West Bromwich Albion Football Club Ltd v El -Safty [2006] EWCA Civ 1299

Case No A2/2006/0064[2006] EWCA Civ 1299
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
[2005] EWHC 2866 (QB)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
THE HONOURABLE MR JUSTICE ROYCE
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 11 th October 2006
Before
LORD JUSTICE MUMMERYLORD JUSTICE RIXMR JUSTICE PETER SMITH
Between
West Bromwich Albion Football Club LimitedAppellant/ ClaimantMohamed El-SaftyRespondent/ Defendant(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Jeremy Stuart Smith QC (instructed by Nexus Solicitors) for AppellantMr Stephen Miller QC & Miss Mary O’Rourke (instructed by George Dodd of the Medical Protection Society) for Respondent
Judgment
[1]West Bromwich Albion, the appellant, was a premier league football club at the time of these events (“WBA”, also the “Club”). On 18 January 2000 it signed Mr Michael Appleton on a 3½ year player’s contract. In November 2001 he suffered a knee injury in practice and, unfortunately, has not been able to play professional football again.[2]Mr Appleton was treated by Mr Medhat El-Safty, the respondent, a consultant orthopaedic surgeon specialising in sports injuries and arthroscopic surgery. Mr El-Safty diagnosed an injury to Mr Appleton’s right posterior cruciate ligament and recommended reconstructive surgery. It is common ground that this was negligent advice, on the basis that the injury should have been treated conservatively, in which case Mr Appleton would have been fit again in about four months. There is no common ground as to whether the operation was itself performed negligently.[3]Under Mr Appleton’s contract with WBA, he was required to submit himself to such medical examinations and treatment as might be prescribed by the medical advisers of the Club. Even so, it was common ground that without his consent to treatment, nothing could have been done. It was WBA’s senior in-house physiotherapist, Mr Nicholas Worth, who arranged an appointment for Mr Appleton with Mr El-Safty, and accompanied him to that appointment. Mr El-Safty’s advice was considered by Mr Appleton and Mr Worth together, and adopted.[4]In these proceedings, WBA has sued Mr El-Safty on the basis that he owed duties to it both in contract and in tort, and was in breach of such duties by advising WBA negligently in respect of Mr Appleton’s treatment. WBA claims millions of pounds in damages for the loss of the value of Mr Appleton’s contract, the cost of replacing him, and lost wages. In separate proceedings Mr Appleton has sued Mr El-Safty for his own losses, alleging breach of duty in tort alone. Mr Appleton has not alleged that Mr El-Safty was in contractual relations with him, as distinct from WBA.[5]Royce J at trial resolved a preliminary issue between WBA and Mr El-Safty in these terms:
“as to the existence of a duty owed by the Defendant [Mr El-Safty] to the Claimant [WBA] in contract or tort”
. He held that no such duty, whether in contract or in tort, had existed and dismissed WBA’s claim. WBA now appeals.

The facts

[6]I can take the facts more or less directly from Royce J’s judgment.[7]Mr Appleton and WBA: Mr Appleton’s contract with WBA was on a standard form developed by the FA, and headed “FA Premier League and Football League Contract”. Clause 8 provided as follows:
“Any incapacity or sickness must be reported to the Club immediately and the Club shall keep a record of any incapacity. The Player shall submit promptly to such medical and dental examinations as the Club may reasonably require and shall undergo at no expense to himself such treatment as may be prescribed by the medical or dental advisers of the Club in order to restore the Player to fitness. The Club shall arrange promptly such prescribed treatment and shall ensure that such treatment is undertaken and completed without expense to the Player…”
[8]The FA contract also required the player’s observance of club rules (clause 5). WBA’s rules related in part to medical matters. They provided that in the event of injury or illness which prevented training or matches, players must give notice at once to the Club physiotherapist, ie Mr Worth. They continued: “Any injuries, however slight, must be reported immediately to the Physiotherapist who is responsible for diagnosing injuries. Under no circumstances shall players seek treatment for injuries sustained whilst working for [WBA] by any other physiotherapist or doctor without express permission… It is the responsibility of every Player to be registered with a local General Practitioner under the National Health service in case of sudden illness…[9]As is well known, leading football clubs can pay and receive very large sums for their players in the transfer market. The value of such transfers was an item in WBA’s balance sheet under the heading of “intangible fixed assets”. WBA submitted that this was a special feature of the case, indicating a direct relationship between the health of its players and the health of its balance sheet.

