This article has been written by Ramapati Mishra pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting and edited by Shashwat Kaushik.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
Is it just pink or baby pink, hot pink, bright pink, pale pink, or cherry pink? A similar controversy comes into play when it comes to “whether it is the law of tort or whether it is the law of torts”. Some jurists are of the opinion that it is the law of torts, and some support the opinion that it is the law of torts. Salmond falls into the second category and to support this opinion, he gave the ‘Pigeon Hole Theory.’
The word ‘tort’ is made up of the word ‘tortum,’ which is a word of Latin origin and means to twist. It implies conduct that is twisted or tortious. The term tort is similar to the English term ‘wrong’ and the Roman law term ‘delict’. Hence, tort can be expounded as a civil wrong that is not a breach of contract or breach of trust for which the suitable remedy is an action for unliquidated damages, i.e., damages that are not fixed and are decided on the basis of damage or liability.
Salmond’s pigeon hole theory
Salmond was a legal scholar, public servant and judge in New Zealand and he was of the opinion that it was the “law of torts”. According to Salmond, there are specific kinds of civil wrongs that fall under the category of the law of torts and for the purpose of supporting this opinion, Salmond promulgated this Pigeon Hole Theory.
According to Salmond, there are a number of pigeon holes and each of the pigeon holes is labelled as a specific and well defined tort. These pigeon holes may be slander, malicious prosecution, assault, etc. If anything wrong fits in these specific and well defined pigeon holes, then it should be considered a tort. According to this theory, there is no scope for the evolution of a new tort. Salmond was of the opinion that the burden of proof lies on the plaintiff, and if he fails to discharge this burden, no remedy would be available to him. In other words, we can say that it is the duty of the plaintiff to prove that the wrong from which he /she is suffering lies in a pigeon hole. Therefore, according to Salmond, there is no general principle of liability; specific wrongs have already been decided and labelled as torts, and the cases falling into these particular, previously decided classes of wrongs would have remedy under the law of torts. If the defendant’s act cannot be put in any of the pigeonholes labelled as tort, then there is no tort committed by the defendant. Salmond was of the view that, just like criminal law consists of rules, according to the act of the offender, those rules decide which offence has been committed by the offender. If we give this theory a holistic view, it seems like a closed and inexpensible system, which gives a narrow interpretation of tort.
In the legal world, few supported Salmond’s Pigeon Hole Theory and few opposed it.
In support of Salmond’s pigeon hole theory
Dr. Jenks supported Salmond’s Pigeon Hole Theory but not entirely. According to Dr. Jenks, it is wrong to interpret Salmond’s Pigeon Hole Theory as saying that new torts cannot be created by courts; rather, courts can create new torts but such new torts should show a certain level of similarity to the torts that have already been recognised as torts by the courts. In the 17th edition, Salmond’s editor expressed his concern that the theory of Salmond is misunderstood and misinterpreted by the critics.
Professor Glanville Williams said that every person has the right not to be damaged This statement is accepted all over the world. According to him, it imposes a certain level of liability on the wrongdoer or the defendant. This liability is based on certain rules that have evolved out of fundamental legal principles of justice, equality, and good conscience. The courts always seem to expand the area or ambit of liability by expanding the scope of the tort law. This can easily be seen in English jurisprudence as well as in Indian jurisprudence. On the one hand, the English courts took strict measures and evolved the concept of strict liability; on the other hand, Indian courts also expanded the ambit of liability and propounded the principle of strict liability. It has been observed that the concept of liability in tort law is not fixed and is continuously evolving with time. The courts have such revisionist powers at the time of deciding liability related matters that these courts are able to redraw or redefine the boundary of liability by propounding new principles. We can say that there is no hard and fast rule for deciding liability. Liability is an evolving concept and courts contribute to the evolution of the concept of liability according to the needs of society.
Criticism of Salmond’s pigeon hole theory
Winfield was one of the prominent critics of Salmond’s pigeon hole theory. According to him, every wrongful act for which there is no justification available can be treated as a tort; hence, he was of the opinion that there should not be only a few categories of torts but that they should be thrown open to create new categories of tort. Winfield supported this view that this is the law of torts and not the law of torts.
