = Breach of duty 

Remedy =Unliquidated damages 

Fraser 

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). 

Winfield’s 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

Winfield	Salmond
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.  

Conclusion 

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