BUPA Insurance

[10]It was a requirement of the FA that all clubs were covered by medical insurance for their players’ medical treatment. WBA had cover from BUPA, under a special “Premier Network” scheme. The players were not themselves parties to the cover, which was held under a policy directly between WBA and the insurers. The policy literature provided to the players described the Club as “your sponsor”, and stated that, although only the sponsor and BUPA might enforce the insurance agreement, BUPA would pay for all treatment covered by the scheme benefits and would allow players complete access to BUPA’s complaints and dispute resolution processes. The players were described as “members” of the scheme. Mr Appleton was such a member at the relevant time.[11]WBA has been covered by BUPA for many years. Up to 1998, WBA would itself pay medical bills incurred in respect of its player scheme members and recover reimbursement from BUPA. In 1998, however, BUPA began to pay such bills directly, at any rate in the case of medical practitioners who were BUPA “providers”. Every month BUPA would issue a “Provider Statement” to the practitioner concerned, listing and paying the benefits payable under relevant covers. If any treatment or charge fell outside the applicable cover, the statement would bear a relevant note, for instance to the effect that “As our subscriber has chosen to bear an excess, the balance of your account is due direct from your patient”.[12]Mr El-Safty: Mr El-Safty was a BUPA provider, and his fees in respect of his treatment of Mr Appleton were settled by BUPA directly. In his case, there was no relevant absence of cover and his fees were discharged by BUPA in full. For these purposes, Mr El-Safty’s fees were maintained within parameters regulated by BUPA.[13]Mr El-Safty was appointed a consultant orthopaedic surgeon by Sandwell and West Birmingham Hospital NHS Trust in 1982. He retired in November 2004. He also had a private practice and had consulting rooms at his home. By 2001 he was seeing about 60 patients a week.[14]From about 1984 he started obtaining referrals from two local doctors who were also medical officers of WBA. That led to them referring some of the Club players to him. He also received referrals from physiotherapists of the Club. He said that for a few years from about 1987, until a change of manager, he declined to see WBA players because he felt that the Club was trying to get him to treat the players in a way which was in the Club’s rather than the player’s personal interest.[15]Over the five years prior to his treatment of Mr Appleton, Mr El-Safty had treated some 34 WBA players. He also treated players from other local clubs, including Aston Villa. Such clubs would generally send their physiotherapists with their players when they came for a consultation or treatment.[16]Mr El-Safty left the administration and financial side of his practice to his wife, who acted as his secretary. She made his appointments and sent out his invoices. He said in evidence that he had never so much as seen an invoice sent out by his wife in his name, nor a BUPA provider statement. He went so far as to say that, as a matter of deliberate policy, he was never interested to know whether a patient was insured or not, and never discussed fees. He left all that to his wife. He knew in general that BUPA as a health insurer had established tariffs for particular procedures, but he did not know in the case of any particular patient what arrangements existed, for instance in the matter of insurance, for the payment of his fees. The judge found that Mr El-Safty knew rather more about the financial workings of his practice than he suggested, but he accepted that he left that side of his practice to his wife.[17]Mr El-Safty’s invoices and payments: It follows that Mrs El-Safty was in all such matters Mr El-Safty’s fully authorised agent. His available invoices in respect of WBA players go back to 1998. The first such invoice, dated 21 January 1998, took a form which has been followed over the years and is to be found in the invoices sent in respect of Mr Appleton’s treatment. They are addressed to the Secretary of WBA and read, for instance, as follows:
“To professional services Re: Mr Michael Appleton Consultation 20.11.2001……………£80 Operation 24.11.2001 Arthroscopic surgery right knee W8500………………………………£548 Operation 7.12.2001 Reconstruction of posterior cruciate Ligament right knee using allograft W7420………………………………£741 Review 21.12.2001………………….£80 Total £1449 This is not a copy invoice. Please forward to your insurance company if applicable. Please make cheques payable to M. El-Safty and return to [his address] quoting your account number 961.”
Re: Mr Michael Appleton Consultation 20.11.2001……………£80 Operation 24.11.2001 Arthroscopic surgery right knee W8500………………………………£548 Operation 7.12.2001 Reconstruction of posterior cruciate Ligament right knee using allograft W7420………………………………£741 Total £1449

