Pigeon Hole Theory Under Law of Tort


The argument or debate encircling whether it is the law of ‘tort’ or the law of ‘torts’ seems to be unsettled and never ending. This may seem like a pointless debate over the use of the letter ‘s’, but in reality, it sparks a really significant point regarding the concept of tortious liability. Percy Henry Winfield and Sir John Salmond have had two different opinions regarding this whole debate. In this article, we will be focusing on this argument by taking into consideration Salmond as well as Winfield’s view. But in order to understand the debate around ‘law of tort’ or ‘law of torts’, we must first make an attempt to understand certain other concepts pertaining to the subject of Tort.

Meaning of Tort

For the purpose of understanding, tort is a civil wrong (that is neither a breach of contract nor a breach of trust). Such a wrong may be compensated in the form of unliquidated damages. The Latin word ‘tortum’ is the root word for the wort ‘tort’ and it simply means ‘to twist’. It refers to the behaviour which is not straight or lawful, instead, twisted, crooked or unlawful. The law of tort concerns itself with wrongful acts of the wrongdoer who violates the legal right/s of a person. A few classic wrongful acts that come within the ambit of this study of law would be, trespass, assault, defamation, slander, etc. This branch of law is constantly evolving, growing and developing.

Although tort is a civil wrong, it would be wrong to assume that every civil wrong is a tort. There lie other important civil wrongs like the breach of trust or the breach of contract. Hence, one must never equate every civil wrong with a tort. Tort is simply a subset of civil wrongs. It is pertinent to note that not every wrong is actionable as there lies no liability for a wrong that is caused by inevitable accident, act of God, etc.

Essentials of a Tort

In order to seek a remedy in tort, it is preliminary to understand what wrong or harm would classify as a tort. In order to understand this, there are a few essential conditions that must be satisfied. Firstly, there must be some act or omission on the part of the alleged wrongdoer. Secondly, it shall then give rise to a legal damage which implicates that the plaintiff’s legal right has been violated due to the defendant’s wrongdoing.

An act may either be something that the wrongdoer was not supposed to do or it can be omission to do something that the person in question was supposed to do. Therefore, in a case where a corporation, which maintains a public park, fails to put proper fencing to help prevent the children from getting hurt by a poisonous tree and if a child eats the fruit boar by the poisonous tree which results in fatality, the corporation would be held liable.[i] Where a person fails to do any act or duty which he was legally bound to, he can be held accountable (liable) for such a failure to do the act.

Understanding the Concept of Legal Damage in Tort

As stated before, the concept of showing or proving legal damage forms a prerequisite of establishing a tort. A violation of legal right can straight away result in an action in tort, irrespective of where the person who has been vested with such legal right suffers an injury or not. This brings us to the infamous concept of “Injuria sine Damnum”. Let us understand this by splitting these words and understanding their individual meanings.

Injuria refers to the violation of a legal right vested in the plaintiff or an unauthorized interference with some right of the plaintiff irrespective of how small it may appear to be. Damnum refers to some kind of harm, loss or damage pertaining to money, comfort, health or anything of that sort. Now, “injuria sine damnum” basically means the plaintiff has not suffered any substantial injury but has still suffered ‘damages’ because their legal right has been infringed.

A violation of legal right, simply and quite plainly, gives the injured party the right to seek damages in the court of law for the said violation or infringement of their legal right. Ashby v White[ii] is a landmark judgement based on this concept. The plaintiff, possessing the right to vote was a qualified voter at a Parliamentary election, but the defendant, a returning officer, wrongfully refused to take the plaintiff’s vote. Nonetheless, the candidate he was going to cast his vote for won the election. Hence, it can be said that he suffered no substantial loss due to such refusal of the returning officer. In spite of that, it was held that the defendant was liable in pursuance of such action on his part.

Bhim Singh v. State of Jammu & Kashmir[iii] is an Indian Case on the same concept. Here, the petitioner was wrongfully detained by the police while he was going to attend the Jammu & Kashmir Assembly session. Since he was illegally detained and had not been produced before the magistrate in time, the defendant was held liable.

Another important concept is “Damnum sine Injuria”. According to damnum sine injuria, although the plaintiff may have suffered or endured some damage but such damage may not be due to violation or infringement of some legal right. The Indian case, Ushaben y. Bhagyalaxmi Chitra Mandir, may be cited to understand Damnum sine Injuria. Here, the plaintiff was aggrieved as their religious feeling were hurt due to certain depictions of some Hindu Goddesses. Consequently, the plaintiff sued for a permanent injunction against the defendants to restrain them from exhibiting the film named “Jai Santoshi Maa”. Nonetheless, amongst other observations, the court observed that hurting religious feelings is not a legal wrong. As per the court’s observation, there was no violation of a legal right. Accordingly, the court rejected the application for injunction.

Salmond’s Pigeon Hole Theory

Encircling back to the main subject of this Article, is it the law of tort or the law of torts? In order to answer this question, we may look at Salmond’s Pigeon Hole Theory and study his opinion on the same. Salmond’s entire theory and argument revolves around two primary questions:

  1. Shall we restrict the law of torts to only those ‘torts’ that strictly fall within the meaning of specified set of torts? Or
  2. Shall we refrain from doing so and include every wrongful act, for which there lies no justification as a ‘tort’?

