West Bromwich Albion Football Club Ltd v Medhat El-Safty
| Jurisdiction | England & Wales |
| Judge | Mr Justice Royce |
| Judgment Date | 14 December 2005 |
| Neutral Citation | [2005] EWHC 2866 (QB) |
| Docket Number | Case No: 4MA91022 |
| Court | Queen's Bench Division |
| Date | 14 December 2005 |
[2005] EWHC 2866 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Queen Elizabeth 11 Law Courts
Derby Square
Liverpool L2 1XA
The Honourable Mr Justice Royce
Case No: 4MA91022
Mr Jeremy Stuart-Smith QC and Mr David Turner (instructed by Nexus) for the Claimant
Mr Stephen Miller QC and Miss Mary O'Rourke (instructed by Medical Protection Society) for the Defendant
Hearing dates: 12 th and 13 th October 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Royce:
INTRODUCTION
The Claimant (WBA) is a well known professional football club currently in the Premier Division. It signed Mr Michael Appleton on 18 th January 2000 on a 3 1/2 year contract. In November 2001 he suffered an injury to his right posterior cruciate ligament.
Mr El-Safty, the Defendant, is a consultant surgeon. He advised that reconstructive surgery should be carried out. He performed the operation but it was unsuccessful. Mr Appleton never fully recovered and has had to retire from professional football.
It is common ground that the advice that the knee should be reconstructed was negligent. It should, at least initially, have been treated conservatively. If that course had been taken Mr Appleton would have probably have been fit again within about 4 months.
WBA claims damages from the Defendant for the losses which it alleges it has suffered in consequence of the Defendant's negligence. The action is brought both in contract and in tort. The Defendant denies there was a contract with WBA and denies he owed any duty to WBA in tort.
This is the trial of a preliminary issue as to the existence of a duty owed by the Defendant to the Claimant in contract or in tort.
Witnesses
I heard evidence from the following witnesses:—
On behalf of the Claimant:
(1) Dr John Evans who was WBA's secretary.
(2) Nicholas Worth, WBA's senior physiotherapist
(3) Michael Appleton, the injured player
Mr El-Safty gave evidence on his own behalf
BACKGROUND
Mr M M El-Safty
He was appointed a consultant orthopaedic surgeon at Sandwell and West Birmingham Hospital NHS Trust in 1982. He retired in November 2004. He also had a private practice and had consulting rooms at his home. By 2001 he said he was seeing about 60 private patients a week.
He had a particular interest in arthroscopic surgical work and sports injuries. From about 1984 he used to have referrals from two local doctors, Dr Rimmer and Dr Bottomley, who were also medical officers of WBA. That led to them referring some of the club players to him. He also received referrals from physiotherapists of the club.
He accepted that he had treated about 34 patients from WBA over the 5 years up to 2002. There were other clubs including Aston Villa, Kidderminster, Rushden & Diamonds and Walsall whose players he treated. The football clubs would generally send their physiotherapists with the player when he came for a consultation or treatment.
So far as the organisation and financial side of his practice was concerned, he said that that was left to his wife. He contended that he had never seen an invoice that went out for private treatment and neither had he ever seen a BUPA provider statement such as existed in the case of Mr Appleton. He accepted that he was aware that BUPA as a health insurer had established tariffs for particular procedures, but he himself did not know in any particular instance of arrangements that were made for payment of his fees.
According to the Defendant there was a period of a few years from about 1987 when he refused to see WBA players because he considered that the club was seeking to get him to treat the player in a way which might have been in the club's interest but not the player's interest. However that changed when there was a change of manager.
Mr Appleton And WBA
When Mr Appleton joined WBA in January 2001 he signed a contract that appears to be a standard form FA Premier League and Football League contract. Under clause 1 the contract was to remain in force until 30 th June 2004 unless previously terminated by substitution of a revised agreement or otherwise. Under clause 5 Mr Appleton was required to observe the rules of the club. Clause 8 included provisions that:—
"The player shall submit promptly to such medical … examinations as the Club may reasonably require and shall undergo, at no expense to himself, such treatment as may be prescribed by the medical … advisers of the Club in order to restore the player to fitness. The Club shall arrange promptly such prescribed treatment and shall ensure that such treatment is undertaken and completed without expense to the player …"
The Club rules stipulated that:—
"Any injuries, however slight, must be reported immediately to the Physiotherapist who is responsible for diagnosing injuries. Under no circumstances shall a player seek treatment for injuries sustained whilst working for West Bromwich Albion FC by any other physiotherapist or doctor without express permission of the Club Physiotherapist."
