damages - an inconsistent line of authority (6.9)
This part last updated 5 February 2003
best estimate rule is not yet fully established as a broad statement of
principle. This is due to the existence of a distinct and inconsistent
line of authority in which nominal damages (6.9) are awarded. Nominal
damages are sometimes awarded where it is said that the claimant has
failed to prove the amount of loss incurred due to insufficiency of
quantum evidence or uncertainty (see article on Quantum of
Damages) in relation to the amount/quantum of loss/damage incurred.
Where liability is established (on the basis of the primary
facts/evidence of some harm) there is a factual and evidential
basis for some compensation to be awarded and the duty to assess
arises at that point. There is therefore an important distinction
between 2 types of evidence, namely evidence of some harm and
quantum evidence, since the burden of proof lies between the two/is
discharged when some harm is established. It would be incorrect
therefore to award nil damages or nominal damages (nominal damages is
not an assessment of damages) where some harm has been established:
Allison v. Chandler, 11 Mich. 542, 550-556, applied in Story
Parchment Co. v Paterson Parchment Paper Co., 282 U.S. 555 (1931).
The court has a number of options where better or more certain/precise
quantum evidence is obtainable: see Evidence as to Quantum/options in
the article on Liability.
Nominal damages are also said to be recoverable where the claimant has failed to establish liability/fails to prove some loss. In that context an award of nominal damages would be inconsistent with the universally accepted ‘but for’ principle (1.2-1.3) and see article on Quantum of Damages.
The distinction between the best estimate rule and an award of nominal damages (in the context of difficulty of making an apportionment of damage) is considered in the commentary on Owners of the ship Arietta S Livanos v Owners of the ship Anneliese, The Anneliese  2 All ER 29.
Copyright Stewart Dunn