Hall v Thomas & Ors

This litigation has concerned five principal headline events in the life of this Claimant’s left knee;

On any view the Claimant now has a knee which is unfit to withstand the rigours of a professional football career and has abandoned any lingering hope he had to pursue such a career following the catastrophic happenings to his knee which I have described.

By his claim the Claimant seeks to establish negligence, that is to say a breach of the duty of care owed to him on the part of the Second Defendant for which the Third Defendant would be vicariously liable, in the delivery of the rehabilitation of his left knee following the initial twisting injury, and further to establish that that breach of duty has caused or materially contributed to the entirety of the additional damage to the knee which has ensued since that initial ACL rupture and tear of the lateral meniscus. It is accepted on behalf of the Second and Third Defendants that, if these defendants are liable for the injury which gave rise to the need for the repair operation of the 7^th September 2007, that is to say liable for the complex tear of the medial meniscus discovered in August 2007, then they would be liable on grounds of reasonable foreseeability of damage, for all the injurious consequences to the knee of the failure of that repair and of the septic arthritis.

The precise particulars of negligence now being pursued against the Second and Third Defendants confined as they now are to failings in the delivery of rehabilitation of the knee (and which no longer include any of the failings pleaded in the particulars of claim post the 7^th September 2007 operation) have been refined in the course of the trial. The original pleading was in general terms (see in particular paragraph 51.2). They amounted in effect to relying upon the inadequacy of the records being kept and a general allegation of setting ‘an inappropriate’ rehabilitation programme of which the only particular of inappropriateness given is that ‘by way of example’, namely running work was commenced too early when the ‘muscular control of the knee was not sufficient’, a reliance upon the clinical state of the knee as revealed in the arthroscopic examination of 18 July 2006 as evidence in itself that ‘the rehabilitation had been too rigorous’, and a reliance upon a failure to pay any or any sufficient attention to what were alleged to be the ‘Claimant’s complaints of pain, stiffness and clicking throughout his rehabilitation period following the Original Injury and the 27 September 2005 operation’.

In her closing submissions on behalf of the Claimant, Miss Bowron QC provided ‘refined allegations’ as follows (reflecting, she would say, what emerged in the course of the evidence given at trial):

It can thus be seen that, apart from again a reliance upon poor record keeping, the specific particulars relied upon to support the general allegation of ‘adopting a standard of care … that fell below that of the a reasonably competent physiotherapist’; are in effect confined to four:

As against the First Defendant the claim is in negligence alleging breach of duty of care owed to the Claimant by the First Defendant as a general medical practitioner acting as the Club Doctor on the instructions of the Third Defendant. The only breach of duty now being pursued lies in the failure of the First Defendant to take steps to ensure that the Claimant was treated for the Staph A infection by the afternoon/early evening of the Monday 17^th September 2007. In particular terms the First Defendant has admitted a breach of duty by reason of such failure and has admitted liability for such damage as the Claimant can establish as flowing from that breach of duty, in other words as flowing from the two day delay between the 17^th and 19^th September 2007 in the instigation of the treatment in fact instigated on the 19^th. The Claimant has accepted this admission as being the limits of the case he seeks to pursue against the First Defendant.

The admission to which I have referred is in the following terms. It is set out in a letter from the First Defendant’s solicitors dated the 18^th February 2013:

The reply of the Claimant through his solicitors dated 28^th of February 2013 was in these terms:

Further, as between the Claimant and the First Defendant, and consistent with the Claimant’s abandonment of the allegations relating to other days, the court has been expressly and jointly invited by the Claimant and the First Defendant to proceed on the basis that ‘when Dr Thomas saw the Claimant on the 14^th September 2007, which would have been between 12 and 1pm, that the Claimant’s left knee did not show signs of an infection and no symptoms of infection were reported’ (quotation from Agreement document between the Claimant and the First Defendant handed to the court).

This trial has only ever been concerned with liability, that is to say breach of duty and causation of damage and not with quantum of damage. As against the First Defendant therefore the issue is now only one of causation and medical causation at that. As against the Second and Third Defendants, issues of both breach of duty and causation of damage remain. It is not in dispute that in order to establish such a breach of duty the Claimant must establish that Mr Hardwick, the Second Defendant, failed to exercise the skill and care of a reasonably competent physiotherapist.

In the light of the above I turn to my findings as to the factual background to the claim as it is now put against the Second and Third Defendants. The Claimant was born on the 16^th July 1989. On the 1^st July 2005 pursuant to a written agreement he embarked upon a two year football scholarship with the Third Defendant, Everton Football Club, (‘the Club’) at their Academy in Netherton with a view to achieving a long term football career (on 1^st July 2007 he signed a 1 year professional contract with the club; he signed another 1 year contract in August 2008). When just 16 on the 12^th August 2005, during a training game and through no fault of anyone, he sustained a twisting injury of his left knee and felt immediate pain. An arthroscopy carried out on 23^rd August 2005 disclosed two significant injuries namely a complete rupture of the anterior cruciate ligament (ACL) and a tear of the posterior horn of the lateral meniscus. Later examination of the knee by an arthroscopy in July 2006 (the course of which was recorded and has been watched by the orthopaedic experts giving evidence in this case) was to reveal that the extent of the tear was relatively small, namely 50% of the posterior horn which in itself made up one third of the whole meniscus. The 2005 arthroscopy also revealed very early, albeit asymptomatic, signs of degenerative changes (patchy fibrillation on the posterior surface of the patella); I quote from the findings on the arthroscopy:

As indicated, the tear was excised during the arthroscopy. The ACL rupture was repaired in a reconstruction operation carried out on 27^th September 2005 and the Claimant was sent back to his home in Scotland to recuperate for a week. It is not in dispute that the reconstruction operation was successful. The evidence is all one way that in due course a stable knee was achieved.

