Odger's English Common Law

FAILURE TO PERFORM A PUBLIC DUTY. 435
authority—the existence of actual damage or loss is essential to the action,
as the law will not imply a loss to the plaintiff from mere disobedience to
the subpoena." The object of the action is not to enforce a public duty,
but to recover compensation for the injury done to the plaintiff, and the
law discriminates between the breach of the public duty and the personal
damage ; whereas only the former will be considered on a motion for
attachment for the contempt of Court committed by the witness. " To
found a motion for an attachment against a witness for disobeying a
subpoena, it must be shown that he has wilfully abstained from attend-
ing in pursuance thereof, or that he has in some way treated the process of
the Court with contempt." Even if the subpoenaed witness should succeed
on the question of contempt, he will still be liable to an action for any
damage which the plaintiff may have sustained in consequence of his non-
attendance, the ground of such an action being the breach of public duty
by the witness in disobeying the process of the Court combined with the
special damage which such non-attendance has caused to the plaintiff. 1
A public duty is often expressly created by statute ; when
this is so, the precise nature and extent of the duty must be
determined by the language of the Act creating it.
" When
a statute gives a right, then, although in express terms it has
not given a remedy, the remedy which by law is properly
applicable to that right follows as an incident." 2
A statutory duty towards the public may consist either in
doing or abstaining from doing some particular' act. And
'
' if the law casts any duty upon a person which he refuses
or fails to perform, he is answerable in damages to those whom
his refusal or failure injures ; " 8 but the non-performance of
a legal obligation of this kind will not be actionable without
special damage. Again, " when a ministerial duty is imposed,
an action
;" 4
lies for breach of it without malice or negligence
" where any law requires one to do any act for the benefit of
another, or to forbear the doing of that which may be to the
injury of another, though no action be given in express terms
by the law for the omission or commission, the general rule
of law in all such cases is that the party so injured shall have
an action." 5
> Couling v. Coxe (1848), 6 C. B. 703, 718, 719.
s Per Maule, B. (quoting Lord Holt, C. J.), in Braithnxtite v. Skinner (1839),
5 M. & W. at p. 327.
8 Per Lord Brougham in Ferguson v. Earl of Kinnoutt (1842), 9 CI. & P. at
p. 289.
1 Per Bovill, C. J., in Pickering v. James (1873), L. E. 8 C. P. at p. 503.
- Per Lord Holt, C. J., in Athby v. White (1703), (ed. 1837) p 11 ; for other
;
reports of his judgment see 2 Lord Raymond, 950, and 1 Smith's L. U., 12th ed., 281.
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