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❖ FOUNDATION OF TORTUOUS LIABILITY

▪ Tortious liability is a legal obligation of one party to a victim as a results of a civil
wrong or injury. This action requires some form of remedy from a court system.
▪ Tortious liability arises from the breach of a duty primarily fixed by law this duty is
towards persons generally and its breach is redressible by an action for unliquidated
damages.
▪ There are different opinions among the jurist as to what constitute to the foundation of
tortious liability, the following are theories arguing about the foundation of tortious
liability:-
▪ There are two theories with regard to the basic principle of liability in the law of
torts or tort. They are:

Wider and narrower theory​-all injuries done by one person to another are torts, unless
there is some justification recognized by law.
Pigeon-hole theory​- there is a definite number of torts outside which liability in tort does
not exist.

1​st​ Theory

▪ The first theory maintain that all injuries done to another person is a tort unless
there is justification recognised by law. This view is supported by ​Sir Frederick
Pollock​ and eminent judges and it also supported by ​Professor Winfield.
▪ According to Professor Winfield​, if I injure my neighbour he can sue me in court
whether a wrong happen to have a particular name like assault, battery, deceit,
slander or whether it has no such name at all and I shall be liable if I cannot prove
lawful justification.
▪ He added tort are infinitely various and therefore are not limited or confined and
therefore a the court can create new tort as it was stipulated in ​Chapman v.
Picker S. Gill.

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▪ It follows that the Courts are free to create new torts whenever in their discretion
they consider that this is desirable. This theory is supported by two chief
arguments. The first is that some eminent Judges, both ancient and modem, have
expressed this view. Thus Lord Camden said in 1762, “Torts are infinitely
various, not limited or confined and therefore courts have full power to create new
torts (or more consistently with judicial caution) to extend the law of torts without
any baptismal ceremony for each extension.
▪ Professor Winfield’s second argument is based on the incontrovertible fact that
the law of torts to-day is wider than it was one hundred and fifty years ago. New
torts have been created to which specified names have been given. This must
prove according to him that the Courts assume that they have the right to create
new torts.
▪ But does it ? No one can deny that the Courts have created new torts by the
gradual and sometimes almost imperceptible extension of old torts, but this differs
fundamentally from the view that they have the right deliberately to create new
ones based on a general principle of liability.

▪ Generally this theory leads to the wider principle that all unjustifiable harms are tortious.
This enables the courts to create new torts and make defendants liable irrespective of any
defect in the pleading of the plaintiff.
▪ This theory resembles the saying, my duty is to hurt nobody by word or deed. Court’s
have repeatedly extended the domain of the law of torts. For example, negligence became
a new specific tort only by the 19​th​ century AD.
▪ Similarly the rule of strict liability for the escape of noxious things from one’s premises
was laid down in 1868 in the leading case if ​Rylands v. Fletcher.
2​nd​ Theory

▪ The second theory is known as ​Pigeon-hole theory. It resembles the ten commandments
with their precise specification of sins.

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▪ According to the theory the law of tort consist of net-set of pigeon holes, each containing
a specific tort. If is the defendants wrong doesn't fit in any pigeon holes he has committed
no tort.
▪ Sir John Salmond ​is a chief supporter of this theory. He argued that just as the criminal
law consist of a body of rules establishing specific offences, so the law of tort so the law
of tort consist the body of rules establishing specified injuries.
▪ Whether am prosecuted for an alleged offence or sued for an alleged tort, its for my
adversary to prove that the case fills with a specific and established rule of liability and
not for me to defend myself by providing that it is within some specific and established
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rule of justification or excuse .

▪ For Salmond the law must be called The Law of Torts rather that The Law of Tort.

❖ CRITICISM OF GENERAL LIABILITY PRINCIPAL

❖ Having discussed the theories of Pollock, Salmond, and Winfield, it is now time to
tabulate ​criticisms of the “general liability” principle.
❖ 1. There is no agreement concerning the nature of this general principle. Pollock
says that it covers “willful,” but Winfield believes that it includes all harm.
❖ 2. There is no agreement concerning its origin. Winfield takes it back to the
thirteenth century, Pollock says that it is modern, Allen believes that it is still to
come.
❖ 3. If this convenient general principle really does exist we might have expected to
find hundreds of references to it in doubtful cases, but Winfield cites only one
dictum which is directly in point.
❖ 4. This theory is based on a misinterpretation of the judicial process. It suggests
that in such cases as ​Pasley v. Freeman, and Rylands v. Fletcher, the Courts
were consciously creating new torts when in fact they thought that they were
bringing in new instances under established principles.

1
S.P.Singh: Law of Tort: Universal Law Publishing. At p. 10

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❖ 5. If this theory were correct then much of the learning in tort law ought to be
concerned with the nature of excuses and of justification. No textbook has,
however, discussed these at any length, and in fact they are not even mentioned in
the index to Professor Winfield‘s book.
▪ By settling, the argument laid by the above two theories, ​Professor William G,
simply said that ​"there are some general rules creating liability and some
equally general rules exempting from liability. Between the two is a stretch of
disputed territory with the courts as an unbiased boundary commission."
▪ Meaning that in an unprovided case, if the decision parses for the plaintiff, it will
be not because of a general theory of liability but because the court feels that there
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is a case in which existing principles of liability may properly be extended .
▪ Summing up his investigations into the controversy, ​Professor Glanvile
Williams ​says this:-
▪ The first school has shown that the rules of liability are very wide. The second
school has shown that some rules of absence of liability are also very wide.
▪ Neither school has shown that there is any general rule, whether of liability or of
non-liability, to cover novel cases that have not yet received the attention of the
Courts.

In a case of first impression that is, a case that falls under no established rule or that falls equally
under two conflicting rule, there is no ultimate principle directing the court to find for one party
or the other.

2
​S Deakin, A Johnston and B Markesinis, Tort Law (2003) 5th Ed. Oxford University Press

Brief description about the foundation of tortious liability