W7420………………………………£741

[18]Each player treated appears to have been given a different “account number”. On behalf of WBA, Mr Jeremy Stuart Smith QC relies on the addressee of such invoices, the statement that this “is not a copy invoice”, ie it is a request for payment made of the addressee, and the direct request for payment by cheque.[19]In the case of one player in 2001, Mrs El-Safty, who signed the letter for her husband, wrote to the Club Secretary to this effect – “The enclosed account for [Mr X] has been unpaid by BUPA and I wonder if I can now pass this onto the club for payment.”[20]Mr Appleton’s treatment: Mr Appleton was injured on 19 November 2001. He was examined by Mr Worth who arranged for him to have an MRI scan the following day. Mr Worth told Mr Appleton that he needed to see a surgeon as soon as possible. He told him that WBA used Mr El-Safty for this type of injury.[21]Mr Appleton’s evidence was that he considered that he was obliged to go along with WBA’s choice of surgeon but was in any event content to see Mr El-Safty. Mr Worth made the appointment, by speaking to Mrs El-Safty on the telephone. The telephone conversation would have gone something like – “Will Mr El-Safty have a look at one of my lads’ knees? He has had an injury on the training ground.” Mr Worth accompanied Mr Appleton to the consultation. Mr El-Safty recommended reconstructive surgery. Mr Appleton and Mr Worth discussed this advice, and Mr Appleton agreed. Mr Worth asked Mr El-Safty to make the arrangements and the operation was carried out in hospital on 7 December. Mr Appleton signed the consent form for the surgery. He said that he did not consider that he had any contractual arrangement with Mr El-Safty at all.[22]Mr Worth’s witness statement, which in this respect had been worded for him, said that he had “instructed” Mr El-Safty on behalf of WBA to investigate and advise WBA on Mr Appleton’s injury and the best way to manage and control it. Mr Worth said that he had made the appointment with Mr El-Safty himself. This was at trial accepted to be an error: the appointment was made with Mrs El-Safty.[23]The judge quoted a chunk of Mr Worth’s re-examination, which he considered to be of importance. A transcript of that evidence now exists. The passage began:
“Q. On whose behalf were you there? A. From that point of view, I would say that I was there on behalf of Michael to make sure that I was able to do the best job possible for him… Q. What was your purpose in receiving that advice? A. To be able to help Michael return to full fitness as soon as was reasonably or safely possible… Q. In your witness statement you use the word “instructed”…What do you mean by “instructed”? A. I asked for assistance. I asked Mr El-Safty in this case to assess Mr Appleton and decide on an appropriate course of action. Q. And then what? A. And then between ourselves, as the three of us, Michael, myself and Mr El-Safty, to decide the best course of action to take… Q. Where does instruction come in then? Who physically says to Mr El-Safty what would happen? A. To be honest, I think because of consent, it’s got to rest on Mr Appleton… Q. Were you in any sense there on behalf of West Brom? A. In that way, yes, because obviously they were and are my employer. You know, I was…if you like, by being able to do the best I could for Michael, I was also inherently sort of being able to do the best I could for the club as well.”
Q. What was your purpose in receiving that advice? Q. In your witness statement you use the word “instructed”…What do you mean by “instructed”? Q. And then what?

Q. Were you in any sense there on behalf of West Brom?

[24]Mr El-Safty’s evidence was that such a referral, by a club physiotherapist, was just like any other referral by a primary healthcare professional. He would examine the patient, arrange any appropriate investigations, report as appropriate to the referrer and advise on treatment. He regarded his contract as being with the patient, and not with WBA. He did not know the terms of WBA’s contract with its players. He would not have been willing to enter into legal relations with WBA, because of a potential conflict of interest: the Club might wish to have the player playing again in the shortest possible time, whereas he would have to consider what was in the best long term interests of his patient.[25]Following Mr Appleton’s operation, Mr El-Safty reported in a letter dated 12 February 2002 to Dr Judith Rimmer, medical officer at WBA. Dr Rimmer was a GP who worked at WBA as its medical officer. She was not Mr Appleton’s GP, but he had not visited his own GP for some 14 or so years. The letter enclosed two typed pages of Mr El-Safty’s medical notes. The letter began:
“I am enclosing a copy of my notes on Michael’s right knee. As you are already aware, he had a 2 stage procedure reconstructing his posterior cruciate ligament using an allograft. I am keeping a close eye on the rehabilitation program. He is slower than usual because of the allograft…”
[26]This letter was described by Mr Worth as a “courtesy follow-up”. There was no formal written advice by Mr El-Safty to the Club. Nothing by way of advice was presented to the Club’s board of directors or anything like that.

The claim in contract: the judge’s views

[27]The judge rejected the claim that WBA had a contract with Mr El-Safty. The claim was pleaded as a retainer, entered into orally in or about November 2001, to investigate and advise on the future management and/or treatment of Mr Appleton’s injury. It was not pleaded as depending on the course of previous conduct, but that course of conduct was relied on as evidencing the obvious. The contract was initially made with Mrs El-Safty. It was submitted that WBA thereby agreed to pay Mr El-Safty’s fees, and did pay them, albeit through its insurer, BUPA. Mr Worth was acting in a dual capacity, on behalf of Mr Appleton as well as the Club, but he was acting on behalf of the Club.[28]There were submissions before the judge as to whether Mr El-Safty had intended to enter into legal relations with WBA: he said in evidence that he did not. The judge accepted that evidence. As for the previous dealings with Mr El-Safty, these did not contradict his evidence in this respect: it merely represented a convenient mechanism for the collection of his fees, either through the insurers, or from WBA. But Mr El-Safty “regarded the patient as having the primary liability to pay”.

The judge concluded:

“32.4 Standing back and looking at all the evidence objectively, I am satisfied that there was not a contract between WBA and [Mr El-Safty] in relation to Mr Appleton. I find that Mr Worth did not “instruct the Defendant for reward”
. He was referring Mr Appleton to [Mr El-Safty] as a health professional. I find that there was no intention to create legal relations on the part of [Mr El-Safty]. Neither did Mr Worth have any intention to create legal relations as agent of WBA.”[29]The judge said it was unnecessary to determine whether there was any contract between Mr El-Safty and Mr Appleton.

