August 1, 2021

The Pigeon Hole Theory under Law of Torts

Law of Torts

Is it law or Tort or law of Torts? This question gave rise to multiple theories by various academic scholars who tried to answer this question by their understanding of tort/torts under the common law system. The rise of this particular question also came from one of the most esteemed scholars, Salmond who asked, “Does the Law of Torts consist of fundamental general principle that it is wrongful to cause harm to other persons in the absence of some specific ground of justification or excuse, or does it consist of a number of specific rules prohibiting certain kind of harmful activity, and leaving all the residue outside the sphere of legal responsibility?”[1] thus, coming back to the first question. If the legal fraternity considers law of tort (first alternative), it is believed that they think that every wrongful act should be treated as a tort when there is no excuse or justification for it to not be considered as one.

On the other hand, law of torts ( second alternative) would be expounded to have certain specific wrongs defined under them beyond which a liability cannot arise if an act does not fit into the specified heads. Most scholars had considered these two sides of coin and took their stance accordingly, which lead to Sir John William Salmond to come up with the Pigeon Hole Theory.

Salmond’s stance on the whole idea on this particular law was clear when he chose the second alternative i.e, law of torts. He called this the Pigeon Hole Theory, where he claimed that the specified heads as stated above would act as “pigeon holes”. Now, a person who has committed a wrongful act would only be liable if the victim of the said act is able to put a label to the act committed. If the “act” can fall into any one of the pigeon holes or under any specified “torts”, he or she can file for a case, however if the defendant’s act does not fall into any holes, it would straight away mean that the defendant has not committed any tort. He explains that “just as the criminal law consists of a body of rules establishing specific offence, so the law of torts consists of a body of rules establishing specific injuries. Neither in one case nor in the other, there is any general principle of liability.

Whether I am prosecuted for an alleged offence or sued for an alleged tort, it is for my adversary to prove that the case falls in 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.”[2] Apart from Salmond, other academic scholars had read and supported his theory of pigeon holes. Dr Jenks viewed his theory and had an opinion that nowhere in Salmond’s theory it is said or implying that the courts cannot create new torts, however the ones which are created should be somewhat similar to the ones which already exist. Heuston along with Dr. Glanville Williams had a similar thinking regarding the pigeon hole theory and supported Salmond by saying that having pigeon holes for law does not mean that these holes are not capacious and are strict to their existing parameters, they still can fit other heads and are not incapable of being added to.

Although the theory of pigeon holes was considered and understood by many, the other side of the coin was also not ignored and were argued by various academic writers. The idea of law of “tort” was taken up by Winfield. As also seen above, this theory proposes that all wrongs be considered a tort and liability should arise out of all if no lawful justification for it can be provided. Here, Winfield had transformed this theory into a tree, saying that as branches of a tree grow and spread out in various directions, similarly law of tot also expands with the society and cannot be confined into a single space or “holes”.

They cannot be definite and therefore the theory invites the creation of newer torts by the courts. Winfield’s theory also got immense amount of support by various judges. For example, in thecae of Ashby v. White[3], Holt C.J said that “if a man multiply injuries, actions must be multiplied too so every man who has been injured must be compensated effectively.” Similarly, Pratt, C.J and Pollock also supports this theory of law of tort. There also have been various examples of tort being formed by the courts like the case of Strict Liability in Rylands v. Fletcher[4]. Tort of deceit in Pasley V. Freeman[5], inducement in breach of contract in Lumley v. Gye[6], inducement to a wife to leave her husband in Winsmore v. Greenbank[7] and tort of intimidation in Rookes v. Barnard[8]. Moreover, the above idea of Dr Jenks has also been questioned here since the new torts which came into existence like the rule of Strict Liability or Negligence were not similar to the ones which already existed. Hence, his concept of similarity in between the torts have proven to be a little unjust.

Later on, Glanville has tried to sum up the position of both these theories where he says that the the first approach of just tort has highlighted that the rules of liability are wide, however the other approach of law of “torts” highlight that the absence of liability is wide. Therefore, none of the schools are denying the other’s point of view and neither do they create a general rule. Dr Williams provides us with an example where he says that if any case comes to a court and the ruling is in the favour of the plaintiff, then it will not be because there is an established general rule of liability but because the court has had that thinking of extending the existing rules of liability.[9]

In extension to this, Winfield has also made some changes to the theory that he proposed and said that he does not disagree with Salmond’s idea of pigeon holes. He divides the two into broader and narrower aspects of tort law and says that, “from a narrow and practical point of view, the pigeon hole theory will suffice, but from a broad outlook, the other theory is valid. If we concentrate attention on the law of tort at the moment, entirely excluding the development of the law, past and future, then it corresponds to the second theory. If we take the wider view, that the law of tort has grown for and is still growing, then the first theory seems more valid.”[10] The Supreme Court of India had also highlighted in Jay Laxmi Salt Work (P.) Ltd. v. The State of Gujarat[11] that law of torts is a developing field of law and that to barricade it would be injudicious.

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[1] Salmond, Torts, 2nd ed., (1910), pp. 8-9.

[2] Salmond, Torts, 14th ed., p. 15.

[3] (1703) 2 Ld. Raym, 938.

[4] (1868) L.R. 3 H.L. 330.

[5] (1789) 3 T.R. 51.

[6] (1853) 2 E & B. 216.

[7] (1745) Willes 577.

[8] (1964) A.C. 1129.

[9] Bangia, Law of Torts, 24th ed., p. 15.

[10] Winfield and Jolowicz, Tort, 10th ed., p. 19.

[11] (1994) 3 JT (SC) 492.

Author Details: Sakshi Raj (O.P. Jindal Global University)


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