Pigeon Hole Theory – Salmond’s Theory of Law of Torts

By | June 10, 2020
Pigeon Hole Theory – Salmond

Pigeon Hole Theory – Salmond’s Theory of Law of Torts | Overview

This article titled “Pigeon Hole Theory- Salmond’s Theory of Law of Torts” is an attempt to analyse one of the foundational theories in torts i.e. Pigeon hole theory proposed by Salmond. It further deals with the justifications and criticisms for this theory and finally establishes its connection with Indian jurisprudence of torts.

I. Foundational theories

There is a difference of opinion amongst jurists as to what constitutes 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:

  1. Wider and narrower theory- all injuries done by one person to another are torts, unless there is some justification recognized by law.
  2. Pigeon hole theory- there is a definite number of torts outside which liability in tort does not exist.[1]

II. Pigeon Hole Theory Or Salmond’s Theory Of Law Of Torts

Salmond opined that there is no general principle of liability and if the plaintiff can place his wrong in one of the Pigeon holes, each containing a labelled tort, he will succeed. According to him,

“Just as criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there 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 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]

According to Salmond, there were only specific well-defined wrongs which can be termed as torts. He opposed generalisation of torts into law of tort. He proposed that an act can be termed as a tort and a legal remedy is available for the same only if the said act falls within the specified well-defined wrongs.

In order to explain his theory he compared the law of torts to the net set of pigeon holes; each hole consists of a labelled tort such as assault, battery, deceit, slander, negligence, etc.,

He further said that if a particular act does not fit in any of these pigeon holes, then he has committed ‘no tort’.

Some argue that the idea of confining torts into a set of pigeon holes is untenable as the law of tort is continuously expanding, which is evident from the decisions of Donoghue v. Stevenson[3]. However, Salmond argues in favour of his theory that just as criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there any general principle of liability. For Salmond, the law must be called The Law of Torts rather that The Law of Tort.

III. Supporters of this Theory

Jenks favoured Salmond’s theory and it has been said that Salmond’s does not imply that the courts can create new torts but such torts cannot be created unless they are substantially similar to those which are already in existence.

In the 17th edition, Salmond’s Editor has remarked 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 closed and in the expansible system.

“To say that the law can mean that those pigeons may not be capacious, nor does it mean that they are capable of being added to”.

IV. Criticisms

Many scholars feel that this theory is narrow, rigid and unmindful to a fault with regard to future developments in the field of tort law.

 Winfield’s theory of Law of tort

According to this theory, all injuries done to a person are torts unless there is justification recognised by law. In other words, tort consists of not merely of those wrongs which have acquired specific names but also include the wider principle that all unjustified harm is tortious. Winfield made an analogy to a growing tree with several branches. This is based on his belief that the law of tort keeps on expanding with society and it cannot be made specific or definite. This theory takes into consideration the need for the creation of newer torts by the courts.

In support of this, we can mention the landmark decision of the New Mexico Supreme court in Schmitz v. Smentowski[4], 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,

  1. an intentional lawful act by the defendant,
  2. An intent to injure the plaintiff
  3. Injury to the plaintiff
  4. 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. And there remains no need to fit every case of tort in one of those nominated pigeon holes.

Further, the following cases show the development of new torts which can be used to support Winfield’s theory.

  1. Winsmore v. Greenbank[5]the tort of inducement to a wife to leave her husband developed in
  2. Pasley v. Freeman[6] – Tort of deceit
  3. Lumley v. Gye[7]Tort of inducement of breach of contract
  4. Rylands v. Fletcher[8]Tort of strict liability

Thus, the decided cases are against the proposition advanced by Salmond because the courts undoubtedly have the power to recognise a novel claim if justice so requires, although the process may take time.

V. Reception of law of Torts in India

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”. Because of this difference in approach Winfield’s book on the subject is entitled ‘Law of Tort’ whereas Salmond’s book is entitled “Law of Torts”.

Dr. Williams sums up the controversial position thus:

“The first school has shown that rules of liability are very wide. The second school has shown that some rules of absence of liability are 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 hitherto received the attention of the courts.”[9]

The subject “law of torts” owes its origin to the common law of England. The object of the law of torts is to provide relief (compensation) to the injured whose legal right is infringed. It also helps in the administration of criminal justice by awarding exemplary damages. This subject is well developed and has attained great importance in U.K., U.S., and other advanced countries. But in India, it is in the process of development of this branch as of triple activism ie. The activism of people, activism in judiciary and activism in the legislature.

In an Indian decision, Lala Punnalal v. Kasthurichand Ramaji[10], it was pointed out that there is nothing like an exhaustive classification of torts beyond which courts should not proceed, that new invasion of rights devised by human ingenuity might give rise to new classes of torts. Even the recent decisions of competent courts give the impression that the courts have preferred to follow the first theory of liability. Thus it is a matter of interpretation of courts so as to select between the two theories. The law of torts is one such field of law which has developed by courts starting right from the simple problems of primitive society to those of our present complex civilization.

   In M.C. Mehta v. UOI [11], which gave rise to the concept of absolute liability, Justice Bhagwati has 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.”


However, Winfield made clear that he is not completely opposing what Salmond has said. He has just taken a different point of view than that of Salmond. While one seems to be a broader perspective the other signifies a narrower approach.

In the words of Winfield[12], 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 to be at the back of it.

The law of torts has grown over the years giving rise to new areas of torts such as strict liability, absolute liability, defamation and so on. Whether these can be seen as new branches of a growing tree or new array of pigeonholes, both approaches can be accommodated as valid viewpoints. It is thus, a question of approach and looking at the things from a certain angle. Each theory is correct from its own point of view of the foundation and basis of tortious liability.

[1] R.K.Bangia, Law of Torts 5(Allahabad Law Agency, Faridabad, 17th edn., 2003).

[2] Salmond and Heuston, The Law of Torts (19th Ed., Sweet & Maxwell Ltd) 1987 P.18

[3] [1932] UKHL 100

[4] 785 P.2d 726 (1990), Available Here

[5] 1745) Willes 577 (581)

[6] 100 Eng. Rep. 450 (K.B. 1789)

[7] 1853] EWHC QB J73

[8] [1868] UKHL 1

[9] Dr. Glanville Williams ‘The Foundation of Tortious Liability’ (1939) T.C.L.T III at 131

[10] Lala Punnalal v. Kasthurichand Ramaji, (1945) 2 MLJ 461.

[11] [1987] 4 S.C.C. 463

[12] W.V.H.Rogers, Winfield and Jolowicz on Tort; (13 Ed., 1989) P.14

  1. Law of Torts; Notes, Case Laws And Study Material
  2. Case Analysis: Donoghue v Stevenson 1932

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