Salmond was in favour of the former, while Winfield supported the latter. Salmond believed there is only law of torts, while Winfield believed in the law of tort. In fact, even Salmond’s book is titled “Law of Torts” and not “Law of Tort”. According to Salmond’s approach, the wrongdoer will only be liable when the wrong is covered under any one of the specific sets of torts. Only where the plaintiff succeeds in placing the wrongdoing rendered upon him in anyone of the pigeon-holes, each containing a labelled tort, he will succeed. This is commonly referred to as the Pigeon Hole Theory. Hence, the person who has suffered from the wrongdoing must show how the wrong or harm falls within the scope of the particularly established tort.

Supporters of the Pigeon Hole Theory

Dr. Jenks, a supporter of Salmond’s theory had made an attempt to clear the air around Salmond’s theory being restrictive. He said that Salmond’s theory does not render the courts incapable of creating new tort. The only prerequisite that would have to be followed would be that such new torts must be similar to those that already exist. Heuston shared the same view as Salmond. In the case of Bollinger vs. Costa Brava Wine Co. Ltd[iv], the court had held that if one seeks to claim damages, they must show how the wrongful act falls under a particular or specified (can be understood to be “pigeon hole”) torts.

Opposing View to the Pigeon Hole Theory

An opposing view to Salmond’s Pigeon Hole theory was given by none other than Winfield. Unlike Salmond’s theory, Winfield’s views were not restrictive. He was of the opinion that the law is not restricted to a defined set of torts. It is because of this view that his book was titled ‘Law of Tort’ unlike Salmond’s book which was titled ‘Law of Torts’. Winfield was of the view that even if the wrong is done to a person does not fall under a specific set of torts, as long as he can prove it in the court of law, he is entitled to receive damages for the same. In the case of Chapman v. Pickersgill, Pratt, C.J. opined, “Torts are infinitely various not limited or confined.”

In spite of his opinion, Winfield did not absolutely disregard Salmond’s point of view. He was of the opinion that while his theory gave a broader meaning to the law of tort while Salmond’s theory could be regarded as a narrower approach. Winfield said “From a narrow and practical point of view, the second theory will suffice, but from a broader outlook, the first is valid. If we concentrate attention on the law of tort at the moment (which is what most practitioners do), 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 centuries and is still growing, then the first theory seems to be at the back of it. It is the difference between treating a tree as inanimate for the practical purposes of the moment, e.g., for the purpose of avoiding collision with it, it is as lifeless as a block of marble and realizing that it is animate because we know that it has grown and is still growing.”[v] (Here, ‘first theory’ refers to Winfield’s Theory, while the ‘second theory’ refers to Salmond’s theory)

Critical View on Salmond’s Pigeon hole Theory

The two theories have far contradicting views. It is a hard task to accept one theory and not disregard the other. Nevertheless, if we have a mere look at the two, we may be able understand which theory has wider applicability. Doubtlessly, it is Winfield’s theory. Time and again, the court’s have set aside Salmond’s observation, whether it be explicitly or implicitly. This is because, the Pigeon Hole Theory is extremely restrictive. It leaves almost no scope for inculcation or creation of any new ‘tort/s’. The pigeon holes can be equated with labelled boxes, if the damages endured by the aggrieved party do not fall within the ambit of these pigeon holes or labelled boxes, the plaintiff loses their right to bring action against their wrongdoer in the court of law.

In my opinion, Winfield’s theory is comparatively more reasonable than Salmond’s Pigeon Hole Theory. This is because, unlike Salmond, Winfield’s approach was not restrictive, he did acknowledge the existing torts of his time, but at the same time he was right in not disregarding the possibility of any other tort that did not specifically fall under the preexisting tort. His approach towards Tort proved be far more beneficial in the future as courts started acknowledging new torts. For instance, in the case of Rylands v. Fletcher[vi], the courts came up with the concept of ‘Strict Liability’. Furthermore, the landmark judgement of the Supreme Court of India in Oleum Gas Leak Case[vii] gave rise to the concept of ‘Absolute Liability’.

I do not condemn Salmond’s Pigeon Hole Theory, instead, I believe that it did have relevance and applicability in its time. But in the present times, where laws, as well as the interpretation and opinions of the courts, are constantly evolving, Salmond’s theory would have almost no applicability.


While studying this subject, one of the most significant subtopics is the argument revolving around whether it is law of tort or law of torts. Irrespective of which theory has wider applicability, both Salmond’s as well as Winfield’s theories have relevance and are equally important to the study of this subject. The debate around whether it is law of tort or law of torts is everlasting, but as rightly stated by the Apex Court in Jay Laxmi Salt Work (P) Ltd. v. The State of Gujarat[viii], the law of tort is a developing law, hence, making it unthinkable to restrict it.


The Law of Torts by R.K.Bangia


[i] Glasgow Corp. v. Taylor, (1922) 1 A.C. 44.

[ii] (1703) 92 ER 126.

[iii] Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494.

[iv] [1961] 1 W.L.R 277.

[v] Winfield and Jolowics, Tort, 10th ed., p. 19.

[vi] 1868) LR 3 HL 330.

[vii]M.C. Mehta vs. Union of India, A.I.R. 1987 S.C. 1086.

[viii] (1994) 3 JT (SC) 492.

Aayushi Mittra

Aayushi Mittra is a Fifth Year Law Student pursuing 5 Years BLS LLB at SVKM's Pravin Gandhi College of Law. Securing AIR 18 in CS Foundation exams, she wishes to not restrict herself to the ambit of General Corporate Laws, but also wishes to explore various other fields of law like IPR, Cyber Law, Family Law, Capital Markets & Securities Laws and Sports Law. Apart from academics, she immensely enjoys participating in Drafting competitions, MUNs and Article Writing competitions.