West Bromwich Albion Football Club Ltd. v El-Safty

A doctor may owe a duty of care to a person who is not the patient, but the existence of such a duty depends on the circumstances. Foreseeability of economic loss is insufficient. The court must also find sufficient proximity and conclude that imposing the duty is fair, just and reasonable. An employer does not ordinarily have sufficient proximity to a consultant whose negligent treatment incapacitates its employee, even where the employee is a valuable asset and the employer has arranged or paid for treatment. A contract likewise requires objective evidence of agreement and an intention to create legal relations.

West Bromwich Albion Football Club Ltd. claimed damages from Mr El-Safty, a consultant orthopaedic surgeon, after negligent reconstructive knee surgery caused its player, Michael Appleton, to retire from professional football. The claim was brought in contract and tort and was tried as a preliminary issue concerning the existence of any duty owed to the club.

The club relied on its physiotherapist’s referral, previous dealings, invoices sent to the club and payment arrangements. It argued that the surgeon owed a contractual obligation and a tortious duty to avoid causing the club economic loss. The defendant denied any contract or duty to the club.

1. Contract. Objectively assessed, the evidence did not establish an agreement between the club and the surgeon or an intention to create legal relations. The physiotherapist was acting as a referring health professional, not as the club’s agent entering a retainer for reward. Invoices sent to the club were a convenient method of collecting fees, generally through insurance, and did not demonstrate contractual intention. It was unnecessary to decide whether a contract existed between the surgeon and the player.
2. Tort. Applying the guidance in Caparo v Dickman [1990] 2 AC 605, loss to the club was reasonably foreseeable. A doctor can in principle owe a duty to a person who is not the patient, but the facts must establish sufficient proximity and a fair, just and reasonable basis for imposing the duty.
3. The relationship was insufficiently proximate. The surgeon advised and treated the player as his patient. The physiotherapist attended principally as a referring healthcare professional. The club did not itself receive or evaluate the advice through its officers or board, and the club players treated by the surgeon represented only a small proportion of his practice. Applying the relevant factors identified in James McNaughton v Hicks Anderson & Co [1991] 2 QB 113, the circumstances did not establish the necessary relationship.
4. Alternatively, imposing liability would not be fair, just and reasonable. Extending liability to employers or organisations for the loss of valuable employees would create potentially very substantial and uncertain liabilities for medical consultants, with difficult questions concerning asset values, disclaimers and insurance.

The defendant therefore owed the claimant no duty in contract or tort.

First-instance trial of a preliminary issue in the High Court concerning whether the defendant owed the claimant duties in contract or tort.