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Chaplin v Hicks Also reported [1911] 2 KB 786; 80 LJKB 1292; 105 LT 285; 27 TLR 458; 55 Sol Jo 580 COURT OF APPEAL Vaughan Williams, Fletcher Moulton and Farwell LJJ16 MAY 191116 May 1911

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Contract – Breach – Damages – Remoteness of damage – Test – Whether damage flows naturally from breach – Contemplation by parties as result of breach.

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Contract – Breach – Damages – Assessment – Impossibility of precise and certain assessment – Duty of jury to assess to best of ability – Plaintiff deprived of right to compete for prize – Chance of winning dependent on contingencies. In deciding the question whether the damage in respect of which damages are sought to be recovered in an action for breach of contract is too remote the test to be applied is, generally speaking, whether, having regard to the terms of the contract, express or implied, the damage flows so naturally or by express declaration from the terms of the contract and the breach complained of that it can be said to be the result of the breach. That is generally expressed by saying that where the damage is such as must have been in the contemplation of the parties as being a possible result, of the breach, it cannot be regarded as too remote. The mere fact that it is impossible to assess damages with precision and certainty does not relieve the jury of their duty to assess damages for breach of a contract to the best of their ability. Where, therefore, a person is deprived of a right to belong to a limited class of competitors for a prize of value, the chance of winning which depends on a number of contingencies, the jury must assess the value of his loss of the opportunity of winning the prize. Per VAUGHAN WILLIAMS, LJ: But I will not lay down that the case can in every such case be left to the jury to assess damages. There may be cases in which the loss resulting from a breach of contract is so dependent on the mere unrestricted volition of another person that it would be impossible to arrive at any assessable loss resulting from such breach. Notes Considered: Domine v Grimsdall, [1937] 2 All ER 119 Applied Biggin & Co v Permanite, Ltd, [1951] 1 KB 422 Considered: Beach v Reed Corrugated Cases, Ltd, [1956] 2 All ER 652 Referred to: Johnston v Braham and Campbell, [1916] 2 KB 529; Selby v Whitbread, [1917] 1 KB 736;Turpin v Victoria Palace, [1918] 2 KB 539; Barnett v Cohen, [1921] All ER Rep 528; Ruffy Arnell and Baumann Aviation Co v R (1921) 126 LT 573; Franco-British Ship Store Co v Compagnie des Chargeurs Francaise (1926) 42 TLR 735; London and North Eastern Rail Co v BA Collieries, Ltd, [1945] 1 All ER 51; Mehmet Dogan Bey v Abdeni & Co, [1951] 2 All ER 162 As to difficulty of ascertainment of damages and remoteness of damage see 11 HALSBURY'S LAWS (3rd Edn) 226, 227, 268 et seq, and for cases see 17 DIGEST (Repl) 89, 90, 114 et seq. Cases referred to: (1) Richardson v Mellish (1824) 2 Bing 229; 1 C & P 241; 9 Moore CP 579; Ry & M 66; 3 LJOSCP 265; 130 ER 294; 17 Digest (Repl) 87, 80. (2) Sapwell v Bass, [1910] 2 KB 486; 79 LJKB 932; 102 LT 811; 26 TLR 452; 17 Digest (Repl) 120, 318. (3) Maw v Jones (1890) 25 QBD 107; 59 LJQB 542; 63 LT 347; 54 JP 727; 38 WR 718, DC; 17 Digest (Repl) 119, 302. (4) Ex parte Waters, Re Hoyle (1873) 8 Ch App 562; 28 LT 757; 21 WR 554, LJ; 12 Digest (Repl) 231, 1727. [1911-13] All ER Rep 224 at 225 (5) Watson v Ambergate, Nottingham, etc, Rail Co (1851) Cox, M & H 495; 17 LTOS, 125; 15 Jur 448; 36 Digest (Repl) 198, 1042.

