West Bromwich Albion Football Club Ltd v El -Safty

A doctor treating an employee does not ordinarily owe the employer a contractual duty to advise on the employee’s treatment or a tortious duty to avoid causing the employer purely financial loss. The primary medical relationship is between doctor and patient, even where the employer arranges the consultation, pays through insurance, or has a substantial financial interest in the employee’s fitness and contractual value. A contract with the employer will be implied only where necessity requires it. In tort, foreseeability and reliance are insufficient without assumption of responsibility, proximity, and a fair, just and reasonable basis for imposing liability.

A football club claimed damages from an orthopaedic surgeon after negligent advice led to surgery on its player, whose career ended. The club alleged contractual and tortious duties owed directly to it, relying on the player’s contract, the club’s arrangements with BUPA, referrals by its physiotherapist, and invoices addressed to the club.

The Queen’s Bench Division held that no duty existed in contract or tort and dismissed the claim: [2005] EWHC 2866 (QB). The club appealed. The central issue was whether the circumstances created a contract or a duty of care owed by the surgeon to the club for the player’s resulting financial loss.

1. Appeal dismissed. Rix LJ, with whom Mummery LJ and Peter Smith J agreed, held that the surgeon owed no relevant contractual or tortious duty to the football club in respect of the player’s treatment or the club’s consequential financial loss.
2. In a private medical consultation, the ordinary contractual relationship is between doctor and patient. The patient’s consent is necessary to treatment. The fact that an employer arranges the consultation, is contractually obliged to fund treatment, obtains insurance, or is involved in payment does not make the employer the contracting party for medical services.
3. Where medical services are supplied for reward, contractual intention is ordinarily present. The real question is with whom the contract was made. Any contract with the club would require implication on grounds of necessity. The invoicing arrangements and previous dealings showed, at most, a convenient machinery for payment. They did not make a contract with the club necessary.
4. There was no established practice of advice being given to the club as distinct from the patient. The danger of conflicting interests between a sports employer and player also militated against implying such a relationship. Phelps v Hillingdon London Borough Council did not assist because it concerned an admitted contract between an education authority and its employed psychologist, and the separate question whether a duty was owed to a pupil.
5. In tort, even assuming foreseeability and reliance, there was no assumption of responsibility or sufficient proximity. The dominant relationship was doctor and patient, and the dominant context was medical welfare rather than the employer’s financial security. It was not fair, just and equitable to impose liability for purely financial loss. The absence of direct authority and the allocation of insurance risks supported that conclusion.
6. The appeals in contract and tort were dismissed, and the appeal was dismissed as a whole.

• Court of Appeal (Civil Division) dismissed the club’s appeal and upheld the decision that no contractual or tortious duty was owed: [2006] EWCA Civ 1299 .
• Queen’s Bench Division (Royce J) determined the preliminary issue against the club and dismissed its claim: [2005] EWHC 2866 (QB) .