Thereafter the Claimant returned to the Club’s Lodge at Crosby where a number of the Club’s trainees lived and in the week beginning 9^th October 2005 began the 3^rd week of a 24 week rehabilitation programme devised by and under the supervision of the Academy’s head physiotherapist, namely the Second Defendant. The first two weeks of that programme, although regarded as part of the programme, were designated the immediate post–operation phase during which only rest and appropriate medical treatment with very little activity was appropriate.

The Second Defendant, Stephen Hardwick, holds a graduate diploma in physiotherapy from the Joint Services School of Physiotherapy at RAF Holton. He qualified in 1981. From then until 1987 he had been with the Royal Navy. Between 1987 and 1991 he worked at the sports injuries clinic of a private hospital in Bournemouth, and from 1991 until 1999 had been a self employed physiotherapist at Bournemouth Football Club. Mr Hardwick had joined the Third Defendant Club in 1999. He had originally been the Third Defendant’s first team physiotherapist but since 2001 had been the head Physiotherapist at the Academy. He denied in the course of his evidence that this was to be viewed as a demotion although he accepted that it may well be that the club had felt that he had been taking too long in returning first team players back to full fitness.

Mr Hardwick told me and I have no reason to doubt that the 24 week rehabilitation programme was based upon a protocol contained in a text book on sports injury by two Danish authors ‘Pieterson and Renstram’ headed ‘Standard rehabilitation protocol after anterior cruciate ligament (ACL) reconstruction (patella tendon)’ (see page 281) and had been agreed with Mr Rostron, the treating orthopaedic surgeon. As its contents reveal, the protocol is goal orientated rather than time orientated although time guides are given from the date of reconstruction. Thus, for example, the goals are numbered 1 to 6, where number 3 is ‘return to Weightbearing/full motion (up to 11 weeks)’; goal 4 is ‘Return to straightline activities (3-4 months)’; goal 5 ‘Return to cutting activities (4-6 months)’ and goal 6 ‘Return to competition (6 months and beyond)’. The consistent evidence of not only Mr Hardwick but both physiotherapist experts was that the physiotherapist, although always encouraging the patient to move from one phase to the next, had to be responsive to any developments or responses in the patient to any particular activity, which might require adjustment in the immediate programme. Moreover there was consistent evidence before me that no one protocol had ever been developed and numerous different ones exist.

Mr Bickerstaff, although called principally as the orthopaedic expert on behalf of the Second and Third Defendants, revealed himself as having extensive experience in his own right devising rehabilitation programmes for elite professional footballers in conjunction with their premier league clubs. He was an impressive witness (as even counsel for the Claimant conceded) having had experience of having undertaken some 2,500 ACL reconstructions, involving approximately 200 professional footballers, in respect of the vast majority of which he had been closely involved with the post operation rehabilitation. His evidence, which I accept, was that his view and that of his contemporaries was that the treating orthopaedic surgeon often had a joint role with the treating physiotherapist in any rehabilitation programme adopted for any particular patient. The orthopaedic surgeon would set the milestones for achieving recovery and together with the physiotherapist devise the hands on programme for the physiotherapist to follow, and he, as the treating orthopaedic surgeon, would work closely with the physiotherapist in monitoring the patient’s progress. Again as will be seen in this case, Mr Rostron himself as treating orthopaedic surgeon did have occasion to review with both Mr Hardwick and the Claimant, the Claimant’s progress during the course of that initial 24 week programme and indeed thereafter (on 8^th November 2005, 20^th December 2005, 7^th March 2006 and 28^th March 2006) and to give advice as to his future rehabilitation.

All material experts agreed that the protocol followed by Mr Hardwick was in principle perfectly acceptable. Mr Bickerstaff explained that there were in principle four phases of any rehabilitation programme which was reflected in that protocol, and the physiotherapist experts did not themselves disagree with this approach. The first was post operation treatment which he described as the inflammatory phase which might last up to 2 weeks and during which there would be rest, ice, elevation and early movement. The second was the gym based phase which could last in the order of 10 to 12 weeks where the principal aim was the protection of the ACL reconstruction and to ensure no breakdown in the stability of the knee caused by excessive load upon the knee. It would be during this phase that there should be no running, jumping or pivoting, and material to the issues in this case, his evidence was that it was in this phase that the question of muscle strength was important to ensure there was no compromise of the knee. There is no suggestion in the present case that the Claimant’s knee was so compromised in the sense of the ACL reconstruction failing. Then the third phase was the move to running and pivoting under the supervision of the physiotherapist. The time scale for this phase was variable. One would start with simple straight line jogging. Once it had been estimated the patient had good balance, agility and control, you could then move to changes in direction; you would within this phase reach the stage where the patient could run, twist, turn and cut. Finally one would move at say 6 months post operation to the sports fitness phase involving training more under the supervision of the coaches and the fitness trainer although with the physiotherapist having a monitoring role with a short hand over period following which the physiotherapist would have no role. Again the evidence of the orthopaedic experts was that it would usually take players of the age group of the Claimant some 9 to 12 months to recover from an isolated ACL injury – assuming all went well with the ACL reconstruction itself – in the sense of being able to return to playing competitive football, although there was some disagreement as to the impact of the added feature of the lateral meniscus tear which Mr Bickerstaff considered could make recovery more prolonged.

It can be seen therefore that the 24 week programme adopted by the Second Defendant – ending with the week of the handover, was meant to cover what Mr Bickerstaff would describe as the first three phases prior to a return to training under the primary supervision of the coaches.

