GOING
DOWN, GOING DOWN, GOING DOWN
WBA
v El-Safty revisited in the Court of Appeal
Richard
Booth
1
Crown Office Row
2006
FOOTBALL REVIEW
It
could be said that this has not been a great year for English
football. Arsenal’s defeat (with an almost entirely non-English
squad) in the European Cup Final to Barcelona was followed soon after
by the crushing disappointment of yet another quarter final exit on
penalties for the national team in the World Cup. There was, of
course, also the small matter of a certain W Rooney being sent off in
that game. Domestically, money bought results, with Chelsea, again
with a heavy overseas influence, streaking away with the Premiership
title. Finally, England commenced their European Championship
qualifying matches with some truly awful performances and possibly
the most embarrassing goal conceded by a goalkeeper in an
international for some years.
However,
if the review of football nationally looks bleak, spare a thought for
the West Midlands, where Birmingham City and West Bromwich Albion
both lost their Premiership status. As I write, Birmingham City are
once again riding high, having toppled the mighty Bluebirds of
Cardiff City from the top of the Championship. West Brom, however,
languish in mid table, having recently changed their manager and lost
one of their players as a result of a nasty stabbing.
Premiership
status is not the only thing West Brom have lost this season. I wrote
in an earlier edition of this journal (5th June 2006)
about the first instance decision of Royce J in West Bromwich
Albion Football Club Ltd v El-Safty [2005] EWHC 2866 (QB), where
the football club failed to establish that they were owed a
contractual or tortious duty by an orthopaedic surgeon who had
treated one of their players, Michael Appleton, negligently. The Club
subsequently appealed to the Court of Appeal. On 11th October, the Court of Appeal rejected West Bromwich Albion’s
appeal. It was yet another defeat in a bad year for the Baggies.
THE
DECISION
The
main judgment in the Court of Appeal ([2006] EWCA Civ 1299) was given
by Rix LJ, with a strong supporting judgment from Mummery LJ and a
short judgment, showing evidence of wavering, from Peter Smith J.
Rix
LJ (no relation to Graham, one presumes) noted that WBA were claiming
millions of pounds in damages for the loss of the value of Michael
Appleton’s contract, the cost of replacing him, and lost wages.
He also noted that Appleton had sued Mr El-Safty for his own losses,
alleging breach of duty in tort alone. Appleton had not alleged that
Mr El-Safty was in contractual relations with him, as distinct from
WBA. This is an oddity given Appleton’s status as a private
patient.
THE
CLAIM IN CONTRACT
There
was a good deal of focus on the contractual analysis before the Court
of Appeal, and in particular the terms of the invoices sent out to
the Secretary of the Club by Mrs El-Safty on behalf of her husband.
These invoices appeared to constitute a direct request for payment.
It was submitted on behalf of the Club that an express contract was
made between it and Mr El-Safty when the Club’s physiotherapist
and Mrs El-Safty arranged that Mr El-Safty would see the Club’s
player as a private patient for reward. Alternatively, the Club
submitted that there was a tripartite contract, involving all three
parties, under which duties were owed by Mr El-Safty to WBA as well
as to Michael Appleton.
Rix
LJ concluded that the issue of intent to enter legal relations, on
which Royce J had placed significant weight, was a red herring.
Rather, he felt that it was common ground that Mr El-Safty had
entered into a contract, or retainer, to provide medical services for
reward: the issue was with whom?
Rix
LJ held that there was no express contract at all between Mr El-Safty
and WBA, and therefore the question became what could be implied. The
test for such an implied contract is necessity: Baird Textile
Holdings Ltd v Marks & Spencer plc [2001] EWCA Civ 274,
especially at para.62. Rix LJ found that the weight of the argument
for implying a contract out of necessity relied on the history of
other contracts involving WBA players in respect of which invoices
had been submitted to the Club. However, he did not feel that this
history carried the argument into the required realms of necessity.
He held that it was unnecessary to imply a contract between Mr
El-Safty and WBA when it was sufficient to imply a contract between
him and his patient and to say that the invoicing only represented a
machinery of payment in circumstances where Appleton was a member of
the BUPA scheme entered into by WBA and his relevant medical expenses
were to be paid for him by WBA.