The appeal in contract: WBA’s submissions

[30]On behalf of WBA, Mr Stuart Smith submitted that an express contract was made, however lightly sketched, when Mr Worth and Mrs El-Safty arranged that Mr El-Safty would see WBA’s player, Mr Appleton, as a private patient for reward. It was implicit in that contract, against the background of earlier referrals, that WBA was the contracting party which would be responsible for Mr El-Safty’s fees and in return would be owed the duties of care which would go along with Mr El-Safty’s obligation to render his advice to WBA. It was plain that Mr Worth was approaching Mr El-Safty on behalf of WBA and not as an independent health professional acting solely on behalf of Mr Appleton. There was no contract with Mr Appleton, since Mr Worth was not acting on his behalf. In any event Mr Appleton would not be paying for Mr El-Safty’s services and thus was providing no consideration. And if no duties were owed to WBA under the retainer, then it would have no remedy for any negligent advice, despite paying for such advice.[31]The court should not be deterred from that conclusion by any argument that there was no stopping point before all medical appointments arranged by employers for their staff or leading executives would engender similar contracts. There were in the present situation special factors which made the case an exceptional one: first, WBA’s players were in every sense real assets of the Club and the Club had its own interests which required protection; secondly, WBA’s interests were reflected in the highly unusual FA contract which it had with its players; thirdly, Mr Worth, by attending with the player on behalf of the Club, emphasised its special interest.[32]The judge had gone wrong by accepting Mr El-Safty’s evidence about his subjective intentions. The test had to be an objective one.[33]As an alternative submission, there was a tripartite contract, involving all three parties, under which duties were owed by Mr El-Safty to WBA as well as to Mr Appleton. In this respect, authority recognised that a doctor may be in contractual relations with someone other than his patient: see Phelps v. Hillingdon London Borough Council [2001] 2 AC 619 at 654A/C, 675B/D.[34]The judge had not relied on a potential conflict of interest, although that was cited by Mr El-Safty as supporting his subjective intentions. To the extent, however, that Mr El-Safty relied on such a conflict on this appeal, the fact was that there was no conflict in the present case, as Mr Worth had emphasised: he had wanted, as WBA wanted, what was in the best interests of Mr Appleton. In any event, it was in the nature of professionals (such as solicitors, see Royal Bank of Scotland plc v. Etridge (No 2) [2001] UKHL 44, [2002] 2 AC 773 (at paras 69/74)) to ride above any such merely potential problems, and sometimes necessity demanded it.

