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||Neutral Citation Number:  EWHC 631 (QB)
||Claim No: 4MA 91021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
||Claim No: 4MA 91021
Royal Courts of Justice
Strand, London, WC2A 2LL
||23 March 2007
B e f o r e :
MR JUSTICE CHRISTOPHER CLARKE
Mr David Allan QC & Mr Richard Hartley (instructed by Nexus) for the Claimant
Miss Mary O'Rourke (instructed by Mr George Dodd for the Medical Protection Society) for the Defendant
Hearing dates: 15th -25th January 2007
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR JUSTICE CHRISTOPHER CLARKE:
- Michael Appleton ("the claimant") was in 2001 a professional footballer playing for West Bromwich Albion ("WBA"). He was a central midfielder. On 19th November of that year, 15 days short of his 26th birthday, he suffered a partial tear of the posterior cruciate ligament ("PCL") of his right knee, as a result of a challenge during training. That injury should have been treated conservatively i.e. by the use of a knee brace for 4-6 weeks together with continuing physiotherapy. In fact he was negligently advised by the defendant to have reconstructive surgery, rarely necessary in the case of an isolated PCL injury, which on 7th December 2001 the defendant negligently carried out. In consequence he had to undergo further surgery to try to make good the damage and, eventually, a tibial osteotomy. Thereafter he had to be advised to give up professional football. He accepted this advice. If the claimant had been treated conservatively he would have been able to return to professional football in 3-6 months, and the parties are agreed that I should take April 2002 as the date of his return.
- He now brings this claim for damages of nearly £7,000,000. Negligence is admitted. Damages are in issue. The critical questions to be determined are:
(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
- The claimant was born on 4th December 1975. He always wanted to be a football player. He played very successfully for the Barr Hill Lads Club Team (where he was spotted by Manchester United's chief scout and invited to attend the Manchester United school of excellence), for his school, and for Salford City. At the age of 14, he was offered and accepted schoolboy forms with Manchester United. In July 1992, at the age of 16, he was offered and signed YTS forms with the club. Both of these contracts were two year contracts. The YTS students in the year above the claimant included individuals of exceptional talent such as David Beckham, Paul Scholes, Nicky Butt, Gary Neville, Phil Neville, Keith Gillespie, Ben Thornley, Robbie Savage and John O'Kane. During his time as a YTS player he played some 20 matches for the Reserves, sometimes starting, sometimes coming on as a substitute. In 1992/3 he played once for the reserves (against Manchester City), once (as substitute) in Lancashire League Division 1 and 25 times in Lancashire Division 2. He was becoming established as a central midfield player.
- In 1993/4 he played 7 games in Lancashire League Division 1 (3 as substitute) and 18 games in Lancashire Division 2.
- On 1st July 1994, at the age of 18, when his YTS contract expired, the claimant was offered and accepted a professional contract with Manchester United, one of only 4 out of the 18 YTS players taken on in 1992. The YTS players of the previous year had been offered 4 year contracts and the claimant was not surprised to be offered a one year contract. During the season the claimant played in the Reserve Team, 14 times as a starter, and 9 as substitute, as well as appearing in Lancashire League Divisions 1 and 2. He was put in the First team squad many times. At the end of the season the claimant was offered and accepted a two year contract.
- In September and October 1995 the claimant went to Lincoln City (which was in the 3rd Division) on loan, where he played four league games. This was his first League football. On his return to Manchester United he became a regular member of the first team squad, but did not then make his first team debut. In 1995/6 he won the Reserve Team Player of the Year award, chosen by all of the staff including the manager and the coaches. During the summer of 1996, in the close season, he spent a short time on loan to Wimbledon FC and played for them in Europe in the Intertoto Cup. Wimbledon wanted to sign him on a permanent basis but Sir Alex Ferguson ("Sir Alex") told the club that they could not afford him and that he, Sir Alex, did not want to sell him
- On 23rd October 1996 the claimant made his first team debut for Manchester United in a League Cup game against Swindon, in a team that included Gary Neville, Phil Neville, Roy Keane, Brian McClair and Paul Scholes. He had to come off before the end with a gash over his eye requiring 8 stitches. He made a substitute appearance in the first team five weeks later against Leicester City. These League Cup games were games in which, as Sir Alex accepted, he would tend to play reserve players because of the importance of the European games. At the same time such games allow the younger players to make their debut. Between January and March 1997 the claimant was loaned to Grimsby Town, then in the First Division, having been unable to gain a regular First team slot because of stiff competition from the likes of Roy Keane, Paul Ince, Nicky Butt, Paul Scholes and David Beckham. He made 10 appearances for Grimsby, who wanted to sign him. At the end of the season Manchester United offered him another two year contract which he accepted.
- The claimant played in the first team on their pre-season tour of Ireland. He was keen to be a regular first team player. In view of the very stiff competition at Manchester United, the claimant thought that it would be in his best interests to move to a smaller club where he would appear regularly in the first team. Sir Alex Ferguson ("Sir Alex") did not want him to leave. He thought that time was on his side and saw a big future for him at Manchester United,
1997/8 – 2000/01
- Five clubs showed an interest in the claimant: Sunderland, Sheffield United, Crewe Alexander, Preston North End and Barnsley. Preston North End, then in Division 2, agreed to pay Manchester United a transfer fee of £500,000, a club record. On 1st August the claimant signed a four year contract with them. He was taken on as a potential first team, not a squad, player. It is not unusual for a player to drop down a league or two in order to obtain first team experience and build his way back up.
- Whilst he was with Preston North End the claimant's appearances were as set out in the table below:
(Qualified for play-offs but lost to
||Left knee injury
September put him out of action for about 10 games.
- As is apparent from that table the claimant played only a limited number of times in the 1998/9 season (when there was a new manager – David Moyes), sometimes on the right wing or in a deeper holding role; and, even allowing for injury, a relatively moderate number of times in the 1999/2000 season. In 1998/9 Preston narrowly missed automatic promotion. They qualified for the end-of- season play offs but failed to gain promotion by that route. In 1999/2000 they gained promotion to the First Division as champions.
- The claimant began the season with Preston North End. He was, as he perceived, a key member of the team and for the first four months of the season had been picked by the supporters club as player of the month. The club did not open discussions with him about a new contract until the middle of November. The improved terms offered for a further two year extension to his contract were not acceptable. Preston's reason, as the claimant understood it, for not improving their offer was that to do so would have an effect on certain other players who felt entitled to have their contracts renegotiated if someone was earning more than they were. He told me that he was only seeking parity with players who were more highly paid than him. In the result Preston was not prepared to make a sufficient offer to keep him, and he was not prepared to stay if they did not.
- The clubs who had shown interest in the claimant at the time of his departure from Preston were Nottingham Forest, WBA, Blackburn Rovers (all 1st Division clubs) and Ipswich Town, a small Premiership Club, which was later relegated, whose enquiry was fleeting. On the day when it became clear that no better terms were on offer from Preston the claimant went to see Gary Megson, the manager of WBA, who offered him more money and a longer term than Preston (3 ½ years instead of 2), and on 29th January 2001 he signed with WBA. WBA paid Preston a transfer fee of £750,000. He was taken on as a first team player. WBA, who were then in Division 1 were one of the favourites for promotion to the Premiership. After he transferred he played regularly for WBA in Division 1 and by the end of the season had played 17 games for the Club. WBA got to the play-offs but was beaten by Bolton in the semi-final.
- A catalyst for WBA seeking a new player was that WBA's then captain, Derek McInnes, had suffered a cruciate ligament injury in October 2000 and the club wanted a midfielder to cover him. WBA were plainly keen to have the clamant, in whom they had been interested for some time, as appear from the facts (a) that Mr Megson told him that he had looked at 6 or 7 other players but the claimant was his first choice, and (b) that WBA were prepared to pay a large transfer fee although his contract would expire at the end of June, whereupon the claimant could have left on a free transfer.
- The claimant continued to play for WBA regularly in Division 1 and the League Cup. Prior to the injury he had played 21 such games; he missed the game immediately before the injury (on 19th November) because he was suspended.
- At the time of the injury, therefore, the claimant had played in Division 1 (later the Championship) for the whole of 2000/2001 and part of 2001/2. By then he was 25, very nearly 26. Prior to that he had played in the lower divisions.
- At the end of 2001/2 WBA were promoted to the Premiership (after a winning streak in the last ten games which secured them automatic promotion); so that in August 2002 the claimant would have made his Premiership debut - at the age of 26 years and 8 months – and played in the Premiership for the 2002/3 season. WBA's position thereafter was as follows:
In 2004/5 WBA survived relegation on the last day.
- The claimant suffered a significant PCL injury. The ligament was partially ruptured (see paragraph 23 below). He was immediately in pain and had to be carried off the pitch. Within about an hour his leg began to swell significantly. Such swelling is indicative of bleeding from the ligament seeping into the joint as a result of a tear in the synovial membrane (which is in front of the ligament and shields it from the rest of the joint).
- In addition, the claimant suffered a sprain of the medial collateral ligament and a minor sprain of the lateral collateral ligament. These sprains would have self-healed.
- There was also a minor crush injury at the front of the lateral meniscus, but its shape was preserved and it was not unstable. There was bruising of the posterior capsule, including a small rent. There was also evidence of damage to the surface of the joint: see paragraph 34 below. These injuries were revealed by the X ray and MRI scan which took place on 20th November and the diagnostic arthroscopy carried out by the defendant on 24th November 2001
- On the advice of WBA's physiotherapist the claimant had been prepared to be treated by the defendant, the surgeon whom WBA usually used, rather than another practitioner who had been recommended to him by Derek McInnes.