Also referred to in argument: Simpson v London and North Western Rail Co (1876) 1 QBD 274; 45 LJQB 182; 33 LT 805; 24 WR 294; 8 Digest (Repl) 153, 967. Walker v Goe (1859); 4 H & N 350; 28 LJ Ex 184; 32 LTOS 336; 5 Jur NS 737; 7 WR 289; 157 ER 875, ExCh; 17 Digest (Repl) 124, 344. Lagunas Nitrate Co v: Lagunas Syndicate, [1899] 2 Ch 392; 68 LJ Ch 699; 81 LT 334; 48 WR 74; 15 TLR 436; 43 Sol Jo 622; 7 Mans 165, CA; 9 Digest (Repl) 35, 44. Appeal by the defendant from the verdict and judgment at the trial before PICKFORD, J, and a common jury. The plaintiff's case was that the defendant, Seymour Hicks, an actor, and the lessee of the Aldwych Theatre, London, in the issues of the "Daily Express" newspaper of 5, 6, and 9 November 1908, made a public offer to the following effect: That if any lady in England who wished to become an actress would fill in and sign an application form published in the newspaper and send it, together with her photograph and the sum of 1s, to the offices of the newspaper, he, with the assistance of a committee of experts, would select from the photographs of all ladies accepting the offer and submitting their photographs twenty-four of the most beautiful faces among the photographs sent in; that these twenty-four photographs should be published by the "Daily Express"; that the readers of that newspaper, voting by coupons, should elect from among these twenty-four the twelve whom they considered to be the most beautiful, and that to the four of these twelve who had the greatest number of votes the defendant would give a theatrical engagement for three years each at a salary of 5 pounds a week, to the second four who had the next highest number of votes a theatrical engagement for three years each at a salary of 4 pounds a week, and to the third four a theatrical engagement for three years each at a salary of 3 pounds a week. On 9 November 1908, the plaintiff, Eva Chaplin, filled in an application form, signed it, and sent it to the office of the "Daily Express" together with her photograph and the sum of 1s On 9 December 1908, the "Daily Express" announced a variation in the terms of the original offer to which the plaintiff did not object. It was stated that as 6,000 photographs had been received, each of which was that of a good-looking girl, and it was impossible for the defendant with the assistance of his committee to reduce the number to reasonable limits, the following plan should be adopted: That to each of the applicants provisionally selected by the defendant and his committee a letter had been written stating that she was one of those eligible to receive votes; that the United Kingdom was to be divided into ten districts; that the photographs of all the selected candidates living in each district were to be given on application to the readers of the paper in the district, who were to select by their votes those whom they considered to be the most beautiful, and that the defendant was then to make an appointment with the five Indies in each division who had obtained the greatest number of votes and himself select twelve of them to fill the places he had offered. In accordance with the above scheme, on 10 December 1908, the "Daily Express" published the photograph of the plaintiff as No 9 in the district in which she resided in which district she headed the poll. On 4 January 1909, a letter was sent by the defendant's agent directed to the plaintiff at her London address, which she had given to the defendant. The letter was as follows: "Dear Madam, - Will you kindly call at the Aldwych Theatre at four o'clock on Wednesday afternoon to see Mr Seymour Hicks? - Yours faithfully, DWJ Douglas." The plaintiff, who was at that time carrying out a theatrical engagement in Dundee, did not receive this letter till the morning of January 6. On that day she wrote to the defendant as follows: [1911-13] All ER Rep 224 at 226 "Dear Sir, - Four letter was forwarded to me this morning. I am sorry I could not keep your appointment for this afternoon … If I hear from you I could catch the midnight express from Glasgow on Saturday and see you on Sunday." The plaintiff alleged that she subsequently wrote three times, and called at the Aldwych Theatre three times, with a view to obtaining an appointment to see the defendant, but that she received no answer to her letters from the

defendant and failed to obtain any appointment from him. On 4 March 1910, the plaintiff brought the present action against the defendant claiming damages for her loss of the chance of selection for an engagement which, in addition to the salary she would have received, would have been of great value to her professionally. The defendant, by his defence, pleaded that he never entered into the alleged or any contract with the plaintiff; that the statement of claim disclosed no cause of action against him; and that the alleged damage was too remote. At the trial before PICKFORD, J, and a common jury the jury found that the defendant had not taken reasonable means to give the plaintiff an opportunity of presenting herself for selection and assessed the damages at 100 pounds. The learned judge, after hearing arguments on the question whether the plaintiff could recover damages, gave judgment for the plaintiff for 100 pounds. The defendant appealed.

