IS IT LAW OF TORT OR LAW OF TORTS
1. INTRODUCTION
Tort is basically a branch of the private international law. It also called as the civil crime. It mainly focuses o n the interpersonal wrongdoing between the private persons. Contracts between private parties can frequently avoid the rights and liabilities of tort law; these rights and obligations serve as the foundation for other private agreements. Defamation, dishonesty, violence, and negligent damage are a few typical examples of torts. The existence of the infringed legal right in every instance is independent of any previous actions taken by the aggrieved party. Instead, everyone is protected by law from other people's actions of this kind. Two of the most important issues in morality and society that are addressed by tort law are: who is responsible for mistakes made by others and how many individuals respect one another? The subject of whether the Law of Torts or the Law of Torts exists is one that is frequently discussed. It is discussed on the basis of two theories the explanation of these theories will be explained in this article.
2. TWO THEORIES OF TORT:
These theories are basically divided into two groups i.e one who says it is law of tort and who says it is law of torts. There are many discussion raised over this topic and also there were equal and competent philosophers were there to support who supported the stand that they have taken, the brief explanation of these two groups are as follows,
2.1 It is Law of Tort
Sir Fredrick Pollock initially proposed the theory in 1887. Later Percy Henry Winfield became the chief supporter of this theory and said that It is a tort to cause harm to other persons in the absence of some specific ground of justification or excuse [1]. This gives the wider approach to the law of tort. This means that tort law covers any wrongdoings that result in a legal harm of any type. For a wrong to fall under a defined tort, there must be no prior specific tort. This idea covers all unlawful acts that have a legal basis and allows for the pursuit of a remedy. A small number of torts won't make a difference in a society that is constantly changing. According to Professor Winfield, the idea of tort law is dynamic, and new torts might be discovered and included in existing theories.
The approach allows an opportunity to the more recent torts to appear. The new torts can be included into the theory without any restrictions. The breadth of the remedy is as broad as the amount of the harm. Other names for this idea are expanding theory and broader based theory. The larger scope for the establishment of new torts is the cause for the same.
There are persons like HOLT, C.J., who acknowledged the ubi jus ibi remedium concept, was obviously in support of Winfield's theory. And also Lord Macmillan said that when experience has shown that it is desirable, the common law has the ability to impose new obligations and create new responsibilities.[2]
The law of torts varies depending on the circumstances of each case. The approach provides a potential for misuse of this liberty, allowing future torts to arise only on the basis of a legal justification. The lack of identified wrongs in the growing jurisprudence has resulted in a lack of consistency. These thus are some of the shortcomings of Winfield's theory of tort law, however they have not received much criticism.
2.2 It is Law of Torts
The law of torts, on the other hand, is a different, more constrained theory put out by Sir John William Salmond. The argument states that a specific tort that has previously been created by the law of torts must give rise to the unlawful act. This is codified in nature and covers a considerably smaller scope. The Pigeon-Hole Theory is the name given to the legal theory of torts. In contrast to the wide-scope theory, this theory lacks a general principle of culpability, and the burden of proof is always with the plaintiff to demonstrate that the wrongdoing fits into one of the designated categories. See Id at [1]
In the case of Stevenson v. Donoghue [1]In this instance, the opaque bottle of ginger beer contained a snail. The plaintiff filed a case against the ginger beer vendor and manufacturer. The plaintiff was hurt since what was within the bottle was unexpected to the unaided sight. Therefore, the maker was found accountable for the negligence tort.
A new principle that is distinct from the duty of care is created by this. Sir John Salmond was opposed to these recent developments of more recent ideas. According to Salmond, the law of torts is a body of rules creating individual injuries, much like criminal law is a body of rules establishing specific offences. Each tidy pair of pigeonholes contains a distinct named tort. i.e., any one of the listed torts. He pointed out that the remedy would only be available for torts that clearly fit into the list of specific stated torts; it would not apply to other torts that could cause harm to the law but do not meet the bill. Salmond was among the academics who opposed the idea of torts becoming generalised.
Supporters contend that rather than limiting the authority of courts to handle situations, this serves as the foundation for future instances. A new case cannot be brought up unless it fits the pigeonhole. Although total limitation is not the goal, new torts do not need to be created unless a wrongdoing can be classified as one of the already-established categories. See Id at [1]
This theory of tortuous responsibility has a narrow reach since it does not provide a remedy for injuries that result in legal loss but do not fall under a specific wrong category. Simply because they do not fit into any of the pigeon hole's little compartments does not mean that a wrong can be held incorrect.
3. CONCLUSION:
There are two generally recognised theories about tortuous liability: the wide-based theory proposed by Prof. Winfield and the Pigeon-hole theory, developed by Sir John Salmon. Each of them has advantages and disadvantages. The idea of one is more expansive than the other. While Salmond's approach requires wrongful actions to fall into pre-existing tort categories, Winfield's theory allows for the inclusion of more recent injuries and associated remedies. According to this view, the plaintiff is limited to claiming damages for acts that have already been identified. With the adoption of Winfield's approach in more comprehensive cases like M.C. Mehta v. The Union of India, Indian courts have developed. So, this hypothesis is more comprehensive. Both the tort law and the torts law play a significant and equal role in defining tortuous responsibility and are emerging legal fields.
REFERENCES
[1] Jus Corpus, Jus Corpus / About Author More posts by Jus Corpus and Corpus, M. posts by J. (2022) Law of tort V. law of torts, Jus Corpus. available at: https://www.juscorpus.com/law-of-tort-v-law-of-torts/ ( last visited on 26 January 2024).
[2] Rajibhassan (no date) Is it law of tort or law of torts. available at: https://www.legalservicesindia.com/article/1260/Is-It-Law-of-Tort-or-Law-of-Torts.html (last visited on 26 January 2024).
