West Bromwich Albion FC v El-Safty
Reference:  EWCA Civ 1299; (2007) PIQR P7; (2007) LS Law Medical 50; (2006) 92 BMLR 179
Court: Court of Appeal (Civil Division)
Judge: Mummery & Rix LJJ & Peter Smith J
Date of judgment: 11 Oct 2006
Summary: Sport - football - medical negligence - club's insurance scheme - doctor's advice to player - duty of care to club - proximity - economic loss
Instructing Solicitors: Nexus for the Appellant; Medical Protection Society for the Respondent
A club (W) arranged medical insurance with I Co, to cover W’s players. A was one of those players, but not a party to the insurance contract. W and A agreed that any advice or treatment would be without cost to A. A surgeon (E) was a service provider who gave advice to A pursuant to the scheme, his fees being covered by I Co. E gave negligent advice which, when followed, brough A’s career to an end. W sued E for damages for negligence, alleging that E owed W a duty of care under a collateral contract and/or in tort. Royce Preliminary issues were tried by Royce J as to the existence of such duties. The judge ruled against W and W appealed.
(1) Was there an implied contract between W and E? (2) Did E owe W a duty of care in tort?
Dismissing the appeal, (1) There may have been a contract for medical treatment to be implied between A and E, but it was not necessary to imply any contract between W and E. If there was any contract between them the court should not go beyond the minimum that needed to be implied, namely a contract requiring W to secure payment of E’s fees; the implication of a duty of care was unnecessary. (2) E had not assumed any responsibility in tort for any economic losses W might suffer. E’s role under the scheme was to advise and treat A, and A’s welfare was his exclusive concern. The facts that economic loss to W was foreseeable by E, and there was a degree of proximity , were not enough to make it just and equitable to impose a duty of care.
The insurance scheme (with BUPA) was specifically devised to meet an FA requirement that clubs be covered by medical insurance for players’ treatment. W was driven to try to imply from a course of dealings a relationship between it and the surgeon, involving a duty owed to W. The more natural approach, however, was to view the scheme as aimed at ensuring medical treatment for A (as opposed to the protection of W’s economic interests). A and E were patient and doctor, and the club’s role was that of a referring intermediary, ensuring that A got treatment. The burden of insuring against losses of the kind at issue should fall on the club, not the doctor.