The case in contract: discussion

[35]Despite a passing reference to viewing the evidence objectively, the judge does appear to have placed a great deal of weight on Mr El-Safty’s subjective expression of his own intent not to enter into legal relations with WBA. For my part, I would regard that expression as irrelevant, and all the more so in the light of Mr El-Safty’s evidence, unsatisfactory as the judge found it to be, about his personal ignorance of the financial relationship between WBA and himself in relation to the payment of his fees. If he was ignorant of the facts, then his subjective intent becomes all the more unreliable (as well as being legally irrelevant). And if his ignorance was not as complete as he sought to say it was, then his evidence lacks credibility.[36]In any event, I do not think that the solution to this contract issue is to be found in the concept of intent to enter into legal relations. The context is that of private health care, where a doctor undertakes to provide medical advice and treatment in return for reward in the form of his fees. Such a context is clearly one in which, objectively speaking, the parties to such an arrangement intend to bind themselves contractually. Thus such a context partakes of neither of those two paradigm situations where an intention to enter into legal relations may be negatived. One is where there is a commercial agreement, but the parties signify by express language that they have not reached a state of contract: a classic symptom of such a situation is where the parties are agreed that their agreement is “subject to contract”. The second is where the circumstances of what might otherwise be construed as an “agreement” are those of a joke, or a mere family arrangement. In the present case, however, there is absolutely no reason to think that any such situation arises or that the context fails of serious contractual intent. On the contrary, all sides agree that there is a contract, or retainer, for medical services for reward, and the real issue is: With whom has such a contract been made?[37]It is common ground that Mr El-Safty is a party to a contract. With whom has he contracted?[38]I therefore regard intent to enter legal relations as a red herring.[39]In favour, then, of a contract with WBA, even if there was also a contract with the patient, Mr Appleton, is that the arrangements to engage Mr El-Safty were made by Mr Worth, who was clearly capable of acting on behalf of his employer, the Club (even if he was also in part acting on behalf of Mr Appleton) a fortiori in the light of clause 8 of the FA contract form; together with the fact that the background to these arrangements showed that Mr El-Safty, through his agent Mrs El-Safty, would be looking for payment from WBA’s insurers, BUPA, if not from WBA itself.[40]On the other hand, however, there was, it is plain, no express contract under which Mr El-Safty agreed to advise WBA in return for payment by WBA, indeed, as it seems to me, no express contract between Mr El-Safty and WBA at all, and therefore the question becomes what can be implied. In this connection, Mr Stuart Smith accepts that the contract on which he relies was “lightly sketched”, and consists in its express form in nothing more than the booking of an appointment for Mr Appleton with Mr El-Safty in the course of a telephone call to Mrs El-Safty. Therefore, even on WBA’s case, the substance of the contract which it relies on has to be implied.[41]In truth, however, it seems to me that the whole of WBA’s contract has to be implied, for the natural objective interpretation of the booking of a consultation with Mr El-Safty is the making of a contract, through Mr Worth and Mrs El-Safty, for the patient himself, Mr Appleton. Although Mr Appleton was entitled, in the light of his contract with WBA, if he gave it any thought, to regard himself as being held harmless from medical expense by the terms of its clause 8, that would in no way prevent him from having the natural contractual relationship with a doctor which a patient enjoying private medical services should objectively be regarded as entering into. In this connection, Mr Appleton’s own subjective opinion that he had no contractual relationship with Mr El-Safty is also, as it seems to me, irrelevant. Moreover, there was no evidence that Mr El-Safty knew of the terms of Mr Appleton’s contract with the Club. If, then, Mr El-Safty had invoiced Mr Appleton and sued him for his fees, what answer, other than in non- or mis-performance, would Mr Appleton have had?[42]The question therefore arises as to whether a contract between Mr El-Safty and WBA itself can be implied. The test for such an implication, as it became common ground during the hearing of the appeal, is necessity: see Baird Textile Holdings Ltd v. Marks & Spencer plc [2001] EWCA Civ 274, [2002] 1 All ER (Comm) 737, especially at para 62.[43]The weight of an argument for such an implication rests, in reality, upon the background of other contracts involving other WBA players in respect of which invoices have been submitted to WBA. Even if one ignores the fact, however, that this was not the way in which the contract relied upon by WBA in this case was pleaded, it seems to me that this background does not carry the argument into the required realms of necessity. There is no evidence as to how or why this way of dealing, of invoicing WBA, became the norm. Mrs El-Safty was not called as a witness, but since the contract was not formally pleaded as one arising out of a course of dealing, nor even as having been made through her, nothing in particular turns on Mr El-Safty’s failure to call his wife. All that can be said with confidence is that, in circumstances where it appears to have been recognised that the paying funds would primarily be forthcoming from BUPA, this became a convenient method of achieving payment. Mr Stuart Smith is entitled to say that this method is consistent with the primary obligee being WBA, as insured. But something more than consistency is required, namely necessity: and it seems to me to be unnecessary to imply a contract between Mr El-Safty and WBA when it is sufficient to imply a contract between him and his patient, Mr Appleton, and to say that the invoicing just represents a machinery of payment in circumstances where Mr 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. Therefore, even the fact that on an occasion or occasions in the past, WBA paid where BUPA did not, or, before the change in 1998, paid first and recovered payment from BUPA, does not take the matter further than that.[44]Even if it were necessary to imply any contract between Mr El-Safty and WBA, no contract should be implied which went further than such necessity required. It would be sufficient, therefore, to say that there was a collateral contract under which WBA agreed that, if Mr El-Safty undertook the care of its players as his patients, WBA would see him paid. It is simply wrong to say that there would be no consideration for such a contract, or that there would be no remedy for mis-performance. There would of course be no substantive remedy in damages for any breach of the main contract between doctor and patient, and no substantive remedy for non-existent duties arising between doctor and Club; but if Mr El-Safty would not be entitled to charge his fees, in whole or part, to his patient because of mis-performance of his duties to that patient, I do not see why he should be able to charge more to the collateral payer. It is also wrong to say that there would be no consideration for a contract between Mr El-Safty and a player, just because WBA agreed to meet Mr El-Safty’s fees. The player would remain liable to pay his fees, and even if he did not, would provide consideration by agreeing to attend upon him and to submit to his care and treatment.[45]Why then is there any further necessity to imply a substantive contract of medical services between Mr El-Safty and WBA under which the doctor agreed to provide medical advice to the Club? There is no evidence at all of a past practice under which advice was tendered to the Club as distinct from its players. One would think that such advice would be tendered, or recorded, in some formal way. In the present case, the only report to the Club was a courtesy letter to the Club’s GP, Dr Rimmer, some months after Mr Appleton’s treatment had begun, simply reflecting the referral of the patient. In circumstances where Mr Appleton never attended on his own GP, and thus where Dr Rimmer was closest to being a referring GP, this courtesy report takes the matter no further.[46]In this connection, I think that Mr El-Safty was right to suggest that the danger of conflicts of interest was a factor in the history. There was no investigation at trial into the professional rules which might govern such a situation. In my judgment, however, 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. It militates against implying a contract with the employer rather than with the patient, or with the employer as well as with the patient. Mr Stuart Smith points to Phelps as an example of a contract with someone other than the patient. That, however, was a case where there was no issue about the existence of a contract between an education authority and that authority’s own, employed, educational psychologist. The issue was whether any duty of care was owed to a pupil by the employed psychologist. It seems to me to throw no light at all on the contractual situation in the present case.[47]Although it is fair to say that Mr Worth considered himself to be representing his employer, WBA, and it is perfectly true that WBA had a proper and genuine interest in the welfare of its player, Mr Worth also made clear that he thought of himself as primarily representing the player, and attending the consultation to assist him (and Mr El-Safty). However, I do not consider that Mr Worth’s evidence, which seemed to carry great weight with the judge, took the matter much further. His subjective views of the situation, like the subjective views of Mr El-Safty and of Mr Appleton, are irrelevant. Mr Worth’s position may be said to be objectively ambivalent, reflective of an ambivalence in the overall situation, an ambivalence which has given rise to this litigation. However, and despite the unusual and strong terms of clause 8 of Mr Appleton’s contract, WBA recognised that treatment depended upon his consent. His agreement was therefore necessary, and the situation could not therefore be presented as simply one where WBA was buying in medical services for him, as though he were a race-horse. Thus reference to WBA’s players as being Club assets, because the value of their contracts are reflected in the Club’s balance-sheet, is ultimately nothing more than a metaphor. Race-horses cannot have contracts with their vets and do not consent to treatment.[48]In sum, it is not necessary to imply a contract between the consultant Mr El-Safty and WBA under which Mr El-Safty agreed to advise WBA on treatment for Mr Appleton and undertook a retainer under which he accepted the risk that if his advice, or treatment, was negligent, he would be liable to WBA for its consequential financial loss. WBA was unable to point to an authoritative example of such a contract, despite the frequency with which nowadays employers do pay for medical examinations for their employees.[49]I would therefore dismiss WBA’s appeal in contract.

