Blackburn Rovers Football and Athletic Club Plc v Avon Insurance Plc & Ors

This case concerns the Claimant’s (Blackburn Rovers Football and Athletic Club PLC) claim under a Personal Accident Policy underwritten by the Insurers. The claim is in respect of one of the club’s football players Martin Dahlin (MD), who signed for Blackburn on 4^th July 1997, following a medical examination. He was acquired for the sum of £1.8m. He was paid a handsome salary. On or about 21st October 1997, he suffered an injury during training. He underwent a scan, physiotherapy and consulted a number of specialists. Despite attempts to return to fitness and to the game, MD retired from professional football on 5^th July 1999. It is claimed that retirement was as a result of an injury, such injury causing him total disablement within the meaning of the policy.

Blackburn made a claim on the policy. On 3^rd May 2002, the insurers declined to pay out on the policy. On 14^th October 2003, Blackburn issued a Claim Form for £4m plus interest, representing the sum insured, alternatively damages in the same amount.

Whilst the Defendant concedes that the policy contained a provision for cover in the event that an insured player sustained accidental bodily injury (ABI) which, solely and independently of any other cause, occasioned the player permanent total disablement, they resist the claim, on the basis that MD was suffering from constitutional degenerative disc disease (DDD) in October 1997. It is contended that any back pain or disc lesion which he suffered in training, was caused wholly or in part and directly or indirectly by his degenerative disc disease. That being the case, it is submitted that he does not qualify under the policy.

The main issue is: Did MD sustain an accidental bodily injury on or about 21st October 1997 which solely and independently of any other cause, occasioned him to suffer Permanent Total Disablement (PTD) (as defined) within 24 calendar months of the accident? Depending on the court’s findings, other issues flow.

The relevant provisions of the Personal Accident Policy are as follows:

“ACCIDENTAL BODILY INJURY” means accidental bodily injury which

“ILLNESS” means illness of the Insured Person which declares itself during the period of this Insurance and occasions the total disablement of the Insured Person within twelve calendar months after declaring itself.

“PERMANENT TOTAL DISABLEMENT” means disablement which entirely prevents the Insured Person from engaging in his usual occupation as a football player with the Insured in The FA Premier League,( or at all) the Football League … and which lasts twelve calendar months and at the expiry of that period the Insured Person is beyond hope of improvement.

Permanent Total Disablement attributable either directly or indirectly to arthritic or other degenerative conditions in joints, bones, muscles, tendons or ligaments;

Notice must be given to the Insurers as soon as reasonably practicable of any accident or illness which causes or may cause disablement within the meaning of this insurance …

Death 100% of Capital Sum Insured

Permanent Total Disablement 100% of Capital Sum Insured

The relevant period of insurance was from 1^st July 1997 to 30^th June 1998. MD was an Insured Person with a sum insured of £4,000,000.

The relevant principles to be drawn from the policy and the authorities are as follows:-

it must do so solely and independently of any other cause; and

Transcripts were provided in this case. I have read them all, together with my own typewritten notes, the relevant documents, authorities and documents prepared by Counsel for both sides. What follows below is a summary of the evidence and submissions.

Martin Dahlin (MD) is now a football agent. His statement is dated 2^nd November 2005. He was born on 16^th April 1968 and began his career in professional football in 1987. He signed for Blackburn Rovers on 4^th July 1997 after completing a medical. He suffered minor injuries during the course of his career, but nothing significant until October 1997. On joining Blackburn Rovers, he suffered a minor calf injury, which meant that he did not start the season.

The accident in October 1997 arose when he was playing in a practice match. He was running from one of his own defender’s long balls, heading towards the corner flag in his opponent’s half. He was shoulder to shoulder with his opponent. He fell under the challenge, just as he had reached the ball and whilst he was stretching for it. He fell on his chest and twisted his back. His back arched the wrong way with the momentum. He felt sharp back pain immediately. He stood up, but had difficulties straightening his back. It became clear that the pain would not go away. He saw the physiotherapist who examined him and gave him painkillers. During the rest of the day he was in pain.

Over the next few days, he received physiotherapy and pain killers. He was referred to the club specialist because the pain was not receding. He tried very hard to recover fitness over the ensuing 18 months. He saw a number of different specialists in Germany, UK and USA. He was a different player after the accident, and despite his hard work, he could not return to his previous form. By the beginning of 1999, he felt that he had explored every possible option for getting fit. He eventually decided that he should retire from the professional game. He has since played two or three charity games, but his abilities as a footballer are considerably diminished.

Mr Dahlin was cross examined on a number of issues:- his playing record before joining Blackburn Rovers; his history of injury before joining Blackburn Rovers; the incident in October 1997; his playing record and medical history subsequent to October 1997.

Dealing with his playing record before joining Blackburn Rovers, he explained that he had turned professional at the age of 21. As well as playing for a club, he also played for Sweden. He was sold to Blackburn Rovers by Roma at a time when he was on loan to Borussia Munchen Gladbach. This was because his time at Roma was not working out. He had joined Roma in 1996.

With regard to his fitness and medical history prior to joining Blackburn Rovers, he said that he never had a back injury which stopped him playing in matches. He was kicked in the back, received a prescription, but he was only off for 3-4 days and played in the next match. He had had two incidents of calf injury/strain, one in 1994 and the other in 1996/7.