McCardie (AR Churchill with him) for the defendant. GA Scott, for the plaintiff, was not called upon to argue. VAUGHAN WILLIAMS LJ: This is an application by the defendant asking for judgment or a new trial in a case which was tried by PICKFORD, J, and a common jury. The case is one in which the plaintiff relies on a contract which she alleges she entered into with the defendant under which she says she obtained an opportunity of appearing together with other candidates in a competition in respect of which considerable prizes were offered, and she alleges that the defendant committed a breach of the contract by refusing her an opportunity of appearing in the competition whereby she suffered damage. I need not go into the facts at any length. So far as the contract and the breach of it are concerned, even if they were not admitted on the pleadings, they have, at any rate, been virtually admitted by counsel for the defendant, and the whole case has been discussed on the basis that there was a contract, and that there had been a breach of the contract as alleged by the plaintiff. But then it is said on behalf of the defendant that the breach of the contract was of such a nature that the damage if any, resulting from it was only nominal. In effect the argument on behalf of the defendant was based on these two propositions - namely, first, that the damages claimed were too remote; and, secondly, that they were unassessable. These, then, are the two matters with which I have to deal. In so far as it is said that the damage is too remote, generally speaking, the test to be applied is to see whether, having regard to the express or implied terms of the contract, the damage in respect of which damages are sought to be recovered flows so naturally or by express declaration from the terms of the contract and the breach complained of that it can be said to be the result of that breach. Generally speaking, that is expressed by saying that where the damage is such as must have been in the contemplation of the parties as being a possible result of the breach, it cannot be regarded as too remote. Here I think that the moment it is admitted that there was a contract which in effect gave the plaintiff a right to present herself for judgment and obtain a chance of winning one of the prizes offered by the defendant, and there being a finding of the jury that the defendant neglected to afford the plaintiff a reasonable opportunity of thus presenting herself, then there was a breach which was caused by the neglect of the defendant to give the plaintiff the opportunity of presenting herself for the final selection, which the defendant ought to have done. When I find that the claim here is for the loss caused to the plaintiff by reason of such a breach - that is to say, through her losing her opportunity [1911-13] All ER Rep 224 at 227 of taking part in the competition and winning a prize - I think it is impossible to say that such a result and such damages must not have been in the contemplation of the parties to the contract as a possible direct outcome of that breach. I will say nothing more on the question of the remoteness of damages. In my opinion the damage alleged by the plaintiff is not too remote.

