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West Bromwich Albion Football Club Limited v El-Safty, High Court, 14 December 2005

6 January 2006
The issues

Duty of Care – Sport – Whether Surgeon Owed Duty of Care to Football Club when treating a player

The facts

The Claimant club signed Michael Appleton in January 2000 on a 3 Ω year contract. In November 2001 he was injured. He was referred by the club to Mr El-Safty, Consultant Surgeon who advised that reconstructive surgery should be carried out to the right posterior cruciate ligament. He performed the operation which was unsuccessful. Mr Appleton never recovered and has had to retire from football.

It was common ground that the advice that the knee should be reconstructed was negligent. If the appropriate course of action had been taken, Mr Appleton would have been fit again within about 4 months. The club claimed damages from the Defendant for the losses it alleged it had suffered both in contract and in tort.

The Defendant denied that there was a contract with West Bromwich Albion and denied that he owed any duty in tort.

The decision

On the basis of the evidence there was no contract between the club and Mr El-Safty. Neither the club nor the Defendant had any intentions to create a legal relationship. Mr El-Safty acted on the basis that Mr Appleton was his patient. He did not discuss any financial matters with the Defendant but assumed that there was BUPA cover. He was emphatic that he had not entered into a contract with West Bromwich Albion pointing to the potential conflict of interest.

A question remained as to whether there was a duty in tort.

It was reasonably foreseeable that West Bromwich Albion might suffer a loss if Mr Appleton was negligently treated so that he was unable to return to play football.

Mr El-Safty regarded himself as giving advice to his patient, Mr Appleton. There was no suggestion that Mr El-Safty’s advice was communicated to other people at West Bromwich Albion other than Mr Worth, the Club Physiotherapist.

The Claimant was referred to Mr El-Safty by Mr Worth or one of the Club’s doctors. Mr El-Safty reported back to whoever had referred to him.

Mr El-Safty might know that the player had a value to the club but would not know what the value was nor would he know how long the player’s contract had to run. The West Bromwich Albion players amounted only to a tiny percentage of his patients. He did not have particularly close ties with West Bromwich Albion. There was not sufficient proximity between the Claimant and the Defendant.

If that was wrong, the Court had to consider whether it was fair, just and equitable to find that there was a duty of care. This raised difficult issues such as for example whether a Consultant advising a Rooney or a Beckham or a Flintoff should have a potential tortious liability to their club or the County or England for negligent treatment which liability might run into millions of pounds. In such cases if there were to be a duty should the Consultant take steps to ascertain their value to as to evaluate his potential liability? How would he do this? How would insurance premiums be affected?

Even if there had been sufficient proximity it would not be fair, just and equitable to find that there was a duty.

Claim dismissed.

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