The claim in tort: the judge’s views

[50]The judge also rejected WBA’s claim in tort. He considered leading cases such as Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] AC465, Caparo v. Dickman [1990] 2 AC 605, Henderson v. Merrett [1995] 2 AC 145 and others. He paid particular regard to three cases concerning the duties of doctors, namely Powell v. Boladz [1998] Lloyd’s Rep Med 116, Phelps v. Hillingdon LBC [2001] 2 AC 619 and London Borough of Islington v. University v. College London Hospital NHS Trust [2005] EWCA Civ 596, [2005] Lloyd’s Rep Med 386. He considered a number of cases where a professional was found to owe a concurrent duty in tort to others than those who had employed them, in order to ask whether there were any analogous cases: White v. Jones [1995] 2 AC 207, Gorham v. British Telecommunications plc [2000] 1 WLR 2129, and The Commissioner of Police of the Metropolis v. Lennon [2004] 2 All ER 266.[51]As for an analysis of the facts, the judge directed himself by reference to six factors which in James McNaughton v. Hicks Anderson & Co [1991] 2 QB 113 Neill LJ said were useful to determine whether or not a duty existed. He concluded that Mr El-Safty was advising Mr Appleton; that his advice was communicated to Mr Worth as the referring physiotherapist, in order to help Mr Appleton to recover his fitness; that Mr El-Safty’s relationship with Mr Appleton was that of consultant and patient; that Mr Worth’s principal interest was the welfare of Mr Appleton; that WBA, as Mr Appleton’s employer, was in a class of one; that Mr El-Safty regarded himself as giving advice to Mr Appleton, and that Mr Worth was principally acting as the referring, healthcare professional rather than as WBA’s agent. On the question of reliance he found this (at para 57):
“There is no suggestion that Mr El-Safty’s advice was communicated to others at WBA for example the Secretary or the Board for their consideration. There was not in that sense consideration by WBA of it and a decision whether or not to act in reliance on it. WBA could be said to act in reliance on it in so far as Mr Worth, if he was acting as agent of WBA, accepted it and did not consider it necessary to advise Mr Appleton to get a second opinion. What WBA was really relying on was Mr El-Safty’s reputation and the fact that over the course of the years he had advised and treated players successfully.”
[52]The judge then concluded that there was no sufficient proximity between Mr El-Safty and WBA, and that in any event it would not be fair, just and equitable to find a duty of care owed to WBA. He thought that it would be wrong in general to impose a duty of care on doctors towards the employers of their patients, and that there was nothing sufficient in the special factors relied on by WBA to justify a different result here.

The appeal in tort: WBA’s submissions

[53]Mr Stuart Smith’s approach was to seek to show that it was possible to fit tortious liability in this case into the essential structure of the leading authorities concerned with the potential liability for financial loss of an advice-giving professional to a third party with whom the professional was not in contractual relations. He was not afraid of the counter-argument that success here would spread liability too wide, but he also stressed the features of this case which he said were special and exceptionable, namely that WBA’s players were their assets, that Mr Worth’s referral to Mr El-Safty came as a representative of the Club, that WBA was involved, again through Mr Worth, in considering the medical advice, and that Mr El-Safty at the very least looked to WBA for payment of his fees, something that was closely akin to contract.[54]Thus even if Mr El-Safty’s contract was with Mr Appleton and not with WBA, nevertheless the facts were that WBA was relying on Mr El-Safty’s advice, Mr El-Safty knew or should have known that it was doing so, and must have appreciated the important financial interests which were involved in the adequacy of that advice, in a situation which was so akin to contract, for all the reasons previously contended, as to make it fair, just and equitable for Mr El-Safty to be responsible to the Club for the financial consequences of his negligence. WBA was the only third party in question: this was not the common case of a liability to an indeterminate number of people.[55]Although Mr Stuart Smith was not able to point to any direct precedent, in this or any other common law jurisdiction, for any similar liability of a doctor to a third party, nevertheless the guiding principles of the leading cases well accommodated such liability.[56]Thus whether the focus of interest was foreseeability, the assumption of responsibility, reliance, proximity, an incremental approach, or what was fair, just and equitable, all these concepts were well capable of producing an answer in this case in favour of Mr El-Safty’s liability to WBA.

