Chaplin v Hicks  2 KB 786 is often cited as the first loss of a chance case. I thought it was more or less a case about a lottery in which the plaintiff missed out on a, say, 10% chance of winning a prize and recovered 10% of the prize monies. But by reading it I discovered it is actually a case in which the plaintiff missed out on competing by audition with 49 others for twelve three year jobs as an actress. So about one in four of the 50 would get a job the total average pay for which was £624. Miss Chaplin recovered £100 at first instance, but how that figure was arrived at was not explained, because this was an appeal from a jury decision in a case presided over by Pickford J. Evidently, £100 is not about a quarter of £624, though.
If anyone can point me to the first instance decision, original newspaper advertisement, or a photo of Miss Chaplin, I would be most grateful.
‘The defendant, later Sir Seymour Hicks, was a well-known actor and theatrical manager in Edwardian London, who had built the Aldwych and Globe theatres, presented successful musical comedies, and discovered new talent, including that of the young P G Wodehouse as a lyricist,’: Tabet v Gett (2010) 240 CLR 537 per Gummow J at . He was Scrooge in a famous movie version of Dickens’s A Christmas Carol.
Mr Hicks advertised in a newspaper a competition for aspirant actresses: send a photo and some words, he said, and 4 ladies will be selected for 3 year engagements at £5 a week, 4 ladies for such engagements at £4 a week, and 4 at £3. About 6,000 photos were received.
Mr Hicks selected 300 entrants and published their photographs in the newspaper, divided into 10 regions of the UK, and asked the readers of each region to select the most attractive of the 30 ladies in their region, the top 5 scoring an audition with Mr Hicks. So 50 ladies got a chance to get 12 jobs.
In her region, Miss Chaplin got the most votes. But through fault of Mr Hicks characterised as breach of a contract (presumably a unilateral contract), Miss Chaplin was deprived of the chance to audition; she did not get the invitation in time to attend, before the successful candidates were selected.
Once causation and remoteness were determined by the judge, the question of damages was one for the jury’s discretion at first instance back in the early 20th century. They had awarded Miss Chaplin damages for breach of contract of £100. The Court of Appeal dismissed Mr Hicks’s appeal in which he argued that the loss was too remote and was in any event unquantifiable and so not compensable.
How the jury calculated the damages was not explained. In ‘Loss of a Chance in Medical Negligence’  UMelbLRS 14, Harold Luntz observes at fn 140:
‘If abstract probabilities alone came into the matter, the plaintiff would have been entitled to damages of about £161. She had four chances in 50 of an engagement at £5 per week (ie 4/50 of £780), four chances in 46 of an engagement at £4 per week (ie 4/46 of £624) and four chances in 42 of an engagement at £3 per week (ie 4/42 of £468). Allowing for the possibility of employment elsewhere, for other contingencies (eg illness) and for early receipt of some of the money, the amount awarded seems to have been remarkably fair. (J M Keynes, A Treatise on Probability, Collected Writings ed, Macmillan, London, 1973, p 29 n 1, regarded it as too high on the ‘doctrine of averages’ alone.) The jury would also have had the advantage of seeing the plaintiff and would have been entitled to give weight to the plaintiff’s having headed the contestants in her own district in the elimination contest.’
Ms Chaplin missed out on the wages, but did not have to do the work, and was able to look for other work. The fact that 6,000 people applied for this job suggests that it was better in either the short or the long term, or both, than the other jobs available to the applicants. She also missed out on the likely flow-on effects of winning the competition, including the chance to rise to stardom. But none of these matters are discussed in the judgment.
Ralph ‘The Lark Ascending’ Vaughan-Williams’s uncle dispensed with an argument that the loss was too remote (weird, right? see KB 795), and then dealt with the other argument, which had nothing to do with the fact that it was more likely than not that Ms Chaplin would not have won the competition:
‘Then came the point that was more strenuously argued, that the damages were of such a nature as to be impossible of assessment. It was said that the plaintiff’s chance of winning a prize turned on such a number of contingencies that it was impossible for anyone, even after arriving at the conclusion that the plaintiff had lost her opportunity by the breach, to say that there was any assessable value of that loss. It is said that in a case which involves so many contingencies it is impossible to say what was the plaintiff’s pecuniary loss. I am unable to agree with that contention. I agree that the presence of all the contingencies upon which the gaining of the prize might depend makes the calculation not only difficult but incapable of being carried out with certainty or precision. The proposition is that, whenever the contingencies on which the result depends are numerous and difficult to deal with, it is impossible to recover any damages for the loss of the chance or opportunity of winning the prize.
I do not agree with the contention that, if certainty is impossible of attainment, the damages for a breach of contract are unassessable. I agree, however, that damages might be so unassessable that the doctrine of averages would be inapplicable because the necessary figures for working upon would not be forthcoming; there are several decisions, which I need not deal with, to that effect. I only wish to deny with emphasis that, because precision cannot be arrived at, the jury has no function in the assessment of damages.