I
have to confess that I have difficulty with Rix LJ’s analysis
(at para.44) of a possible collateral contract under which WBA agreed
that, if Mr El-Safty undertook the care of its players as patients,
WBA would see him paid. I simply do not understand the concept of a
patient providing consideration by agreeing to attend upon a doctor
and to submit to his care and treatment. This appears rather a
fanciful notion unless the patient is attending qua guinea pig.
Rix
LJ did place significant weight on Mr El-Safty’s fear of
conflicts of interest between Club and player. He felt that the
danger of a conflict of interest between a sports employer and a
sportsman, all the more important where the sportsman may think that
his principal interest is tied up in his soonest possible
availability to his employer, must loom large. Such a potential
conflict militated against implying a contract with the employer
rather than with the patient, or with the employer as well as with
the patient. It is clear that the Court of Appeal were right to
emphasise this factor as this remains a running sore within
professional sport where the cortisone injection is often seen to
paper over the cracks and keep the player functioning at some level.
Rix
LJ saw reference to WBA’s players as being Club assets, because
the value of their contracts is reflected in the Club’s balance
sheet, as ultimately nothing more than a metaphor, concluding (at
para.47) with the memorable phrase: “Racehorses cannot have
contracts with their vets and do not consent to treatment.”
Mummery
LJ dealt with the contractual claim more succinctly, holding that all
the circumstances pointed to a contract for medical treatment between
doctor and patient rather than between doctor and football club. Nor
was it necessary to imply a further contract.
THE
CLAIM IN TORT
Rix
LJ (at para.57) summed WBA’s case up here very shortly: “What
has to be found is a duty of care owed by Mr El-Safty to WBA not to
cause it financial loss.” He held that even if it be
assumed that there was foreseeability by Mr El-Safty and reliance by
WBA, none of the other necessary elements (e.g. assumption of
responsibility, proximity) for liability was satisfied here.
Importantly,
Rix LJ held that the immediate interest in this case was medical, not
financial. Once again, the significance of potential conflicts of
interest should not be ignored. The dominant context was that of
Michael Appleton’s health, not his employer’s financial
security.
The
authorities cited before the Court of Appeal did not assist WBA,
with, in particular, Islington v UCH [2005] Lloyd’s Rep
Med 386 tending to lead away from incremental liability. Holding that
it was not fair, just or equitable to impose liability for financial
loss on Mr El-Safty in favour of WBA, Rix LJ did say (at para.63):
“If
WBA had wanted Mr El-Safty’s advice for the purposes of his own
interests, it could have made that plain to him. He would then have
been put in a position where he could choose to charge for that
advice and the risks involved in giving it, and/or of disclaiming
liability.”
It
is this comment which leaves open the possibility of clearer
instructions being given by clubs to doctors and, if the doctors
accept those instructions and no doubt the commensurate financial
rewards, the possibility of imposing liability for financial loss.
Doctors’ defence organisations should be sending out clear
directives to their members about disclaimers in this regard.
Mummery
LJ was prepared to concede a degree of proximity here, but still felt
that the claim failed at the third (fair, just and reasonable) hurdle
of the Caparo approach. He went on (at para.84): “If
insurance is a relevant consideration, which realistically it should
be, it would seem more reasonable in a situation of this kind to
expect the Club to insure against suffering the financial loss of the
kind claimed against Mr El-Safty than to expect him to insure against
additional loss of this kind suffered by someone other than the
patient.”
CHANCES
OF A PLAY-OFF PLACE
Although
West Brom’s appeal was dismissed, the case has thrown light on
what is an increasingly important issue in high value professional
sports, namely who pays for the employer’s financial losses
consequent upon a medical professional’s negligence. The answer
is likely to continue to be the employer’s insurer unless
doctors can be persuaded to accept instructions which are expressed
to make the doctor liable for foreseeable financial losses suffered
by the employer. All prudent doctors should be considering the terms
of their disclaimers when treating private patients in these
circumstances.
RICHARD
BOOTH
1
Crown Office Row,
Temple,
EC4
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