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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> West Bromwich Albion Football Club Ltd. v El-Safty [2005] EWHC 2866 (QB) (14 December 2005) URL: https://www.bailii.org/ew/cases/EWHC/QB/2005/2866.html Cite as: [2005] EWHC 2866 (QB) |
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QUEENS BENCH DIVISION
Derby Square Liverpool L2 1XA |
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B e f o r e :
____________________
WEST BROMWICH ALBION FOOTBALL CLUB LIMITED |
Claimant |
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- and - |
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MR M.M. EL-SAFTY |
Defendant |
____________________
Mr Stephen Miller QC and Miss Mary O'Rourke (instructed by Medical Protection
Society) for the Defendant
Hearing dates: 12th and 13th October 2005
____________________
Crown Copyright ©
Mr Justice Royce : INTRODUCTION
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
Mr Appleton And WBA
"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 …"
"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
Invoices And Payment
"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."
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.
Mr Appleton, WBA And Mr El-Safty
" Q. On whose behalf were you there?
A. From that point of view I was there on behalf of Mr Appleton to make sure I could do the best job for him.
Q. And when you say advice was given to you?
A. Yes
Q. You were there when the surgeon gave advice?
A. Yes
Q. What was your purpose in receiving such advice?
A. To be able to help Mr Appleton return to full fitness as soon as reasonably or safely possible.
Q. What would you do if you disagreed?
A The first thing would be to discuss with Michael. If we decided we disagreed then we had the option of getting a second opinion. I might speak to my colleagues.
Q. When you say "we", who's we?
A. "We" is the medical team at West Brom. From my point of view as an independent physio the medical team and Michael have the option to disagree and to follow a different course of action.
Q. Were you aware of the club rules?
A. I was not aware of the terms of the players contracts as such but I was very much aware of the club rules. I was part of writing the rules we are speaking about.
Q. In your statement you use the word "instructed". What do you mean by "instructed"?
A. I asked for assistance. I asked Mr El-Safty to assess Michael Appleton and advise on an appropriate course of action.
Q. And then what?
A. And then between ourselves, the three of us, to decide the best course of action to take.
Q. Who physically said to Mr El-Safty what would happen?
A. Because of consent it has to rest on Michael Appleton.
Q. But who actually says the words: "We're going to have to go ahead with reconstruction"?
A. I would, yeah.
Q. If you weren't happy to accept Mr El-Safty's advice, what would you have said?
A. Probably that we take time to think about it. That we'd take some time out of the consulting room.
Q. When you were there, you have explained how you were there as a healthcare professional with a continuing interest. Were you in any sense there on behalf of West Brom?
A. In that way, Yes, because they were and are my employer and I was, by being able to do the best I could for Michael inherently I was also being able to do the best I could for the Club as well. "
THE CLAIM IN CONTRACT AS PLEADED
"In or about November 2001, the Claimant's senior physiotherapist and agent, Mr Nick Worth, orally instructed the Defendant for reward to:-
(a) investigate Mr Appleton's injury and
(b) make appropriate recommendations as to the future management and/or treatment of the injury.
Thereafter, pursuant to his retainer as aforesaid, the Defendant:-
(a) on 24th November 2001 investigates Mr Appleton's injury by means of arthroscopy and identified that Mr Appleton had sustained a three-quarter rupture of his right posterior cruciate ligament ("right PCL");
(b) thereafter advised that surgical reconstruction of the right PCL should be performed;
(c) on 7th December 2001 performed an operation to reconstruct Mr Appleton's right PCL; (d) on 10th January 2002 discharged Mr Appleton from follow-up."
"For a contract to come into existence, there must be both (a) an agreement on essentials with sufficient certainty to be enforceable and (b) an intention to create legal relations.
Both requirements are normally judged objectively. Absence of the former may involve or be explained by the latter. But this is not always so. A sufficiently certain agreement may be reached, but there may be either expressly (i.e. by express agreement) or impliedly (e.g. in some family situations) no intention to create legal relations.
