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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Appleton v El Safty [2007] EWHC 631 (QB) (23 March 2007) URL: https://www.bailii.org/ew/cases/EWHC/QB/2007/631.html Cite as: [2007] EWHC 631 (QB) |
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QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
____________________
MICHAEL ![]() ![]() |
Claimant |
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- and - |
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![]() ![]() |
Defendant |
____________________
Miss Mary O'Rourke (instructed by Mr George Dodd for the Medical Protection Society) for the Defendant
Hearing dates: 15th -25th January 2007
____________________
Crown Copyright ©
MR JUSTICE CHRISTOPHER CLARKE:
(a) for how long would the claimant then have been able to
continue playing professional football; and
(b) at what level and for which club or type of club would he have played;
(c) after his playing career was over would he, but for the defendant's negligence, have secured a career as a Football League Manager, or as a player/manager and maintained such a career through the rest of his working life.
The claimant's playing history
1993/4
1994/5
1995/6
1996/7
1997/8
1997/8 – 2000/01
Seasons/ Division |
League games Started (Max 46) |
League games Substitute |
Cup games Started |
Cup games substitute |
|
1997/8 Div 2 |
31 | 7 | 6 | 1 | |
1998/9 Div 2 (Qualified for play-offs but lost to Gillingham) |
13 | 12 | 3 | 1 | |
1999/00 Div 2 |
21 | 5 | 5 | 0 | Left knee injury September put him out of action for about 10 games. |
2000/01 Div 1 |
25 | 1 | 2 | 0 | Left January |
2000/01
2001/02
Season | 02/03 | 03/04 | 04/05 | 05/06 | 06/07 |
Division | Premiership | Division 1 |
Premiership |
Premiership | Championship |
In 2004/5 WBA survived relegation on the last day.
The injury
"…arthroscopic debridement of Anterior Cruciate Ligament right knee. Haemarthrosis[10]. Intact Anterior Cruciate Ligament and other structures. Bruising of posterior capsule and postrolateral corner. ¾ rupture of PCL debrided. Need reconstruction …"
i) there is no reference in the defendant's notes to the whole of the remainder of the ligament having been removed either when he carried out the first diagnostic arthroscopy or at the time of the reconstruction;
ii) it would be logical to leave the remaining portion of the ligament in position for whatever stability it provided;
iii) the fact that Mr Hodgkinson and Mr Rae did not see any remaining fibres of the ligament on the arthroscopy they carried out on 2nd October 2002 ("the H/R arthroscopy"), following the defendant's reconstructive surgery of 7th December 2001 and Mr Rae's repair surgery of 15th May 2002 (see paragraphs 28 and 29) is not conclusive, because an arthroscopy normally does not let the surgeon see more than about 1/3rd of the ligament; and in the present case there was no decent view behind the posterior cruciate graft.
The claimant's antecedent medical history
Right knee
Previous medical history
Left Knee
Left foot
Ankles and toe
The injuries other than the right knee
The prognosis for the claimant had he been treated conservatively
The medical experts
My view of the expert evidence
The rival prognoses
(a) the matters set out in paragraph 55;
(b) the fact that only a minority of players have a meaningful career at a high level into their thirties;
(c) his wide experience of dealing with Premiership level footballers and other elite athletes over the last few years, in the course of which he had seen players with PCL injuries of a similar severity to that of the claimant return with problems relating to joint surface damage. Such athletes tend to return with a problem of recurrent swelling. This, by a mechanism which is unclear, switches off the normal nerve stimulation of the muscle, leading to muscle wastage. That in turn reduces ability to absorb shock (muscle being both a stabiliser and a shock absorber) contributing to damage to the surface of the joint.
Conclusion on the medical evidence
(a) I was impressed by his testimony for the reasons set out in paragraph 57 above;
(b) his experience of PCL injuries was greater than that of Mr Hodgkinson;
(c) his conclusions were relevantly supported by that experience and appeared to me inherently more probable.