In the event the Claimant’s progress to full recovery did not go as had been hoped when that 24 week programme was entered upon. One of the matters of which the Claimant makes particular complaint is the failure of the Second Defendant to prepare detailed records of what the daily rehabilitation in fact comprised in terms of its exact nature, extent and duration, or to detail the Claimant’s daily subjective responses. What he did do however was to prepare a weekly blank grid divided into days of the week extending over a 24 week period beginning with the week of the operation which he filled in after the event (either that day or the next) with outlines of the activity undertaken that day and on occasion (although not very often) with mention of particular problems noted such as pain or effusion, although it was not the case that every day in the grid was completed, (for example there is a seven day period with the days left blank in mid January 2006 straddling weeks 16 and 17). In addition he made occasional entries on A4 sheets in the name of the Claimant known as Physiotherapy Notes which would be kept in a file, and further occasional material daily entries in his diary. All of this material has been the source of much detailed examination in the course of this trial in an effort to work out precisely what, according to the records kept by the Second Defendant such as they were, the Claimant was recorded as doing and how he was responding. The Claimant’s case is that the brevity of these notes is such that they cannot be viewed as reliable or an answer to his evidence that he was consistently and continually complaining about pain in his knee (the emphasis is the emphasis of the court).

However for the purposes of an overview of what was happening over this initial 24 week period and beyond until the summer of July 2006 when the Claimant was to undergo the further arthroscopy and extensive degenerative changes in his knee were to be revealed, and when considering the complaints now being made against the Second and Third Defendants in their delivery of the rehabilitation during this period, it is instructive to set out the key features of what these contemporaneous documents disclose, including the reviews by Mr Rostron and to consider the credibility of those complaints in their light .

The starting point is that on the 11^th October 2005 Mr Rostron by letter to the First Defendant gave the go ahead for the rehabilitation programme (in the sense contemplated after the immediate post operation phase) to begin (medical bundle A 125):

The Claimant was then seen again by Mr Rostron on Tuesday 8^th November 2005. The evidence was that he would be seen in the company of the Second Defendant. This was the beginning of week 7 of the rehabilitation programme. Up to this point there is no entry suggesting that the Claimant had moved to any treadmill work, jogging or running. As regards any adverse reactions on the part of the Claimant, the only matter of note contained in either the grid entries or the physio notes is a single entry in the grid for Thursday 20th October which refers, amongst other matters, to ‘ice’. I will on this occasion quote the entry in full since it will also give a flavour of the shorthand way in which the Second Defendant chose to make his entries on the programme grid which I should add were always in handwriting, not always legible.

On any view this was a positive report. It is noteworthy that Mr Rostron did not regard a history of intermittent effusion as being of any concern either in terms of the condition of the knee or in terms of the advisability of stepping up the rehabilitation programme, which is in keeping with the joint opinion on this issue of the two physiotherapy experts (Q13 ‘We agree that minor effusions are commonplace and to be expected. It is inevitable that during a complex and extensive rehabilitation you will have moments when the joint gets a bit sore and swells a little. We will then ease back for a bit and go again’). Thus although I accept that the absence in the records kept on the Claimant by the Second Defendant of a history of effusion on an intermittent basis does evidence a lack of rigour in the record keeping, there is no support for any conclusion that the fact of the occurrence of intermittent effusions was any indicator that there was something going wrong with the rehabilitation programme to date. Nor is there any support for the proposition that the Claimant was making any complaints as to persistent pain.

The next time the Claimant was seen by Mr Rostron - again with the Second Defendant - was in week 13 on Tuesday 20^th December 2005. By this time according to the grid entries the Claimant had been on the treadmill since the Thursday of week 7 (A[m]. Bike/ASTRO/Treadmill Legs Prop. Pm pool/Abdo; Compex (where prop refers to proprioception - awareness of body joints/balance etc)), had first begun jogging on Sunday 11^th December (the very end of week 11), and had progressed to running in week 12 with some resultant effusion [which has references to ‘jog/run Heavy legs’ on the Monday; ‘?slight effusion bike ride only + wts Compex (fatigue’) on the Tuesday; EDU (education) on the Wednesday (the normal routine for Wednesdays) ‘Run/jog 30 effusion ↓’ on the Thursday; ‘warm up 12 jog 3x4 fartlek wts’ on the Friday. We are thus at a date (20^th December) when, according to the now pleaded case in negligence against the Second and Third Defendants, a breach of duty of care had already occurred in ‘causing or allowing the Claimant to start jogging too early namely in week 7 of the rehabilitation programme’ (allegation 3 and a reference to the Claimant’s evidence that whenever he went on the treadmill he would be told to jog, and that he had been asked to slow jog from the outset of his rehabilitation), and in ‘causing or allowing the Claimant to move from walking to jogging to running too quickly in Week 12’ (based on adverse inferences which it is said should be drawn from the week 12 entries indicating a return to running on the Thursday notwithstanding the effusion on the Tuesday). We are also at a date when according to the Claimant both in his witness statement and in his oral evidence, he had for several weeks been experiencing knee pain consequent upon the activities he had been given, in particular when jogging (an activity moreover he was asked to do when still limping) which so concerned him that he was always complaining of the pain to the Second Defendant who would dismiss it with words to the effect that it was ‘just my muscles building up’, and further that he was for ever telling the Second Defendant that his knee ‘did not feel right’. In oral evidence to the court the Claimant said that at this time ‘his knee did not feel stable’. I should add that the evidence of the Second Defendant was that there was no persistent complaint to him of any knee joint pain at this time which if it had been made would have been of concern, as distinct from muscle pain after activity which he would explain was due to the muscle activity after a period of disuse.

It is against this background that the review observations of Mr Rostron in his letter of 20^th December 2005 have to be considered. He wrote as follows (Med A 147):

It must be noteworthy that again Mr Rostron did not regard the ‘occasional minor effusion’ after ‘excessive activity’ as a matter of concern either in terms of his questioning the rehabilitation programme undertaken to date (which he patently did not) or in terms of his advising against the envisaged continuation of the programme (which he patently did not, giving as can be seen, the contrary signal advising that the programme could be ‘increased’). Again this is in line with the joint opinion of both the physiotherapy experts before me. I have already quoted their answer to Question 13 in their joint statement. This was in fact given in the context of that which had been recorded by Mr Rostron in this letter. Their reply added ‘We agree that should the effusions be large, regular and consistently at a certain point then it is a cause for concern and consultation and investigation is sought with the Surgeon. The effusions here are minor’. This is also in line with that which the Second Defendant explained to me would have been his approach to any effusions emerging in the ‘patient’ in the course of any rehabilitation, with persistent warm effusions being the ones to be concerned for. Indeed the entries already highlighted do show Mr Hardwick deciding to ‘ease back’ consequent upon the emergence of an occasional effusion (see again the Tuesday of week 12), albeit thereafter resuming not long after, and as will be seen there is evidence (in the events of early March 2006) of the Claimant being referred to the orthopaedic surgeon when an effusion was of concern.

