Monday, May 27, 2024





Discuss in detail the pigeon hole theory.

• Introduction
Pigeon hole theory is one of the very profound theory in the field of law especially, in the law of torts. This theory is given Salmond. There were many different theories regarding tortuous liability different person has penned different opinion. But there are two major theories which are based on the basic principle of liability in the law of tort or torts.

Wider and narrower theory: under this theory, all the wrongs that are committed by one party to another is considered to fall under the law of tort. Without any proper and legal justification.

Pigeon hole theory: many such torts are present which does not fall under the liability of torts.

So here if we put three Pigeons in two Pigeonholes, at slightest two of the Pigeons put a stop to up in the constant puncture then we can find that so far underlying attitude of life as it captures the self-same essence of counting.

• Law of Torts v. Law of Tort
Law of Torts: – On the other hand, Sir John William Salmond proposed an alternative theory with a much more limited scope known as the ‘law of torts’. This theory states that the wrongful act must be the result of a specific tort that has already been found to be a criminal offence. The law of torts has a very narrow scope and is codified. It is commonly referred to as the ‘pigeon-hole’ theory. Unlike the broad-scope theory, there is no common principle of liability in this case and the onus of proving the wrong is always on the plaintiff to prove that the wrongful act caused falls into one of those pigeon holes, that is to say, within the category of the specified torts, and not for other torts which may cause certain legal injury but do not fall into the pigeon hole. As a result, Salmond was among the scholars who objected to the generalisation of torts.

Law of Tort: – Pollock’s theory was first formulated in 1887 and was later confirmed and developed by Professor Percy Henry Winfield. Winfield argued that Law of Tort is “a general liability which results from the breach of duty laid down by law.” This gives a broad interpretation of the theory.

In Winfield’s words, “all the wrongful acts which give rise to some sort of legal injury fall within the scope of Law of Tort. There must be no pre-existing specific tort for a wrongful act to fall under it.” Winfield further argued that a limited number of tortes would not be helpful in a society that is constantly changing. Winfield also argued that a new tort can be identified and introduced into the theory, and there are spaces for newer torts in the theory. There are no limits, and new tortes can be introduced in the theory. Since the scope of injury is broad, so is the scope of remedy. This theory is also known as wider based theory or growing theory. The reason for the same is that it has a wider scope in the creation of new torts.

• Pigeon Hole Theory
According to Salmond, “Tort is a civil wrong for which the remedy is a common-law action for unliquidated damages, and which is not exclusively the breach of contract, or, the breach of trust, or, other merely equitable obligation.”

The entire pigeon-hole theory laid down by Salmond seeks to answer two questions-
I. Should the law of torts be restricted to the torts that strictly fall within its purview?
II. Should every act deemed wrongful and committed without any justification, be classified as a tort?

In Salmond’s view, there is no “one-size-fits-all” approach to determining the wrongdoer’s liability. He argued that only clearly defined wrongs should be regarded as tort and confined to a narrow box known as “a pigeon hole”. He likened the domain of tort with a pigeon hole with several smaller holes. “If a wrong did not fall into any of those holes, there would be no claim at all.” He argued against having a “general approach” to tort law. “There would be a remedy only for those wrongs which fall within the established torts, and it would be for the plaintiff to prove that the wrong would fall within a particular, identified tort.”

Supporters of the pigeon hole theory
This theory was supported by Dr Jenks, who argued that it would not prevent the courts from making new torts, but that they would have to be similar to existing torts.

Heuston took a similar view, arguing that there was a misinterpretation of the Salmond theory. Salmond did not intend to classify the law as a closed and expandable system. This does not mean that there are no ‘pigeon holes’, but that they are not so plentiful that they cannot be joined to each other.

Glanville Williams supported this theory, arguing that classification of torts as pigeon holes should not mean that there is no room for all wrongs or that no claim could arise from being part of any of those holes.

