Introduction
The question of whether English law possesses a unified 'law of tort' or merely a collection of individual 'torts' is a foundational academic debate. This question concerns the fundamental structure and principles of civil liability for wrongful harm. One perspective, known as the 'law of torts' theory, suggests that liability only arises if the facts of a case can be fitted into a pre-existing category or ‘pigeon-hole’ of a specific tort. The alternative view, the 'law of tort' theory, argues for a single, general principle of liability: any harm caused unjustifiably is tortious. This essay will explore these two contrasting theories. It will argue that while the historical structure of the law supports the 'law of torts' view, the development and expansion of negligence points towards a gradual, though incomplete, shift towards a more unified 'law of tort'.
The 'Law of Torts' Theory
The more traditional perspective is that there is no general principle of tortious liability, but rather a collection of distinct torts. This view is most famously associated with the academic John Salmond, who argued, "There is no English law of Tort; there is only an English law of Torts" (cited in Rogers, 2010, p. 32). According to this ‘pigeon-hole’ theory, a claimant can only succeed if their claim fits precisely into an established tort, such as negligence, nuisance, defamation, or battery. If the facts do not match the elements of a recognised tort, there is no remedy, regardless of the harm suffered by the claimant.
This theory accurately reflects the historical development of the law, which grew from the medieval writ system. Under this system, a claimant had to obtain a specific writ that matched their complaint; if no writ existed for their particular wrong, they had no case. This legacy can still be seen today. For example, the courts have been reluctant to recognise a new, general tort of invasion of privacy. In Wainwright v Home Office [2003] UKHL 53, the House of Lords declined to create such a tort, preferring instead to develop the existing action for breach of confidence to protect privacy rights. This demonstrates the judiciary's preference for working within established categories rather than creating new ones based on a broad principle, lending support to the 'law of torts' theory.
The 'Law of Tort' Theory
In contrast, the 'law of tort' theory was championed by Sir Percy Winfield. He proposed that there is a general, underlying principle that all unjustifiable harm is tortious (Winfield, 1931). The specific, named torts are therefore not a closed list of categories but are merely examples of this wider principle in action. This theory suggests that the law is dynamic and can create new forms of liability to address new types of harm as society changes.
The most powerful evidence for this view is the development of the modern tort of negligence. In the landmark case of Donoghue v Stevenson [1932] AC 562, Lord Atkin formulated the 'neighbour principle'. This was a general principle for determining the existence of a duty of care, stating that one must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. This decision did not simply modify an existing rule but established a broad principle that could be applied to countless new situations, creating liability where none had existed before. The subsequent expansion of negligence to cover areas such as psychiatric harm and economic loss demonstrates the law’s capacity to grow based on a general principle, which strongly supports Winfield’s theory of a unified 'law of tort'.
Conclusion
In conclusion, neither theory perfectly captures the entirety of the law of civil wrongs in England and Wales. The 'law of torts' or 'pigeon-hole' theory, advocated by Salmond, accurately describes the law's historical origins and the continued judicial reluctance to create entirely new torts from first principles, as shown in cases like Wainwright. The law remains structured around a number of distinct causes of action. However, the 'law of tort' theory, promoted by Winfield, better explains the law's dynamism and its ability to adapt. The creation and expansion of negligence following Donoghue v Stevenson shows that the law is not a static list of wrongs but can evolve based on general principles of liability for foreseeable harm. Therefore, it is best to see the current system as a hybrid: it is fundamentally a 'law of torts' in its structure, but it is animated by the spirit of a 'law of tort', allowing for principled growth within and beyond its established categories.
References
Donoghue v Stevenson [1932] AC 562
Rogers, W.V.H. (2010) Winfield and Jolowicz on Tort. 18th edn. Sweet & Maxwell.
Wainwright v Home Office [2003] UKHL 53
Winfield, P.H. (1931) The Province of the Law of Tort. Cambridge University Press.