Equally in my judgment the only sensible inference that can be drawn from this letter is that the Claimant had not up to this point in the history of his rehabilitation been experiencing the consistent/persistent knee joint pain to which his evidence laid claim. The letter is certainly compelling evidence that he was not complaining to Mr Rostron of any such persistent symptomology (‘He has no ongoing symptoms apart from …’). I reject as wholly implausible the suggestion made by the Claimant when cross examined on the source of the history of symptoms reported by Mr Rostron, that this all emanated from the Second Defendant. A record of past symptoms is a record of what the patient has been subjectively experiencing in the past. I can not accept that Mr Rostron would not as a matter of natural course have asked questions of the Claimant as to how he had been since the last review, and what he had been experiencing in his knee. But I go further: the failure of the Claimant when asked (as I find did occur) to mention to Mr Rostron his ongoing concerns as to the stability of his knee and his persistent knee pain, can only be that he had not been experiencing the same up to this time (and I say this notwithstanding that which Miss Bowron so strongly relies on to give ‘medical plausibility’ to the Claimant’s evidence on this point, namely the degenerative changes in the knee joint and the loose bodies within found in July 2006). Miss Bowron submitted that it would have been extreme folly not to have told Mr Hardwick of these ongoing symptoms (this was in aid of a submission that the court should find he did). I agree if in fact they were being experienced, but it would have been equal folly not to have told Mr Rostron if that was the case.

I am confirmed in this view by the Claimant’s own oral evidence to me in which he did ultimately concede that that which Mr Rostron had recorded was an accurate description of his condition at this time.

I turn to the next significant – in the context of the allegations now being made – phase of the history of the Claimant’s rehabilitation and return to training in or about early April 2006.

It is useful, as an introduction, to rehearse the particular material allegations now being made namely:

As to the measured wasting of the thigh, the records (physio notes at p 27) show that measurements were taken by the Second Defendant on the 15^th September 2005 (before the ACL reconstruction), on the 1^st November 2005 (week 6) and on the 25^th January 2006 (week 18); they were measurements in centimetres comparing the bulk of the quadriceps in each leg (the injured left compared with the uninjured right) taken at two reference points, namely 5 cm above the patella and 10 cm above the patella. The results for the 15^th September showed a 1 cm deficit in the left thigh at both points (39/40; 42/43); those for the 1^st November showed a 2 cm deficit at the 5 cm reference and a 1½ cm deficit at 10 cm (as well as a reduction in size of 2 cm in the left and one of 1 – 1½ cm in the right (37/39; 40/41.5). The results for the 25^th January revealed a continuing 2 cm deficit at 5 cm and 1 cm at 10 cm point (38/40; 42/43) (although with an increase in overall size on both sides).

The unanimous expert evidence of both the physiotherapist experts (and indeed the orthopaedic experts) was that isometric or isokinetic testing by machine of quadriceps or hamstring strength was not an essential part of a rehabilitation programme following an ACL rupture, each expert in their differing ways emphasising that the important assessment to be made in order to ‘sanction’ the progression through the various stages was that of functional ability made through observation of the patient’s balance, co-ordination and agility (‘how the patient is moving and reacting’ to any particular activity – see the joint physiotherapist statement under Q22) and the application of the experience of the physiotherapist, to which the results of any isometric testing was no more than an additional piece of evidence to be put in the balance when making that assessment. To quote the physiotherapist joint statement under question 18:

The evidence of Mr Bickerstaff, the orthopaedic expert for the Second and Third Defendants, which I again found compelling, was that if, as a matter of happenchance, the results of isometric testing were available at any given stage in the rehabilitation, and these did demonstrate anything of concern, then one would expect that such concern would already have been made obvious ‘by observation of the patient and on examination’.

It is with this background in mind that I set out the isometric results which were in fact obtained in this case and the recorded contemporaneous observations of those professionals who were made aware of those results at the time and any external, i.e. external to the Second and Third Defendants, contemporaneous records of the Claimant’s physical condition and any complaints being made by him in the context of his ongoing rehabilitation.

Those results were all obtained prior to the end of the 24 week programme as a consequence of the Claimant undergoing isokinetic isometric testing on three separate occasions. First on 18^th January 2006 during week 17 at the John Moore’s University in Liverpool under the supervision of Professor Liddo. Secondly, on the 10^th February 2006 during week 20, at Fairfield Hospital. These were all carried out at the request of the Second Defendant. And finally testing was undertaken at the National Sports Centre at Lilleshall (‘Lilleshall’) a rehabilitation and training centre of national renown to which professional footballers would be regularly referred, during the time the Claimant spent there in week 22 between Tuesday 21^st February and Friday 24^th February 2006, under the sponsorship of the Professional Footballers’ Association (the ‘PFA’).

The precise circumstances which caused the Claimant being sent by the Club to Lilleshall is a matter of dispute. The Claimant says it was at the suggestion of his coach, Mr Ablett, now sadly deceased, to whom he had expressed concerns that his rehabilitation had not gone as well as he had hoped. The Second Defendant says that it was normal for players on long time rehabilitation to spend a week at the Centre at the stage the Claimant had reached and it was in part to provide the Claimant with a change of place and face. However I have no doubt that, whatever the truth on this issue, for the purposes of the present claim in negligence as it is now put, the important consideration must be the recorded assessments made at Lilleshall of the Claimant’s rehabilitation progress and any observations there made as to the significance, if any, of the noted strength deficits.