- The defendant's notes of the diagnostic arthroscopy include the following passage:
"…arthroscopic debridement of Anterior Cruciate Ligament right knee. Haemarthrosis. Intact Anterior Cruciate Ligament and other structures. Bruising of posterior capsule and postrolateral corner. ¾ rupture of PCL debrided. Need reconstruction …"
- The anterior and posterior cruciate ligaments are two of the several ligaments which enable the knee (or tibio femoral) joint to function. The posterior cruciate ligament attaches posteriorly to the tibia and the lateral meniscus, then crosses over and attaches to the front part of the femur's medial condyle. The ligament is composed of two bundles known as the antero-lateral bundle and the postero-medial bundle (which assists in extension). It is possible but uncommon for there to be a complete rupture of both bundles. Most tears are interstitial i.e. within the body of the ligament, resulting in a stretching of the overall structure. In the present case there was a complete rupture of the postero-medial bundle, which would have led to the bleeding in the joint. The antero-lateral bundle was very slack when probed by the defendant on arthroscopy (as Mr Williams discerned from the video). But it would recover some of its former elasticity. I accept Mr Williams' estimate that there was a 50% chance of laxity improving to grade 1 (see next paragraph).
- The defendant did not record the laxity of the claimant's knee. Laxity is assessed by the examiner pressing on the knee to find whether it slips backwards, and how far. It is usually measured on a scale from 0 - 3, 3 being the worst and 0 normal. It is an important indicator of the likely effect of a knee injury. The more lax the joint the greater will have been the damage to the structures that normally restrain it. If the knee is lax this tends to produce overloading of the medial compartment articular surface.
- Mr Hodgkinson, the surgeon whom the claimant consulted and who gave evidence on his behalf, originally thought that, after the initial injury, the claimant's laxity was probably less than 2 because, as he thought, the defendant removed the remaining 25% of the ligament when he effected the reconstructive surgery, and thus made the laxity worse. This was an assumption on his part in which he was, I believe, mistaken. I take that view for three reasons:
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.
- Mr Hodgkinson's evidence was that the video of the 24th November 2001 arthroscopy shows that, over and above debriding (i.e. trimming back) the stump of the 75% of the ligament, the defendant caused further damage to the fibres of the ligament with the power shaver. He also said that the H/R arthroscopy appeared to show that PCL fibres that were there before the defendant's reconstruction operation were not there afterwards. I accept that during the arthroscopy in 2001 the defendant debrided the stump of the 75% and also removed some further tissue. Mr Williams confirmed that this appears on the video; which also shows that there is tissue remaining. But I do not regard it as established that during the reconstruction operation he removed all the remaining 25% of the ligament.
- In the end Mr Hodgkinson accepted, in cross-examination, that the laxity post injury was grade 2 and it was, as I find, at least that.
- On 7th December 2001 the defendant carried out reconstructive surgery. This involved an allograft, i.e. a graft from a dead person, to replace the ligament lost or damaged. Part of the procedure involves drilling a tunnel from the medial side into the medial condyle of the femur (the bony end of the femur on the inside). On either end of the ligament to be grafted are bone pegs which are plugged into the tunnel with a view to the bone healing (as in a fracture). A bio-degradable screw is inserted into the tunnel in order to secure the graft. The tunnel was placed too close to the articular surface of the knee joint with the result that the threads of the screw came through that surface causing significant erosion of the upper surface of the medial meniscus. The screw also protruded out of the non articular surface of the medial femoral condyle impinging on the medial collateral ligament and causing significant thickening.
- After the claimant found that his knee was not functioning he sought, and in April and May 2002 obtained, a second opinion from Mr Hodgkinson. Mr Hodgkinson involved the local knee expert, Mr Paul Rae, whom he regarded as a cruciate ligament expert. On 15th May 2002 Mr Rae removed the screw and packed bone graft from the hip into the tunnel. In the light of an MRI scan that had previously been carried out, they expected to find, and did find, the defects referred to in the previous paragraph.
- The claimant made what can properly be described as Herculean efforts to rehabilitate himself, with physiotherapy, and training at WBA from January 2003. He played an away fixture on 1st March 2003. This convinced him that something more would have to be done. On 19th March 2003 he underwent a tibial osteotomy, carried out by Mr Rae. This involved fracturing the top of the tibia, and reconnecting it in such a way as to produce a realignment which would take pressure off the medial side.
- It is agreed that the treatment and surgery that the claimant received after he left the care of the defendant was entirely appropriate and necessary and that Mr Rae's work was of high quality.
- The claimant made further strenuous efforts to overcome his physical problems, and the osteotomy improved things considerably. But on 17th November 2003 he had to accept Mr Rae's advice that he could not return to professional football.
- WBA employed the claimant from July 2004 as an under 14/16 coach on a very modest salary (£5,000 per annum); and then from 28th October 2004 as an Assistant Coach at £2,785 per month. He has continued as a coach of one form or another thereafter and is currently employed as Assistant Academy Manager 16 -18, coaching boys from age 7 to 18 and, in particular, the under 18 team, on a salary of £30,000 with some fringe benefits.
The claimant's antecedent medical history
- The claimant had prior to November 2001 never suffered any significant injury to his right knee. The MRI scan carried out after the injury demonstrated some thinning of the articular cartilage of the medial femoral condyle i.e. osteochondral injury. If the surface of the joint is looked at, by analogy, as a carpet, the injury took the form of scuffing, exposing a threadbare patch. The experts are agreed that this was probably present before the accident although previously asymptomatic.
Previous medical history
- In September 1999 the claimant suffered an injury to his left knee consisting of a tear of the lateral meniscus and a partial tear of the medial collateral ligament. He underwent a partial lateral menisectomy. He made a good recovery and did not suffer any further left knee symptoms.
- In 1997 and 1998 the claimant had some recurrent problems with the first ray of the left foot, which, despite treatment, was still uncomfortable. In December 2002 there was a recurrence of pain on the dorsum of the left first metatarsal/medial cuneiform bone. X rays taken in November 2001 and December 2002 showed some narrowing of metatarsophalangeal joint space (the joint second below the nail of the big toe) and of the tarso-metatarsal joint (the next joint back).
Ankles and toe
- In November 1998 the claimant underwent an arthroscopy of his left ankle when intra articular loose bodies were removed. He made a good recovery. In May 1999 he had an arthroscopic debridement and removal of anterior osteophytes (bone spurs) from his right ankle joint. He did not complain of any further pain or discomfort in either ankle until August/September 2003. An MRI scan of the right ankle then showed some loss of articular cartilage over the anterior portion of the tibial plafond and the apex of the medial aspect of the talar dome. Some or all of the deterioration in respect of the right ankle between 1999 and 2003 was attributable to the difficulties and disabilities associated with the injury to his knee. The experts are agreed that degenerative changes with the claimant's ankle joints would not have caused premature retirement from professional football. The claimant also had moderate hallux rigidus of his left big toe.
The injuries other than the right knee
- All the above injuries, other than the injury to the right knee, are common in football players playing at a high level. It is common ground that the injuries to the left knee and the ankles and toe would not have foreshortened the claimant's career. Further, although Mr Williams was surprised at the degree of degenerative change to the tarso-metatarsal joint of the left foot shown on X ray in 2002, he did not in the end suggest that this should be regarded as of significance so far as curtailment of the claimant's career was concerned. It might however have been necessary to use various expedients (foot orthotics, injections etc) to deal with pain in that foot.
The prognosis for the claimant had he been treated conservatively
- The expert witnesses called by the parties, Mr Hodgkinson and Mr Willliams are agreed that the claimant would probably have returned to professional football at the same level as prior to his injury if he had been treated conservatively. WBA was in Division 1, the equivalent of the Championship, prior to the injury. I do not interpret the experts' agreement as meaning (nor do I find) that the claimant could not have returned to the Premiership – rather that he would have returned to his personal level of capability prior to the accident. Consistent with that is Mr Williams' acceptance that if the claimant had been a successful Premiership player then, after three years, he might still have been a successful player in the Championship.
- The experts are also agreed that, after his return to professional football, the claimant's knee was likely to be anatomically abnormal, in the sense of not functioning entirely normally, on account of the PCL injury, but that it would have functioned satisfactorily without surgical reconstruction. They are in disagreement as to the prognosis thereafter.
- Mr Hodgkinson's opinion is that, in the absence of further significant injury, the claimant would have returned to playing football at his previous level and would have continued to play at that level until the end of his career at age 35 i.e. at the end of the 2010/11 season. Mr Hodgkinson accepts that towards the end of his career the claimant may have needed to modify his training programme and reduce his number of training sessions in order to minimise the risk of further injury and maintain match fitness; but believes that he would have been able to continue as a squad player at the highest level until the normal age of retirement i.e. 35.
- Mr Williams' opinion is that the claimant would have returned to playing football at the same level for a period of about three years but would then have to play at a lower level for the next two years before taking early retirement after five years, i.e. at the end of the 2006/7 season, at the age of 31.
- Both experts agree that the claimant, like all footballers, would be at a higher risk of injury than the normal population during the remainder of his career and would in particular be at risk of further injury to his right knee in the form of meniscal injury and further osteochondral injury.
- Neither the PCL injury nor the negligent treatment of it has any effect on the claimant's ability to be a football manager. But the injury may limit his ability to work as a footballing coach at some stage in the future. The claimant, it is agreed, is fit to work as a coach at the moment. In the absence of the surgery carried out by the defendant, the likelihood is that the increased laxity of the knee joint would have caused premature osteoarthritis in the right knee. The treatment of choice for severe arthritis of the knee joint is a total knee replacement. Such an operation would significantly reduce his ability to work as a footballing coach.
- The experts agree that as a result of the surgery carried out by the defendant the claimant will require a total right knee replacement sooner than is likely to have been the case if he had been treated conservatively and that the defective surgery is likely to have accelerated the requirement for a total knee replacement, and thus the termination of the claimant's coaching career, by five years.