But the point which has been more strenuously argued before us is that the damages are incapable of assessment. It is said that the chance of winning one of these prizes turns on such a number of contingencies that it is impossible to say, after coming to the conclusion that the plaintiff has suffered loss by losing the opportunity which had been afforded her of winning a prize, that there was any assessable value of that loss. It is said that success depends on so many contingencies that it is impossible to say what pecuniary loss accrued to the plaintiff. I agree that the presence of all these contingencies does make the calculation not only a difficult one, but also one as to which it is impossible to speak with certainty or precision. The proposition put forward is really this, that whenever the contingencies on which a competitor's chance of winning a prize depends are numerous and difficult to estimate, it is impossible for the competitor to recover damages for the loss of his chance of winning a prize. I understand there were fifty competitors and twelve prizes, so that the average chance of success would be about one in four. It is said, however, that the questions which might arise in the mind of the person who had to decide among the fifty competitors were so numerous that it would be impossible to apply the doctrine of averages. I do not agree. Then it is said that, if it is impossible to fix the damages with precision and certainty, it would be right to describe the damages as unassessable. I agree there may be cases in which the damages are so unassessable that the doctrine of averages is not possible of application because the figures necessary to be applied are not forthcoming, and indeed several cases are to be found in the reports where it has been so held, but I deny the proposition that, because precision and certainty cannot be arrived at, the jury have no function or duty to determine the damages. The history of the law as to the assessment of damages is not difficult to trace. In the early days no rules were laid down by the courts to guide juries in the assessment of damages in respect of breach of contract. Those matters were left to the jury absolutely. But as time went on the judges began to give advice to the jury as to the manner in which they should assess the damages, and as the stream of commerce began to increase and deepen during the period intervening between the reigns of Queen Elizabeth and Queen Victoria rule after rule was laid down by the judges for the guidance of the jury when assessing damages. Even now there may be many cases in which it would be very difficult to apply these rules. Of course in a case where there has been a breach of contract for the sale of goods the measure of damages is supplied by the fact that there is an existing market available where it is possible to buy similar goods immediately on the breach of the contract. It has, however, always been recognised that in some cases there may be no such market available, but it has never been suggested that because there was no such market available there could be no damages. In such cases the jury have to assess the damages as best they can. I deny that the mere fact that it is impossible to assess the damages with precision and certainty relieves a wrongdoer from paying any damages in respect of the breach of duty of which he has been guilty. But I will not lay down that it can in every case be left to the jury to assess damages; there may be cases in which the loss resulting from a breach of contract is so dependent on the mere unrestricted volition of another person that it would be impossible to arrive at any assessable loss resulting from such breach. It is true that in the present case there was no market to furnish a measure of damages; the right of each candidate to compete was personal to herself and could not be transferred. It is obvious that a candidate who found herself one of the fifty eligible for selection could not have gone into the market and sold her right to compete to another. At the name time I think the jury might reasonably have [1911-13] All ER Rep 224 at 228 asked themselves the question, if the right to compete and the chance of winning could have been sold, at what price it could have been gold. In my opinion, anyone could assign a value to the plaintiff's chance. Under those circumstances I think the question was one for the jury. They came to the conclusion that to take away from the plaintiff the opportunity of competing as one of the fifty candidates for the twelve prizes which were to be distributed was to deprive her of something which had a money value. In my opinion, they were right, and this appeal therefore fails. FLETCHER MOULTON LJ: It would have been impossible to have given more assistance to the court than was given by counsel for the defendant in his able argument, but, in spite of that, I have come to the same conclusion as the president of the court. The contract between the plaintiff and defendant was made when the plaintiff in answer to the announcement published by the defendant in the "Daily Express" filled in and signed an application form and sent

it together with her photograph to the office of the newspaper. The various photographs sent in were to be submitted to the defendant, who was assisted by a committee of experts, who were to select twenty-four from whom the successful candidates were to be chosen by the votes of the readers of the newspaper. As some 6000 photographs were sent in, it was found necessary to modify the original scheme. Several hundred photographs were provisionally selected by the defendant and his committee. The United Kingdom was divided into ten districts, and the photographs of these provisionally selected candidates were to be given to the readers of the newspaper, who were invited to determine by their votes the respective merits of the candidates residing in each district, and from the first five candidates in each division - that is to say, fifty in all - the defendant was himself to select the twelve candidates who were to fill the twelve appointments of considerable value offered by the defendant. The plaintiff was first in the division in which she resided. For the purposes of this appeal we must take it that the contract was entered into, and that the defendant did not keep his engagement with the plaintiff by failing to give her an opportunity of appearing before him for selection, with the result that she was excluded from the limited competition and had no chance of securing one of the appointments. Counsel for the defendant did not deny the existence of the contract, or its terms, or the fact that it was a contract which the law would enforce, or the breach of it by the defendant, but he said that the damages sustained by the plaintiff could only be nominal - namely, the amount of the fee (1s) which the plaintiff had paid upon entering for the competition. He said further that in a case where the expectation of the plaintiff depended upon a contingency the law would give him nothing but nominal damages for a breach of the contract. In my opinion, that proposition is wide of the truth. It may be said that the performance of every contract depends upon a contingency, and that, as it would be impossible to say what the value of the rights under a contract would be until it had fulfilled itself, a party could never recover damages for its breach. Admitting that that proposition was too wide, I could not get counsel to formulate his point. Ultimately, however, be stated his case to the effect that where the volition of a person comes between a party to the contract and the attainment of the advantage which he hopes to obtain under it, the law will give him no damages for breach of the contract; but he was not able to cite any authority for this proposition. In fact, Richardson v Mellish (1) is obviously in the teeth of such a proposition. But I do not propose to rely on that; I wish to go deeper and to consider what is the right of the plaintiff to damages on general principles, and, starting from these principles, to show that no such distinction can be drawn between contracts. At common law contracts were never enforced specifically as in equity. It considered o...