He identified and confirmed the details of his contract with Blackburn Rovers dated 10^th July 1997. He was playing for Sweden at the time and needed to have a very high level of fitness to play. Sometimes he played for the national team when he was not 100% fit, because they knew him well and knew what he was capable of. He accepted that he would not be able to play regularly over the course of a season unless he could maintain a proper level of fitness.

He confirmed the details of the games he had played once he joined Blackburn Rovers until the time of the incident. He also confirmed the games he played for Sweden until the time of the incident. Following the incident in October 1997, he was not selected to play again for Sweden.

Dealing with the incident itself, he said that he was running for a through (long) ball; his opponent was running with him. He was stretching for the ball trying to reach it before the other player. They were shoulder to shoulder. He was trying to keep his opponent away with his right arm. He slipped and fell forward, landed on his chest and his lower body came up after him. His back arched and twisted and his legs came up behind him. Although the tackle was a standard one, his fall was not.

His attention was drawn to two accounts he had apparently given about the incident, the first to Mr Hodgkinson, a Consultant Orthopaedic Surgeon and the second to Dr Wilkinson, a Consultant in Spinal Surgery. The first report is dated 23^rd August 1999 and reads “ During training on about 19 October, he describes that he was running quickly for a through ball, when he stretched for the ball and felt a sudden acute pain in the right side of his lower back” (Bundle A page 146). The second report is dated 14^th December 2001. Mr Dahlin is quoted as saying “He can clearly remember an event when he was stretching for a ball which precipitated the onset of his back symptoms.” (Bundle A page 164) He said that neither account was completely accurate. He denied that his memory had changed with time.

He went to Germany and received some injections from Dr Graf. By the time he saw Mr Hodgkinson, things had improved a bit. (Letter of 11^th November 1997 Bundle A page 323). Despite the fact that documents indicated that by December 1997 he was given the all-clear for his back, he said that in fact he was still in a lot of pain.

He then dealt with the post-incident events. In summary he accepted that he played a number of games in the Premier League and in the German equivalent of the Premier League. He said it was difficult to say if things had improved, as he had learnt to live with the injury/pain. He denied the pain to himself, as he did not want to realise how bad it was. His back was not preventing him playing in the Premier League, but he was not the player he was before. He could not run as fast or twist and turn as he used to. Every day when he came back from training, he would lie on the floor with his legs in the air, in order to give relief to his back.

He was taken through a document filled in by Dr Watkins whom Mr Dahlin had consulted in May 1998. He did not agree that he was telling the doctor that in May he had a new episode of back pain as opposed to continuing problems. This was in relation to an entry which read “injured November to February, got better”. His back had improved a little bit by the time he spoke to Dr Watkins. When he returned from the US, he thought he was fit enough to play in Premier League, but now realises that he was not. He did not realise at the time how bad he was. The Swedish national coach was calling him quite often. If asked in September 1998, he would have told him that he was fit to play for the national side.

Mr Dahlin accepted that he may well have said what was attributed to him in the Lancashire Evening Standard of 19^th September 1998 to the effect that he was frustrated with not being able to have a regular place in the side, which he believed was damaging his international hopes, and that he thought he deserved to play in the first game of the season.

He went to play at Hamburg on loan from Blackburn on 28^th October 1998. He had to pass a medical in order to do so. He told them he was fit to play in the highest league. He did not want to admit to himself or others how bad things were and how much they affected him. He was training and playing whilst taking a lot of painkillers.

On March 10^th 1999, he bent over to pick up a towel. He was already in pain and had a little bit more pain. He realised that all the pills and rehabilitation were not going to help. “After I picked up the towel, I had a little bit more pain for a couple of days, but there were a lot of other things that happened in Hamburg and that was the reason why I never trained or played with them again” He had problems with the manager at Hamburg. They did not like each other. Referring to a fax written by his management company to Mr Finn which reads: - “Unfortunately Martin is injured again. It happened on March 10^th while bending over to reach for a towel. Martin felt a big pain in his lower back and has had constant pain ever since….. the injury is very much the same as last time he had problems with his back”, he said that it was not true that he was injured again whilst bending over to reach for the towel. He just felt a little bit more pain than normal in his back but not much. He did not however correct the inaccuracies/untruths contained in the fax. (Page 359 Bundle A) He could not remember seeing any doctor between the time he left Hamburg and the time he terminated his contract with Blackburn Rovers. He did not see a doctor in England before terminating his contract with Blackburn Rovers.

In March 1999, he had visited Dr Watkins who told him that he could have an operation for his spine. Some American footballers had undergone the operation, but Dr Watkins did not recommend it as American football was not like English football. He was still hoping to carry on as a professional footballer at that time.

It was in the spring of 1999, that he decided that he could not be a professional footballer any more. It was a difficult time for him. He returned to Sweden to be with his friends and family and left his agent to negotiate the severance terms. He did not see a doctor between the time of returning to Sweden and the severance agreement, nor did he return to the UK during that time.

He did not know what the compensation was to be. He left his agent to do the negotiations. He could have remained for the year with Blackburn to be paid £700k per annum, but he did not want to sit around for a year effectively doing nothing, so his agent came up with a solution including the 20% deal regarding the insurance claim.

He was taken through a number of medical reports relating to examinations which took place with Mr Hodgkinson in August 1999, Mr Williamson in December 2001 and Mr King in 2005. In each of the reports, passages were identified regarding information recorded from him about the incident in October 1997 and its aftermath. He indicated that they were wrong and were due to a misunderstanding by the Consultants of what he had told them.