- The experts disagree as to when the claimant would have undergone a total knee replacement in the absence of the surgery carried out by the defendant. Mr Hodgkinson estimates that the claimant would have undergone such a replacement at the age of 60. Mr Williams estimates it as being at age 55.
The medical experts
- Mr Hodgkinson is a consultant orthopaedic surgeon at Wrightington Hospital, having previously been a Consultant Orthopaedic Surgeon at the North Manchester General Hospital. Since moving to Wrightington in 2001 his clinical practice has dealt mainly with lower limb orthopaedic problems. His main interest has been limb arthroplasty and, in particular, revision hip surgery. He has since 1993 been the orthopaedic adviser to Blackburn Rovers F.C, now in the Premiership. He also treats players from a sizeable number of other teams. He treated three of the starting squad for the World Cup England team last year. Although a knee surgeon he has not "taken on the learning", as he put it, of cruciate ligament knee surgery. As is apparent, he had advised the claimant and involved Mr Rae to carry out the repair work on the claimant's knee. He did so because Mr Rae was familiar with cruciate ligament reconstruction, although he does not appear to have carried out a posterior cruciate ligament reconstruction at that stage.
- Mr Williams is a consultant orthopaedic and trauma surgeon at the Chelsea and Westminster Hospital. He does private work at the Lister hospital. He has a special interest in all aspects of knee surgery. Most of his work is soft tissue knee surgery but about 20% is arthroplasty. He deals with a significant amount of sport-related trauma and, as a result is the primary orthopaedic surgeon for a number of professional sports clubs including several Premiership soccer, and rugby, teams as well as teams of both sports in the lower divisions. He works regularly with all the London Football League Clubs other than Fulham (where he has, however, treated a couple of players) and Leyton Orient (with which he works occasionally), as well as Manchester City, Leicester City, Luton Town, and Watford; also Wasps, London Irish, Harlequins, Bath, Gloucester, Bedford and other RFCs. He was the Hunterian Professor of the Royal College in 2005-6, in part on account of his research work involving MRI which explained how, in the case of PCL injuries, stability can be maintained but at the expense of increasing stresses on the joint surfaces.
- Mr Hodgkinson told me that, over a period of some 13 years, he had treated conservatively 5 professional footballers with PCL injuries where, on clinical examination and an MRI scam, he diagnosed a complete rupture of the ligament. (He had, also, seen an unknown number of partial ruptures). Three of them had been treated before his September 2005 report, two of whom were goalkeepers and one a midfield player. He did not recall the laxity figures in relation to these 5, although he said at one stage that it was at least grade 2 if not grade 3. One of the two more recent cases was the case of a well known footballer, called, at my suggestion, "Mr X" in order to preserve medical confidentiality, who had been seen by both Mr Hodgkinson and Mr Williams, and whose injury, according to Mr Hodgkinson was the same, if not worse, than that of the claimant. Mr Williams told me, and I accept that Mr X, who is under 30, had, in fact, sustained a minor PCL injury, with a laxity which he graded as "1", together with an injury to the medial collateral ligament. He was back playing within 8 weeks. I also accept Mr Williams' evidence that a complete rupture is a very rare scenario, usually associated with a devastating injury to the knee in which the femur and tibia have parted company where 3 ligaments have been torn completely, with a grade 3 laxity. In the light of that evidence I doubt that all Mr Hodgkinson's 5 cases were cases of complete rupture, and in the case of at least one of them I am satisfied that it was not. In those circumstances the basis for Mr Hodgkinson's general claim that footballers with serious PCL injuries treated conservatively do well is significantly undermined.
- So far as specifics are concerned, Mr Hodgkinson's evidence did not reveal details of the midfield player of whom he spoke other than that the injury occurred before the claimant's injury, and probably in 1999, and that the player was now in his thirties. In particular the exact degree of laxity of the knee, the actual age of the footballer on injury, the length of time that he was away from football, for how long he performed and at what level on his return, and whether there were any continuing injury problems or training difficulties are all unknown. The same goes for three others of the five. In those circumstances the information on which Mr Hodgkinson's forecast was based is lacking in detail. I was also left with the impression that the number of PCL injuries, of any kind, that Mr Hodgkinson had seen was pretty limited.
- Mr William's practice involves him in seeing a large number of PCL injuries in elite athletes, something of the order of 1 per football club and at least 2 per rugby club per year. He carries out about 25 reconstructions per year.
My view of the expert evidence
- Both sides invited me to look at the evidence of the opposing expert with circumspection: in the case of Mr Hodgkinson on the ground that he was not independent of the claimant, since he had treated him (although it was Mr Rae who made the major decisions and who carried out the osteotomy without Mr Hodgkinson); and, in the case of Mr Williams on the ground that, although his prognosis had not changed, the basis upon which he made it had. Thus in his report of 17th October 2005 he had understood the claimant's injury in September 1999 to have been to his right knee, and he said that that injury could be expected to pre-dispose the knee to degenerative change.
- I have no doubt that both witnesses were giving me their true and, to the best of their ability, objective opinion on the difficult question of the claimant's prognosis. I do not regard Mr Hodgkinson's evidence as compromised by reason of the fact that he had treated the claimant. The content of it is what matters.
- Nor do I regard Mr Williams' reference in his first report of 17th October to a 1999 injury to the right knee (which was based on an inaccuracy in the WBA physiotherapist's records) as casting significant doubt on his evidence. In that report he had observed that in none of the subsequent operations on the right knee was there anything to suggest that the knee was not in good condition despite the surgery in 1999. In his October report he placed reliance on his experience, the claimant's age and the history. But he did not suggest that the injury to the claimant's PCL would not independently have led him to make the prognosis that he did.
- One matter that he did refer to was the fact that the claimant, like many footballers, has a natural varus (bowed) alignment of the lower limb which would tend to load the medial compartment of the knee more. The main consequence of an isolated PCL tear on joint loading is in the medial compartment. As a result such an injury is associated with an increased onset of early medial osteoarthritis, i.e. degeneration of the joint surface, or focal areas of damage, typically where the front of the medial femoral condyle rubs against the front of the tibia on the medial side of the knee. This will be exacerbated if there is existing osteochondral injury i.e. damage to the joint surface. The combination of varus alignment and PCL deficiency, together with osteochondral injury, is unfavourable.
- In his report of 13th December 2005 Mr Williams referred to the claimant's trouble with his left foot and ankles, and to the periods of injury related associated therewith as "without question important". In subsequent reports he regarded the claimant's ankle problems as a factor limiting the claimant's length of career. At the joint experts meeting, after a long discussion, he conceded that the ankles should not be regarded as career limiting factors. I do not regard that concession as casting doubt on the validity of Mr Williams' central opinion. I do not accept that he formed his opinion on inadequate material and, having committed himself too soon, then stuck to it inappropriately through thick and thin. His concession in relation to ankles shows that he was not seeking to maintain an argument to match a position. It is necessary to take his evidence as a whole, and to examine the opinion that he reached (by an evolving process) in the light of all the information that he came to possess.
- I was particularly impressed with Mr Williams' evidence on account of the breadth of his expertise in relation to cruciate ligament injury to elite sportsmen, his wide experience in treating PCL injuries in such sportsmen, the clarity and cogency of what he said, and the thoughtful manner in which he gave evidence, as well as his distinguished C.V. In my judgment he applied that expertise and experience in an independent and objective manner. The fact that he had only given evidence on one previous occasion appeared to me no disadvantage: if anything, the reverse.
The rival prognoses
- Mr Hodgkinson's view was that the injury suffered on 18th November 2001, if treated conservatively, would not have foreshortened the claimant's footballing career. He would have been able to go on playing professional football at the highest level until he was 35. He still had a normal meniscus and a normal tibial plateau and tibial cartilage. He would be slightly more vulnerable to further injury. It would be necessary for the claimant to strengthen his quadriceps and hamstrings in order to compensate for the laxity of the knee, but the claimant had shown himself well able to do that. Degenerative change would develop slowly. In his very extensive experience of knee replacement injuries he had not seen individuals with previous PCL injuries needing knee replacement at a particularly young age. In the latter years it might have been necessary to modify the claimant's training regime (less runs, more gym), as often happens, or for him to play less matches. With modern medical expertise and assistance and the claimant's determination he could have continued with his career until 35.
- Mr Williams' view was that the claimant's injury was a significant one; which he would place in the middle of the severity range of cases that he had seen; and, since his practice was skewed (in the sense that he did much more reconstructive work – and, therefore, more of the serious cases - than other surgeons), the claimant's injury would fall above, perhaps well above, the mid range of cases which did not require surgery.
- Mr Williams based his prognosis on the following:
(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.
- There is an issue as to what was the period, during which athletes who had had PCL injuries returned with problems, that was the foundation of Mr Williams' opinion as to the likely deterioration of the claimant's knee. This arose because at one point in his examination Mr Williams referred to players with PCL injuries suffered "five or ten years ago" coming back with problems, although a little later he referred to players he had seen coming back "a few years after" their PCL injury with recurrent swelling. In cross examination he said that such players were clustered round the five year mark and gave specific examples of a midfielder, a goalkeeper and another player who presented 3, 4 and around 6 years after injury. He said that his reference to 5-10 years was a mistake, as I am satisfied that it was, not least because Mr Williams has been concerned with Premiership players for about 7 years. He also expressed the view that the problem that the claimant faced could not be overcome "no matter how hard you try".
- In addition Mr Williams attached significance to the antecedent chondral abnormality: see paragraph 34.
- What Mr Williams envisaged would happen is that the claimant's knee would sustain repeated small injuries the effect of which would accumulate. Wear and tear on the knee which, absent the injury, may have been well tolerated, would, because of the misalignment between femur and tibia, lead to damage to the articular surface of the joint or the meniscal cartilage. This deterioration would be assisted by the irreversible process of diminution in muscle cells from the age of 20 onwards.
