Chaplin v Hicks

JurisdictionEngland & Wales
Judgment Date1911
CourtCourt of Appeal

Damages - Measure of - Breach of Contract - Remoteness - Inassessability.

Where by contract a man has a right to belong to a limited class of competitors for a prize, a breach of that contract by reason of which he is prevented from continuing a member of the class and is thereby deprived of all chance of obtaining the prize is a breach in respect of which he may be entitled to recover substantial, and not merely nominal, damages.

The existence of a contingency which is dependent on the volition of a third person does not necessarily render the damages for a breach of contract incapable of assessment.

Richardson v. Mellish, (1824) 2 Bing. 229, and Watson v. Ambergate, &c., Railway, (1850) 15 Jur. 448, discussed.

APPLICATION of the defendant for judgment or a new trial in an action tried by Pickford J. and a common jury.

On November 5, 1908, a letter from the defendant, a well-known actor and theatrical manager, was published in a London daily newspaper, in which he said that, with a view of dealing at once with the numerous applications continually being made to him by young ladies desirous of obtaining engagements as actresses, he was willing that the readers of that newspaper should by their votes select twelve ladies, to whom he would give engagements. On the four following days the offer was published in detail in the newspaper. Ladies were invited to send their photographs to the newspaper by November 24, 1908, together with an application form, in which they were to insert name, address, and general personal description. The defendant, with the assistance of a committee, would then select twenty-four photographs to be published in the newspaper, and the readers of the newspaper would out of those select the twelve winners, to the first four of whom the defendant would give an engagement for three years at 5l. a week, to the second four an engagement for three years at 4l. a week, and to the third four an engagement for three years at 3l. a week. On November 10 the plaintiff sent in a signed application together with her photograph. The response to the defendant's offer was so great that in the issue of December 9 an alteration of the conditions of the competition was announced. It was stated that about six thousand photographs had been sent in, and that from these the defendant or his committee had selected about three hundred, which would be published in the newspaper in the following way: the United Kingdom would be divided into ten districts, and the photographs of the selected candidates in each district would be submitted to the readers of the newspaper in that district, who were to select by their votes those whom they considered the most beautiful. After the voting was completed the defendant would make an appointment to see the five ladies in each district whose photographs so published obtained the greatest number of votes, and from these fifty the defendant would himself select the twelve who would receive the promised engagements. The plaintiff assented to the alteration in the terms of the competition. The fifty photographs were then published with numbers appended to them in the newspaper, together with a ballot paper on which the reader of the newspaper registered his vote for the particular number which he preferred, and added his signature and address. On January 2, 1909, the poll closed; the plaintiff's name appeared as first in her particular section, and she became one of the fifty eligible for selection by the defendant. On January 4 the defendant's secretary wrote a letter to the plaintiff asking her to call at the Aldwych Theatre at 4 o'clock on Wednesday afternoon [January 6] to see the defendant. This letter was addressed to the plaintiff's London address, which was the only address given by the plaintiff in her application, and was delivered there by the first post on January 5. The plaintiff was at that time fulfilling an engagement at Dundee; the letter was at once re-addressed to Dundee, where it reached the plaintiff on January 6, much too late for her to keep an appointment in London on that afternoon. The other forty-nine ladies kept their appointments, and on January 6 the defendant made his final selection of the twelve, of whom the plaintiff was not one. The plaintiff made attempts, but unsuccessfully, to obtain another appointment with the defendant, and eventually brought the present action to recover damages on the ground that by reason of the defendant's breach of contract she had lost the chance of selection for an engagement. The jury found, in answer to a question put to them by the learned judge, that the defendant did not take reasonable means to give the plaintiff an opportunity of presenting herself for selection, and assessed the damages at 100l., for which sum Pickford J., after argument, directed judgment to be entered. The defendant appealed.

McCardie (A. R. Churchill with him), for the defendant. Assuming a breach of contract, the plaintiff is not entitled to substantial damages, but to nominal damages only. Either the damages do not flow directly from the breach and are too remote, or they are so contingent as to be incapable of assessment. The question has been discussed in actions against carriers for damages for loss or delay in the carriage of goods. In Watson v. Ambergate, &c., RailwayF1, which was decided at a time when the rule as to notice of the purpose for which the goods were required affecting the damages for their loss had not been authoritatively formulated, the question arose of the damages recoverable for the loss of a plan and model of a machine for loading colliers from barges, the plan and model being intended to be used in a competition for prizes; the Court seems to have decided that the measure of damages for loss of the plan and model was the value of the plan and model, and that the loss of the chance of obtaining the prize was not capable of assessment; there was, however, a difference of opinion, Patteson J. thinking that damages might be given for the loss of the chance, Erle J. thinking that they could not. In Mayne on Damages, 8th ed., p. 70, it is suggested that the view of Erle J. was correct, and the author puts the question thus: “Was the plaintiff's chance of winning the prize a matter of such an ascertainable value at the time of entering into the contract of carriage, as to have been capable of contemplation by both parties?” In Simpson v. London and North Western RailwayF2, where the defendants had notice of the purpose for which the samples delivered to them for carriage were required, loss of profit was held to be a natural and probable result of failure to deliver them in time. But substantial damages cannot be recovered where the claim is merely for the loss of a benefit which might or might not have accrued to the plaintiff; they certainly cannot be recovered where, in ordinary language, the odds are against the plaintiff ever deriving any benefit from his contract; that is not a mere question for the jury in assessing the amount of damages.

[FLETCHER MOULTON L.J. Take the case of a tontine of a hundred persons, of whom only three are left; if one of the three were improperly struck out, would he not be entitled to substantial damages?]

It is submitted that he would be entitled to nominal damages only; if he were held to be entitled to substantial damages, it would only be because a member of a tontine has an acknowledged right in property. It is clear that the law recognizes the existence of a liability which is incapable of being estimated. Such cases were directly provided for by s. 31 of the Bankruptcy Act, 1869, where a future and contingent liability, declared by an order of the Court to be incapable of being fairly estimated, was declared to be not provable in bankruptcy: see Hardy v. Fothergill.F3 The recent decision of Jelf J. in Sapwell v. BassF4 is a clear authority in favour of the defendant. The cases in which damages have been given for the loss of a probability, such as Frost v. KnightF5, are not in point; a probability is very different from a chance, which is a nonassessable possibility.

[FARWELL L.J. referred to Richardson v. Mellish.F6]


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