Even though he was playing football and trying to get back into the Swedish team, the reality was that he was constantly in pain. He was taking painkillers all the time, painkillers which were freely available. He was like a “Ferrari before the incident and since the incident was a Ferrari only operating in first or second gear”

In re-examination, he indicated that he had not changed his story. He described in detail how the injury occurred. He pointed to his excellent goal scoring record prior to the incident 1991- 1997 - 119 matches and 60 goals. After the incident he scored about 2-4 goals in the 28 matches in which he played in. He also drew attention to the many medals and accolades he had received prior to 1997. He said that he had been in denial all the time, taking more painkillers than he should have done, because football was his life and he did not want to stop playing. He did not want to admit to anyone how bad it was.

Mark Taylor is a chartered physiotherapist. His statement is dated 21^st May 2004. He was employed by Blackburn Rovers in 1997. He was involved in the rehabilitation programme of MD after October 1997. At the start of the 1997/8 season, MD sustained a minor injury and missed some of the pre-seasons training. He played some matches with the first team in Sept 1997 but needed time to adjust to the faster pace of English football.

Mr Taylor remembers an incident on about 17^th October 1997, when a practice match was taking place. Mr Taylor was on the next pitch supervising injured players. He saw MD running and being challenged by a defender. He appeared to slip and fall. He took some time to get up and start running. It was clear after a short period of time that he could not continue due to discomfort in his back. MD told Mr Taylor that he had lower back pain. Mr Taylor gave him a massage. Over a period of time, it became apparent that the situation was not responding to rest and manipulation. Mr Taylor also supervised MD attending various specialists in the UK, France, Germany and the USA but to no avail.

Cross examined: He did not know at the time that MD had retired through injury, just that he had retired from the game. Neither he nor any of Blackburn’s medical staff had seen MD between March 1999 and July 1999. There was a running “physio” file on every player. The schedule that he had compiled on MD (Bundle B pages 2-3) was compiled at the request of the manager, who was concerned that MD was not responding to the treatment he was receiving and wanted to get to the bottom of it.

He described how players would be prescribed medication by the club doctor and that this should be recorded. He personally never gave a player any prescription medication other than that prescribed by the doctor. However there was a large cupboard in his office with anti-inflammatories for use by the physio staff. On occasions the players would come and take them without supervision. The cupboard was not locked as they were not considered to be dangerous drugs.

There would have been a duty to keep files on the players with medical details and details of treatment. He was not aware of where the files were now and would not be able to get them as he had moved to Bolton.

He could only guide players if he thought they were not fit to play. Ultimately, the decision was that of the player. If he felt strongly about their fitness, then he would inform the manager. MD said he wanted to play and the information presented to them at the time did not suggest that he could not play. From February 1998 to the end of the 1997/8 season he did not inform the manager that he thought MD should not be playing. Nor did he do so, in the 1998/9 season before MD went to Hamburg.

He had a clear recollection of the incident in October 1997. He was surprised that it took MD so long to get to his feet as “you see this every day in training”. The fall had looked awkward, but even so, Mr Taylor was surprised to see MD take his time getting up. He explained that the awkwardness was the challenge and the way MD responded after he had fallen to the floor. He hit the ground in an awkward way. Normally the player would roll around and make a meal of it but he did not. MD got up slowly and walked to the treatment room.

Between 10^th December 1997 and 7^th February 1998 when MD played his next match, it was the calf injury which was stopping him training and playing. At the beginning of the 1998/9 season, MD was available to train and for selection and was selected. He had no more contact with MD once he was on loan to Hamburg.

MD would have had a medical before signing for Blackburn and Hamburg. For the medical, the player has a file which includes the history of scouting reports, appearance records and medical files from the other clubs. This helps form a picture of the player. The player has a general medical with the club doctor. Although there was no requirement to have a medical for the loan to Hamburg, he would have expected one to be carried out.

In re-examination, he said that MD had changed from someone who had been quick and agile to someone who was very stiff as if he had an ironing board down his pants. He was very upright and rigid. It was obvious that he was carrying something that was more severe than he was telling them. He was monitoring how MD was feeling, but MD was not a person who wore his heart on his sleeve. MD was determined to get out and play rather than make a fuss.

Anders Anderson is a footballer. His statement is dated 31^st October 2005. He joined Blackburn Rovers at the same time as MD. He has been a friend of MD since 1997, although he has known him since 1992. He has no recollection of MD suffering any particular injuries prior to October 1997. He did not witness the accident, but does remember MD being on the ground and getting to his feet in some discomfort. MD worked very hard at rehabilitation. When he saw MD over the New Year 1997/1998, there was an occasion when MD spent part of the evening lying on the floor with his legs in the air in order to relieve back discomfort.

Cross examined: He said he spent one night at MD’s home at New Years Eve. It was the following morning when they came down to breakfast, that he saw MD lying on the floor with his legs in the air. He did not recall MD saying that he was frustrated due to not being able to get a regular place in the first team nor MD saying that he wanted to get back into the Swedish team. They occasionally spoke on the phone but he could not recall if they spoke to each other between March – July 1999.

Thomas Finn is MD and Club Secretary of Blackburn Rovers. His statement is dated 3^rd November 2005. He was involved in the signing of MD. MD had a slow start to the season, having sustained a minor injury in the pre-season training period. MD, as with other players, was insured on a block policy through their brokers, SBJ Insurance.

