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West Bromwich Albion Football Club Ltd v EL-Safty, Court of Appeal, 11 October 2006

17 October 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 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 High Court Judge concluded, amongst other matters, that there was insufficient proximity between the Claimant and the Defendant and that even if there had been sufficient proximity that it would not have been fair, just and equitable to have found a duty. The claim was dismissed.

The Claimant appealed.

The decision

The facts of the case pointed to a contract for medical treatment between the Defendant and Mr Appleton, the player, rather than a contract between the Defendant and West Bromwich Albion football club. It was an implied term of the treatment that the surgeon would be paid for it but it did not follow that the player would bear the ultimate burden of liability for payment. The treatment would be on the basis that the player would be covered by an insurance company to whom the Defendant would look for payment. The fact that the invoices were sent to the football club and the fact that it secured payment of the fees from the insurance company was evidence that it has agreed to secure payment of fees under the policy but it was not evidence of a contract between the football club and the surgeon. The appeal in respect of the claim in contract was dismissed.

There remained the claim in tort. Was there a duty of care in respect of foreseeable economic loss?

The reason why there was no such duty could be expressed in different ways. Firstly, there was no assumption of responsibility by the Defendant to the club for any financial loss that might be suffered by the club in relation to the loss in value of the player resulting from medical treatment. There was nothing in the dealings between the club and the Defendant that would indicate that he would ever agree to be responsible for its economic loss. Under the BUPA scheme he was paid to treat the player not to treat or advise the club. Secondly, although it was reasonably foreseeable by the Defendant, the club would suffer financial loss if his treatment was negligent and there was a proximity of a sort between him and the club it was not such that it would be fair, just or reasonable to impose a duty on the Defendant.

Appeal dismissed.

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