Winfield,+'Chapter+3+Tort+Defined'

=The best definition of tort is as follows:= //Tortious liability arises from the breach of a duty primarily fixed by the law: such duty is towards persons generally and its breach is compensated by an action for unliquidated damages.//

There are two options for the foundation of liability in tort:
 * Theory (1): all injuries done to person by the other are torts, unless there be some justification recognized by the law**
 * Championed by Sir Frederick Pollock.
 * Courts have full power to create new torts
 * Theory (2),** **"Inexpansibility" Theory: there is a definite number of torts (assault, battery, defamation) outside which liability in tort does not exist.**
 * Sir John Salmond: "Just as criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is theree any general principle of liability."

Winfield believes that Theory (1) represents better the English law of torts. The law of tort is based upon the principle that all harm to another person is presumptively unlawful.
 * The problem with Theory (2) is that tort law has historically grown upwards and outwards. Innominate torts have become nominate torts.
 * The argument in favour of Theory (2) is that there are many instances of //damnum absque injuria//, ie: the man is ruined by fair business competition and has no action in tort. The fallacy with this argument lies in the inference that, because the law will not give a remedy in every case, it will therefore never give a remedy in a new case.
 * Theory (1) says that all //unjustifiable// harm is actionable, and not that //all harm//is actionable. There are many circumstances when the plaintiff won't recover.
 * Judges have the power to create new torts, but use their judicial discretion to decide whether or not to do so. They use public policy to guide them.
 * The French Civil Code has a general liability in tort (art. 1382) and so does the German (art. 823).