Action.
8
Sect. 1.
Ubi jus, ibi remedium.
where a plaintiff's right to vote at a parliamentary election was denied by the polling officers it was held that they were liable to him in damages, although the candidates for whom he wished to vote were nevertheless elected (s). So a banker who had funds wherewith to honour a customer's cheque, but, in breach of his duty, dishonoured it, was held liable in damages without any proof of pecuniary loss to the customer (t). Similarly a person who trespasses on another's land without injuring it (u), or who wrongfully diverts water from another's stream, though leaving a sufficient flow for his present use, is liable to an action (x).
Statutory remedy alone available in certain cases.
5. Although it is true that a person who suffers an infringement of some private right may in general maintain an action in respect thereof, yet in the case of rights which depend upon some statute it may be that there is some statutory remedy which alone he can pursue. Upon this point the general rule has been stated in the following words (y): " There are three classes of cases in which a liability may be established founded upon a statute. One is where there was a liability existing at common law, and that liability is affirmed by a statute, which gives a special and peculiar form of remedy different from the remedy which existed at common law. There, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is where the statute gives the right to sue merely, but provides no particular form of remedy. There the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which, at the same time, gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class." In each case, however, in deciding whether a statutory remedy is, or is not, intended to be the only remedy for breach of the statutory duty, the particular statute must be examined (z). And even where the ordinary remedy by action for damages is excluded, there may also be a concurrent remedy by injunction (a).
- (s) Ashby v. White, supra; but where a person, not in law entitled to vote, was on the register, it was held that the rejection of his proffered vote was not an injuria, for he had no " right" to vote (Pryce v. Belcher (1847), 4 C. B. 866).
- (t) Marzetti v. Williams (1830), 1 B. & Ad. 415.
- (u) Ibid., per Taunton, J., at p. 426; Clifford v. Hoare (1874), 22 W. R. 828; Williams v. Morland (1824), 2 B. & C. 910.
- (x) Harrop v. Hirst (1868), L. R. 4 Ex. 43.
- (y) Per Willes, J., in Wolverhampton Waterworks Co. v. Hawkesford (1859), 6 C. B. (N. S.) 336, at p. 356. See also Great Northern Fishing Co. v. Edgehill (1883), 11 Q. B. D. 225; Pasmore v. Oswaldtwistle Urban Bistrict Council, [1898] A. C. 387; Stevens v. Chown, [1901] 1 Ch. 894; Harrington (Earl) v. Derby Corporation, [1905] 1 Ch. 205, 222.
- (z) Atkinson v. Newcastle Waterworks Co. (1877), 2 Ex. D. 441, 448, per Lord Cairns, L.C.; Groves v. Wimborne (Lord), [1898] 2 Q. B. 402, per Vaughan Williams, L.J., at p. 416.
- (a) Cooper v. Whittingham (1880), 15 Ch. D. 501; Stevens v, Chown, supra ; A.-G. v. Ashborne Recreation Ground Co., [1903] 1 Ch. 101.