The Liddo results, although for the most part judged by the Second Defendant to be unreliable for reasons it is unnecessary to detail, did disclose a headline strength deficit in the Claimant’s left leg quadriceps compared with those of the right of some 52%; the Fairfield results on a like comparison disclosed a 25% strength deficit in the left leg.

In a letter of referral sent to Lilleshall (the copy in the court bundle is undated but its contents suggest it was close in time to the Claimant’s arrival at Lilleshall) the Second Defendant wrote to Lilleshall in the following terms:

I observe that by this letter the Second Defendant was drawing the attention of Lilleshall not only to the noted 25% strength deficit in the left quad compared with the right, but also the nature of the activities the Claimant was undertaking notwithstanding such deficit (viz. ‘low speed turning/zig-zags with and without the ball, kicking with laces and full accel/decel’). I have no doubt that had Lilleshall considered that such activities had not been appropriate given such deficit, it could have been expected to report back to the Club and to the Second Defendant in particular, in such terms. As will be seen however, Lilleshall did not do so. Although it did take the opportunity in its discharge letter to raise a number of matters relating to the strength deficits it had discovered, no such ‘red flag’ was raised in relation to such activities. I observe also that the Second Defendant was reporting a virtual problem free rehabilitation to date and that the Claimant had been ‘pain and effusion free’ for a number of weeks. Given what I accept was the ‘hands on’ approach of the Second Defendant to the Claimant’s rehabilitation I equally have no doubt that this was the Second Defendant’s genuine assessment of the position to date. I reject the suggestion (which is inherent in the Claimant’s evidence) that the Second Defendant was deliberately ignoring persistent complaints being made to him, the Second Defendant, of knee pain. I cannot believe that the Second Defendant would have written what he did were such complaints being made.

In this context, the Lilleshall admission notes dated the 21^st February 2006 are of significance. It is clear that on the day of arrival the Claimant was seen, a history taken and the following, amongst other matters, recorded under HPC (‘history of presenting complaint’):

Again I have no doubt that had the Claimant as at this stage been having the deep concerns as to his rehabilitation which he claims he was having, that he would not on the day of admission to Lilleshall have expressed himself in the way he obviously did to the author of the admission notes. The Claimant in evidence was driven to concede that he had not expressed any such concerns or made mention of the persistent pain he had been experiencing to any of the professionals at Lilleshall but did so to his fellow ‘injured players’ whom he met at Lilleshall, whom he thought had reached a much more advanced stage than he had in their rehabilitation over a similar time frame. I find this evidence of an apparent decision not to inform the professionals at Lilleshall of what were nonetheless genuine concerns difficult to accept. On the Claimant’s own account he had been sent to Lilleshall precisely because he did not think that his rehabilitation had been going in the way he thought it should have. It may well be that as his time at Lilleshall progressed he found the regime more acceptable than that at the Academy for various reasons (not least it seems because he was given a written programme at the start of each day and for the most part was doing strength exercises rather than any intense muscle activity) but none of this explains why he did not on the day of admission take the opportunity to voice to the professionals what, according to him, had been bothering him for so long about his rehabilitation to date at the Academy.

The final record of note under this heading of ‘strength deficits’ is the letter of discharge written by the director of Lilleshall, Mr Philip Newton. It was conceded by Mr Worth, the Claimant’s expert physiotherapist, that Mr Newton has and had at the time the highest of reputations in the rehabilitation of injured professional footballers following an ACL, with a longstanding material experience. That letter recorded that which had been discovered in the isokinetic testing carried out at Lilleshall including a left leg quad deficit compared with the right of some 34% revealed in low speed testing, as well as references to ‘significant force deficits’ on the left side in the hamstrings, discovered on higher speed testing. The letter is of sufficient significance in the context of this case to merit being set out in full:

I make the following observations on the contents of this letter:

Following the Claimant’s return from Lilleshall there were two remaining weeks of the grid programme (week 23 and 24). The grids reveal that it was at the beginning of the final week, namely Monday 6^th March, that the Claimant was for the first time allowed to do what is described as ‘restricted’ training ‘with the squad’. It is on this occasion that the Claimant is recorded as suffering a ‘mild effusion’ (‘mild effusion rest ice’) which by the next day the 7^th March has become an ‘effusion with lat post discomfort’ which was patently of sufficient concern to the Second Defendant that the Claimant is referred that same day to Mr Rostron who sees him in the company of the Second Defendant.

Mr Rostron’s letter of the 7^th March reporting on the outcome of the review that day is again of significance. It is in the following terms:

I observe again that the Claimant’s progress to date is described as ‘absolutely excellent’ with reference to the Lilleshall ‘go ahead to start training’; the problems experienced in the knee the day before described as having arisen in a ‘ball session’, and which are confirmed on examination to be a ‘small effusion’ and ‘diffuse tenderness laterally’, are as far as I can discern, the first report of sufficient problems to demand from Mr Rostron’s standpoint, a temporary easing back of the activities to which the Claimant was being put. I say ‘temporary’ since the recommendation is for the Claimant to ‘take it a little easier over the next 2 to 3 weeks’ to give ‘the knee time to settle’ with a review in 3 weeks.