Conclusion on the medical evidence
- In my judgment Mr Williams' prognosis is the sounder opinion and I accept it. I do so for the following reasons:
(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.
- I do not ignore the fact that there are a number of players who have and continue to have very successful careers at the very highest level in their thirties. Two of them - Gary Neville, the Manchester United captain and a regular in the England team, and Ryan Giggs, captain of Wales and a Manchester United player - gave evidence. But these are the exception rather than the rule. Both Mr Giggs and Mr Neville (aged 33 and nearly 33 at the time of the hearing) made their first team debuts aged 17 and 20 respectively, and have continued playing with Manchester United ever since. Those who do enjoy such careers are, on the whole, players of exceptional ability with "pristine joints", as Mr Williams put it. I am also struck by the absence of any specific evidence as to a player with the same or a similar injury to that of the claimant, incurred at the age of nearly 26, together with a comparable career record, continuing until 35 at a high level.
- I do not accept that there is an inconsistency between Mr Williams' opinion as to (i) the ability of the claimant to continue as a professional footballer and (ii) the time when the claimant would need a total knee replacement (a salvage procedure usually carried out when the patient is in a severe state). The fact that the demands of the modern game are such that a player with the claimant's injury will probably not be able to continue at a high level beyond the season in which he is 31, does not mean that, when he stops playing at that level, he will need a knee replacement earlier than 55 (Mr Williams' estimate, if the claimant had been conservatively treated). The development of osteoarthritis that calls for a knee replacement is a slow process. For an athlete playing at a high level with a knee that is not normal a more minor degenerative process is significant. Joint surface damage, increasing because the knee is not normal and is misaligned, can be tolerated in the short term, but that tolerance cannot be sustained in the case of a player at a very high level. When such a player gives up playing at a high level, degenerative change will not stop. But it will continue much more slowly.
The Claimant's playing ability and prospects
- The difficulty of forecasting how well the claimant would have done but for the defendant's negligence, or what his chances were, is obvious. The starting point from which to make any form of assessment is to look at the claimant's playing history, the expert evidence, the views taken of him by the witnesses, and what is known to have happened with WBA. I remind myself that the onus of proving the likely level and duration of his career rests on the claimant.
- I have set out in paragraphs 3 - 16 the history of the claimant's football career from the age of 14. To be signed on, first under the YTS scheme and then (twice) as a professional, by Manchester United, one of the top Premiership clubs in the country, is a mark of high ability. That he did not make the first team until 1996, when he was 20, nearly 21, and then only twice, is a mark of the exceptionally high ability of those who were in the club in the year or so immediately above him (Beckham, Butt, and Scholes). As it was he was voted Reserve team player of the year.
- Gary Neville, Captain of Manchester United and a regular England player, who after his Premiership debut aged 19 made his England debut aged 20, described the claimant as someone who would have made a very good midfield player in the Premiership (and into his 30s) of a type that every team needs. He regarded him as the equal of Robbie Savage in terms of ability and a potential captain of whatever team he played for. Ryan Giggs, Captain of Wales and a Manchester United first team player from the age of 17, thought that the claimant would have been able to do well in the Premiership. I bear in mind that, despite the fame of these two players, their evidence was not expert evidence but evidence of their belief, which was not founded on having played with him in any League games. Mr Giggs had never played with the claimant at all, except at Salford Boys. He had seen him play some "A" team matches at the training complex and occasionally trained with him. Mr Neville had played with him in training but only once at first team level in the Coca Cola (i.e. Football League) cup. He had never played League football with him at all, or any football for the 4-5 years before the claimant's injury. In those circumstances their evidence is of limited assistance.
- Sir Alex regarded the claimant as having "tremendous attitude and character". He described him as strong and with a lot of stamina ("a good engine"), even if not the most technically gifted player, able to adapt to the Premiership and perform well and, someone who, without injury could have expected to play into his 30's. Whilst that evidence is also evidence of belief, it is of some significance, not least because, if that was his opinion, it is likely that other managers looking for a Premiership player might hold it too. The same applies in relation to the evidence of Mr Megson: see paragraph 73 below. I bear in mind that Sir Alex had not seen the claimant play for at least three seasons prior to the injury.
- Sir Alex described the claimant's attitude as one of his strongest qualities. In the light of all that I have heard from him and others, I am sure that that was correct. Whatever held him back it would not have been a lack of determination or an imperfect attitude.
- The claimant's ability was marked by Preston's purchase of him for £500,000, and the fact that he was spoken of in glowing terms by David Moyes, who was a player/assistant manager at Preston when the claimant joined the team, and later its manager, and who is now the manager of Everton. He thought that the claimant would have had a good chance of becoming a regular established Premier League Player. He described himself as "distraught" when the claimant left. He regarded him as the type of player who has a big part to play in modern football. I note, however, that particularly in 1998/9 and to some extent in 1999/2000 the number of games in which the claimant played did not suggest that he was a regular; and that Preston do not appear to have fought particularly hard to keep him.
- The claimant's signing by WBA was a further mark of quality, particularly having regard to the fact that he was signed for £750,000 although, with only five months left on his contract, he could have been available on a free transfer when it expired. Gary Megson spoke of him in glowing terms. Before his injury he regarded him as the player at WBA who had played to a high level the most consistently and regularly and regarded him as a very important member of the team – one of the 4 WBA players with Premiership ability when WBA was promoted for the 2002/3 season. He thought that he would have quickly adapted to the Premiership, would have become an established and consistent Premiership player, and would have gone on to become Captain and played football at a high level to 35 or 36.
- When WBA was promoted to the Premiership for the 2002/3 season, the claimant received a £30,000 salary rise, despite his injury. This was a contractual entitlement (5/976), but the fact that there was no argument about it is some measure of the regard in which he was held. Thereafter WBA went in and out of the Premiership: see paragraph 17 above.
- Against these considerations there must be set the following:
(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.
The experts on footballing ability
- The claimant called Mr Mark Lawrenson, who began his career at Preston North End, moved to Brighton & Hove Albion and then to Liverpool. During his time at Liverpool they won five league titles, the European Cup, the FA Cup and three league cups. He also won 39 caps for the Republic of Ireland. He retired from professional football in March 1988 at the age of 30 because of an injury to the Achilles tendon. Thereafter he was for a short time manager of Oxford United (under Mr Robert Maxwell) and after that had a coaching position at Newcastle United. From 1987 to date he has been employed by the BBC as a football pundit and summariser both on television and radio.
- He had seen the claimant play about 20 times at Preston North end. This experience would have been spread over 3 ½ seasons in which time he would have seen the claimant play in only a few games, perhaps 5 or 6, at (old) Division 1 level, and the rest at Division 2. He viewed the claimant's particular skills as being that (a) he was a strong tackler; (b) a good passer of the ball; (c) possessed of a very good positional sense (important because "the first five yards are in your head") and (d) an extremely good reader of the game. The latter two characteristics were critical for someone in the position in which the claimant played. Mr Lawrenson described him "as the sort of player that every team needs", although that might be more apparent to the professional than the casual supporter, so that his talents might be more missed after he had gone than noticed when he was there - "the type of player who does the simple things well". He regarded him as a type of consistent player who would be much in demand.
- Mr Lawrenson had no doubt that the claimant would have been able to play and do well in the Premiership and that he would have had a good career at that level, and become an established player. If WBA were relegated (as in the event they were for 2003/4 and 2006/7) he would have had the opportunity to go to one of the clubs in the middle of the Premiership i.e. not one of the top 4 or 5 star clubs nor one of the clubs at the bottom struggling to avoid relegation. Such clubs would have been very keen to have someone like him in their team because of the paucity of players with his qualities available. Alternatively he might have been courted by a newly promoted side who would want someone of his abilities and attitude in order to establish themselves in the top league. In his view the peak years for someone in the claimant's position, where experience is vital, would have been between the ages of 27 and 31. Barring unforeseen problems or injuries there was no reason why the claimant could not have expected to have had a career in professional football until 35. Towards the end of his career he might have found himself a squad player, rather than an automatic first team choice in the Premiership. If he wanted first team football he would have been very much in demand for the top Championship teams who would be very keen to have a player of his experience and ability on side. He would have had no difficulty in performing well at the top half of the Championship in the final few years of his contract.
Mr David Pleat
- The defendant called Mr David Pleat. He has been a player, coach and manager since 16. He was employed as player manager at Nuneaton Borough FC and since then has been employed in a management capacity at Luton Town (twice), Leicester City, Sheffield Wednesday and Tottenham Hotspur where he was director of football from 1998 to 2004. He has thus had considerable experience in the buying and selling of players. Since 2004 he has acted as consultant to a Premiership club and has been a regular contributor to BBC football discussion programmes on the radio as well as being a regular summariser for ITV.
- Mr Pleat was aware that the claimant was a player at Preston North End and WBA through television and speaking to other managers and coaches on a regular basis about players' abilities. But he never saw the claimant play - a circumstance which he thought would contribute to the objectivity of his opinion but which appears to me to be something of a disadvantage, although I accept that an opinion can be based on the facts of career progression, reputation and "market" appreciation of the worth of an individual or type of individual.
- Mr Pleat thought that, if the claimant had successfully returned from his injury, his career path would have been maintained for possibly three seasons at Championship level and possibly two more in Division 1 and/or 2. He held this view in the light of the circumstances set out in paragraph 75 and the claimant's age; and because he took the view that his position as a holding mid field player in a 4-3-3 system would have provided fewer opportunities to transfer because most teams in the early 2000s were beginning to revert to a 4-4-2 system which does not necessarily involve a holding midfield player. He regarded Mr Lawperson's summary as indicating that the claimant was a good club player but not spectacular; and thought that his injury may have acted as a deterrent to a prospective purchaser.