There was no dramatic incident relating to MD in October. He became aware of the injury shortly after it took place and it did not appear to be serious. However after the incident, MD was not the same player he had been previously. He made attempts to regain form, but failed and was forced to retire. On his retirement, the club made a claim on the insurance policy.

Cross-examined, he said that MD was still a very important member of the squad as he was the managers signing. The manager had placed a lot of faith in MD when he first came to the club. MD was getting frustrated during the period before he went to Hamburg, because he was not holding down a regular place in the team. If MD had not gone to Hamburg, he knew of no reason why he could not continue to be a member of the Blackburn squad.

MD did not return to Blackburn at any stage before the terms of severance were agreed. By 24^th June 1999, feelers were being put out with a view to selling him. The club had been relegated. There was a new manager and the club was looking to reduce costs. Negotiations continued with MD’s advisers until the severance agreement was arrived at. The negotiations would probably have started after the end of May. It would appear that Blackburn obtained no medical evidence before agreeing the terms of severance. They accepted his word that he was unable to play.

Referred to a letter written by him dated 7^th July 1999 to the Football League about the reason for MD retiring, Mr Finn said that his understanding at the time, was that it was due to the injury suffered in Hamburg. With hindsight this was wrong and not in accordance with what he now believes the position to be. (Bundle A, page 366). Following MD’s retirement, Mr Finn had spoken to the club’s doctor instructing him that they needed to gather evidence for their insurance claim. He could not explain why there were files missing. The only thing he could think of is that they went to Hamburg and they had not been successful in getting them back from Hamburg.

Re-examined, he said that if MD had not been injured and was playing on the same sort of form as he did before joining the club, it would have had a tremendous effect on the value as of July 1999. It might have saved the club spending £7m on Kevin Davis as well.

Mr King is a senior lecturer in Orthopaedic and Trauma surgery to the St Bartholomew’s and the Royal London Hospital School of Medicine and Dentistry, Queen Mary and Westfield College. He is a past Director of the Academic Department of Sports Medicine. He is also Honorary Consultant in Orthopaedic and Trauma Surgery to the Royal London Hospital. He has other links and titles. From the list of publications, his particular specialty appears to be knee surgery.

In his report he deals with a number of questions posed to him concerning MD. He has examined MD on 22^nd November 2005 and has examined the post accident MRI scan done of MD. Dealing with question one, on the balance of probabilities, it is his opinion that the cause of MD’s permanent total disablement was a prolapsed intervertebral disc (PID). His examination of MD does not offer or suggest an alternative diagnosis.

In relation to question two, on the balance of probabilities MD’s pre-existing radiological disc changes neither directly or indirectly caused his permanent total disablement. The changes seen at the L4/5 and L5/1 were normal for a man of his age and profession. It is rare for elite sportsmen of MD’s age and profession to retire from the sport as a result of a disc prolapse, but most footballers of similar age and standard will exhibit changes at the lowermost disc levels.

In relation to question three, whether on the balance of probabilities, in the absence of the pre-existing radiological disc changes, the accidental bodily injury caused by the tackle in October 1997 could have caused MD’s permanent total disablement, Mr King says as follows: - “On general principle I could accept that the loads in a tackle may in a very small proportion of players produce a prolapsed disc, so part of the answer to question three is that, in the absence of pre-existing degenerative disease, an acute injury caused by a tackle could have caused Martin Dahlin’s permanent total disablement. I reiterate that a prolapsed disc is rare in footballers. The changes shown on the MRI of Martin Dahlin are exceedingly common in the scans of footballers aged 29”.

In evidence, he dealt with the joint report produced by himself and Mr Webb. (Bundle A page 222) He explained that he and Mr Webb agreed that the cause of MD’s disability was discogenic pain. With the caveat that he is not a back expert, he explained that this meant pain originating in or around the disc.

In his opinion, there would have to be considerable statistical evidence to show that there was a causative link between the changes in the disc and the rare occurrence of low back pain. You would expect the majority of footballers of this age to show changes in the MRI scan as in MD’s case. Both experts are agreed that low back pain in footballers of MD’s age sufficient to interfere with their football is exceedingly rare. To show that there is a causative link between the changes on the scan and an eventual outcome of back pain would involve enrolling an exceedingly large number of symptom- free professional footballers of that age and then following them up over the next three to four years to see if they developed those symptoms. Considerable data would have to be obtained to prove an apparent and likely event.

Cross examined, he accepted that he was a generalist and not a back specialist. He said that 90% of symptomatic prolapsed discs tend to improve without surgical intervention. He would have thought that the spinal fusion procedure mentioned by Dr Watkins is a procedure relevant to DDD not to prolapse. He agreed that you could not simply look at morphological findings revealed on an x ray or scan in order to form a diagnosis as to the cause of pain.

He agreed with Dr Butt’s comment that “disc degeneration and/or herniation are so common in the lumbar spine in the general population that they are not considered automatically significant findings unless they are in a position to interfere with the nerve tissue. Thus this hernia is anatomically significant. Please note that anatomical significance does NOT imply clinical significance, nor does it imply that the patient is symptomatic; there is no neural compromise shown on this examination. It is not possible to say if this hernia did or will cause such compromise” (Bundle C, Tab 4 page 21). Further extracts were put to him, but he was not prepared to comment on “contentious back literature.”

