West Bromwich Albion Football Club Ltd v El-Safty
[2005] EWHC 2866 (QB)
Michael Appleton sustained an injury to his right knee
while playing for West Bromwich Albion. His contract with the Club
provided that he should undergo such treatment as the Club's
medical advisers recommended.
The Club had longstanding medical cover with BUPA and
through them with a number of different treating physicians of whom
one was Mr El-Safty.
In due course Mr Appleton (accompanied by the Club's
senior physiotherapist) attended for examination by Mr El-Safty who
negligently recommended reconstructive surgery. The operation was
unsuccessful; Mr Appleton never fully recovered and later required
to retire from professional football at some significant loss both
to himself and the Club. In turn the Club brought this action
against Mr El-Safty seeking damages for both breach of contract and
negligence.
The judge heard evidence to the effect that, over a period
of time, Mr El-Safty had treated a number of players at West
Bromwich Albion. In some instances payment in respect of his fees
had been made directly by the Club before reimbursement was then
sought from BUPA. In other instances payment was made by BUPA but
in the case of delay in payment then reminder letters were sent by
Mr El-Safty's office to the Club direct.
El-Safty's office was run by his wife and, for his part,
he maintained that he took no part in the preparation or issue of
any invoices. He maintained strongly that his contract was with the
individual player who was the patient in whose best interests he
required to act.
In considering whether or not a duty of care was owed by
Mr El-Safty to the Club the judge applied the rule set out by the
House of Lords in the case of Caparo v Dickman and later
decisions. He confirmed that it was reasonably foreseeable that the
Club would suffer loss in the event of negligent treatment of one
of its players and he also accepted the proposition that there
would be circumstances in which a treating physician would owe a
duty of care to someone other than his patient. But in this
particular case he held that there was no sufficient degree of
proximity to justify the imposition of such a duty on Mr El-Safty.
He queried whether the case was so very different from one in which
a doctor required to treat the managing director of a
company:
"A substantial company may well have a group employees'
health insurance policy and may well, on a regular basis, send its
employees for treatment to a particular consultant. In the normal
way, the consultant would not owe a duty of care to the company. I
do not consider the present case as materially
different."
He went on to consider that whether or not the relevant
degree of proximity had been established he would still have found
against the existence of a duty of care on the ground that it would
not have been fair, just or equitable to have imposed such
liability.
This case follows hard on the heels of the decision by the
Court of Appeal in London Borough of Islington v University
College London Hospital NHS Trust [2005] EWCA Civ 596 where it
was held that the Trust owed no duty of care to the local authority
to compensate it for the extra care costs which it had required to
meet following upon the negligent treatment of a
patient.
Interested observers will note that the courts generally
remain much more willing to restrict the ambit of duties owed by
medical advisers compared to other professionals. Insofar as any
rationale exists for this divergence then it rests on the
recognition that the exercise of a duty of care towards a
patient/client may in certain circumstances conflict with the
interests of third parties and in that situation the patient's
interest must undoubtedly come first. This approach might, in due
course, justify arguments in other cases which serve to restrict
the range of duties owed by professionals.