In the case of Constantine vs. Imperial London Hotel Ltd. (1944), the Court of Law acted on the principle of Winfield and followed his theory that where there is a right, there is a remedy. In this case, a West Indies cricketer was the plaintiff, and he filed a suit against the hotel. In this case, though the cricketer had not suffered any monetary loss nor did he suffer any physical setback, the court was of the view that since the rights of the cricketer had been breached by the hotel, the hotel should be punished for its act. The Court in this case relied on the principle that where there is a right, there is a remedy; hence, the Court awarded damages to the cricketer. In this case, the Court enlarged the ambit of the tort law.
In the case of Nixon v. Herndon (1927), the Supreme Court of America applied the same principle of injuria sine damnum, which means injury without damage. When the plaintiff suffers an injury, the cause of action arises and since the courts mostly rely on the principle that where there is a right, there is a remedy, they give relief to the plaintiff in the form of unliquidated damages.
These cases showed the application of ubi jus ibi remedium and injuria sine damnum. These courts showed their inclination towards the theory of Winfield, according to which every wrongful act without justification is a tort.
The law of torts is a product of common law jurisprudence and innovations in this product were done through the application of the judicial mind. This is why most jurists are of the view that the concept should not be confined and should be allowed to evolve.
In the case of Rooks v. Barnard (1964), the House of Lords observed that the tort of intimidation existed but did not cover the threat to break the contract. The Court further observed that a threat to break a contract, like a threat to commit a tort, is the foundation for an action of intimidation. In this case, the court did not confine itself to the described and well defined torts but explored a little bit and covered this tort of threat to break contract under a well defined tort of intimidation.
India’s position
The Supreme Court of India observed in the case of Union of India vs. M/S. Union Carbide Corporation (2023) that Section 9 of the Civil Procedure Code, 1908, enables the civil courts to try all the suits of civil nature, implying the authority to impose the law of tort as a fundamental principle of justice, equity and good conscience. India follows the common law system; hence, the law of tort in India is inspired by the English law of tort but India has twisted these principles according to its needs. It can be easily seen that India deviates from Salmond’s pigeon hole theory and the legal system of India is of the view that it is “the law of torts and not the law of torts.” The Indian legal system has left room for evolution, though the tort law in India is quite underrated and less evolved.
In the case of M.C. Mehta and Anr vs. Union of India & Ors. (1986), Justice P.N. Bhagwati evolved the concept of absolute liability. Before this case, India was following the principle of strict liability, which evolved in the 19th century in the case of Rylands vs. Fletcher. In this case, the Indian Supreme Court expanded the horizons of tort law and went beyond Salmond’s Pigeon Hole Theory. In this particular case, the Hon’ble Supreme Court of India analysed that the principle of strict liability that was evolved in the case of Rylands vs. Fletcher (1868) was justifiable according to the demands of that time but the time has changed the needs of society, hence the law should be evolved accordingly. Therefore, the Apex Court of India introduced a new principle of absolute liability. This particular case shows the inclination of the Indian Supreme Court towards Winfield rather than Salmond.
Conclusion
Though it is claimed by the supporters of Salmond that the pigeon hole theory is misunderstood and overlooked by the critics, it is further claimed that Salmond’s theory does not restrict the evolution of the law of tort by stating it as the law of torts. Winfield emerged as one of the prominent critics of this theory and supported the view that new torts can be added according to the need of the hour. Winfield stated that every wrongful act without justification is a tort. The Indian legal system also deviates from Salmond’s Pigeon Hole Theory and believes in the continuous evolution of tort law. In the famous Oleum gas leak case, the Apex Court of India evolved a new concept of absolute liability rather than relying on strict liability.
References
- https://ir.nbu.ac.in/bitstream/123456789/2776/8/08_chapter%201.pdf
- https://www.ijsr.net/archive/v11i5/SR22516142410.pdf
- https://www.ijlmh.com/paper/the-rule-of-strict-liability-and-absolute-liability-in-indian-perspective/
- https://www.casemine.com/judgement/uk/5a8ff8db60d03e7f57ece89d
- https://www.legalserviceindia.com/legal/article-6142-pigeon-hole-theory.html
- https://blog.ipleaders.in/analysis-pigeon-hole-theory-under-law-torts/
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