He agreed with Mr Webb that symptomatic PIDs are extremely rare in professional athletes, one of the reasons being that increasing levels of fitness and strength of the supporting structures is supportive of herniation. He agreed that “cadaver” studies had a number of features which distinguished them from “in vivo” behaviour. In his view the cadaver model is not a good one. He agreed that one of the occasions when a PID becomes symptomatic, is when it impinges on the nerve running from that segment to the leg, causing sciatica. Sciatica is pain in the leg associated with irritation of a nerve root in the back. The question with a PID is usually - is it affecting the nerve so as to cause sciatic pain? If it is not one of the 90% which does not resolve, the surgical intervention employed is likely to be excision in order to release the compression from the nerve. There are occasions where the prolapse is not such as to cause sciatica, but simply irritates the structures in the back and presents with localised pain at that level.

His diagnosis was:- mechanical pain coming from a localised area of the back. Put another way, the pain is coming from a disc which happens to have a mild element of prolapse demonstrated radiologically. He accepted that it may well be the case that the pain was not associated with the fact of the prolapse. That is why he called it discogenic back pain.

In his view degeneration of the spine is not a pre-requisite to a PID, although he accepted that PIDs usually do not and are unlikely to happen in the absence of degeneration of the disc. He had seen examples of young heavy manual labourers who had suddenly presented with pain, who did not suffer from the normal ageing process disc degeneration. He did not agree with the opinions which indicated that MD’s continuing symptoms were a manifestation of his constitutional spinal degenerative disease. However, he himself pointed out that he is not an expert in backs and the person to be cross-examined on the issue was an expert in this field.

He accepted that if a person had slow onset, gradual increase low back pain associated with an activity like building a garage extension, for instance, he accepted that it may be the sort of pain that one got from disc degeneration. Where there is an acute event, then, in his view, on the balance of probabilities, the ensuing symptomology is a consequence of an injury to the disc at the time. MD’s fall caused damage to the disc, although it was not possible to say with great accuracy what damage. Other than the fact that MD had no pain beforehand and there was a single event which converted him from pain-free to being in pain, such pain could be a consequence or manifestation of degenerative changes that were already in process before the incident, but on what he had heard, he would not agree that this was the case.

The labourer to which he referred earlier was not one on whose back he had operated. He had not operated on a back since MRI scans had been readily available. He was not able to comment on the fact that he would have found end plate damage, had he operated on the person.

He clarified his conclusion as to the source of the back pain in the present case, by saying that the pain is coming from the disc but not necessarily the prolapse of the disc. He is aware that DDD is frequently given as the diagnosis for low back pain. He accepted that Mr Williamson who was retained as an expert by Blackburn is an expert spinal surgeon and that he is not.

There could be a range of pain caused by degenerative disc disease. He was not competent to disagree with the proposition that the symptoms of which MD complained were absolutely typical and consistent with a diagnosis of DDD. He was also not competent to express a contrary opinion to that of Mr Talbot Cox where he says that “I consider that the right sided posterior prominence of the L4/5 inter-verterbral disc may represent a symptomatic prolapse, although it may simply be part and parcel of the posterior annular protrusion and bulging consistent with ageing changes at the disc”. Dr Watkins’ diagnosis of DDD is consistent with the definitive treatment for it being spinal fusion. He conceded that he was not qualified to disagree with the view of the body of spinal specialists who, having reviewed MD, say that his symptoms are a consequence of DDD.

Re-examined, he said his “bottom line” was that MD may well have had DDD, but that he has no evidence to suggest that he would have become symptomatic if he had not had the accident. He also has no evidence to suggest that when MD had his accident, the pre-existing DDD contributed to what happened to his disc. The level of complaint expressed by MD is consistent with his feeling of not being able to play as an elite professional footballer.

Mr Webb is a Consultant Spinal Surgeon and Director of the Centre for Spinal Studies at University Hospital, Nottingham. His report is dated 29^th December 2005. He examined MD on 23^rd November 2005. He has reviewed the records available. He noted that the MRI scan of 30^th October 1997 showed degenerate L4/5 and L5/S1 discs containing radial tears at the posterior annulus; small right paravertebral disc prolapse at L4/5 indenting the theca.

Mr Webb’s opinion is that the incident probably caused soft tissue injury but was unlikely to have caused significant disc injury. The symptoms improved significantly, allowing MD to play some football matches, but ultimately the DDD caused sufficient symptoms to prevent him continuing his career. Because of his DDD, had it not been for this incident, then some other incident such as a twist or turn, would have caused back pain similar to that caused by the index incident. It was not the tackle per se that led to the inability to continue playing. The major reason was the DDD, which was beginning to cause symptoms. These were genetically pre-determined.

Mr Webb, in his supplementary report, in the light of the reports of Mr King and Dr Butt, elaborates on the reasons underlying his opinion. A disc prolapse can only occur when the disc is degenerate. It is an expression of the degenerative changes in the disc. MD at no time presented with L5 dermatomal pain associated with the prolapse pressing on the nerve. It is right to assume therefore, that MD’s small prolapse was not causing nerve root pain. Research has shown that heavy activity and working environment had very little effect on the development of these degenerative changes. His pain had always been discogenic in nature – originating from the degenerative disc and not as a consequence of the prolapse. Considerable force would be needed to generate a disc prolapse in a healthy disc. It is not the disc which is injured, but the junction of the disc to the bone, known as the end plate. If someone is going to develop a prolapsed disc, it is because of a genetic rather than environmental factor.