At this stage the grid records ceased, never to return, and the Second Defendant’s only method of record from 14^th March 2006 until the Claimant returned home to Scotland for the between season break (mid – May until end of June 2006) are intermittent entries in his diary. However, as far as the recommendation for his taking it easier for 3 weeks, this appears to have been complied with. The material diary entries (for the 9^th, 10^th, 11^th, 14^th, 16^th, 17^th, 20^th, 21^st, 23^rd, 27^th and 28^th March) were examined in the course of the trial, and although the Claimant did at one stage suggest that it was only in the first of the 3 weeks that he was allowed to take things easier, no final submissions were made to me that that there was in fact non–compliance. This would in any event have been a difficult submission to sustain in the light of Mr Rostron’s letter of the 28^th March sent to the First Defendant following his seeing the Claimant (again with the Second Defendant) on that date, in which to all intents and purposes ‘signs the Claimant off’ in the following terms:

It must be significant for present purposes that the treating orthopaedic surgeon was here advising that the Claimant could now increase his rehabilitation and look to consider playing in the next few weeks. The material diary entries themselves (there being entries in April for the 3^rd, 4^th, 6^th, 7^th, 10^th, 11^th, 13^th, 24^th, 25^th and 27^th; and for the 2^nd, 4^th and 12^th May) suggest, as confirmed by the Claimant in evidence, that he did thereafter begin to undertake some training sessions with the team (the youth team), beginning on the 7^th April, with subsequent references to training being in the entries for April 11^th (which also has the added indicator for ‘no problem’), 13^th and the 24^th, and I do have to record my finding that on the available documentary evidence there is nothing to suggest that the Second Defendant was or should have been aware that the Claimant was not fit to do so. I say this not only because of the various communications from Mr Rostron and from Lilleshall to which I have referred but also because, sparse though in many ways the records kept by the Second Defendant were during this period, it does appear that if a problem did become apparent he did note it (so for example the entry for the 7^th March leading to the referral to Mr Rostron), and I am satisfied that if any major problem had emerged at this time he would have noted it (confirmed again by his noting the call from the Claimant’s father at the end of June – as to which see below). There are two entries recording some problems in the April and May diary entries but on examination during this trial it emerged that they were of no significance and had nothing to do with the knee joint. So, on the 7^th April the entry reads: ‘JH training some AP pain only/ice’ which turned out to be a reference to ‘anterior patella’ i.e. the front of the knee, not a pain from within the joint; and for the 2^nd May, the entry ‘JH – Ice –Arms only L ADD/stn’ was reference to adductor muscle strain which had nothing to do with the knee.

The Claimant in his witness statement (paragraph 33) asserted that after these training sessions he began to feel a clicking in his knee which was so loud that other players could hear it (although I note the one player called to support this testimony, Scott Spencer, could speak only of the season 2006-2007) and about which he did complain. However I am satisfied that no such complaint was made to the Second Defendant, in so far it is being said it was a complaint of inner joint pain, for the reasons I have already given. It is true that the history taken by Mr Rees whom the Claimant saw on the 24^th August 2006 over possible cartilage grafting, records a history taken from the Claimant that ‘at the end of March he started getting a little bit of clicking and swelling’ but this description does not lead me to conclude that the Second Defendant had failed to pickup concerning symptoms in the Claimant at that time. It is further true that the joint view of the orthopaedic experts before me, having viewed the film of the July 2006 arthroscopy, was that by then there was a small focal area of grade 3 degenerative change in the knee, but there was before me no investigation of how symptomatic the knee was likely to have been back in March/April and I note the contrast in the history given to Mr Rees between was happening at the end of March (a little clicking and swelling) with what was happening in June (at a time when the Claimant was back at home) ‘by June he was having sufficient symptoms on the inner side of his knee on running and attempting to play sport to warrant a further arthroscopy’. I might also add that the history taken from the Claimant by Mr Rostron at the earlier consultation of 11^th July 2006 gives a history which makes no mention of symptoms in March/April (‘his left knee has been excellent but recently when running in a straight line he developed clicking on the inner aspect of he left knee associated with an effusion’).

In fact it is tolerably clear in my judgment that it was not until the end of June 2006 that the Second Defendant first had anything drawn to his attention which indicated that something might be going wrong inside the Claimant’s knee and further in my judgment, the documented history shows that the Second Defendant acted entirely reasonably in the period from 26^th June, when he received the telephone call from the Claimant’ s father, until arranging for the Claimant to be reviewed again by Mr Rostron on the 11^th July 2006 which led to the arthroscopy of the 18^th of July.

This period includes the 3 days spent by the Claimant at the Royal Marines Camp (described throughout as an ‘army training’ camp) in the context of which there is now no explicit allegation (if there ever was) that the Second Defendant negligently made the Claimant suffer the full rigours of the camp regime notwithstanding his reporting of physical problems with the knee. This suggestion does appear in the Claimant’s witness statement together with a further allegation of a disrupted camp attendance in July 2007 when it was said that the Claimant had to insist on pulling out on the second day. However Miss Bowron accepted in final submissions that, although the Claimant had been correct in his recollection of two camp visits over successive years, his recollection of the identity of the years was mistaken and the first visit, as Mr Hardwick deposed, aided by a camp photograph, was in July 2005 (before the original injury) and the second was in July 2006. Although I accept there may have been understandable confusion on the part of the Claimant on these matters, this confusion does nothing to assist the Claimant’s overall credibility as an historian, not least because his witness statement describes a disturbed visit to the camp on the first occasion as well as on the second, the distinction being that on the first occasion the Claimant did not pull out but was in tremendous pain with his knee throughout the week of which he made complaint to the Second Defendant, whereas on the second occasion things were so bad that he only lasted a day. As already indicated, it now seems to be accepted on his behalf that the first visit was in 2005 prior to any knee injury at all.

Be this as it may, the starting point in the context of this part of the history is the Second Defendant’s physio note record for the 26^th June 2006 - (on a sheet which was disclosed by him very late into the litigation, it having been discovered as a torn document outside the file kept on the Claimant) - a date just two days before the Claimant was due to return to the Club to begin the pre-season session, which records a telephone call from the Claimant’s father in these terms:

The oral evidence of both the Claimant and his father was that something new had indeed happened near the end of the post season break (the Claimant describing this pain as different from that which he had previously experienced, and regarded by him as serious, his father indicating that he himself did not regard it as a big issue although he had felt it was one that needed to be investigated), in that the Claimant had suddenly pulled up in pain after doing some 10 to 12 straight line runs at the local leisure centre. I should record that rather surprisingly neither mentioned this significant event in their witness statements although I accept that this may well be because at the time the material page in the physio notes had not yet been disclosed, (and perhaps for similar reasons, no mention was made of this matter by the Second Defendant in his statement, either).

