TOPIC: Distinguish between Pigeon-hole

theory from Utility theory for tortious liability

Name: Eesha Das

Enrollment No: 16FLUHH02C0014
Section: A
 Pigeon-hole Theory
and Utility Theory
According to Salmond there is no law of tort but merely law of torts. He meant to say that
law of torts consists of a number of specific rules prohibiting some harmful acts. According
to him there were specific well defined wrongs or there is only a law of torts and no general
law of tort. There is a list of acts and omissions, in certain circumstances which are actionable
in a court of law. A person is entitled to file a suit against only that harm which comes within
one of these categories. As there are specific crimes like theft, forgery, dacoity, murder and
etc. this theory says that likewise there are certain specific torts and all the other wrongs fall
outside of this preview.

The law if torts consist of a set of a neat of pigeon holes, each containing a specific labeled
tort. When the defendant’s wrong does not fit in any of these pigeon holes he is said to have
committed no tort .This theory is also known as pigeon hole theory. Sir Frederick Pollock
strongly supported this theory of pigeon hole.

Winfield failed to distinguish between tort, crime, breach of contract and breach of trust. For
him any breach of duty amount to tort so for him it is law of tort. Winfield on the other hand
was the supporter of the first alternative as posed by Salmond in his book. He says, all
injuries done to another person are torts, unless there is some justification recognized by law.
Thus according to this theory tort consists of not merely of those wrongs which have acquired
specific names but also includes the wider principle that all unjustified harm is tortious.

Supporting Winfield’s view we can discuss the matter from another point of view. The
general meaning of the word tort is wrong. These specific kind of wrong evolved through a
process of exclusion of other kinds of wrongs, i.e. criminal or moral wrongs. So the periphery
of tort could be narrow down to civil wrong. Further not all civil wrongs are tort, but it
becomes so only after the exclusion of breach of contract, breach of trust and other equitable
obligations. As the periphery of tort is certain, it could be used as an argument in support of
Winfield’s view. And to do this we have to ascertain the general principles of liabilities in
tort.

Generally the essentials of tort are 1. Act or omission 2. Legal damage or injuria. In addition
to this tortious liability is generally based on two premises; i.e. negligence in case of ordinary
torts and intention or ill motive in cases of intentional torts such as assault, battery, malicious
prosecution etc. here we can mention about the doctrine of’ prima facie tort’, developed in
America, which could be used as a good support to Winfield’s view; as the theory provides
for some general principles of liability for tort.

In the 19th century J. Holmes & Pollock developed this doctrine whereby intentional
infliction of injury of any kind without justification was made actionable.
Prima facie tort theory: Under the prima facie tort doctrine, a wrong which does not fall
within a traditional tort category may nevertheless be actionable if the wrongdoer without just
cause or excuse has willfully and intentionally caused injury.

In the final decades of 19th century Pollock and Holmes proposed a general theory of
intentional tort, known by the courts as prima facie tort doctrine. That summarized in simple
proposition: the intentional infliction of injury without justification is actionable. Holmes &
Pollock organized tort into three categories; i. cause of action based on intentional conduct, ii.
Cause of action based on negligent conduct, iii. Cause of action based on strict liability.

Holmes saw prima facie tort not merely as another intentional tort, but as the general
principle upon which rested all liability for intentional harm. So prima facie tort doctrine is
regarded as imposing liability with respect only to conduct not otherwise actionable under
any of the nominate torts.

In simple, the common law doctrine; that if a person had a legal right to engage in an activity,
one injured thereby, had no cause of action against the actor, regardless of the motive
prompting the actor. But this certainty of common law was abandoned by the American
jurists with the development of prima facie tort doctrine.

In support of this we can mention the landmark decision of the New Mexico Supreme court
in Schmitz v. Smentowski, whereby it was said that the prima facie tort is to provide a
remedy when alleged conduct does not come within the intendment of one of the established
classes of torts. The court also provided the elements of prima facie tort which are

i. an intentional lawful act by defendant,

ii. An intent to injure the plaintiff
iii. Injury to plaintiff
iv. Absence of justification. These elements could be seen as the general principles of
liability for tort. And if in a case these elements are satisfied the plaintiff can plead
prima facie tort in alternative to other established torts. Pronouncement of this
judgment provides sound support to Winfield’s concept of tort whereby we can
assure some general principles of liability for tort cases. And there remains no
need to fit every case of tort in one of those nominated pigeon holes.

Further the development of new torts can be used to support Winfield’s theory.

For example:-
i. the tort of inducement to a wife to leave her husband developed in Winsmore v.
Greenbank
ii. Tort of deceit in its present form had its origin in Pasley v. Freeman.
iii. Tort of inducement of breach of contract had its origin in Lumley v. Gye.
iv. Tort of strict liability developed in Ryland’s v. Fletcher. Etc.
 From the above mentioned cases it becomes clear that the law of tort is a
developing subject and we can easily negate Salmond’s pigeon- hole theory.