In evidence and by way of diagram, Mr Webb explained what happens to the spine when young people suffer major disc prolapse as a result of severe trauma. Dealing with the additional material he had heard during the trial relating to the circumstances of MD’s injury, he said that none of it had caused him to change the view expressed in his report.

He knows Dr Watkins very well. He is one of the senior spinal sports surgeons in the USA, looking after all the major elite athletes in Los Angeles and other professional players. He is purely a spinal practitioner. Mr Webb went through the notes of Dr Watkins explaining the various references. Nothing in Dr Watkins notes qualified his opinion.

Cross examined: He was not in a position to quarrel with what MD said about what factually happened. He agreed that what happened to MD in October 1997 was relevant to his symptoms thereafter. The question was what significance? He accepted he had made an error about MD suffering pain prior to the October, an error which he corrected.

He was very familiar with the work of Michael Adams, one of his team being a consultant at his unit. He agrees with Mr King and most spinal surgeons that “you cannot extrapolate from an artificial test in a laboratory to the normal function of the lumbar spine”.

He agreed that the absence or presence of pain is central to the issues under consideration. The degeneration of the spine would not be relevant if it were not preventing MD from engaging in his profession of sport. In his view, the fall was the straw that broke the camel’s back. It was an incident which caused further damage to an already damaged disc, which has now become painful. MD has discogenic pain. He cannot play. It was unusual in footballers, but it happens.

MD had a bulge. It was not a true protrusion, but could be described as an insignificant one, indicative of DDD. It is anatomically significant because it is there, but it was not clinically significant, because it was not causing leg pain.

It was very rare for a healthy disc to prolapse in any way. As he had already explained, the annulus is pulled off the end plate. It is not really a prolapsed disc. He did not accept that he had overstated the position in his report by saying “ a disc prolapse can only occur when the disc is degenerate”. He explained that in his opinion, a small disc prolapse could not exist in a normal healthy disc. If you have a small prolapse like MD did, it has to go through a radial tear and the radial tear is an expression of degeneration.

Dealing with the question of pain, Mr Webb indicated that every person over 40 has discs which are degenerate, yet they do not all get pain. The question is why some do and some do not. It is not the compression which causes pain, but the nerve coming into contact with chemical mediators. This causes leg pain.

Mr Webb was taken through a number of research articles by Counsel for the Claimant. He pointed out that a person who has a degenerative disc with or without protrusion may or may not have pain. It is most unlikely that the pain is originating from the piece of tissue which has come out. The likelihood is that the pain is generated from the degenerative disc.

In his opinion, MD had a degenerative disc with tears in it. He suffered another injury which caused a little more damage. Being a very vulnerable disc, MD got back ache. He was genetically pre-disposed to having back pain. In all probability, a similar fall in the ensuing months would have caused the same problem. It was highly unlikely that the disc prolapse occurred because of the application of forces on MD’s spine when he fell in the way described.

He agreed that severe back pain of the nature of MD’s was very rare in professional footballers. He accepted that there was no doubt that as a result of the incident MD developed back pain. The incident was a cause of his back pain. It was the final straw which broke the camel’s back. It was highly likely that he was going to get a problem anyway within 6 – 9 months. The future event did not need to be a football incident; it could be picking something off the floor, like picking up a towel. The fact that other footballers with DDD do not develop such pain, could be due to genes/hereditary. He did not know. Degeneration is a slow process. When it reaches a point as in MD’s case, a further injury causes damage. Trauma is the least important aspect of a person developing DDD. Putting it in simple terms, MD had a degenerative disc for many years. He had an injury which caused a little bit more damage to his disc. It may have created a little more of an annular tear which has now become painful. As is known from discography, some annular tears are painful, but the vast majority are asymptomatic.

Research shows that genetics is key to why people get DDD. It is the only factor which is known to have a major effect on disc degeneration. He accepted that degenerative changes are more common in footballers than in the general population, although there is dispute amongst experts about whether exercise strengthens the back and thus lessens the chance of injury.

When it was suggested that MD’s fall would come into the category of an activity which could injure the spine in torsion, Mr Webb indicated that what MD had described was a hyperextension injury. You do not get a prolapsed disc from hyperextension. If you have severe torque on your back, you break a bone, you do not develop disc prolapse. He has seen many road accident victims who have been thrown off motorbikes and who have twisted themselves. They have spinal fractures. He has never seen one with disc prolapse.

In his opinion, MD’s prolapse occurred some time, probably about a year, before the incident in October 1997. It is highly unlikely that it happened during the incident as he had a very small prolapse. It did not produce symptoms which were compatible with a prolapse or a disc like that. His symptoms were acute discomfort to begin with which settled down. When MD played football and stressed his back, he got pain. This means the disc is not functioning properly. He has pain from the degenerative disc, not the protrusion.

In re-examination, he said that there must have been some pre-disposition for this situation to have occurred, given that MD had the injury and never played top level football again, whereas every other footballer who has that injury has played again.

Dealing with the towel incident of March 1999, he explained that it is common with patients who had discogenic pain, when bending down to do something innocuous, the back goes and they are in pain again. The tackle and the fall of MD in October 1997 from a medical point of view was not abnormal. Footballers had an increased rate of disc degeneration but it is not statistically significant.