The case in tort: discussion

[57]It is unnecessary to cite classic passages which govern in this area of the law, such as Hedley Byrne at 502/3, Caparo at 617/618, 620/621, and 651/652, or Henderson at 178/181. What has to be found is a duty of care owed by Mr El-Safty to WBA not to cause it financial loss.[58]In my judgment, even if it be assumed that there was foreseeability by Mr El-Safty and reliance by WBA, none of the other necessary elements for liability was satisfied here.[59]Thus, I do not consider that there was any assumption of responsibility here by Mr El-Safty to advise the Club. This case is quite unlike the typical case where an adviser knows that his advice will be relied on by third parties with relevant financial interests. The immediate interest here is medical, not financial. WBA is interested, but principally as a good employer not as an investor in player contracts, and it appears on the scene, in the person of Mr Worth, in the form of a referring health professional, and not in a managerial or business context. Moreover, the question of conflicts of interest arises here again to emphasise that Mr El-Safty’s concern is or ought to be not only primarily, but exclusively, with his patient’s well-being, and not with the Club’s financial circumstances. In such a case I do not see how an assumption of responsibility to the Club can easily arise. This is quite unlike the situation in Gorham v. BT [2000] 1 WLR 2129, where a merely potential but no actual conflict of duty was in contemplation, and where the fundamental community of interest between a pensions’ investor and his dependants (wife and family) was the critical factor: at 2142C/E, 2144G.[60]For very much the same reasons, it seems to me that there is no reason to find here the proximity necessary to the creation of a duty of care. The dominant relationship is that of the doctor and his patient, and the dominant context is that of Mr Appleton’s health, not his employer’s financial security.[61]As for incremental liability, no direct precedent apparently exists, and the cases relied on by way of analogy do not, in my judgment, assist WBA. They are cases where the defendant is, in essence, required by those who retain him to address the interests of the claimant: such as that of the lawyer’s duty to the intended testamentary beneficiary (White v. Jones [1995] 2 AC 207); or that of the pensions adviser’s duty to the pensioner’s dependants (Gorham v. BT); or that of the educational authority’s duty to the pupil (Phelps v. Hillingson LBC).[62]Indeed, the single authority cited which comes closest to the present facts is unfavourable to WBA and places on Mr Stuart Smith the burden of stressing matters to distinguish it. That is the case of Islington v. UCL Hospital [2005] Lloyd’s Rep Med 386. As a result of negligent medical advice a patient of the hospital suffered a stroke and required residential care from her local authority, Islington, which sued the hospital for the cost of that care, but lost. The loss was held to be foreseeable, but it was held that there was neither that degree of proximity to found a duty of care nor that it was fair, just or equitable to impose such a duty. So the duty of medical care to the patient was not accompanied by a duty of care not to cause financial loss to a third party.[63]So, here too, I would also hold that it would not be fair, just and equitable to impose liability for financial loss on Mr El-Safty in favour of WBA. If WBA had wanted Mr El-Safty’s advice for the purposes of its 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. Moreover, if it is permissible in such a context to think of where insurance for such liabilities naturally lie, I would think that whereas insurance against liability to patients for the consequences of negligent medical advice or treatment would naturally lie with treating doctors, insurance against financial loss arising from the ill-health of employees, even where that is increased or exacerbated by third parties, naturally lies with their employers.[64]So, for all these reasons I would dismiss WBA’s appeal in tort as well.

