Sharu Naraji v (1) Dr. Donald Shelbourne MD (2) Dr K Donald Shelbourne MD LLC and Others
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Popplewell |
| Judgment Date | 15 December 2011 |
| Neutral Citation | [2011] EWHC 3298 (QB) |
| Docket Number | Case No: HQ09X04712 |
| Court | Queen's Bench Division |
| Date | 15 December 2011 |
[2011] EWHC 3298 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Hon. Mr Justice Popplewell
Case No: HQ09X04712
Mr Satinder Hunjan QC, Dr Jonathan Punt, Mr David Holloway (instructed by Michelmores) for the Claimant
Mr John Whitting QC, Mr Bernard Doherty, (instructed by Barlow Lyde and Gilbert) for the 1 st, 2 nd & 3 rd Defendants.
Mr Stephen Miller QC, Mr Christopher Johnston QC (instructed by MDDUS (The Medical and Dental Defence Union of Scotland)) for the 4 th Defendant.
Hearing dates: 5th, 7th, 10 th-12 th, 14 th & 19 th October 2011
Introduction
The Claimant, whose name is Shahrooz Naraghi, but who is generally known as Sharu Naraji, was a professional footballer who had signed for Sheffield United Football Club. He claims that his incipient career as a footballer at the highest level was destroyed at the age of 22 by the negligent performance of a surgical operation to reconstruct the anterior cruciate ligament of his right knee, and by negligent medical aftercare.
Mr Naraji was born on 7 February 1984 in Bolton to an Iranian father and English mother. He lived in the United Kingdom until the age of five when the family relocated to Iran because of his father's commercial interests. There football was his passion from a young age. When twelve he was signed by the Esteghal Football Academy, and progressed successfully through the ranks at Esteghal FC, being a regular member of the U17 and U20 teams, and training with the first team; he was also a member of the Iranian national youth team. In the 2003/2004 season he spent three months on loan to Torino FC in Serie A in Italy and three months of the 2004/2005 season with Real Zaragoza of La Liga in Spain, although he did not play for the first team on either occasion. He was signed for the 2005/2006 season by Sheffield United Football Club ("SUFC") who had newly won promotion to the Premier League. He was 21 and on the verge, so he hoped, of a successful career in professional football with SUFC or at an equivalent level with other clubs in England or elsewhere.
On 18 August 2005 Mr Naraji injured his right knee whilst doing a bounding exercise during a training session at SUFC, rupturing the anterior cruciate ligament ("ACL"). On 14 October 2005 he underwent an operation to repair it performed by a consultant orthopaedic surgeon, Mr. Bickerstaff. Following rehabilitation he resumed training with a view to regaining match fitness in time for the 2006/2007 season. On 5 September 2006, whilst playing in a reserve team match, he was crossing a ball and felt his right knee give way. He had suffered a rupture of the ACL graft inserted by Mr Bickerstaff.
He resolved to have his ACL reconstructed by another surgeon. To this end he sought out the First Defendant, Dr. Shelbourne. Dr Shelbourne is an orthopaedic surgeon who qualified in 1976 and has specialised in purely knee surgery since 1987. He carries out approximately 200 ACL reconstructions per year and has published extensively in this area. He practices in Indianapolis through a limited liability company which is named as the Second Defendant. He there runs The Shelbourne Clinic at Methodist Hospital. Although named as the Third Defendant, it is not a legal entity, but rather the trading name of the Second Defendant; it is the name of the clinic Dr Shelbourne runs and at which he conducts his practice. Before me no one drew a distinction between the First and Second Defendants and I shall refer to them simply as Dr Shelbourne. It was SUFC who contracted with Dr. Shelbourne for Mr. Naraji's treatment and who paid for it, in each case on Mr Naraji's behalf.
Dr. Shelbourne performed an ACL reconstruction operation on Mr Naraji on 1 November 2006 at the clinic in Indianapolis. Mr Naraji was initially pleased with his progress towards getting back to full fitness, but in the early part of 2007 had problems in training to which I shall refer more fully below. Despite further intensive work in training he was not fit by the summer of 2007, when his contract with SUFC was not renewed. He has never succeeded in regaining full match fitness and has not played professional football since.