The notes then show that the clamant did return early to the Club on the 28^th, that the Second Defendant recorded a subjective reporting by the Claimant that effusion had improved with no pain, and made an assessment that the Claimant could join in the camp but that his reaction should be monitored; that on the second day there was some effusion after the endurance course, that the Claimant was as a result put on restricted activities which excluded him from ‘the lower field’ (said to be a reference to the assault course) but had improved by the third day; and that on return from the camp, the Claimant on the 4^th July had been returned to restricted training any effusion having gone down.

However on any view the Claimant’s knee had become sufficiently symptomatic to require the further referral to Mr Rostron which set in train the series of investigations leading to the discovery of the degenerative changes in the knee which the Claimant seeks to lay at the door of the rehabilitation activities pursued at the instigation of the Second Defendant.

The chronology of events is at this stage is not in dispute:

It was accepted by all orthopaedic experts that this rate of change over 12 months following an ACL repair in a young man of the Claimant’s age (he was by now just 17) was unusually fast. Both Mr Banks for the Claimant and Mr Cannon for the First Defendant had not had previous experience of such an event. Mr Bickerstaff – out of his 2,500 ACL repairs – had like experience of only one other young patient. What was not universally accepted however was the cause of this change, with only Mr Banks attributing it to the activities being pursued in the rehabilitation programme with an under strength knee, the other two experts attributing it simply to the consequences of the original ACL/meniscus tear, i.e. it was the original injury that in fact predetermined the outcome for this knee at this stage (and indeed subsequently). This question of causation is a matter to which I shall have to return but I record at once Miss Bowron’s argument that this unusually rapid descent in the condition of the knee lends support to the proposition that it was ‘all the more likely that in fact the Claimant was pushed too hard and too soon’ by the Second Defendant, although I stress at once these arguments on causation cannot not in themselves (even if they are answered in favour of the Claimant’s case) be determinative of a breach of duty on the part of the Second Defendant.

In so far as it assists on the question of causation of these degenerative changes all parties referred me to the comments of Mr Rees orthopaedic surgeon at Oswestry Hospital (who describes himself in his letters as ‘consultant sports injury surgeon’) to whom on the advice of Mr Rostron the Claimant and his father had been sent to discuss the possibility of cartilage grafting, ‘in view (to quote Mr Rostron in his letter of 1st August) of the rapid deterioration of the degenerative change on the posterior aspect of the lateral tibial condyle’. These ‘Rees’ comments, to be found in this letter of the 24^th August 2006, sent to Mr Rostron, and copied to amongst others, the First and Second Defendants and the Claimant’s father, are in these terms (the highlights are those of the court):

Miss Bowron seeks to make the point that at this stage Mr Rees appears to have been under the impression that the meniscal resection of August 2005 had been more extensive than in fact it was since when Mr Rees in a letter of 11^th September 2006 reported back the results of the subsequent MRI scan (of the 29^th August), he reported that:

If one fast forwards to the results of the arthroscopy carried out on 7^th September 2007 (which was to reveal the further meniscal tear, this time in the medial meniscus), Mr Parkinson in his operation notes put the figure of remaining lateral meniscus at 75%. The joint statement before me of the orthopaedic experts who had the opportunity during the course of the trial of viewing the recording of that September 2007 arthroscopy, describes a ‘50% loss of the posterior horn of the lateral meniscus’, which as a proportion of the whole lateral meniscus equates to one sixth given the three divisions of the meniscus. So says Miss Bowron these findings all put a lie to the expression of opinion of Mr Bickerstaff to be found in the Joint statement of the experts under question 1, (and in the context of the impact the original injury on the development of the chondral damage to the lateral compartment of the knee), to an ‘extensive’ lateral meniscus tear sustained in the original injury. His written answer had continued in these terms:

Mr Cannon, who was recorded as agreeing with Mr Bickerstaff’s opinion, accepted that in fact the lateral tear was not as extensive as it had once been thought, although Mr Bickerstaff maintained his opinion as set out even on the now known basis of the 50% tear of the horn. Again this is a matter to which I shall return when considering questions of causation.

It is also convenient in this context if I record for the purposes of comparison the extent of the degenerative changes in the knee which again the orthopaedic experts themselves agreed was disclosed in the arthroscopy of September 2007, one year on from that in 2006, namely:

All agreed that the changes in the twelve months following the summer of 2006 had been markedly less than those following the first twelve months following the original injury, again a fact heavily relied upon by Miss Bowron in support of the Claimant’s case on causation of the chondral change found in July 2006 (‘If it is indeed the case that the rate slowed markedly after 2006 does not that make D2/3’s case that the die was cast from day 1 because of the original injury and not because of over activity for a knee with a markedly weak thigh much more difficult?’).

