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Smith v Collett, Court of Appeal, 17 June 2009

10 July 2009
The issues

Loss of a chance, footballer – future loss

The facts

Ben Collett was 18 when he was playing in the reserve team for Manchester United against Middlesbrough’s reserve team in May 2003. As a result of a high tackle Ben Collett suffered a fracture of the right tibia and of the fibula. He had been spotted by Manchester United’s scouts at the age of 9 and had been recruited for the club’s youth academy. He was on the verge of moving into the adult game. The match in which he was injured was his first for the adult reserve team. He hoped to become a professional footballer at a high level. Although he made a good recovery from the fracture he never regained his former ability in the game and two or three years after the accident gave up professional football and began another career. He brought an action for damages against Middlesbrough alleging that he had been deprived of his chance of a lucrative career as a professional footballer. The Judge awarded £4,577,323 at trial, the loss of future earnings amount to £3,854,328. Gary Smith and Middlesbrough appealed. The Judge had had to assess the value of the claimant’s chance of pursuing a career as a professional footballer. She had to make three types of assessment, namely at what level he might have been expected to play; at what level of remuneration; and over what period of time. The claimant’s case was that he would have got into the first team of a Premier League club or if not at least towards the upper end of the Championship League. After hearing evidence from, amongst others Gary Neville, Sir Alex Ferguson and Howard Wilkinson, the Judge found that in the 2003/2004 season he would have played for Manchester United. In the 2004/2005 season he would have stayed with Manchester United playing mainly in the Reserve Team and occasionally in the First Team. His net notional earnings for that year were assessed at just below £59,000. In the 2005/2006 season the claimant would probably have been on loan to an aspiring Championship club whilst remaining on Manchester United’s books. The net notional earnings for that year were assessed at just over £65,000. For the 2006/2007 season the claimant would probably have been sold to an aspiring Championship club on the basis that, as Sir Alex Ferguson had explained, there was no opening for him in the First Team for the foreseeable future. His notional earnings for that year were assessed at just under £190,000. For the following year the Judge found that the claimant would have remained at the same club where his earnings would have increased to nearly £236,000. The Judge then went on to apply discount for contingencies. For the last two pre-trial seasons the Judge discounted the losses by 5%, recognising that this was a small discount but considering that the risk of the career being disrupted by contingencies other than injuries at this stage were remote. The pre-trial loss was estimated at £456,095 and there was no appeal from that decision.

In respect of the post trial period, the Judge found that in the worse scenario the claimant would have played throughout his career for a Championship club with a team towards the upper end of the league – one of the “yo yo clubs”. She also found that the claimant had a good chance of playing in the Premiership put at 60% for one third of his playing career. Relying on surveys of wages to apply 15% increase in the wages the claimant might have expected to earn whilst playing in the Championship League between 2007 and 2008 and estimating the same percentage of the following year, the Judge finally applied a 15% discount to future loss of earnings to take account of the risk of injury and other contingencies.

The decision

On the evidence the likelihood that the claimant would have achieved at least Championship level was very strong, as was the evidence that he would have played for a club at the upper end of that league. The Judge had not ignored the risk that he might have achieved that level but had assessed it as small. She had included in her assessment the risk of premature termination and had not misdirected herself or failed to make any allowance for the risk that the claimant might not have achieved a place in a top level Championship club. She had taken into account the possibility that the claimant might have done better than she had predicted and she had been entitled to take that view. The 15% overall reduction was reasonable. There was also ample evidence to justify the Judge’s approach in applying a 25% uplift to the annual Championship League club survey.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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