- I found Mr Lawrenson a straightforward and impressive witness, not, I think, prone to exaggeration. His views tallied with those of Mr Megson (and Mr Moyes). Mr Pleat's assessment rightly takes account of the difficulty of making it in the Premiership for a player who goes down two divisions and makes his debut at nearly 26 and of the relatively small number of players in the Premiership who are over 30.. In my judgment, however, Mr Lawrenson's evaluation of the claimant's footballing worth is preferable to that of Mr Pleat whose assessment does not seem to me adequately to reflect the claimant's particular abilities - skill, commitment, team player, leader.
- I now turn to the individual elements in the claimant's damages claim
Pain and suffering and loss of amenity
- The claimant is not to be compensated for the initial injury to his PCL, nor for his likely need for a knee replacement in later life a result of the inevitable wear and tear on his joints from playing and the initial injury. He is entitled to be compensated for the acceleration of that need. If his injury had been conservatively treated he would have suffered no more than some weeks in a knee brace and extensive physiotherapy together with the need to get back to match fitness. As it is, he has had three arthroscopies, unnecessary and incompetent surgery by the defendant, followed by repair surgery by Mr Rae and then a tibial osteotomy. The latter involved considerable pain. Whilst the claimant would, if conservatively treated, have had to put in a lot of work in rehabilitating himself, he had to make superhuman efforts in a doomed attempt to get back to playing football. In my judgment the appropriate figure for all the above is £45,000.
Loss of congenial employment
- To play professional football at the highest level is many a schoolboy's dream. To do so was the claimant's passion. When the claimant's injury occurred he was coming to the peak of his playing years. He had been taken on by West Bromwich who were in the Championship and likely to gain the Premiership, as in the event they did. Thereafter he would probably have played in one or other of those for the next 5 years. The fact that he is still involved in football is only some consolation. In my judgment the exceptional facts of this case justify a separate award of £25,000.
Interest on general damages
- 3.9% is the agreed rate from the date of service to the date of trial. No doubt that figure can be updated by agreement.
Expenses and Miscellaneous items and Nursing Care and Services
- The claimant claims £1,050 consisting of £900 for journeys to Manchester for treatment and £150 for painkillers and prescriptions; and £1,260 for 280 hours additional care by his wife at £4.50 per hour.
- The defendant accepts £500 under the former head (on the basis that the estimate is too high and some such expense would be incurred given the initial injury), and £450 under the latter on the ground that no specific proof has been given and the claimant's rehabilitation would have had some care consequences. I propose to use both of the claimant's figures.
- I also accept the claim for the cost of painkillers until 65 in the sum of £2085.
Loss of earnings
- The remuneration paid to a player is a matter of agreement between him or his agent and the club. In one sense everything is up for negotiation. There are, however, certain elements of the remuneration package of professional footballers which are often, but not invariably, found in players' contracts. Thus, in addition to the basic salary a player may receive a signing on fee. This is a lump sum, payable either annually or twice a year over the life of the contract. The regulations do not allow the whole of it to be paid as an initial lump sum payment. If the player is transferred, otherwise than at his request, before the end of the term, he becomes entitled to the balance of the signing on fee not yet paid. This reduces its popularity to clubs. In contrast the player may receive a loyalty bonus. This is a figure payable annually in arrears. The player has to be in post at the end of the contract year, which usually begins on 1st July, in order to earn it. Another possibility is a terminal bonus. This is a superior form of loyalty bonus in that it is only payable at the end of the contract and provided that the player is still with the club. Most clubs, at any rate if they retain interest in a player, do not let the player's contract run to its expiry since, if they do so, the player will be entitled to a free transfer (which makes the transfer more appealing to another club and means that the club does not get a transfer fee) and may be entitled to a terminal bonus as well.
- Club contracts will also contain provision for appearance money. There will be a club scale of benefits payable, differing in amount according to whether the game is a win, lose or draw, usually to all those who were in the squad for the game. There may also be personal appearance fees, separate from the club bonus. As a player gets older the club is likely to seek to reduce the basic and increase the appearance money, a trend shown in some Premiership clubs regardless of considerations of age. Some clubs are trying to get away from signing on fees. Mr Peace of WBA would not pay them.
- Club contracts are likely also to provide for a bonus if the club secures promotion or avoids relegation: a promotion or retention of status bonus. This will be a shared bonus under which the players share in a fixed sum according to the extent of their participation in the games which led to promotion or retention of status. There may also be a personal bonus of that kind. There may also be club bonuses for the number of league points gained during the season, or by reference to the team's progress in the FA Cup, the Football League Cup and the European cups. Lastly, a club will often pay a sell-on fee whereby a player obtains a percentage of the excess of any transfer fee that the club receives, over the amount that it paid, for him
- The more valuable the player is to the Club the greater will be the amount of his remuneration and the number of provisions additional to the basic salary and Club benefits (which was all that the claimant got when he joined WBA in January 2001) that he receives. The make-up of a player's contract will differ from player to player and contract to contract. Player and club alike are usually concerned with the total figure or exposure, so that a club that refuses to pay one type of bonus may be prepared to increase the basic, or another type of bonus, in order to reach an acceptable total figure.
The experts on quantum
- The claimant called Mr Melvyn Stein. He was until April 1997 a senior partner of Finers, solicitors, a large West End firm with a specialised sports law department which Mr Stein developed since the inception of the partnership in 1988. Prior to that he was a senior partner in three different firms. He began to represent sporting personalities in the 1970s. He is presently the director of a sports management company and a consultant to a company which represents 100 leading footballers and many clubs and managers. He has considerable experience in negotiating contracts and representing high level players. I have little doubt that he is accomplished in this field and that, when representing his client, he starts with a substantial "shopping list" of what he seeks. Whether he would get it all is more doubtful.
- The defendant called Mr Kennedy, the senior partner in Herbert Reeves & Co, and an executive director of a company which represents over 200 professional footballers. He, also, has considerable experience and expertise in the negotiation of football players' contracts.
- The experts produced a joint report, for the purposes of which they assumed that the claimant would have continued playing until he was 35. On that assumption, the accuracy of which is in issue, they reached a measure of agreement, which is recorded in the joint report. That report refers to a version of the Schedule of Loss prepared in December 2005. That schedule was updated in 2006 for the trial and further revised at the end of the trial and, thereafter. Mr Stein drew up the joint report including, as he understood it, that with which Mr Kennedy disagreed, and not referring to some matters that he took to be agreed. The result is that it is sometimes unclear what it was that Mr Kennedy agreed with and what he disputed. Mr Kennedy's oral evidence indicated that he did not fact agree with some matters where agreement is ascribed to him in the report.
The existing contract
- The 3½ year contract negotiated in January 2001 contained the following basic (gross) salary provisions:
|18.6.01 – 30.6.01
|01.7.01 – 30.6.02
|01.7.02 - 30.6.03
|01.7.03 - 30.6.04
Schedule (f) to the contract – personal appearance fees
- The January 2001 contract also provided in Schedule (f) [5/974] for bonuses of £500, £600 and £1,200 for each appearance where the team (a) lost; (b) drew; (c) won. To qualify for bonuses the player had to start in the first team. A substitute, whether taking part in the match or not, would get 25% of the bonus. This formed part of the claimant's contract and was applicable until its expiry on 30th June 2004.
- There was also a club bonus schedule for 2000/2001 [5/973] which provided for bonuses of £100 per point in the League (to be doubled in the event of promotion to the Premiership and halved in the event of relegation to Division 2); for bonuses in respect of the play offs and for winning rounds in the FA Cup and League Cup. That schedule also applied for the 2001/2 season.
- There was some confusion at the trial as to whether the claimant was entitled both to a personal bonus under the terms of his contract and to a Club bonus. Resolution of this confusion was not assisted by document 5/974 (which I am satisfied is - as I had suggested - paragraph (f) of the schedule to the contract of employment at document 5/972), not being opened as such, and being placed in the bundle after document 5/973, which is the club team bonus schedule (although I realise that this may reflect the original order in the contract: see Jonathan Greening's contract at pages 3/346-350). I am satisfied that the claimant's entitlement was to both bonuses.
- In 2002/3, when WBA were in the Premiership, the club bonus scheme was improved [5/977]. The bonus appearances increased to £1000 per game with an additional £500 for a draw and £2000 for a win. An appearance was defined as being selected for the first team squad of 16 for a first team competitive fixture in the FA Premier League. There was now a retention of status bonus of approximately £2,000,000 to be shared in such a manner that each of the 16 squad members received one share in respect of each Premiership game. There were also Cup bonuses and provision was made for bonuses in the future if the team was in the first division. Further alterations to the club bonus scheme were made in respect of later years.
2001/2 – 2004/5
- It is convenient first to consider the past loss of earnings claim by reference to each year from 2001/2 to 2004/5 – the year in which the Claimant would be 30.
- Although the claimant would have returned to professional football at the beginning of April 2002, he accepts that he may not have played in the last few games of the season. Accordingly he does not maintain a claim for lost bonuses.
- During this season WBA was in the Premiership. At the end of the season the club finished 2nd from bottom i.e. 19th, 16 points below the team next above. Part of the reason for this must have been the fact that a number of the players were not of a sufficient standard to play in the Premiership. I do not regard it as likely that the claimants' inclusion in the team would have saved it from relegation.
- The claimant's contract was due to expire at the end of 2003/4. As is agreed, renegotiation of his contract would be likely to have taken place in December 2002/early January 2003 with the contract to take effect from 1st January 2003.
- The claimant's case is put on the basis that there were two possible scenarios:
(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.
- The defendant's case, in the light of the medical evidence, is that the claimant would not have continued at the same level for more than 3 years; that any contract agreed in January 2003 would reflect that position and would not have been for more than just over 3 years i.e. until the end of 2004/5 season. I have accepted the medical evidence upon which the defendant relies.