"Appointments made for players by the Physiotherapist with other members of the medical team, i.e. consultants, masseur, podiatrist, etc. MUST be attended."
The Treatment Of WBA Players In General
If a player was injured he was required to submit to examinations reasonably required by WBA and undergo treatment prescribed by the medical advisers of the club to restore the player to fitness. WBA was obliged to arrange treatment and to ensure that it was undertaken and completed without expense to the player.
Mr Worth started employment with WBA in June 1998. If a player was injured he would examine him and if it fell within his expertise would treat him himself. If it was more serious, particularly if it was a knee injury, Mr El-Safty was his first choice orthopaedic consultant. He used to arrange for the Defendant to see the player and would accompany the player when the Defendant examined him. He would discuss the treatment options. As far as he was concerned it was necessary to consider what was in the patient's best interests.
Invoices And Payment
After treatment or a consultation an invoice would be sent, generally on the Defendant's headed notepaper, to the Secretary of WBA. Available records go back to 1998 and the first one is dated 21.1.98, addressed to the Secretary WBA. It reads
"To professional services
re: [Mr X]
Carried forward Consultation 22.10.97 £70 Review 13.1.98 £40
Total £110
This is not a copy invoice. Please forward to you Insurance Company if applicable.
Please make cheques payable to M El-Safty and return to Chelfont, 20 Woodlands Avenue, Walsall quoting your account number."
There are in total 41 invoices relating to various professional footballers, the last one being dated 21 st July 2003. They follow the same form.
If the invoice was unpaid, a "chaser" would be sent to WBA. There are 5 instances of that taking place.
A further letter was discovered after the hearing and was submitted to me by agreement of the parties. It was dated 27 January 2001 and read "The enclosed account for [Mr Y] has been unpaid by BUPA and I wonder if I can now pass this on to the Club for payment." It was addressed to the Secretary. It is accepted that this letter was sent by Mrs El Safty on behalf of the Defendant and would not have been seen by him.
WBA had a healthcare insurance group policy with BUPA which covered most of the treatment a player would need. It did not for example cover the cost of MRI or CT scans. According to Dr Evans, until about February 1998 WBA used to discharge the Defendant's invoices direct and BUPA would indemnify WBA. If an item was not covered by the BUPA policy, WBA would pay the Defendant's invoice directly.
According to Dr Evans there was a time in about 1989 when the League had overlooked the provision of insurance cover, when WBA paid invoices directly.
Mr Appleton, WBA And Mr El-Safty
On the 19 th November 2001 whilst training, Mr Appleton suffered an injury to his right knee. He was examined by Mr Worth who arranged for him to have an MRI scan the following day. Mr Worth told Mr Appleton that he needed to see a surgeon as soon as possible. He told him that WBA used the Defendant for this type of injury.
Mr Appleton's evidence was that he considered that he was obliged to go along with WBA's choice of surgeon but in any event he was content to see Mr El-Safty. It was, he said, Mr Worth who had arranged the appointment to see the Defendant. He and Mr Worth went to see the Defendant at his home and he was recommended by the Defendant to undergo reconstructive surgery. He and Mr Worth discussed that and agreed to proceed on the Defendant's recommendation. Mr Worth asked the Defendant to make the appropriate arrangements and Mr Appleton was admitted to hospital to undergo the surgery on 7 th December. Mr Appleton said that he did not consider that he had any contractual arrangement with the Defendant at all. He had to sign the consent form for the surgery.
According to Mr Worth, it was he who telephoned the Defendant and arranged for himself and Mr Appleton to see him for an examination of the knee and consideration of the result of the MRI scan. In his witness statement he had said that he "instructed" the Defendant on behalf of the Claimant to investigate Mr Appleton's injury and to advise WBA as to the best way to manage and treat the injury. He accepted when cross-examined that "instructed" was not his expression. He agreed he was referring the patient to Mr El-Safty and going to discuss the pros and cons of what Mr El-Safty advised. In...
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...West Bromwich Albion Football Club Ltd v El Safty, [2006] EWCA Civ 1299, aff’g [2005] EWHC 2866 (QB) ................................201, 214 Westjet Airlines Ltd v Air Canada, [2005] OJ No 2310 (SCJ) ............................ 282 Whelan v Parsons & Sons Transportation Ltd, 2005 NLCA 52,......
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...236, 237 The Law of TorTs 494 West Bromwich Albion Football Club Ltd. v. El Safty, [2006] EWCA Civ 1299, aff’g [2005] EWHC 2866 (Q.B.) ........................ 192–93, 205 Whelan v. Parsons & Sons Transportation Ltd., 2005 NLCA 52, 250 Nfld. & P.E.I.R. 23 .........................................
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