Whether it is ‘Tort’ or ‘Torts’?

Writers and authorities on torts have expressed divergent views as regards the correct nomenclature of this branch of law and argued whether the correct terminology is Law of Tort or it is Law of Torts? There are two propositions advanced on this issue, one supported by Salmond and the other by Dr. Winfjeld.

According to Salmond it should be called "law of torts" as there is no law of tort. He advanced 'Pigeon-Hole' theory in support of his view and argued that there is no general principle of liability and if the plaintiff can place his wrong under anyone of the nominated, tort (i.e. labelled tort) he can. succeed and not otherwise. Thus, according to this theory different torts have been labelled in pigeon-holes and there is no scope for- any other- wrong lo be considered as tort beyond those which are already so labelled. This in other words means: that the 'category. of torts has closed' and no wrong other than those already nominated (or named) can be treated as loris. Salmond argues that "just as criminal law consists of body of rules establishing specific offences, so also the law of torts consists of body of rules establishing specific injuries.... whether I am presented for an alleged offence, or sued for an alleged tort, it is for my adversary to prove that the case falls within some specific and established rule of liability, and not for me to defend myself by proving that it is within some specific and established rule of Justification or excuse.

Dr. Winfield, on the other hand, holds that it is, correct to caption this branch of law as "law of tort' and not law of torts because every wrongful act, for which there is no justification or excuse is to be treated as a tort. Thus, according to him, the category of tort never closes and there is always scope for new tort being included in this branch of law if it fits in the principle stated above. Illustrating this point further Winfield says "if I injure my neighbour he can sue me in tort whether the wrong happens to have particular name like assault, battery, deceit, slander or whether it has no specific title or nomenclature at all; and I shall be liable if I cannot prove lawful justification for my act."?

Each of the above Iwo theories has found support of subsequent writers. Dr. Jenks favoured the theory advanced by Salmond. He, however, added that Salmond's theory does not imply that category of torts is closed and the Courts are incapable of creating new torts. According to him new torts can be created. provided they are substantially similar to those, which are already in existence and fit into one or the other pigeon hole. But Dr. Genk's view does not appear to be correct as the new torts such as nervous shock, gherao etc. which have come into existence at the latter stage are not similar to anyone of those specifically named torts which were already in existence.

Dr. Glanville. Williams has also supported Salmond's theory and observed "to say that the tort law can be collected into pigeon-holes does not mean that those pigeon-holes may not be copious, nor does it mean that they are incapable of being added to.”

Dr. Winfield's theory that the correct nomenclature is "law of tort, and not law of torts, was supported by Chief Justice Holt in Ashby v. White,S wherein he observed that if a man will: multiply injuries, action must be multipiled too; for every man who is injured ought to have à recompense. Similarly, Pratt CJ. in Chapman v. Pickersgill, 6 held, "torts are infinite various, not limited or confined."

Supporting Dr. Winfield's theory Pollock holds that new torts can undoubtedly-be created by Courts. Illustrating his point. further he stated that deceit as a tort in the present form has its origin from the decision in Pasley v. Freeman. Similarly tort of intimidation has emerged from Rooks v. Barnardt . Again, negligence as a separate fort and the tort of nervous shock- are creations of early 20th century. Reconciling the two conflicting views Dr, G. Williams holds that Salmond's continuation that it is "torts" and not 'tort' has shown that rules of absence of liability are wide whereas

Winfield's. theory of "law of tort' emphasises that rules of liability are wide enough. But neither theory has shown that there is any general rule of liability nor non-liability for inclusion of new torts which are not yet in the contemplation of Courts. However, In subsequent years, Dr. Winfield 'modified his theory and asserted that both his own. theory and that of Salmond's theory of law of torts. were substantially correct.

The first. from the narrower point of view while the second in the broader perspective the narrower view supported by Salmond is based on the assumption that the law of torts has developed sufficiently for the last so many centuries and now there is hardly any scope of addition of new torts. On the other hand, the broader view suggests that with the development and progress of human civilization newer torts are likely to come into existence and therefore, the category of tort should not be closed. In other words, it is a growing branch of law. To quote his own words, Dr Winfield. observed that. The difference between his theory and Salmond's theory is like "the difference between treating a tree as inanimate for practical purposes and realising that it is animate because we know that it has grown and is still in the process of growing.

Heuston one of the staunch supporter of Salmond's view pointed out that critics of Salmond have mis Interpreted his theory. He never meant that there is no scope for development of torts and innovation of new tort. Perhaps what he tried to emphasise. was that all the existing torts have been labelled in different pigeon-holes and if any addition has to be made then they have to be specifically named and labelled and placed in new pigeon-holes.