Winfield’s Theory
If we look at the definition which is given by Winfield failed to distinguish between crime, tort, breach of contract. he believed that it is law of Tort. According to him where the legal injury is strictly against the recognized law of the land or the general principle of liability arises when a person inflict injury to another and or if a person violates the duty and resulted in the legal injury of another person. which says, all unjustified harms are tortuous.
Then we can call tort and the aggrieved party has a right of action for unliquidated damages.

Winfield leaves space for the creation of new Torts. His Theory has a wide approach towards tortuous liability. New Torts originated with changing times can be properly handled by Winfield’s Theory. Thereby the extent of Torts covered and range of remedy is also wide.

Winfield, one of the most influential legal scholars, defined torts as ‘tortious liability arising from the infringement of a duty primarily laid down by law, which is to the detriment of persons generally, and to which the breach of that duty can be remedied by an action for unmeritorious conduct.’ In other words, he regarded tort as a failure to fulfil an obligation, the remedy for which would be awarded in the form of ‘unmeritorious conduct’, that is to say, damages awarded in respect of breach of contract arising from causes which are not reasonably foreseeable’.
He defined a tort as any injury caused to another person without justification by the existing laws of the country. He believed in one category of tort which, unlike Salmond’s theory, would also accommodate newer torts and establish a common principle of liability. It would also provide a remedy for unidentified wrongs.

As opposed to Salmond, Winfield’s theory also supported the creation of new torts by the courts of law. In Ashby v White (1703), Holt CJ stated that if a man has multiple injuries, the actions that can be taken must be multiplied as well since every injured man has the right to compensation. Justice Bhagwati in MC Mehta v Union of India (1986) opined that there is a need to evolve the existing principles and lay down norms addressing newer issues arising from a heavily industrialized economy. The understanding and thinking of the courts must not be restrained and new jurisprudence must be created.

It can therefore be concluded that Winfield’s theory was very general and was the complete antithesis of Salmond’s theory. This theory was also accepted implicitly by the courts.

However, Winfield made an important point where he said that Salmond’s theory would be sufficient to give a narrower view in a similar way that a tree would be treated as ‘inanimate’ for the purpose of avoiding an accident but would be considered ‘inanimate’ because it grew out of a tree and is continuing to grow.

Criticism of the theory
The theory was heavily criticised on the grounds that many new torts existed that had not been legally recognized and were not in any way similar to those already in existence. It has also been criticized due to confining the scope of the law of torts. In the modern-day world, the number of wrongs is increasing at an exponential rate.

In the case of Chapman v Pickersgill (1762), Pratt C.J. held that torts are infinitely many and are not confined or limited to any extent. In Pasley v Freeman (1789), the tort of deceit was legally recognized.

The doctrine of strict liability was established in Rylands v Fletcher (1868) and the tort was not substantially similar to any tort in existence

The case of Donoghue v Stevenson (1932) is self-explanatory. A complaint was lodged by the plaintiff after finding a snail at the bottom of the ginger beer she had purchased. Being an injury that could not be reasonably foreseen, the owner was not held liable; rather, it was the manufacturer who was liable for his negligent conduct. The neighbour rule and laws on the rights of the consumers were formulated after the case.

The tort of negligence was shaped because of the landmark judgment. In Furniss v. Fitchett (1958), Barrow C.J. stated that the well-known traditional torts do not emanate from an all-embracing general principle ascertaining tortious liability.

In Rookes v Barnard (1964), the tort of intimidation was identified. Most importantly, the landmark judgment of MC Mehta v Union of India (1986) wherein the Supreme Court of India propounded the concept of ‘absolute liability.’

The courts have, either explicitly or implicitly, rejected the pigeon hole theory proposed by Salmond because it is so limited. There is no room for incorporation or the creation of new torts. Furthermore, the plaintiff would be deprived of the right to sue the wrongdoer before a court. If we were to proceed on the basis of the pigeon hole theory it would be very difficult to deal with the requirements of the people, and the legislative framework which needs to be drafted on a case-by-case basis would be rejected because the wrong has not previously been recognised.

Leave a Reply

Your email address will not be published. Required fields are marked *

error: Content is protected !!