I have read and taken into account the submissions of Counsel in their skeleton arguments and the transcript of oral submissions. I set out a summary of the main points made by each side. I also deal with some of the arguments during the course of my findings.

The Claimant makes the following submissions:-

On behalf of the Defendant, it was submitted:-

The Claimant relies heavily on the judgement in this case of the Court of Appeal on 11^th April 2005, particularly the paragraphs which deal with causation. I make the following caveat in relation to anything said by the Court of Appeal. The expert evidence in front of the Court of Appeal is not the same as that relied on in the case as now advanced. The reports of Mr King and Mr Webb were not before the Court of Appeal. The evidence that has now emerged in court has a different emphasis. It has gone into a level of detail and depth not available to the Court above. New angles have been explored which were not previously considered. Any observations of the Court of Appeal need to be read in that light and great care must be exercised before reliance is placed on passages extracted from the course of the hearing and the judgement itself.

The principles in relation to causation are set out in paragraphs 11-15 of the judgement. They can be summarised as follows:

In order to put my findings into some perspective, I set out a very short assessment of the main witnesses.

I found Mr Dahlin to be an essentially honest witness and not influenced by the fact that he has a 20% stake in a successful outcome. However, it is plain that his memory of events is not always clear. It does not always accord with the contemporaneous documentation. I make some allowance for the fact that English is not his first language, although he does have a good command of it. I accept to a certain degree that he was in denial about his playing capacity, but do not accept that this provides a complete answer to the instances where other evidence conflicts with his own.

Mr Taylor was a straightforward witness, with no personal interest in the case. His evidence was given honestly, albeit with some reluctance when questioned about certain aspects – the availability of drugs in particular. His evidence is substantially accepted. However, there is a discrepancy between his accounts to be noted. In his statement, Mr Taylor, dealing with the events, said this: - “He appeared to slip and fall under challenge and I was surprised to see him taking some time in getting to his feet. I did not go over to the pitch at this stage but kept monitoring his progress as he attempted to continue running. It was clear after a short period of time Martin would not be able to continue as he was in some discomfort with his back. He signalled to the coach and those monitoring the side of the pitch that he would not be able to continue and walked off the pitch. As he walked off the pitch, I met him and asked him about his difficulty. He informed me of the lower back pain he felt. We went to the changing room where Martin described the back injury to me”. In evidence, when cross examined after having described the fall he said:- “He then, the balls runs out of play, the rest of the players carry on, he stays there; he looks quite awkward the way he has landed. I start to walk up towards him to see if he needs assistance and he sort of gingerly gets to his feet, walks off to the side of the pitch, which is only a couple of metres and then walks past me off into the treatment room, at which point I have finished my session and go in to find out that he has got back pain”.

In broad terms, I accept the evidence of Mr Anderson and Mr Finn

Mr King was an earnest and cautious individual, keen to assist the court insofar as his expertise allowed. He very properly set out his limitations right at the beginning of his evidence. He acknowledged time and time again that he was not a back expert and not qualified to disagree with some of the opinions of the spinal experts, including Mr Webb. This was his strength in terms of his credibility and duty to the court, but also his weakness in terms of the weight to be attached to his evidence.

Mr Webb was in sharp contrast to Mr King. He presented as very confident. He took an “absolutist” approach in his report. He was quite dismissive of other experts at various times during the course of his evidence. He has demonstrated some carelessness in the preparation of his report, his explanation for such carelessness being less than satisfactory. However, that having been said, during the course of his evidence, he did move from the seemingly entrenched position of his report by clarifying and qualifying (to a limited degree) his opinion. He gave cogent reasons for his opinions. He explained why he disagreed with certain propositions put to him. In the light of his obvious expertise (an expertise accepted by Counsel for the Claimant in cross-examination) and the cogency of his evidence in court, I accept the essential thrust of his evidence.

I approach this case on the basis of the questions set out in the Closing Submissions of the Defendant. Counsel for the Claimant agreed that they represented an appropriate approach. I set out below the questions and issues to be considered.

The first question to be asked is: “Did MD sustain an accidental bodily injury on or about 21 October 1997?” The short answer to the question is yes. The evidence of MD points in that direction. Additionally, both experts are agreed that on or about that date, MD suffered an accidental bodily injury, even if they are not agreed as to precisely what the injury was.

“Did MD suffer PTD within the meaning of the policy?” The Claimant submits that the evidence shows that he did, as MD was entirely prevented from engaging in his usual occupation as a football player in the FA Premier League. It lasted twelve calendar months and at the expiry of that period he was beyond hope of improvement. The Defendant submits that MD played in Premier League or its equivalent from early 1998 until March 1999; thereafter he produced no medical evidence to show that he was prevented from engaging in his usual occupation as a football player in the FA Premier League, but merely retired, agreeing severance terms with the Claimant, without any medical examination being carried out. Both experts in this case have agreed, that MD is prevented from engaging in his usual occupation as a football player at the requisite level. I accept their evidence and therefore answer the question in the affirmative.