- In relation to 2002/3 it seems to me that the overwhelming likelihood is that the claimant would have stayed at WBA under a contract negotiated in December 2002 and lasting from 1st January 2003 until 30th June 2005, with scope for a year's extension at the club's option. In December 2002 he would have been someone who had returned in April 2002 from a significant injury, with a prognosis that suggested that he could not remain at the same level for more than three years (and which would, at best, be uncertain), to a club that had been promoted to the Premiership at the end of the previous season. He would have been 27 and would only have been playing in the Premiership for about 4 months, having made his debut at the age of 26 years and 8 months. In those circumstances WBA would not, I believe, have wanted to commit itself any further. But it would, in my judgment, have committed itself to that extent. Mr Peace's evidence, which I accept, was that, assuming fitness for first team football, the club would have offered him a contract until June 2005, with an extension, at the club's option for another year. I do not think that he would have been put off making that commitment by the medical prognosis.
- Any other Premiership club would, in my judgment, have been wary of engaging the claimant. I do not think that there was any real or substantial chance of the claimant transferring to another Premiership club at that stage given his history and prognosis, let alone to a Premiership club which, in accordance with scenario 2, would remain consistently in the Premiership.
Scenario 1 - Staying with WBA
Loyalty payment and salary
- In those circumstances it is accepted that the claimant would have received at least the following emoluments or the equivalent:
|(a) Loyalty Payment under new contract
|(b) Basic salary
|Until 1.1.03 under old contract
|Until 30.6.03 under new contract
||@ £350,000 p.a.
- In addition the claimant would be entitled to the club bonuses for his participation in Premiership League games during the year. The parties agree that I should decide (a) what proportion of games the claimant would have played and (b) whether in addition to club bonuses he would have received a personal bonus of £3,000 per appearance.
Club bonus and amount of games
- As to (a) "Appearance" is defined in the Club Bonus Scheme for 2002/3 – see clause 3.2 - as being selected for the first team squad of 16 players for a first team competitive fixture played in the Premier League; so that even a non playing substitute qualifies. By comparison, in Schedule (f) to the claimant's contract "appearance" is defined as starting in a first team competitive fixture. Being named as a substitute (whether taking part in the match or not) is deemed to be 25% of an appearance.
- 85% was the percentage of games in which the claimant played in 2000/01. The claimant played in all but one game prior to his injury in 2001/2 but I decline to take the percentage from an unfinished year as an accurate estimate of how much he would have played in the whole of the next. The defendants claim that the figure to take for club bonus appearances should be 70% dropping down to 60% over the 3 seasons down to June 2005 to take account of injury, suspension, squad rotation, and the possibility that the replacement manager during the period would have taken a different approach. I regard that as too pessimistic a forecast of the proportion of times that the claimant would have been selected for the first team squad and propose to take the 85% figure for the 3 year period.
- The calculation of the club bonus to which he would have been entitled is to be effected by taking the known results for the games played in 2002/3 (Appendix 3 at 1/146) and the club's bonus schedule for that year (5/977).The column headed "Team Bonus" in Appendix 3 totalling £61,000 shows the bonus that would have been gained by a player playing in all 38 Premiership games and 3 cup games. The amount of club bonus that he would have received should be assessed at £61,000 x 85% = £51,850.
- The retention of status or promotion bonus specified in clause 3.3.of the club bonus scheme would not apply because WBA was relegated.
Personal bonus – up to 31st December 2002
- In respect of the period up to 31st December 2002 the claimant would be entitled to personal appearance monies under Schedule (f). For the purpose of that schedule it would be necessary to take account of the fact that some of the claimant's appearances might have been as a substitute (non playing or otherwise). In my judgment the fairest way of doing that is to assume that he would have been a substitute in one of the games played in 2002 and that that game would have been a draw: so that instead of receiving £600 for one of the draws he would have received £150.
Personal bonus – from 1st January 2003
- In respect of the period after 1st January 2003 I am not persuaded that the claimant would have negotiated a personal bonus of up to £3,000 per match under the contract that was to run from January 2003, in addition to a loyalty payment and the club retention of status bonus, as Mr Stein suggested. I recognise that about 18 months later in July 2004 Jonathan Greening entered into a contract with WBA (for 3 years with an option for a fourth) which provided for personal appearance monies of, inter alia, £2,000, £2,500 or £3,000 if a starting player in the Premier League, increasing over each year of the contract: 3/350. But the circumstances were different then. WBA had been relegated to Division 1 in 2003/4 and then promoted to the Premiership in 2004/5. Mr Greening was brought in as an established Premiership player in order that WBA would stay in the Premiership.
- The claimant was previously receiving both a club bonus and the personal appearance bonus in Schedule (f) of his contract down to 30th June 2004 (as Mr Peace's letter of 1st February 2007 confirms). But under that contract his salary would be between £200,000 and £250,000. Mr Peace's evidence was that WBA paid personal appearance bonuses for the lower paid players (below £250,000 or below about £400,000 per annum in the Premiership). In the light of that evidence I do not accept that the claimant would, in addition to a salary, or salary and loyalty payment, totalling £450,000, have received a personal appearance bonus from WBA.
- It appears from the evidence of Mr Peace, and the WBA – Greening contract, that car breakdown cover would not have been obtained at WBA. The claimant has received healthcare cover from the club as part of his contract. I am not persuaded that he would have secured it for his wife and family – although his family might have been able to get cover at the club's discounted rates check. As to boots and kit the claimant may well have negotiated boot and kit sponsorship in the form of free boots and kit up to a certain value; but not a financial payment. In his present job the claimant has training kit provided free. In those circumstances I am not persuaded that he has suffered a financial loss for which he should be compensated. All the above considerations apply to the years down to 2004/5.
Media and sponsorship opportunities.
- Prior to the accident the claimant had earned very little from media or sponsorship. He had appeared once on Soccer A.M. for £750. He was a footballer with a low profile. Mr Kennedy was disposed to accept that £1,500 would be a fair figure to include under this heading and so am I. I propose to apply this figure to succeeding years.
Sell on clause
- I think that the claimant would have been able to negotiate a clause whereby he got 10%, but not 15%, of the profit made by the Club if he was sold on to another club. But, as will become apparent, the likelihood is that he would have left WBA on a free transfer at the end of June 2005.
Scenario 2 Another Premiership club
- In the light of my conclusion in paragraph 108 it is not strictly necessary to consider the figures put forward for Scenario 2, which assume that the claimant had a contract with an established Premiership club from the beginning of the season. But I shall set out my findings in respect of this scenario nevertheless.
- On the assumption, which I do not share, that scenario 2 was realistic Mr Stein takes the view that the claimant would secure a signing on fee of £100,000 p.a., payable until 2005/6 and a basic salary for 2002/3 of £500,000 rising by £50,000 each year. If the club lost its position in the Premiership the basic salary would be reduced by 25%. But on re-promotion the salary would go back to where it should have been if the team had never been relegated. So, if the team was relegated to Division 1 for 2003/4 and returned to the Premiership for 2004/5 (as happened) the salary and signing on fee would have been:
||Signing on fee
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.
- In the joint statement Mr Kennedy is reported as accepting a figure of £450,000 for 2002/3 and also as accepting that "the package's total value could be between £450,000 and £600,000" (with a 25% reduction for relegation and its upward restoration on re-promotion), and a £50,000 increase per annum if the club remained in the Premiership.
- If Mr Kennedy's £450,000 figure did not include the signing on fee (upon which the joint report is silent), the rival figures, assuming that the Club remained in the Premiership throughout the four year period, are those set out in the 4th and 7th columns of the following table. If the figure does include the signing on fee, the rival figures are those in the 4th and 5th columns respectively. This is subject to the caveat, in each case, that Mr Kennedy believed that a total figure of up to £ 600,00 was achievable for 2002/3 (and presumably up to somewhat larger amounts thereafter):
||3. Signing on
||6. Signing on
- In oral evidence Mr Kennedy said that his £600,000 figure included the items which he accepted in the joint statement at paragraphs 5 (e) - personal appearance bonuses; and 5 (f) - personal retention of status bonus. I had some doubt as to whether that is what he was saying when the report was written since the appearance bonuses referred to in 5 (e) of between £3,000 and £5,000 per game could well produce over £100,000 per annum and item 5 (f) is between £75,000 and £100,000, suggesting a total, if the salary of £450,000 and items (e) and (f) are all added together, of well over £600,000. In his cross-examination and in re-examination he told me that the personal appearance bonuses in paragraph 5 (e) should be regarded as additional to his global figures; but he also said that that his figures of £450,000 - £600,000 included any signing on, loyalty or terminal bonus as well. On that footing, in respect of 2002/3 the salary, signing on/loyalty bonus and personal retention of status bonus for 2002/3 could be up to £600,000 to which is to be added personal appearance bonuses.
- I am left in some doubt as to the accuracy of Mr Kennedy's recollection of his views at the time of the joint report, and, in any event, as to their cogency. I prefer Mr Stein's view of what an established Premiership club (as in the scenario 2 hypothesis) would pay in terms of salary and signing on fee. I note that in respect of 2004/5 Jonathan Greening was receiving a salary from WBA of £700,000. He was not receiving a loyalty or signing on bonus; but WBA was not an established Premiership club.
- The experts were not far apart in relation to the total appearance bonus (personal and club) that the claimant might receive in the Premiership. Mr Kennedy put it as between £3,000 and £5,000. Mr Stein put it at £5,000. The claimant proposes a figure of £4,000 and that appears to me to be fair. I would also accept that one should continue to take a figure of 85% of the 38 Premiership games and 6 games in the FA/League cups, making 37 games in all. This makes £148,000.
