The question of whether the subject is best described as the ‘law of tort’ or the ‘law of torts’ is a classic academic debate that concerns the very foundations of civil liability for wrongdoing. This question is not merely a matter of semantics; it represents two fundamentally different theories about how tortious liability arises in English law. The ‘law of torts’ theory suggests that liability only exists in a number of specific, named torts, whereas the ‘law of tort’ theory posits a general, underlying principle of liability for wrongful harm. This essay will examine these competing views, arguing that while the historical structure of the subject supports the ‘law of torts’ model, the development of modern law, particularly in negligence, indicates that the ‘law of tort’ is a more accurate description of the current position.
The ‘Law of Torts’ – Salmond’s Pigeon-Hole Theory
The more restrictive view is that there exists a ‘law of torts’. This theory, most famously advanced by the academic Sir John Salmond, suggests that the law consists of a set of distinct and defined torts, such as negligence, defamation, and trespass to the person. According to this model, a claimant can only succeed if the facts of their case can be fitted neatly into one of these pre-existing ‘pigeon-holes’ of liability (Salmond, 1907). If a defendant’s conduct does not fall within the definition of a specific tort, then no wrong has been committed in the eyes of the law, regardless of the harm caused.
This theory accurately reflects the historical origins of tort law, which developed from the old writ system where a claimant had to find an existing ‘form of action’ to bring their case before the courts. The law was, for a long time, a collection of separate rules without a unifying principle. Proponents of this view argue that it provides certainty and predictability, as the boundaries of liability are clearly demarcated. Judges are not free to create new liabilities at will; they must operate within the established categories. This approach can be seen as limiting judicial activism and ensuring that the scope of liability is not expanded too far, too fast.
The ‘Law of Tort’ – Winfield’s General Principle Theory
In contrast, the ‘law of tort’ theory argues that there is a single, general principle underpinning the entire subject. This theory, championed by Professor Percy Winfield, proposed that all harm inflicted on another person is a tort unless there is a lawful justification or excuse (Winfield, 1931). From this perspective, the named torts are not a closed list of wrongs but are merely examples of the application of this wider principle. Winfield’s view is that the law is capable of growth and can recognise new forms of liability to address changing social conditions and new types of harm.
The most powerful evidence for this theory is the development of the tort of negligence following the landmark decision in *Donoghue v Stevenson* [1932] AC 562. Lord Atkin’s formulation of the ‘neighbour principle’ was a broad, general statement of duty: “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour” (p. 580). This principle was not confined to a specific set of facts but was a general test that could be applied to new situations. The subsequent expansion of negligence to cover psychiatric injury, economic loss, and liability for omissions demonstrates the law’s capacity to grow from a general principle, which strongly supports Winfield’s theory. More recently, the development of the tort of misuse of private information from the equitable action for breach of confidence, as seen in cases like *Campbell v MGN Ltd* [2004] UKHL 22, also shows the law creating new forms of protection based on underlying principles of right and wrong, rather than being confined to historic pigeon-holes.
Conclusion
In conclusion, the debate between the ‘law of tort’ and the ‘law of torts’ highlights a central tension between certainty and flexibility in the common law. Salmond’s ‘law of torts’ theory accurately describes the historical, fragmented origins of the subject and reflects a judicial desire for legal certainty. However, it fails to account for the dynamic and evolving nature of the law. Winfield’s theory of a single ‘law of tort’ based on a general principle of liability for unjustified harm provides a much better explanation for the development of the law in the 20th and 21st centuries. The immense growth of negligence, based on the general neighbour principle from *Donoghue v Stevenson*, is the clearest illustration that the law is not a fixed and finite list of wrongs. While the subject is still taught and structured around specific ‘torts’ for convenience, the underlying judicial methodology appears to favour the view that the law can and will provide a remedy for new wrongs where justice requires it. Therefore, it is more conceptually accurate to describe the subject as the ‘law of tort’.
References
* *Campbell v MGN Ltd* [2004] UKHL 22
* *Donoghue v Stevenson* [1932] AC 562
* Salmond, J. (1907) *The Law of Torts: A Treatise on the English Law of Liability for Civil Injuries*. Stevens and Haynes.
* Winfield, P. H. (1931) ‘The Foundation of Liability in Tort’, *Columbia Law Review*, 27(1), pp. 1-13.