Conclusion

[65]It follows that I would dismiss WBA’s appeal as a whole.[66]I must confess that for some time during the course of the appeal I found Mr Stuart-Smith’s arguments compelling. It seemed to me initially that the best evidence of the contracting parties was to be found by the documentation issued on behalf of Mr El-Safty. His wife his administrator not merely invoiced WBA but also chased at least one invoice when its payment was delayed.[67]However despite Mr Stuart-Smith’s engagingly persuasive submissions it seems to me for reasons comprehensively set out in the judgments of Lord Justice Rix and Lord Justice Mummery nevertheless that my initial attraction to his argument was misplaced and I agree with them that this appeal should be dismissed.[68]I agree.[69]The overall setting of the case is medical treatment of a private patient (Mr Michael Appleton). A private patient consultation with Mr El-Safty was arranged by the Club’s in-house chartered senior physiotherapist, Mr Worth. Although Mr Worth arranged and attended the consultation, Mr Appleton, not the Club, was Mr El-Safty’s patient.[70]The Club was involved in the arrangements for payment of Mr El-Safty. The contract between the Club and Mr Appleton provided that prescribed medical treatment should be without expense to the player. Payment for the treatment of Mr Appleton was covered by medical insurance, which took the form of the BUPA policy taken out by the Club to cover its players, who were described as members of the scheme. Mr El-Safty was a BUPA Service Provider. After 1998 he was usually paid direct by BUPA in respect of fees for medical treatment covered by the policy.[71]The Club relied on the fact that Mrs El-Safty, acting on behalf of Mr El-Safty, submitted invoices to the Club to secure payment of the fees covered by the BUPA policy. The Club paid the BUPA insurance premiums, as required by the Football Association, to cover treatment for the Club’s players. Neither the Club nor BUPA paid fees to Mr El-Safty for him to give advice or treatment to the Club.[72]In my judgment, the judge was right to hold that, in these circumstances, there was no relevant contract, either express or implied, between Mr El-Safty and the Club relating to the medical treatment of Mr Appleton. There was certainly no express written or oral contract. It was not necessary to imply such a contract.[73]The judge based his decision that there was no contract between the Club and Mr El-Safty on the absence of an intention to create legal relations. I would not make this the basis of my decision that the Club cannot sue Mr El-Safty for breach of contact. Mr El-Safty was to be paid for the medical treatment given by him to Mr Appleton. I would therefore expect there to be present an intention to enter into legal relations, the real question being with whom?[74]In the overall setting of BUPA insurance there was no real need for anyone to give serious thought to the question of who was contracting with whom. That does not, however, mean that there was no contract. If, for example, there was no effective current BUPA cover it would be relevant to ask, as Peter Smith J pointed out in argument, who could Mr El-Safty sue for his fees for treating Mr Appleton? Clearly, he would expect to be paid by someone for the treatment, even if there was no insurance cover. He was not operating a pro bono private medical service.[75]In my judgment, the circumstances point to a contract for medical treatment between Mr El-Safty and his patient rather than between Mr El-Safty and the Club. There was a consensual relationship between them: Mr El-Safty treated Mr Appleton and the patient consented to the treatment, it only being possible for him to be treated if and to the extent that he consented. It would be an implied term of the treatment that Mr El-Safty would be paid for it. This does not mean, however, that the patient would bear the ultimate burden of liability for payment. The treatment would normally be on the basis that the patient would be covered by BUPA, to whom the Mr El-Safty should look for the payment of his fees, and the Club had agreed with Mr Appleton that prescribed medical treatment would be without expense to him.[76]The sending of the invoices to the Club and the conduct of the Club in securing payment of the fees from BUPA is evidence that the Club agreed to secure payment of fees to Mr El-Safty under the policy, but it is not, in this case, evidence of a contract with the Club for Mr El-Safty to provide medical treatment for the patient, even one described by Mr Stuart Smith as “lightly sketched.” The evidence is more consistent with the inference of a contract to secure payment of the fees for medical treatment. The Club would foot the bill for the medical treatment of the patient. Mr El-Safty might be entitled to claim the unpaid fees from the Club, but it does not follow that the Club would be entitled to claim from him damages for breach of contract in the form of economic loss resulting from the diminution in the value of the player as a transferable asset of the Club. Mr El Safty had no express contract with the Club to advise it on such matters nor would any such contract be implied as a matter of necessity.[77]In these circumstances the judge was right to find that Mr El-Safty did not owe a duty to the Club to take care not to cause it financial loss in relation to his medical treatment of the player.[78]I turn to the claim in tort. As was made clear in argument, it is not contended that a medical practitioner treating a patient owes, by virtue of that fact alone, a duty of care to the employer of the patient not to cause the employer to suffer purely financial loss as a result of the negligent medical treatment of the patient, even if such loss is reasonably foreseeable. Further facts are required about the particular relationship in order to establish either an assumption of responsibility by Mr El-Safty to the Club in a situation close to contract or other necessary proximity and policy factors justifying the imposition of such a duty of care in tort.[79]It is common ground that there is no decided case in this or in any other common law jurisdiction for the existence of such a duty in this type of case or in analogous cases (for example, the provision by a doctor to a patient of a medical certificate to show to an employer in order to be excused from attendance at work.)[80]The reasons why there is no duty of care in respect of foreseeable economic loss can be expressed in several different ways.[81]First, there was no assumption of responsibility by Mr El-Safty to the Club for financial loss that might be suffered by the Club in relation to the diminution in value of the player resulting from medical treatment. There was nothing in the facts of their dealings with one another to indicate that Mr El-Safty would be, or would ever agree to be, responsible to the Club for its economic loss. He was paid under the BUPA scheme to treat the player, not to treat the Club or to advise it about the player or its financial affairs.[82]Secondly, although it was reasonably foreseeable by Mr El-Safty that the Club would suffer financial loss if the medical treatment was negligent, and there was a proximity of a sort between him and the Club, it was not such that it would be fair, just or reasonable to impose such a duty on Mr El-Safty under the Caparo tripartite approach.[83]Mr El-Safty was brought in by the Club to provide medical treatment for the patient. That is what he was paid for doing. His relationship with the Club is conditioned by that context. He was not brought into sufficient proximity to the Club itself by the fact that the Club was the employer of the patient, or arranged insurance cover for his private medical care, or would suffer reasonably foreseeable financial loss consequent on the negligent medical treatment of the player.[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.

Result

[85]For the above reasons and for all the reasons given by Rix LJ I would dismiss the appeal.

Cited in 4 later judgments