Date: Thu, 12 Oct 2006 12:00:33 +1000

From: Neil Foster

Subject: Employer's claim for injury to employee

Dear Colleagues;

I'd like to suggest (contrary to what seems to be the consensus here) that the decision is not quite as right as others think. (It is worth noting, after all, that Peter Smith J was, he says, attracted for some time by counsel for the football club's arguments.)

In particular I find it hard to understand why there was no contract between the Club and the doctor. The CA rightly reject all the arguments based on what the parties subjectively thought at the time. There was clearly an intention to enter into legal relationships with someone - [36]. As Rix LJ notes, arrangements for the consultation were made by the Club rep ringing the doctor's wife (who was clearly acting as his agent); and the doctor expected that his fees would be paid by the insurance company BUPA who were insuring the Club, not the player directly. There is an express request by the Club rep that the doctor see a player. It is not complex but it seems a straightforward and perfectly adequately expressed contract to provide a service to the Club by doing this.

The doctor knows his fees will be paid by the club. Is this fundamentally different from a parent of a teenager making an appointment for medical treatment of the child? The doctor would not try to invoice the child.

Indeed, the presumption that the contract was with the Club which it seems to me is raised by the approach to the doctor by a Club rep seems to be confirmed by the past history of the doctor treating members of the Club and invoicing the Club - [43].

But Rix LJ having set these matters out then in my view (with great respect) makes a mistake by stating at [40] that since there was no "express" contract with the Club one needs to be implied, and the high hurdle of "necessity" is said to be needed to be crossed - [42]. But why is there no express contract? There was a direct conversation between the Club and the doctor's agent making an appointment, with past history showing that the Club was agreeing to foot the bill one way or another. Once it is acknowledged that there is an express contract, then there is no need to apply a test of "necessity" to spell out the terms.

The suggestion of some sort of "collateral" contract involving an undertaking by the Club to pay the fees (at [44]) raises, with respect, more problems than it solves. If there was such a contract then would not the consideration by the doctor be a promise to provide proper medical care to the player?

And since the only reason the Club were making these arrangements was that they stood to benefit financially from the player's services the damage does not seem to be too remote.

In the end the possibility of conflict of interest between player and club does seem to loom large as a reason for denying the existence of a contract. But could not the view simply be taken that an implied term of the contract between the Club and the doctor would be that the doctor would make a fearless and independent medical decision based on the best interests of the patient, and not automatically defer to the Club's views? That would seem to be a better way of resolving the problem rather than dissolving an apparently obvious contract into nothingness.

For the moment I make no comment on the tort claim, except to say that there have indeed been cases in NSW where a doctor has been found liable to pay damages to someone other than the immediate patient in respect of damage caused to the third party which was foreseeable; although admittedly the clearest cases do not involve mere economic loss- see cases where careless advice about AIDS or communication of AIDS tests are involved: BT v Oei [1999] NSWSC 1082; Harvey v PD [2004] NSWCA 97.

The decision in McDonald v Sydney South West Area Health Service [2005] NSWSC 924 is probably closest- financial loss suffered by father of child born after negligent sterilisation service provided to de facto wife. I am aware that in the UK the cost of raising a child in such cases is not recoverable (a view with which I agree); in Australia such a claim at the time that the McDonald case was filed was possible after the HC decision in Cattanach v Melchior (2003) 215 CLR 1, but later precluded by a legislative amendment, in NSW at any rate.

In the interests of full disclosure I record, however, that a claim for economic loss flowing from medical treatment failed in the somewhat bizarre case of AAA v BBB [2005] WASC 139 - husband suffered economic loss in his business through depression caused by marital breakup after wife commenced an affair with medical practitioner she had gone to see about her problems.

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Andrew Tettenborn 11/10/06 9:37 >>>

The English CA today quite rightly confirmed that a doctor owes a duty to his patient & not to the latter's employer, however foreseeable.

Hence where a football club footed the bill for one of its players to have private treatment from a consultant and the consultant allegedly bungled things, the club (absent a contract between it and the consultant, not found) had no claim for its lost profits.

See West Bromwich Albion Football Club Ltd v El-Safty [2006] EWCA Civ 1299, upholding [2006] PNLR 18.

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