In the case of a breach of a contract for the delivery of goods the damages are usually supplied by the fact of there being a market in which similar goods can be immediately bought, and the difference between the contract price and the price given for the substituted goods in the open market is the measure of damages; that rule has been always recognized. Sometimes … there is no market for the particular class of goods; but no one has ever suggested that, because there is no market, there are no damages. In such a case the jury must do the best they can, and it may be that the amount of their verdict will really be a matter of guesswork. But the fact that damages cannot be assessed with certainty does not relieve the wrong-doer of the necessity of paying damages for his breach of contract. I do not wish to lay down any such rule as that a judge can in every case leave it to the jury to assess damages for a breach of contract. There are cases, no doubt, where the loss is so dependent on the mere unrestricted volition of another that it is impossible to say that there is any assessable loss resulting from the breach. In the present case there is no such difficulty. It is true that no market can be said to exist. None of the fifty competitors could have gone into the market and sold her right; her right was a personal right and incapable of transfer. But a jury might well take the view that such a right, if it could have been transferred, would have been of such a value that every one would recognize that a good price could be obtained for it. My view is that under such circumstances as those in this case the assessment of damages was unquestionably for the jury. The jury came to the conclusion that the taking away from the plaintiff of the opportunity of competition, as one of a body of fifty, when twelve prizes were to be distributed, deprived the plaintiff of something which had a monetary value. I think that they were right and that this appeal fails.’
Fletcher Moulton LJ said:
‘Mr. McCardie does not deny that there is a contract, nor that its terms are as the plaintiff alleges them to be, nor that it is enforceable, but he contends that the plaintiff can only recover nominal damages, say one shilling. To start with, he puts it thus: where the expectation of the plaintiff depends on a contingency, only nominal damages are recoverable. Upon examination, this principle is obviously much too wide; everything that can happen in the future depends on a contingency, and such a principle would deprive a plaintiff of anything beyond nominal damages for a breach of contract where the damages could not be assessed with mathematical accuracy. The learned counsel admitted that it was very difficult to formulate his proposition, but he ultimately said that where the volition of another comes between the competitor and what he hopes to get under the contract, no damages can, as matter of law, be given.
But in most cases it may be said that there is no recognized measure of damages, and that the jury must give what they think to be an adequate solatium under all the circumstances of the case. Is there any such rule as that, where the result of a contract depends on the volition of an independent party, the law shuts its eyes to the wrong and says that there are no damages? … Where by contract a man has a right to belong to a limited class of competitors, he is possessed of something of value, and it is the duty of the jury to estimate the pecuniary value of that advantage if it is taken from him. The present case is a typical one. From a body of six thousand, who sent in their photographs, a smaller body of fifty was formed, of which the plaintiff was one, and among that smaller body twelve prizes were allotted for distribution; by reason of the defendant’s breach of contract she has lost all the advantage of being in the limited competition, and she is entitled to have her loss estimated. I cannot lay down any rule as to the measure of damages in such a case; this must be left to the good sense of the jury. They must of course give effect to the consideration that the plaintiff’s chance is only one out of four and that they cannot tell whether she would have ultimately proved to be the winner. But having considered all this they may well think that it is of considerable pecuniary value to have got into so small a class, and they must assess the damages accordingly.’
Farwell LJ said:
‘The necessary ingredients of such an action are all present; the defendant has committed a breach of his contract, the damages claimed are a reasonable and probable consequence of that breach, and loss has accrued to the plaintiff at the time of action. It is obvious, of course, that the chance or probability may in a given case be so slender that a jury could not properly give more than nominal damages, say one shilling; if they had done so in the present case, it would have been entirely a question for them, and this Court could not have interfered. But in the present competition we find chance upon chance, two of which the plaintiff had succeeded in passing; from being one of six thousand she had become a member of a class of fifty, and, as I understand it, was first in her particular division by the votesof readers of the paper; out of those fifty there were to be selected twelve prize-winners; it is obvious that her chances were then far greater and more easily assessable than when she was only one of the original six thousand. If the plaintiff had never been selected at all, the case would have been very different; but that was not the case. In my opinion the existence of a contingency, which is dependent on the volition of a third person, is not enough to justify us in saying that the damages are incapable of assessment.’
If one accepts that those 10 women who came first in their divisions were more likely to be selected by Mr Hicks (because he would give credence to the views of the public whose entertainment generated his profits, or because he and the public would see things the same way, or both), then Ms Chaplin had progressed from a class of 6,000 to a class of 50 to a class of 10. If Ms Chaplin were very beautiful, with a demonstrably winsome personality, and the characteristics required of a good actress, I wonder whether she might not have attempted to prove that she was more likely than not to have won.
I wonder whether Mr Hicks attempted to give evidence that he would not have chosen Ms Chaplin had she auditioned before he made his decision, and if not why not. I also wonder whether, as modern lawyers would advise, he considered settling the case by taking her on for, say, 18 months at £3 a week.