- Mr Stein believed that the claimant would have a personal retention of status bonus of £100,000. Mr Kennedy would accept a figure of £75,000 - £100,000 (Joint Report paragraph 5 (f)). In the light of the enormous importance of staying in the Premiership I judge the higher figure to be appropriate, and I accept Mr Stein's evidence that it would be additional to the salary and signing on fee to which he referred. Relegation to the Premiership involves a huge loss in revenues, although the relegated club will then have two years of "parachute" payments. Each place the club rises in the Premiership generates a further monetary award. Under the latest Sky deal for the Premiership even the bottom clubs will receive somewhere around £25 million per year (the exact figure is not clear).
- The claimant's schedule contained, and Mr Stein supported the inclusion of, a Club bonus for staying in the Premiership. I did not understand Mr Kennedy to disagree with this (the joint statement is silent), and, in any event, I accept Mr Stein's evidence. A figure of this size would be comparable to what would have been produced, using the 85% playing figure, by applying the WBA retention of status bonus for 2002/3 (5/977).
Fringe benefits and media and sponsorship.
- I take the figure of £1,500 as before.
- Accordingly, if I had to assess the remuneration that the claimant would have received in 2002/3 under Scenario 2 for the purpose of evaluating the loss of a chance I should have assessed the figure as follows:
|Signing on fee
|Personal Retention of status bonus
|Club position bonus for staying in the Premiership
|Media and Sponsorship
- As it is, the gross sum that I assess that the claimant would have received in 2002/3 but for the defendant's negligence is the sum of the items set out in paragraphs 110 - 121 above. From that must be deducted the tax, so as to produce a net figure, and then the claimant's net receipts for 2002/3 of £136,879.
- In 2003/4 WBA was in Division 1, to which it had been relegated. In Mr Megson's view the squad as a whole was not up to Premiership standard. Here again the overwhelming likelihood seems to me that the claimant would have remained with WBA. He would not by then be an established Premiership player, having played one season at the age of 28 in a struggling team. That fact, and the fact of relegation (by some distance, albeit without him), does not inevitably mean that a Premiership club would not make him an offer, but those facts greatly reduce the likelihood of that happening. Mr Megson regarded the claimant and three other players as being of Premiership potential. But there is no evidence that any of those three left the club on relegation (or were made any interesting offers) and nothing persuades me that the claimant would have been the exception, particularly as he would now have only two years left before probably having to drop a level. In addition he would, I think, have had a degree of loyalty to the club that had helped him to the Premiership and which he could reasonably anticipate would get back into the Premiership (as in the event it did), although that loyalty would probably not have survived a sufficiently attractive offer. I do not regard the claimant as having any substantial chance of moving to an established Premiership club for this season.
Loyalty payment and salary
- If the claimant had stayed with WBA, he would, according to the Claimant's original schedule (1/48) have received £100,000, the loyalty payment, and £375,000 (a £25,000 increase on the £350,000 of the previous year) if in Division 1, as WBA was. There is an issue as to whether, as is common ground between the experts in relation to Scenario 2 (a new contract with a Premiership team), there would have been a reduction of 25% of the salary on relegation with an upwards restoration, on promotion, to the position that the player would have enjoyed, if there had been no relegation: Joint statement, paragraph 5 (c). Mr Kennedy said in cross examination that paragraph 5 (c) applied to both of scenarios 1 and 2. In his original statement Mr Stein had thought that reduction on relegation was possible (see paragraph 22 (b), which relates to Scenario 1) and, in cross examination he told me that generally WBA had a percentage reduction of salary on relegation. In the light of that evidence I judge that such a reduction was likely and I propose, therefore, to take figures of £287,500 for salary (£375,000 less 25%) and £100,000 for loyalty bonus, making £387,500 in all.
- Appendix 4 (1/149) purports to set out the games played during this season and the resultant Club bonus, assuming play in every game, of £43,750 by reference to the Club Bonus Schedule for 2003/4 (5/979). I accept that, for the reasons set out in Miss O'Rourke's note attached to the defendant's solicitors' letter of 26th February 2007, the correct figure is £40,500. I assess that the claimant would have appeared in 85% of games, within the meaning of clause 3.2.1. So the club bonus figure is £34,425.
- The claimant would, also, have been entitled to the club promotion bonus, specified in clause 3.3.2 (5/980) of £750 per appearance, but with non playing substitutes getting £187.50 per appearance. I assess that the claimant would have appeared (within the meaning of clause 3.2.1.), other than as non-playing substitute, in 85% of the 46 qualifying, i.e. Division 1, games. I calculate that at £29,325.
- I am not persuaded that the claimant would have had a personal appearance bonus.
- There is also a claim for a personal bonus for reaching the Premiership of £100,000. The Claimant in paragraph d (3) of his original schedule (1/48) claimed that there would be a bonus of £100,000 for reaching the Premiership and £75,000 for staying there (see paragraph (d3); and Mr Stein's evidence supports this (Statement paragraph 22 (d)). According to paragraph 4 (g) of the joint statement Mr Kennedy thought that the £75,000 should be £50,000. Taken at face value paragraph 4 (g) would appear to indicate that Mr Kennedy did not dispute the £100,000 figure.
- However, in his oral evidence Mr Kennedy indicated that he took a global figure of £400,000 which included all personal bonuses, that he did not agree with the £100,000 figure as a personal promotion bonus in addition to the club bonus (he understood that he was being invited to consider one bonus in respect of promotion, not two), and that any promotion bonus was included in his "global package" £400,000.
- I did not find this evidence wholly easy to square with the form of the joint report. In respect of the first relevant year that report accepts a salary of £350,000: paragraph 4 (c). It then contemplates a figure of £400,000 including all bonuses save club bonuses (paragraph 4 (e), and then refers, in paragraph 4 (g), to paragraph d (3) in the original schedule ("Promotion Bonus of £ 100,000 for reaching the Premiership and £ 75,000 for staying there") by saying "With regard to d (3) MK felt that £ 75,000 was too high and would agree £ 100,000". The £50,000 in excess of the salary of £350,000 which makes up the total package of £400,000 would, if Mr Kennedy were right, have had to cover (a) any personal appearance bonus; and (b) any retention of status bonus, which Mr Kennedy himself puts at £50,000 or (c) any promotion bonus, which would be likely to be greater. Mr Kennedy later qualified his evidence by saying that the retention of status bonus that he had agreed at £50,000 was in addition to the £400,000; but the promotion bonus was not. I found this difficult to accept since there seems to me no logic in treating the two bonuses differently.
- The actual club promotion bonus is known: see paragraph 137 above. The defendants contend that that is all that is allowable. The question is whether the claimant would have got a personal promotion bonus as well. According to Mr Peace's evidence WBA did sometimes pay personal promotion bonuses; and had performance related bonuses in the case of both Players A and B to whom he referred and Jonathan Greening. The Greening bonus was worth up to £150,000; but in a contract in which relegation would reduce the salary to £500,000 and for which the promotion bonus would be a recompense. In the case of Player B the bonus was £150,000 subject to playing in games 23 -38 (and tapering down to the extent that he did not). Mr Greening and Player B were taken on in July 2004 and January 2006 respectively. But Player A was purchased in July 2002 to fill the claimant's role. Against that background I think the likelihood is that the claimant could have successfully negotiated (either originally or by renegotiation) a personal promotion bonus. In the light of the reservations that I have about Mr Kennedy's evidence, which was not noticeably clear, and in the absence of any further evidence as to the amount I propose to take Mr Stein's figure of £100,000 as the appropriate figure.
Media and sponsorship opportunities
- Again I take a figure of £1,500.
- Under this scenario, if it applied, the claimant would be in the second year of a contract with a Premiership club The likelihood is, as it seems to me that he would receive the following:
|Signing on Fee
|| £ 550,000
|Personal ROS bonus
|Club position bonus
|Media & Sponsorship
- As it is, I assess the claimant's loss for this year as the figure produced by taking the amounts specified in (or to be determined on the basis of) paragraphs 135 – 143 above, less tax, less £183,333 received net.
- In 2004/5 WBA returned to the Premiership. At the end of the year they finished in 17th place, surviving relegation on the last day of the season.
Loyalty payment and salary
- I estimate that the claimant would have received a loyalty payment of £100,000 and a salary of £450,000 (being the sum produced by adding the £50,000 per year that would have been added to date if the team had remained in the Premiership). Although the principle of returning to the salary level you would have reached if the team had never left the Premiership is debatable, the probability is, as was conceded, that the contract would have contained such a provision: see paragraphs 4 (c) and 5 (c) of the joint report.
- The claimant would have received a club bonus, which for this year was £3,000 per win and £1,000 per draw (5/981). On the basis of an 85% appearance this produces a figure of £32,300. In addition there would have been a club bonus for remaining in the Premiership which, on the figure of £750 per game (contained in Mr Peace's letter of 1st February 2007) produces, on the basis of an 85% appearance, £24,225.
- I do not accept that the claimant would have enjoyed a personal appearance bonus. A claim is put forward for a personal retention of status bonus of £100,000. Mr Kennedy would accept £50,000. I propose to take the figure of £75,000, reflecting the mid point of Mr Stein's range in paragraph 22 (d) of his statement.
Media and sponsorship opportunities
- Again I take a figure of £1,500.
- Under this scenario the claimant would have been in the third year of a contract with a Premiership club On that hypothesis, the likelihood is, as it seems to me that he would receive the following:
|Signing on Fee
|| £ 700,000
|Personal ROS bonus
|Club position bonus
|Media & Sponsorship
- As it is, I assess the claimant's loss for this year as the figure produced by taking the amounts specified in (or to be determined on the basis of) paragraphs 147 - 150, less tax, less £11,429 received net.
2005/6 – 2006/7
- At the end of the 2004/5 season the claimant would have reached the end of the three years in which, according to the evidence that I have accepted, he could continue playing at the same level. In those circumstances WBA would not have exercised any option to continue his contract or re-engaged him, since they were still in the Premiership (although, as things turned out, they would be relegated for 2006/7).