An intention to create legal relations is normally presumed in the case of an express or apparent agreement satisfying the first requirement: see Chitty on Contracts (28th edition) vol 1, para 2 – 146. It is otherwise, when the case is that an implied contract falls to be inferred from a party's conduct: Chitty, para 2 – 147. It is then for the party asserting such a contract to show the necessity for implying it. As Morison J said in his paragraph 12(1), if the parties would or might have acted as they did without any such contract, there is no necessity to imply any contract. It is merely putting the same point another way to say that no intention to make any such contract will then be inferred."
On behalf of the Defendant, Mr Miller contends that the Claimant's own witness effectively destroyed the Claimant's case. In relation to Mr Worth's evidence he points out:-
(i) he did not any time during the consultation with the Defendant discuss any financial matters or issues in respect of payment; he assumed the Defendant knew there was BUPA cover;
(ii) at the consultation he considered Mr Appleton to be his "patient" and also the Defendant's "patient";
(iii) he was present with Mr Appleton as a referring professional – on behalf of Mr Appleton - to ensure the Defendant got given all the relevant facts and to obtain details of rehabilitation.
CONCLUSIONS ON THE CONTRACTUAL CLAIM
He considered Mr Appleton to be his "patient" and also the Defendant's "patient". He did not discuss any financial matters with the Defendant – he assumed he was aware there was BUPA cover.
I am satisfied that he did not consider he was "instructing the Defendant for reward"; he did not consider he was, as agent for WBA, entering into a contract with the Defendant; he did consider his role was that of a referring health professional.
I accept that he firmly believed that his duty was to the patient and not to WBA. I accept his evidence that he had no intention of entering into a contract with WBA.
While I consider it likely that Mr El-Safty knew rather more about the financial workings of his practice than he suggested, I accept that he left that side of his practice to his wife. It was she who despatched the invoices and the chasing letters. She was of course doing so as the Defendant's agent.
I do not accept that there should be spelled out from this an intention to enter into contractual relations with WBA. It was a convenient mechanism to collect the fees. Generally, they would be paid by the Insurers. Alternatively, WBA would provide the money.
I am satisfied that Mr El-Safty, however, regarded the patient as having the primary liability to pay. The arrangement between a player and WBA was that fees would be discharged by WBA generally through BUPA.
THE CLAIM IN TORT
(a) the Claimant had regularly referred players to the Defendant for treatment since in or about 1990. No fewer than 31 players have been referred by the Claimant to the Defendant since 1997
(b) invoices in respect of such treatment were rendered by the Defendant to the Claimant and were paid by the Claimant;
The Principles To Be Applied
(i) the loss should be reasonably foreseeable;
(ii) there should be sufficient proximity between the parties to the claim;
(iii) it is fair, just and reasonable to impose the duty of care.
36. He also cited with approval the dissenting judgment of Denning LJ in Candler v Crane Christmas & Co [1951] 2 KB 164, 179, 180-181, 182-184 in the following passages:-
"Let me now be constructive and suggest the circumstance in which I say that a duty to use care in statement does exist apart from a contract in that behalf. First, what person's are under such duty? My answer is those persons such as accountants, surveyors, valuers and analysts, whose profession and occupation it is to examine books, accounts, and other things, and to make reports on which other people - other than their clients - rely in the ordinary course of business."
"Secondly to whom do these professional people owe this duty? I will take accountants but the same reasoning applies to the others. They owe the duty, of course to their employer or clients; and also I think to any third person to whom they themselves show the accounts, or to whom they know their employer is going to show the accounts, so as to induce him to invest money or take some other action on them. But I do not think the duty can be extended still further so to include strangers of whom they have heard nothing and to whom their employer without their knowledge may choose to show their accounts. Once the accountants have handed their accounts to their employer they not, as a rule, responsible for what he does with them without their knowledge or consent. The test of proximity in these cases is, did the accountants know that the accounts were required for submission to the plaintiff and use by him?"
"Thirdly, to what transactions does the duty of care extend? It extends, I think, only to those transactions for which the accountants knew their accounts were required."
