Analysis: Salmond And Winfield Theories In Law Of Tort Or Law Of Torts

 Analysis: Salmond And Winfield Theories In Law Of Tort Or Law Of Torts

A tort is a word that is derived from the Latin phrase “tortum” which means to twist. 

A tort is a civil wrong, it deals with a dispute between individuals where the remedy is unliquidated damages. 

Sir Henry Winfield states that it is the law of tort that is every wrongful act, for which there is no justification or excuse to be treated as a tort.

In this, there is no need for a specific kind of tort to be committed, any wrongful act that injuries a person would satisfy this theory of law of tort. 

Additionally, every person shall be liable whether or has no special title at all. It is a wider-based theory.

In Ashby V. White, it recognizes the principle “ubi jus ibi remidium” which implies “where there is a right there is a remedy”. 

In 1962 Pratt Chief Justice stated that torts are infinitely various not limited or confined. 

Supreme Court in Jai Laxmi Salt Works (Pvt) Limited V. The State of Gujarat observed that the law of torts being a developing law it’s frontiers are inadequate of being strictly barricaded. – Obiter Dicta.

Lala Pannalal V. Kasturi Chand Ramji, AIR 1946 stated that it is a tort and not exhaustive and cannot be defined.

Sir John Salmond states that law of torts that is, only several specific wrongs beyond which the liability under the branch of law cannot arise. 

In this, there should be specific sorts of the wrong which comes under Pegion Hole Theory to define that torts have been committed.

It also states that just as criminal law consists of a body of rules establishing special offenses, so the law of torts consists body of rules establishing special injuries. 

Dr. Jenks favored Sir John Salmond and started that Pegion Hole Theory of Salmond does not imply that the court is incompetent of creating a new tort. According to him, courts can create new torts, but cannot be created unless substantially similar to those which are already in existence. 

But the views of Dr. Jenks did not appear to be correct as various new torts like: 

• Tort of Decite 

• Negligence in 19th century 

• Rule of Strict Liability in Rylands V. Fletcher (1868)

• Inducement of wife to leave her spouse in Winsmore V. Greenback, have come into existence and is not identical to those which are already in existence.

Here, it substantiates that new torts can be created by courts of law. 

D.E. Loyd observes that The Law of Torts is not stagnant but is growing.

It’s not codified so it’s  extremely important to rely on precedents to guide future actions if the fact of the cases is similar.

Conclusion: 

In my opinion, from the entire analysis of these two theories of Sir John Salmond and Sir Henry Winfield, both theories hold important and are different in their interpretation. 

Neither of the theory has supremacy over other and it depends on the preferences of individuals.

Law of tort by Sir Henry Winfield gives birth to vaster outlook where as Law of torts by Sir John Salmond is narrow and has practical point of view.