To conclude we can quote Holt, C.J. who while giving judgment in Ashby v. white clearly
favored Winfield’s theory. He said that, if man will multiply injuries, action must be
multiplied too, for every man who is injured ought to have recompense.

At last we should mention that Indian Judiciary also shown a favor to Winfield’s theory. In
M.C. Mehta v. UOI Justice Bhagwati said --- “we have to evolve new principles and lay
down new norms which will adequately deal with new problems which arise in a highly
industrialized economy. We cannot allow our judicial thinking to be constricted by reference
to the law as it prevails in England…. We are certainly prepared to receive light from
whatever source it comes but we have to build our own jurisprudence.” In the same case the
Supreme Court established the concept of absolute liability.

The definition of Winfield has been criticized on the ground that is a formal definition
intended to distinguish tortious liability from liability of other kinds and does not achieve its
purpose. Against Winfield’s definition of tortious liability therefore Salmond raise question:

Does the law of torts consist of a fundamental general principle that is wrongful to cause
harm to other persons in the absence of some specific ground or justification or excuse, or
does it consist of a number of specific rules prohibiting certain kinds of harmful activity, and
leaving the entire residue outside the sphere of legal responsibility?

In his support we can propose examples, as in Furniss v. Fitchett (1958) N.Z.L.R. 396 at 401
Barrow C.J. said ‘the well-known torts do not have their origin in any all-embracing general
principle of tortuous liability.’

In Bollinger v. Costa Brava Wine Co. Ltd. (1960) ch.262 at 283, Danckwerts J.said ‘ the
substance was that before a person can recover for loss which he suffered from another
person’s act, it must be shown that his case falls within the class of actionable wrongs.’

This brings two well-known schools of thought: one called the utility theory of Winfield and
the other, pigeon-hole theory of Salmond. Winfield propagated that every injury is a tort
unless justified. Salmond exposed that no injury is a tort unless it falls within the specified
category of any accepted tort.

Pigeon hole theory: Salmond chose the Second alternative, and as per him the liability under this
branch of law arises only when the wrong is covered by any one or the other nominate torts. We can
presume these nominate torts as pigeon holes with some specific essentials. If the plaintiff can place
his wrong in any one of the pigeon hole, each containing a labeled tort, he will succeed.

So, there is no general principle of liability. According to Salmond just as criminal law torts consists
of a body of rules establishing specific injuries.
Criticism
There are many forms of harm of which law takes no account and damage done or suffered is
damnum sine injuria. It is here that one becomes inquisitive and ask the question, whether
liability for the harm is the general rule(subject to specific exceptions based on definite
grounds) or whether, the general rule is one of the exemption from liability save in those
specific instances where the law declares that particular kinds of harm are wrongful.

For Salmond there was no English Law of Tort, there was merely a English Law of Torts,
which is a list of acts and omissions which, in certain conditions, were actionable. Every
plaintiff therefore must bring his case under the recognized heads of tort.

However, the decided cases are against the proposition advanced by Salmond because courts
undoubtedly have power to recognize a novel claim if justice so requires, although the
process may take time. This position strengthens the maxim ubi jus ibi remedium and also the
ancient maxim that whoever has just cause to complain shall have their remedy.

Concept of tortious negligence, where new “duty of care” creates in effect a new tort, the
rules of strict liability for the escape of noxious things (Rylands vs. Fletcher), liability for
intentional mental disturbance (Wilkinson vs. Downtown) and unprivileged interference with
contractual relations (Bowen vs. Hall) are the most obvious illustrations of the expansion of
tort idea.

Many new torts are also been recognized such as malicious prosecution, deceit (Pasley vs.
Freeman), inducement of breach of contract (Lumely vs. Gye), action for inducing a wife to
leave her husband (Winsmore vs. Greenbank). In 1963 in Hedley Byrne & Co. Ltd. vs. Heller
& Partners Ltd. the House of Lords recognized a new tort for claim for damages for a careless
statement causing economic loss. This affirms and reiterates that the House of Lords had
power to adapt the common law to changing social circumstances and that no court would or
perhaps utter that “the law is what the law should be”.

Also Winfield’s view, on the other hand, did not receive general acceptance but was of the
opinion that his theory was, from a broader outlook valid. It was said that Salmond was rather
misunderstood by his critics, since he never committed himself to the proposition that the
categories of torts are closed or that the law of torts is a closed and in expansible system.

In concluding one must say that neither of the school of thought affords a complete answer to
the riddle posed, but one ought to note that the idea by its nature is such that it can have no
final solution or explanation. History is responsible for it. It may be said that there are some
general rules creating liability and some equally general rules excepting from liability.
Between the two is a stretch of disputed territory, with courts acting as a unbiased boundary
commission.

Sources: legal services.in, Law of Torts by B.M Gandhi