At trial in a misattribution claim, unless the claimant can establish the link between breach and damage, the technical litigation risk is that the claim will fail. In any negligence claim, there is an essential intrinsic link between: (i) the breach of duty alleged; and (ii) the damage caused by it. The converse of this is that the measure of damage has to relate to the duty of care and its breach. Damage is the essence of the cause of action in negligence, and the critical question in a particular case is whether the scope of the duty of care in the circumstances of the case is such as to embrace damage of the kind which the claimant alleges to have suffered. It is therefore always necessary to determine the scope of the duty by reference to the kind of damage from which ‘A’ must take care to save ‘B’ harmless. As Lord Oliver emphasized in Murphy v. Brentwood District Council [1991] 1 AC 398, 486:
‘The essential question which has to be asked in every case given that damage which is the essential ingredient of the action has occurred, is whether the relationship between the [claimant] and the defendant is such … that it imposes upon the latter a duty to take care to avoid or prevent that loss which has in fact been sustained.’ This question necessarily subsumes the question whether the acts or omissions of the defendant caused the damage relied on. The loss must have a sufficient causal connection with the subject matter of the duty. The claimant has to prove both that he suffered loss and that the loss falls within the scope of the duty.’ A compelling reason for mediating misattirbution claims is that, the ‘English courts have established a diligence test that considers whether at least one other competent expert in the auctioneer’s position would have hypothetically reached the same conclusion as the mistaken auctioneer. Should this be the case, then the false attribution has been made with respect of the auctioneer’s duty of diligence. Generally, the harmed consignor may only succeed in his claim if all experts agree that the auctioneer was not reasonable in reaching the wrong attribution, or if all the expert evidence brings the court to decide – based on a preponderance standard – that the auctioneer’s attribution was not that of a reasonable expert. As a result the diligence test departs from the assumption of an attribution consensus among experts. The diligence test formulated by the English courts has two shortcomings in addition to the drawbacks of the reasonable auctioneer standard. First, the diligence test fails when no expert consensus exists at the time of the wrong attribution, secondly, the English rule is weakened by the circularity and contingency of scholarship, exposing attributions to divergences among scholars and to continuous changes.’ (The Sale of Misattributed Artworks and Antiques at Auction’ by Anne Laure Bandle, p.287).