As to (c) professional football has, in recent years, changed out of all recognition. It is faster, more ferocious and more arduous for players than it has ever been. The stress imposed on players' joints has correspondingly increased; as has the intensity of play (in the sense of the length of the season and the absence of recovery periods). The necessary fitness has increased in consequence. I accept that increased demands on players have in many, but not all, clubs been matched by greatly improved physiotherapy and medical assistance, training regimes and fitness coaches, and education in diet and conditioning. But I was not convinced that these improvements can make all the difference.
The Claimant's playing ability and prospects
(a) when the claimant left Manchester United, aged nearly 22, he did not receive any offers from a Division 1 or Premiership Club, and dropped down to a Division 2 club;
(b) there is no evidence that there was any serious approach from a Premiership Club whilst he was at Preston or WBA;
(c) he made his debut in Division 1 (later the Championship) when nearly 25 - in 2000/1; prior to that Preston had been in Division 2, albeit top of it in 1999/2000.
(d) he would have made his debut in the Premiership when nearly 27, which is unusual, although not too old for a career in the Premiership for someone in his position, as a result of WBA securing promotion (achieved in a season in which, because of his injury, he was largely absent), not as a result of an established Premiership team choosing him.
(e) the absence of any comparable career of an individual who dropped down two divisions and made a successful Premiership career in a position, and after an intervening history, comparable to that of the claimant[25].
The experts on footballing ability
Mark Lawrenson
Mr David Pleat
Pain and suffering and loss of amenity
Loss of congenial employment
Interest on general damages
Expenses and Miscellaneous items and Nursing Care and Services
Loss of earnings
Preliminary
The experts on quantum
Mr Stein
Mr Kennedy
The existing contract
Period | Weekly amount | Annual amount |
18.6.01 – 30.6.01 | £ 3,846.15 | £ 200,000 |
01.7.01 – 30.6.02 | £ 4,038.46 | £ 210,000 |
01.7.02 - 30.6.03 | £ 4,230.76 | £ 220,000 |
01.7.03 - 30.6.04 | £ 4,230.76 | £ 250,000 |
Schedule (f) to the contract – personal appearance fees
Club bonus
2001/2 – 2004/5
2001/2
2002/3 onwards
(a) the claimant remained with WBA - Scenario 1; and
(b) he moved to another established club in the Premiership – Scenario 2.
In either case he claims that he would have been engaged on a four year contract. The claimant puts the chances of these two scenarios as equal and claims the average of the remuneration that he would have derived under each scenario in respect of the years 2002/2003 – 2005/6 (less deductions to convert gross to net) less credit for the net sums actually received in respect of the period.
2002/3
Scenario 1 - Staying with WBA
Loyalty payment and salary
(a) Loyalty Payment under new contract | £100,000 |
(b) Basic salary | |
Until 1.1.03 under old contract | £125,000 |
Until 30.6.03 under new contract | £175,000 |
@ £350,000 p.a. |
Bonuses
Club bonus and amount of games
Personal bonus – up to 31st December 2002
Personal bonus – from 1st January 2003
Fringe benefits
Media and sponsorship opportunities.
Sell on clause
Scenario 2 Another Premiership club
Year | Salary | Signing on fee |
2002/3 | £ 500,000 | £ 100,000 |
2003/4 | £ 375,000 | £ 100,000 |
2004/5 | £ 600,000 | £ 100,000 |
Mr Stein thought that if Premiership status had been maintained there would have been an upward renegotiation for 2004/5 of £700,000 (which was the figure in Mr Greening's contract for 2004/5) and for 2005/6 of £800,000. In the event WBA was in the Premiership for 2004/5 and 2005/6; but was relegated for 2006/7.
1. Year | 2. Salary | 3. Signing on Fee |
4. Total (Stein) |
5. Salary | 6. Signing on Fee |
7. Total |
2002/3 | £ 500,000 | £ 100,000 | £ 600K | £ 450,000 | £ 100,000 | £ 550K |
2003/4 | £ 550,000 | £ 100,000 | £ 650K | £ 500,000 | £ 100,000 | £ 600K |
2004/5 | £ 700,000 | £ 100,000 | £ 800K | £ 550,000 | £ 100,000 | £ 650K |
2005/6 | £ 800,000 | £ 100,000 | £ 900K | £ 600,000 | £ 100,000 | £ 700K |
Bonuses
Fringe benefits and media and sponsorship.
