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Foundation of Tortious Liability

According to prof. Winfield the law of torts has been a definite part of English law for over six hundred years. Tort is a civil wrong and it consists of those wrong which violates legal rights or causes legal injury to a person for which law provide damages to them, but there is difference of opinion whether it is law of tort or law of torts, whether there is any general principle of tortious liability and in this respect two competing theorists have been propounded by the jurists which are opposed to each other.

According to the first theory the number of torts are specific beyond which liability in torts does not arise which can be called the law of torts in other word. The profounder�of this theory is Sir John Salmond. According to him there was no English�law of tort, but it was merely an English�law of torts which consists a list of acts and omissions�and which is definitely actionable in certain conditions.

According to the other theory which is opposed by the above one was that all injurious act which causes harm to the other person are torts until the presence of any legal justification for it and in other words it can be said as law of torts.

The profounder�of this theory is Sir Fredric Pollack�and to which Dr. Winfield supported strongly and criticized Salmond's theory by calling it as Doctrine of pigeon hole, so to clear the view of Winfield here is an example of his theory:- If A causes any injury to his neighbor�B, he can sue him for the damages even though there maybe no particular mentioning of wrongful act such as assault, battery etc.

Lord Mansfield, Lord Comden and Dr. Allen Conven came up to support this theory. According to Lord Comden Torts are various, nor limited, nor codified.
As Dr. Winfield support this view that law of tort completely relies on the general principle let's look at the reasons in support of his view:
The entire history of the development of the law of torts is proof that the tort which was called 'trespass upon the case'in the beginning has now grown up continuously�and is still growing.In the beginning the action could be brought only on the specific tort known as writ upon the case came into existence.

Tort of malicious prosecution was not in the same form as it exists today.

Deceit which was confined to a narrow view and could not be called as tort became an independent tort after its separation�from law of contract.

In the 19th century many torts such as negligence ,strict liability and deceit came up as an independent tort in the case of Rylands v. Fletcher (strict liability) and Rooks v. Bernard (deceit). In 1963 the House of Lords introduced a new duty in the field of negligence and monetary injury caused due to negligent statement. By 1979 the scope of the tort of passing off was considerably broadened�and the above example makes it clear that the law of tort is continuously�expanding and it is not confined in a set of pigeon holes.

There are several cases on to which Winfield cites in support of this thesis and they are Pasley�v. Freeman, Rylands v. Fletcher and Brooke v. Bool. Court recognized�the new torts and also widened the scope of tortious liability. As per Salmonds theory there are certain specific heads of tort outside which there is no remedy.

Tort is not limited to that hole only, if men increases in the number day by day the injuries will also be and for every men who is injured has right to get compensated, for every injury there should be compensation and to get compensation for every legal injuries or damage there is a need to recognize�each harmful act as tort to which the exception�lies is, there shouldn't be any legal justification for it. From practical point of view the second theory of Dr. Winfield suffice completely.

His view is more correct and practical.
Let's get an answer to one question;
Does the law of tort consist of a fundamental general principle that it is wrongful to cause harm to other persons�in absence of some specific ground of justification or excuse or does it consists of a number of specific rules prohibiting certain kind of harmful act and leaving all the residue outside the sphere of legal responsibility? So to answer this question i would say that tort are infinitely various which is not limited only to some extent or confined.�

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