(1) the purpose for which the statement was made
(2) the purpose for which the statement was communicated
(3) the relationship between the advisor, the advisee and any relevant third party
(4) the size of any class to which the advisee belongs
(5) the state of knowledge of the advisor
(6) reliance by the advisee
" I propose to consider first whether a sufficient relationship of proximity existed. It must be appreciated that prior to April 17th 1990 although the Plaintiffs were patients of the Defendants in the sense that they were on their register, the only patient who was seeking medical advice and treatment was Robert. It was to him that the Defendants owed a duty of care. The discharge of that duty in the case of a young child will often involve giving advice and instruction to the parents so that they can administer the appropriate medication, observe relevant symptoms and seek further medical assistance if need be. In giving such advice, the Doctor obviously owes a duty to be careful. But the duty is owed to the child not to the parents. As Lord Diplock said in Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 at 890 a "doctor's duty of care, whether he be a general practitioner or consulting surgeon or physician is owed to that patient and none other, idiosyncrasies and all."
He concluded no duty of care existed.
"As to the first question, it is long and well established, now elementary, that persons exercising a particular skill or profession may owe a duty of care in the performance to people who it can be foreseen will be injured if due skill and care are not exercised, and if injury or damage can be shown to have been caused by the lack of care. Such duty does not depend on the existence of any contractual relationship between the person causing and the person suffering the damage. A doctor, an accountant and an engineer are plainly such a person. So in my view is an educational psychologist or psychiatrist and a teacher including a teacher in a specialised area, such as a teacher concerned with children having special educational needs. So may be an education officer performing the functions of a local educational authority in regard to children with special educational needs. There is no more justification for a blanket immunity in their cases than there was in Capital and Counties plc v Hampshire County Council [1997] QB 1004.
I fully agree with what was said by Lord Browne Wilkinson in the X (Minors) case [1995] 2 AC 633 that a head teacher owes "a duty of care to exercise the reasonable skills of a headmaster in relation to such educational needs" and a special advisory teacher brought in to advise on educational needs for a specific pupil, particularly if he knows that his advice will be communicated to the pupil's parents, "owes a duty to the child to exercise the skill and care of a reasonable advisory teacher." A similar duty on specific facts may arise for others engaged in the educational process, e.g. an educational psychologist being part of the local authority's team to provide the necessary services. The fact that the educational psychologist owes a duty to the authority to exercise skill and care in the performance of his contract of employment does not mean that no duty of care can be or is owed to the child. Nor does the fact that the educational psychologist is called in in pursuance of the performance of the local authority's statutory duties mean that no duty of care is owed by him, if in exercising his profession he would otherwise have a duty of care. That however is only the beginning of the enquiry. It must still be shown that the educational psychologist is acting in relation to a particular child in a situation where the law recognises a duty of care."
"whether a duty can exist and whether a duty does exist are different kinds of questions and it seems to me that the law gives different kinds of answers to them. The former may be resolved by considerations of policy, and in particular whether it is fair, just and reasonable to admit such a duty. The latter requires a consideration of the facts of the case and may be susceptible to different answers in different circumstances."
"50. Here it is said on behalf of Islington that a duty of care is owed to it because it was reasonably foreseeable that a breach of duty of care to [the patient], through causing her injury and consequent need for care, would thereby cause it loss. The loss is reasonably foreseeable but occurs as a consequence of [the patient's] injury. I do not see that as materially different from the loss which may be suffered by voluntary carers who have no cause of action or the equally foreseeable losses which may be suffered by a business deprived of the services of a negligently treated patient or of a negligently injured road user. I would see the limit which the law has imposed on the existence of a duty of care towards a person who suffers loss as a result of an injury to another as an aspect of proximity.