Signing on fee | £ 100,000 |
Salary | £ 500,000 |
Appearance Bonuses | £ 148,000 |
Personal Retention of status bonus | £ 100,000 |
Club position bonus for staying in the Premiership | .£ 100,000 |
Media and Sponsorship | £ 1,500 |
2003/4
Scenario 1
Loyalty payment and salary
Bonuses
Club bonus
Personal bonus
Media and sponsorship opportunities
Scenario 2
Signing on Fee | £ 100,000 |
Basic Salary | £ 550,000 |
Appearance bonuses | £ 148,000 |
Personal ROS bonus | £ 100,000 |
Club position bonus | £ 100,000 |
Media & Sponsorship | £ 1,500 |
2004/5
Scenario 1.
Loyalty payment and salary
Bonuses
Club
Personal bonuses
Media and sponsorship opportunities
Scenario 2
Signing on Fee | £ 100,000 |
Basic Salary | £ 700,000 |
Appearance bonuses | £ 148,000 |
Personal ROS bonus | £ 100,000 |
Club position bonus | £ 100,000 |
Media & Sponsorship | £ 1,500 |
2005/6 – 2006/7
Year | 2005/6 | 2006/7 |
Loyalty payment | £ 100,000 | £ 100,000 |
Basic Salary | £ 425,000 | £ 450,000 |
Personal Appearances | - | - |
Club Bonus | See paragraph | 158 below |
Fringe benefits | - | - |
Media/sponsorship | £ 1,500 | £ 1,500 |
Deduct: Net Income | (£ 12,093) | (£ 24,461) |
TOTAL | £ 514,407 + club bonus | £ 527,039 + club bonus |
Valuing the chances
FUTURE LOSS
2006/7
2007/8 - 2010/11
Work as a manager
Loss on account of acceleration of knee replacement surgery
Smith v Manchester
Pension Loss
Note 1 A minor blow to the front of the upper shin from an opponent forced the knee into hyperextension. The claimant reported a crunching sound followed by his knee giving way. [Back] Note 2 The Reserve Team played in the Central League. The youth teams “A” and “B” played in Lancashire League Divisions 1 and 2, [Back] Note 3 Clubs often lend some of their younger players to other clubs in order to widen their experience. [Back] Note 4 Throughout the period with which this action is concerned the top division of the Football League was the Premiership. In 2004 there was a re-branding of the lower divisions which, instead of being called Divisions 1-3 were to be called the Championship and Divisions 1 and 2. [Back] Note 5 He went to WBA for £ 3,846 a week rising to £ 4,038 from 1st July, which was slightly more than was on offer from Preston, who were lower in the League. [Back] Note 6 Sometimes called a “Bosman transfer” following the decision of the ECJ in the case of Jean Marc Bosman as a result of which, from the beginning of the 1998/9 football season, any European national aged 24 years and over can move to another club on the expiry of his contract without any transfer fee being paid for his service. Under the latest FIFA regulations the age is reduced to 23. [Back] Note 7 This was how he related events to Mr Andrew Williams (“Mr Williams”), the defendant’s expert, on 7th February 2006. Although that was over 4 years later I regard the account as reliable. An injured player is likely to be a fairly good historian of his injury (unless very severe). That account was consistent with what the claimant told Mr John Hodgkinson (“Mr Hodgkinson”), his surgeon, on 19th April 2002. Further haemarthrosis was detected at the MRI scan on 20th November 2001 and at the arthroscopy of 24th November 2001: see paragraph 17. [Back] Note 8 A thick layer of tissue that sits behind the PCL and is the next structure to feel the force after the PCL. [Back] Note 9 Mr Williams noticed this on the video of the arthroscopy. It would have healed but the fact that there was a small rent was some indication of the significance of the injury. [Back] Note 10 Bleeding in the joint. [Back] Note 11 The closest descriptive analogy is of a cable with lots of wires in it. [Back] Note 12 The “bundles” are functionally separate (but not discrete) structures each of which becomes taut or slack according to the movement of the knee. [Back] Note 13 With grade 2 laxity the anterior tibia is level with the distal femur, [Back] Note 14 He also believed that the posterior capsule was intact, which would provide some stability. In fact it was nearly intact. [Back] Note 15 If anything the effect of reconstructive surgery and an osteotomy is to stiffen up the joint: so an observed laxity after those two is unlikely to have been less than before. [Back] Note 16 The chondral surface is the surface of the joint. It is an articular