West Bromwich Albion FC v El-Safty
Reference:  EWHC 2866 (QB)
Court: Queen's Bench Division
Judge: Royce J
Date of judgment: 14 Dec 2005
Summary: Sports law - Negligence - Contract - Surgeon - Football player - Negligent treatment ending player's career - Liability to club
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Instructing Solicitors: Nexus for WBA; Medical Protection Society for the Defendant.
WBA football club signed a player, Michael Appleton, on a long-term contract in 2000. In 2001, he suffered an injury to his right posterior cruciate ligament. The Defendant, a consultant surgeon, advised that reconstructive surgery should be carried out. He performed the operation but it was unsuccessful. Mr Appleton never fully recovered and had to retire from professional football. It was admitted that the advice that the knee should be reconstructed was negligent. It should, at least initially, have been treated conservatively, in which case Mr Appleton would have probably have been fit again within about 4 months. WBA claimed damages from the Defendant for the losses which it alleged it had suffered in consequence of his negligence. The action was brought both in contract and in tort. The Defendant denied that there was a contract with WBA and denied that he owed any duty to WBA in tort. The existence of any duty in contract or tort was tried as a preliminary issue.
Whether the Defendant owed any duty to WBA (1) in contract or (2) in tort.
Finding that the Defendant did not owe any duty:
(1) There was no contract between WBA and the Defendant. WBA’s physiotherapist had referred Mr Appleton to the Defendant as a health professional, as opposed to instructing the Defendant for reward. There was no intention to create legal relations between WBA and the Defendant.
(2) Applying the elements set out in Caparo v Dickman  2 AC 605 as to when a duty of care arises: it was reasonably foreseeable that WBA might suffer some loss if Mr Appleton was negligently treated so that he was unable to return to play football, but there was not sufficient proximity nor would it be fair, just and reasonable to impose such a duty.
The Judge compared this case to negligent treatment of the resident conductor of an orchestra, a leading player in a rock band or the managing director of a major company. In each case the consultant treating them would be aware that they were a major asset to a third party, but it would clearly not be fair, just or equitable to impose potentially huge liability upon them. The consultant would of course, as here, have to compensate the patient himself for his losses.