This leads to the next question:- “If MD suffered PTD within the meaning of the policy, when did he suffer it?” Similar arguments are advanced as those in response to the preceding question. The Defendant goes further to contend that even if MD has become PTD, Blackburn have not proved that this disablement occurred within 24 months of the October 1997 incident. The issue is:- when was MD entirely prevented from engaging in his usual occupation as a footballer in the FA Premier League. In coming to my conclusion, I have taken not a narrow and literal interpretation, but a broader one, in the sense of considering when MD was entirely prevented from engaging “effectively” in his usual occupation as a footballer in the FA Premier League. I take into account the evidence of MD that he was masking his symptoms by taking substantial quantities of anti-inflammatories all the time; the graphic evidence of Mr Taylor of how MD, when he started playing after the October incident, looked as if he had an “ironing board” down his back; the evidence of MD’s poor performance. More importantly, however is the evidence of Mr Webb, who described the October incident as being “the straw that broke the camel’s back”. In other words, the October incident was the defining moment. The “towel incident” in March 1999 incident was not an uncommon reaction for those suffering from discogenic pain. For the purposes of the question, I take the date to be on or about 21^st October 1997.

The final, but important question to be asked under this issue is:- “If MD suffered PTD, did the ABI sustained on or about 21 October 1997 solely and independently of any other cause occasion Mr Dahlin’s permanent total disablement?” This is the issue which is the subject of serious dispute between the two experts.

The Claimant’s argument is that the incident in October 1997 was of such seriousness that it caused the subsequent pain which prevented MD from continuing his career. It was a hard and awkward fall which would have disabled him regardless of the pre-existing degeneration. Conversely, he would not have been disabled had he not suffered the accident. The argument runs – disablement as a result of disc prolapse is rare in footballers like MD. The degeneration exhibited by MD was commonplace amongst them. This suggests therefore that the cause of the injury is something other than normal disc degeneration. Any DDD therefore is not the “causa sine qua non” of the PTD. Applying commonsense, it is submitted, that MD had no back pain before the incident on 21^st October 1997. A serious incident took place on that day. After that incident MD suffered pain. The pain which has permanently and totally disabled MD was caused solely by the injury to the disc during the incident.

On behalf of the Defendant it is argued that every spinal surgeon who has considered MD’s back has concluded that his DDD had a central role in the causation of his symptoms. There is also consensus amongst the suitably- qualified experts instructed in the case that the degeneration of MD’s spine was a necessary pre-requisite to the injury which he suffered on 21^st October 1997. Mr King accepted that his view might be out of line with those experts. Moreover, Mr King had moved his position as to the cause of MD’s disability by the time of the expert’s joint statement. It is submitted that any injury suffered in October 1997 or March 1999 is caused by and is a manifestation of MD’s DDD.

The submissions of the Claimant reproduced in paragraph 100 above are superficially attractive. They are in my judgement too simplistic. They are based on assumptions. Whilst the statistical approach may be a starting point, it fails properly to take into account the fact that individuals do differ in relation to their make-up and response to situations, and that each incident is unique to that individual, albeit similar to that of others and fails to take into account the actual evidence in the case.

One can apply the logic of the Claimant’s approach and look at what Mr King himself is saying. In his report, he indicated that:- “ a tackle may in a very small proportion of players produce a prolapsed disc… so in the absence of pre-existing degenerative disease an acute injury caused by a tackle could have caused MD’s PTD”. He conceded in his report and in cross-examination that PIDs usually do not and are unlikely to happen in the absence of DDD. Nevertheless, save for referring to the statistical approach, he maintains in evidence that the incident alone rather than DDD caused the PID, without any real explanation as to why it should be the case, save for saying that he has no evidence that the DDD was a cause.

It follows from this, that the Claimant’s proposition must be: it is unlikely that PID is caused in the absence of DDD, but in this case (because there is no evidence to the contrary) on the balance of probabilities the PID was caused independently of DDD. Without more, that is a startling proposition.

Mr King gave evidence about young labourers who had prolapse in otherwise healthy discs. His recollection was both hazy and non-specific. He was not able to give any details and was not able to say if any of them had end plate damage. I find this evidence to be too nebulous to rely on, given the requisite burden and standard of proof.

Implicit in Mr King’s evidence is the fact that the incident itself was so serious that it could have caused the symptoms independently of DDD. The evidence of the fall does not in my view support that contention. The fall was clearly an awkward one, as described by both MD and Mr Taylor. However, it is the evidence of Mr Taylor which lends a clue as to how unusual this fall was. On what he saw, he expected MD to get up and to resume playing. I do not consider that the evidence of the fall puts it into a category of something so very different from what one sees regularly on the football pitch.

More importantly, the Claimant’s approach completely ignores the weight of the medical evidence in the case, evidence with which the Claimant’s expert, whilst taking a different view, concedes he is not qualified to disagree. I share Mr King’s concern about the use of research articles which do not mirror the facts and conditions of the instant case to make points of principle. The lengthy exercise to which Mr Webb was subjected was of little assistance to the Claimant’s case, Mr Webb being able, in the most part, to deal with and distinguish the situations in the research articles from the facts of the instant case.

I make it clear that I do not draw any adverse inferences against the Claimant, in relation to the failure to call a spinal expert. I do however rely on the evidence before the court, which apart from Mr King, is overwhelmingly one way. Mr Webb is supported by the other spinal experts, whose opinions are that the cause was DDD. In any event, it need not be the cause, so long as it is a cause, in order to fail to come within the insuring clause. This medical evidence is not adequately rebutted by the Claimant. The Claimant has failed to satisfy the court on the balance of the probabilities that the question should be answered in the affirmative.

It follows from the above, that this claim fails. Judgement is in favour of the Defendant.