cartilage, in appearance like the white gristle at the end of a chicken leg, which because of its low coefficient of friction allows one surface to glide against another. [Back] Note 17 Mr X’s name was written down and shown to Mr Williams to ensure that he and Mr Hodgkinson were talking about the same person. [Back] Note 18 Mr Hodgkinson’s diagnosis was made on the basis that the shape of the ligament looked abnormal on the MRI scan. But an MRI scan will not tell you the full extent of a PCL injury. [Back] Note 19 There may also be problems with hyperextension, which the PCL controls. [Back] Note 20 Which by itself would be of limited significance. [Back] Note 21 See, also, transcript of Friday 19th January: 21B; 24G (“after 5 years the ability to perform at the same level would be compromised largely because of the problems of swelling and their impact on muscular bulk and co-ordination”). [Back] Note 22 There are exceptions: Roy Keane, the Manchester United first team captain, is playing at 34 having had two major operations in his career. He had an anterior cruciate ligament injury. Alan Shearer is a regular Premiership player at 35 who has had a serious injury to his cruciate ligaments, as has Ruud van Nistleroy. [Back] Note 23 That belief, as expressed by Sir Alex and others, assumes an absence of significant injury problems, the likely extent of which is a matter of medical opinion. [Back] Note 24 A move from the Championship to the Premiership, where the game is much faster, is a big step up in terms of what is demanded of the players. It is for that reason that teams promoted to the Premiership in one year may be relegated the next - because of an inability of the team, or individual members, to match up to the higher demands of the top division.
[Back] Note 25 Mr Lawrenson himself is not a satisfactory comparable having gone to Liverpool, then the most successful team in the country, as a central defender when 23. He transferred for a fee of £900,000. That was some 20 years ago, over a decade before the Premiership came into being, at a time when transfer fees were significantly less, even allowing for inflation. [Back] Note 26 This comment was somewhat inapposite. The claimant would have played in the Premiership when WBA got there in 2002/3. His opinion is properly to be regarded as meaning that he did not think that the claimant was Premiership material. in the sense that he would not have been sought out by a Premiership team, as opposed to arriving there if/when his Championship team was promoted. [Back] Note 27 Whether to adopt a 4-3-3 or a 4-4-2 disposition (in the latter of which the midfielder’s may have to work “box-to-box”) is a managerial decision. Different managers favour different systems and fashions change. [Back] Note 28 Mr Stein’s statistic (from the Rothman’s Sky Football Year Book) was that there were well over 5 dozen players over 32 in the Premiership where there are just over 500 full time professionals. Some of those may well not be regular first team players (but they still get paid). [Back] Note 29 In addition the original version of Appendix 3 to the claimant’s schedule did not claim a personal bonus for all the games before 1st January 2003 in accordance with document 5/974; and the original schedule of loss for this year under scenario 1 was a muddle. [Back] Note 30 Mr Peace’s evidence was that a player purchased in July 2002 to fill the claimant’s role received £450,000 basic salary i.e. the same as a loyalty payment of £100,000 and a salary of £350,000. WBA occasionally paid loyalty payments, but not regularly. They tried to have a straight salary. They do not pay sign on fees. [Back] Note 31 Who would not, however, be likely to be interested in first or second division management. [Back] Note 32 As Mr Stein put it: “Without a successful career behind him and … long term networking .. it will be extremely difficult to get on to the coaching/managerial bandwagon at any sort of secure or higher level”. [Back] Note 33 A figure of £103,750 as a salary for coach/manager outside the Premiership is said to be derived from Mr Stein’s figures (1/131). The derivation of £103,750 is explained at 1/110. But the £75,000 and £100,000 figures there referred to are figures for players: see paragraph 26 of Mr Stein’s statement. [Back]