The Fourth Defendant, Mr Jari, is a consultant orthopaedic surgeon practising at the Hope Hospital in Manchester, and privately under the banner "Kneedoc" and "Manchester Sports Medicine". He specialises in particular in treating sports injuries. He saw Mr. Naraji, at Dr Shelbourne's request, in April 2007, with SUFC again being the agent instructing Mr Jari and paying him on Mr. Naraji's behalf. Mr. Naraji again consulted Mr Jari in January 2008 and September 2008.
In these proceedings, commenced on 22 October 2009, Mr Naraji claims against both Dr Shelbourne and Mr Jari in contract and tort. The essential complaints against Dr Shelbourne are that he performed the ACL reconstruction surgery negligently by misplacing the femoral tunnel; and that he was negligent in his aftercare in failing to advise Mr Naraji of the misplacement of the femoral tunnel and to advise that the only way Mr Naraji would return to playing professional football would be by having a re revision operation. The essential complaint against Mr Jari is that he was negligent in failing to advise Mr Naraji that the femoral tunnel was misplaced and to advise that that the only way he would return to playing professional football would be by having a re revision operation.
Dr Shelbourne and Mr Jari each deny negligence. They also deny causation (I shall return to identify the causation issues more fully below). In addition Dr Shelbourne advances the following defences to the claim against him:
i) the claim is barred by res judicata by reason of a claim having been filed on 3 November 2008 against him in the Indiana Department of Insurance and having subsequently been dismissed with prejudice by an order of the Marion Superior/Circuit Court;
ii) the claim is time barred under Indiana law which is the applicable law;
iii) any damages he would be liable to pay are capped under Indiana Law.
This is the trial of issues of liability, causation and proper law which were ordered to be tried as preliminary issues by an Order of Master Yoxall dated 13 October 2010 in the following terms:
"A preliminary issue shall be tried between the Claimant and the Defendants as to whether or not the Defendants are liable to the Claimant by reason of the matters alleged in the Particulars of Claim and, if any such injuries were so caused, the extent of the same. Further, as between the Claimant and the First, Second and Third Defendants, there shall be a trial of a preliminary issue as to whether or not the law of the state of Indiana is the applicable law and, if so, the extent to which the law of Indiana applies to the Claimant's claim and the effect of that law (including whether or not the claim is statute barred under that law)."
The witnesses
I heard factual evidence from each of Mr Naraji, Dr Shelbourne and Mr Jari. The latter two, although called as factual witnesses, were also qualified to give expert opinion evidence on matters in issue, and inevitably did so to some extent; but they were not tendered or cross examined as expert witnesses, of which there was no shortage, and I have taken their expert opinions into account, to the extent identified below, with those limitations in mind.
Mr Naraji was a witness whose emotional distress and frustration at what he saw as the destruction of his dreams was evident. This led him to be a digressive and combative witness who often ignored the questions and sought to argue his case. At times his fervour led him to make allegations of fabrication of documents or their misdating which were unsupported and unjustified; indeed in one case they were aimed at what were his own emails. I do not doubt his sincerity in giving his evidence, but in my judgment his recollections had been influenced by his passionate attachment to his cause. Where his evidence was contested I only felt able to rely on it if it was inherently probable or borne out by the contemporaneous documentation.
Dr Shelbourne and Mr Jari each gave evidence in a dignified and straightforward way.
The orthopaedic expert evidence on behalf of the Claimant was given by Professor Fairclough and Mr. Strover (just retired), consultant orthopaedic surgeons practising in England with extensive experience of knee surgery including in particular ACL reconstructions. Professor Fairclough also had considerable experience of knee injuries in sportsmen, including Premiership and international footballers and his Chair was in Sports and Exercise Medicine at the University of Wales, Cardiff ("UWIC"). Professor Fairclough allied himself too closely with the Claimant's case and at times lost objectivity. This led him to seek to interpret or explain evidence in the way best suited to support the Claimant's case which when pressed he was unable to justify by any objective medical or logical reasoning. My assessment is that he became an advocate who felt that he had to argue not only Mr Naraji's case, but the wider issue of stopping Dr Shelbourne's approach being given the seal of approval by the court. Such an agenda should play no part in the conduct of an expert witness, whose role is to assist the court by giving an independent and objective assessment. Professor...
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