Negligent medical advice

West Bromwich Albion Football Club Ltd v Medhat EL-Safty [2006] All ER (D) 123 (Oct); NLJ 27 October

Michael Appleton injured his knee while training with his club, West Bromwich Albion, which instructed the defendant, a consultant orthopaedic surgeon to treat him. The defendant wrongly diagnosed an injury to Appleton’s right posterior cruciate ligament and recommended reconstructive surgery. It was common ground that this was negligent advice, on the basis that the injury should have been treated conservatively. If that had been done Appleton would have been fit again in about four months. In fact he has not played since the injury. The claimant sued the defendant for millions of pounds in damages for the loss of the value of Appleton’s contract, the costs of replacing him and lost wages on the basis that he owed duties to it in contract and in tort, and was in breach of such duties. In upholding the judge’s dismissal of the claim, the Court of Appeal held that it was not possible to imply a contract under which the defendant agreed to advise the claimant on treatment for Appleton and undertook a retainer accepting the risk that if his advice or treatment was negligent, he would be liable to the claimant for its consequent financial loss. No authoritative example of such a contract had been adduced, despite the frequency with which employers do pay for medical examinations of their employees. The claim in tort also failed, there being no assumption of responsibility; and there being no reason to find the proximity necessary to the creation of a duty of care, nor would it be fair, just and equitable to impose liability for financial loss on the defendant.