51. There is material in all the cases to support either analysis but I found persuasive what Lord Oliver of Aylmerton said in Alcock v Chief Constable of South Yorkshire Police [1992] 1A.C. 310 at 410:
"The failure of the law in general to compensate for injuries sustained by persons unconnected with the event precipitated by the Defendant's negligence must necessarily import the lack of any legal duty owed by the defendant to such persons. That cannot, I think, be attributable to some arbitrary but unenunciated rule of 'policy' which draws a line as the outer boundary of the duty. Nor can it rationally be made to rest upon such inquiry being within the area of reasonable foreseeability. It must, it seems to me to be attributable simply to the fact that such persons are not, in contemplation of law, in a relationship of sufficient proximity or directness with the tortfeasor as to give rise to a duty of care, though no doubt 'policy', if that is the right word, or perhaps more properly the impracticability or unreasonableness of entertaining claims to the ultimate consequences of human activity, necessarily plays a part in the court's perception of what is sufficiently proximate."
Are There Any Analogous Cases?
(a) Where a statement was prepared for the express purpose of it being communicated to the advisee. For example, in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 where the Bank responded to a request to supply information about its customer's creditworthiness and the clear purpose was to enable the person to whom it was directed to advance credit to the customer.
(b) Where the object of the duty undertaken to the client is to confer a benefit on the third party, a duty may be owed concurrently to that person so as to allow him to recover for any unexpected loss of benefit. For example:-
(i) White v Jones [1995] 2 AC 207 where a solicitor who was instructed to prepare a will delayed carrying out the instructions was found to owe a duty of care to the intended beneficiary.
(ii) Gorham v British Telecommunications plc [2000] 1 WLR 2129 where the White v Jones principle was applied to disappointed beneficiaries under an insurance policy, where knowing the customer intended to make provision for his wife and children, the insurance company's negligence resulted in loss of benefits to them after the customer's death.
(iii) The Commissioner of Police of the Metropolis v Lennon [2004] 2 All ER 266 where it was held that the Commissioner's staff owed the claimant, a serving police officer, a duty to provide advice as to the preservation of his housing allowance entitlement when making arrangements for his transfer to another force.
(c) Cases where the subject matter of the advice may suffer harm even if the advice is prepared for and given to a third party carrying out its statutory duties. Examples of this category can be found in X (Minors) v Bedfordshire County Council [1995] 2 AC 633; Phelps v Hillingdon London Borough Council [2001] 619 and JD v Berkshire County Council [2005] 2 AC 373.
How Are These Principles To Be Applied In This Case?
Was The Loss Reasonably Foreseeable?
Was There Sufficient Proximity Between The Parties?
1) The purpose for which the statement was made
Mr El-Safty said he was advising Mr Appleton. His purpose was to recommend to him as a patient what he considered to be the best course of action. Mr Worth said the advice had to be given to Mr Appleton. Had he disagreed with it he would have discussed it with Appleton and would have considered whether to get a second opinion.
2) The purpose for which the statement was communicated
It was communicated to Mr Worth because he was there as the physiotherapist who had referred Mr Appleton to the Defendant. Mr Worth said that his purpose in receiving the advice was to help Appleton to return to full fitness as soon as possible.
3) The relationship between the adviser, the advisee and any other relevant third party.
WBA as Mr Appleton's employer was in a class of one.
5) Mr El-Safty's state of knowledge including whether he knew that WBA would rely on his evidence without obtaining independent advice and
6) Reliance by WBA.
I consider these together.
(i) Is there sufficient proximity and
(ii) Is it fair, just and reasonable to impose the duty of care?
(i) The role of Mr Worth in "engaging, attending and instructing" the Defendant.
(ii) The regularity with which WBA instructed the Defendant as a specialist in knee injuries suffered by its players
(iii)The Defendant's reporting to WBA
(iv) The fact that the Defendant invoiced WBA and was paid by them
(v) The Defendant's knowledge of the financial importance of the player to WBA
What about negligent treatment of a resident conductor of an orchestra or a leading player in a rock band or the managing director of a major company? The consultant would probably know each patient was a valuable asset.
Should the consultant take steps to ascertain their value so as to evaluate his potential liability? Should he seek to put in hand a disclaimer or limitation of his liability? How would he do this? How would insurance premiums be affected?