- The defendant contends that during these two years the claimant would have been in one of the two lower divisions with a maximum earnings of £100,000. I regard this as too pessimistic. In my judgment it is substantially more likely than not that the claimant would have continued for two years at Championship level, albeit not with WBA. I accept that, because of his medical position, he would not have been an attractive candidate to a club with a real prospect of promotion, because he would not have been fit enough to go back into the Premiership. But I am satisfied that his ability and experience would be likely have got him a place in the middle to lower echelons of the Championship. The skill which so impressed Mr Megson and Mr Lawrenson, coupled with what would by then have been a considerable degree of experience in the Premiership and the Championship would have made him attractive to a Championship team, even if on a limited contract. But there is a prospect, which I cannot dismiss as unrealistic or insubstantial, that he would be in a lower division. I assess his chances of being in the Championship at 75% and of being in Division 1 at 25%.
- The assessment of the remuneration that he would have earned in the Championship is not without difficulty. The claimant postulated that 2005/6 would be the last year of his four year contract with either WBA or a Premiership club. He claimed that 2006/7 would be year one of a three year contract with a Premiership club. Each of these scenarios is inapplicable. The defendant contends that the claimant would be in neither Premiership nor Championship. Both parties have not, therefore, addressed the question of what the claimant would have earned in the Championship in any detail.
- I assess the remuneration that the claimant would have earned at Championship level as follows:
|Deduct: Net Income
||£ 514,407 + club bonus
||£ 527,039 + club bonus
- I have carried on with the £100,000 loyalty payment as a standard. I have taken the £425,000 and £450,000 figures by applying forwards the upwards increase of £25,000 per year for a team in Division 1 put forward in scenario 1 for the years 2001/02 to 2005/6: see 1/48. I have not included any personal appearances figure since it seems to me that the combination of loyalty and salary payment is large enough to represent what the claimant could get in total (even if a portion of his remuneration was in appearances).
- In relation to Club Bonus it seems to me appropriate to take a figure of 75% appearances, in view of the claimant's increasing age. Since it is not known what club in the Championship the claimant would have been in, or what its fortunes would have been, I propose, in default of any better candidate, to take the WBA results for 2003/4 (the last previous year in which they were in the equivalent of the Championship) as a paradigm. The club bonus amount should be calculated by taking the WBA match performance bonus provisions for 2005/2006 (see Supp 2 and Supp 4 to Mr Peace's letter of February 2007) applied to the WBA results for 2003/4 and assuming 75% appearances.
Valuing the chances
- The assessment of the claimant's gross loss for these two years should be calculated by taking (a) 75% of the sum of the totals in paragraph 156 and (b) 25 % of £200,000, which I estimate as the income that would have been earned in Division 1 for the two years.
- From the net sums derived from these gross figures there must be deducted the net sums received or receivable by the claimant of £12,093 and £24,461.
- There is a further complication in that the amount due in respect of 2006/7 represents past loss as to only 8 of the twelve months. The sums reached by the calculations referred to in the two previous paragraphs must be apportioned accordingly.
- To the total past loss of earnings and expenses, together with the items in paragraph 87, there must be added interest calculated to the date of judgment. Credit must be given in respect of interest on any interim payments.
- The first element is the 4 months remainder of the total for 2006/7: see paragraph 161 above. I assume that the parties will agree a small discount for accelerated payment.
2007/8 - 2010/11
- At the end of the 2006/7 season the claimant will be 31. By the end of 2010/11 he will be 35, the usual retiring age. In respect of the period 2007/8 to 2008/9 the claim was that the claimant would have been in years two and three of a contract with a Premiership. That scenario is inapplicable. On the medical evidence that I have accepted the claimant would have had to retire from professional football at the end of 2006/7.
- In relation to the period 2009/10 to 2010/11 the claimant put forward two scenarios (a) that he would have continued to play at the highest level (the "play until 35" option) and (b) that he would be a player/manager in the Premiership (the "player/manager" option), contending that there was a 75% chance of the former and a 25% chance of the latter. In respect of the years 2011/2012 onwards the claimant contends that he would have a 75% chance of being a coach/manager outside the Premiership but a 25% chance of continuing as a manager in the Premiership, having established himself as a Player/Manager for the preceding two years.
- The play until 35 and player/manager options post 2006/7 would, in the light of the medical evidence that I have accepted, not be open to the claimant.
Work as a manager
- So far as becoming a manager after retirement at 31 is concerned, I regard the claimant's chances as very remote. There are 92 managerial jobs in the professional leagues – the Premiership, the Championship and Divisions 1 and 2. The claimant would not have been well placed to break into their ranks. There are less than 25 vacancies a year. The competition is fierce. At any one time there are a number of well qualified and experienced mangers who are out of work, including former England managers and managers of Premiership clubs. Many very good managers do not find a job for years or at all. Once found, continued employment is extremely precarious. Managers can last only months or even days. Sir Alex told me that about 62% of the managers in the whole of the country had been sacked last year. I was also told that a ranking of lengths of time in post of the 92 existing managers showed the manager ranked number 10 to have been in post 4 years. Managers can, of course, be re-employed by other clubs; but, often, dismissal by one club brings a managerial career to an end.
- If conservatively treated, the claimant would have finished his career at 31, with the last two years in the Championship or Division 1. His pedigree would be limited. He would have been young for, and inexperienced as, a manager. He would not have played European or international football. The examples cited by Mr Stein of non international players who have made manager young are not comparable. One of them - Chris Casper, at Bury, who retired after serious injury - had a famous footballer as a father and, no doubt, many connections. Another - Darren Ferguson (Player manager, Peterborough) - is the son of the most successful manager in English football for many years. They are both exceptions.
- A similar, albeit not quite so great, difficulty would arise in relation to securing a job as a coach or assistant manager. The claimant is fortunate to have secured the job that he has, in which he has the opportunity to progress. The claim he puts forward in respect of the years from 2011/2 onwards assumes a career path from the age of 35 which, on the medical evidence that I have accepted, is unrealistic. At the same time, as Miss O'Rourke for the defendant accepted, if the claimant had had a longer footballing career before retirement, e.g. up to 31 and not 26, he would have a better chance of getting a job as a coach/manager. Because of the negligent treatment of his injury he will need a knee replacement at 50 not 55, which will severely impact on his ability to be a coach.
- Some idea of the sums involved appears from the following. If the claimant became an assistant manager in the Championship he would earn something in the region of £75,000 (c £50,000 net), and, as a manager, £150,000 (c £94,000 net). I take the gross figures from paragraph 22 of Mr Kennedy's statement, whose figures for managerial salaries seem to me more reliable. In addition there would be performance bonuses. If the job was in the Premiership the sums would be much greater but I do not regard this as a realistic scenario. The length of time that any such employment(s) might last is indeterminate. As it is the claimant receives £24,461 net from his job as coach. This level of remuneration may increase, cease or stay the same, according to whether he gets promoted or sacked or remains at his present level.
- The difficulty of estimating what chance the claimant had, if conservatively treated, of getting what job or jobs, and for how long they would last (in particular whether they would last as long as 55 or later), and the number of possible permutations of chances, are such that any attempt to do so comes close to speculation. I have, however, come to the conclusion, that it would not be just to decline to make any award at all because of the difficulty. To do so would be to give no weight to the fact that the defendant has coaching aptitude (hence his present employment), together with qualities of dedication and leadership. It would also assume that, if he had gone on playing until he was 31, he would have had no realistic prospect of receiving remuneration over the period from age 31 onwards greater than that which he receives now and will receive in the future.
- What I propose to do is to award a lump sum of £60,000. That figure should not be taken as a specific forward calculation. I have, however, used as a check the fact that it is broadly equivalent to taking a loss figure of £50,000 net less the £24,500 odd that represents the claimant's present net income, applied over a 10 year period (for which the multiplier is 8.86) to which is then applied a percentage of 25%. That implies that the claimant has lost at least a 1 in 4 chance of becoming an assistant manager in the Championship (or equivalent) for a ten year period hereafter, or has suffered an equivalent reduction in his chances (e.g. the loss of a smaller chance of a benefit greater either in duration or amount).
Loss on account of acceleration of knee replacement surgery
- I accept the evidence of Mr Williams that the claimant is likely, in the absence of the defendant's surgery, to have needed replacement surgery to his right knee at 55 and that the defendant's negligence has accelerated this by 5 years so that it is likely to be required when the claimant is 50. That means that he will have to spend the cost of that surgery five years earlier than would otherwise have been the case. The measure of his loss can be taken by the estimated cost of the surgery (£7,500) x 6% (an estimated interest rate) x 5 years = £2,250. This is to be discounted to reflect accelerated receipt 19 years earlier, by the formula £2,250 x 0.6255 = £1,407. I am not persuaded that the claimant is entitled to a sum in respect of the acceleration of a loss of wages that he will suffer on account of such surgery. It is impossible to tell whether he will in fact lose any earnings whilst undergoing surgery, or whether that loss will be (as the claimant contends) £5,000.
- The earlier knee replacement is likely to necessitate a change of job. I accept the defendant's submission that, given that the replacement will take place some 20 years from now, and given the uncertainties of the future, such loss is not capable of forward calculation; and a lump sum award is appropriate. I accept the defendant's suggestion of £10,000.
Smith v Manchester
- The claimant contends for £10,000. The defendant concedes £5,000. In my judgment £10,000 is the more appropriate figure. The effect of the earlier onset of the need for a knee replacement may have a significantly disadvantageous effect on the claimant's position in the labour market.
- The parties have agreed the sum of £50,000.
- I anticipate the parties will be able to calculate and agree the consequences of my conclusions.
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.
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]
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