Mr Rees in his letter of the 11^th September advised against any surgical intervention for the moment and recommended instead that the Claimant be put ‘back into a gentle training programme’:

Thereafter the documented history of the next twelve months which is to end with the discovery in August 2007 of the further meniscus tear is not extensive. Again the records kept by the Second Defendant continued to be sparse taking the form of a number (totalling three) of sheets of physio note records. The first (at p. 290) begins with an entry for the 11^th September 2006 and the appointment with Mr Rees and then sets out an 8 week graduated programme for the Claimant, divided into 12 week cycles, which the Second Defendant says he had agreed with Mr Rees’ physiotherapist and which he says he then followed. Thus:

On the face of the record there appears no recorded assessments of how the Claimant progressed during these 8 weeks other than a possible handwritten entry along side the first cycle, of ‘no co-ordinate reaction’ and a ‘ditto’ underneath referable to the second cycle. However the Second Defendant himself could not assist on what this entry amounted to. Further the last line under the final cycle may well be a reference to that which had been detected (or rather not detected) either during that final cycle or on the next day. There are diary entries for this 32 week period but not many (a total of 13 spread over the weeks) which add little to any understanding as to how the Claimant was progressing although, such as they are, are consistent with the sort of activities contemplated by the programme. There then follow entries on this sheet which appear to confirm that following the completion of the ‘Rees programme’ the Claimant was returned to training (there being entries to this effect for the 17^th, 20^th and 23^rd of November and, on the next available sheet, for the 28^th November; 4^th, 5^th, 7^th, 8^th, 14^th, 15^th, 18^th, 19^th December; and 2^nd, 8^th, 12^th, 13^th, 15^th, 19^th; 28^th January 2007; and on the final sheet for this period (beginning 29^th January 2007). Overall there is little recorded – (although there is some reference to the occasional effusion in early November) - referable to any continuing knee problems. Such diary entries as there are do not assist save there are occasions suggesting that the Claimant was taken off the astro turf. There are however several entries suggesting that on training there was ‘NAD’ or was ‘normal’. The final sheet ending on the 8^th February 2007 does have a series of entries concerning problems the Claimant was having with his ankle but nothing referable to his knee.

The picture which thus emerges is that by the end of January 2007 the Claimant had effectively completed his hands-on rehabilitation with the Second Defendant and was now for the most part in training under the supervision of the coaches. Certainly his own case is that he had by late January returned to playing the occasional competitive game though he would say he was never able to complete a game. The Claimant himself said that he returned to full training in April 2007.

The next physio record of the Second Defendant does not re-appear until 3^rd July 2007 (Bundle p. 318) coinciding with the Claimant’s return from the between season break, which has the entries for the 3^rd July, 2^nd, 3^rd, 6^th August, and 17^th and 18^th August –– followed by the MRI scan of the 20^th August which discloses the complex tear of the posterior horn of the medial meniscus. What triggered the decision to send the Claimant for these further investigations is not entirely clear. The Claimant supported by his father says it was a result of the intervention of the Club manager to whom they had turned because of their concern for the Claimant’s continuing knee problems, the Claimant saying that throughout this period he had audible and excessive clicking and crunching in his knee, was in pain throughout, and was running with a limp. He told Mr Edis QC that throughout he was unable to walk more than 5 minutes without the onset of pain. The physio records of the Second Defendant however, such as they are, starting as indicated with the return in early July, do not suggest any longstanding problems of this sort. The initial entry for the 3^rd July reads as follows:

There are the some specific entries concerning the Claimant being off with diarrhoea in early August but with his returning to training on the 8^th. The only significant entries are the two immediately before the date of the MRI scan, viz:

The Claimant himself however could recall no specific acute incident (he had no recollection of the recorded discomfort on kicking) to which the new medial tear could be attributed. Indeed the majority view of the orthopaedic experts (Mr Bickerstaff apart) was that the complex nature of the tear revealed on the MRI scan and subsequent arthroscopy meant that it was an insidious tear which had occurred over time.

There was some controversy over how many games the Claimant was selected for and how many he was unable to complete by reason of problems with his knee. It was put to him by Mr Cory–Wright QC for the Second and Third Defendants that he was selected for a number of games, either to play or as a substitute on the bench, from January onwards until the summer, viz: for the Youth team on the 20^th January (against Crewe): 24^th January (Man City); early March (against Liverpool); 21^st April (Barnsley); 27^th April (Sheffield); 1^st May (Wolves ); 5^th May (Newcastle); 18^th August (Bristol City); and that he had been an unused substitute with the Reserve team in games on the 10^th, 18^th and 24^th April; and again was selected as an unused substitute for the full first team against Bury at Gigg Lane on the 14^th July; the purpose of this questioning was to elicit an acknowledgement (which was never really forthcoming) that the coaches would never have selected him if he had given them the impression that he was not fit to play.

The Claimant could not recall all of these games but did say he never played a full game ever: the first game on the 20^th January (recorded on the physio sheets but without adverse comment (‘NAD’)) he says was one in which he had to come off after 15 minutes because of knee swelling and pain; in the game against Liverpool in March he was only brought on for the last 8 minutes; in the Barnsley game on 21^st April he played only 6 minutes but could not remember why; in the game on the 1^st May he had to give up after 45 minutes; as to the game for the first team he was on the substitutes bench but only – according to what had been told – as an observer – along with all other youth players – with no prospect of ever being asked to play (a proposition strongly challenged on behalf of the Second Defendant).

The relevant documented history, relevant to the case against the Second and Third Defendants, based as it is on the inappropriate delivery of rehabilitation following the original injury of August 2005 is now complete. One moves now to the detail of the discovery of the medial tear, the operation on the 7^th September for its repair undertaken by Mr Parkinson and the subsequent onset of the septic arthritis and its treatment. This is very much now the territory relevant to the case against the First Defendant but it is also relevant to the case against the Second and Third Defendants to this extent: it is submitted on their behalf that the Claimant’s account as to when the symptoms first arose, which has been accepted on his behalf, cannot be correct, goes to an assessment of his credibility generally as a historian at any stage of this history.

I have sympathy with this submission so I proceed to set out my overall assessment of the Claimant’s credibility before turning to my conclusions on the claim against the Second and Third Defendants. The Claimant cannot, in my judgment, be relied upon as an accurate historian on any issue of fact which is not otherwise corroborated by other evidence. Arguments based on ‘medical plausibility’ have in the circumstances to be approached with some caution. I say this because of there being too many strands in the evidence where the court can confidently say the Claimant cannot be accurate. I have already detailed several in relation to his alleged persistent experience of and complaints of pain in his knee joint which are inconsistent with the reported history and findings contained within the medical records and the Lilleshall reports. And then there is the complete contradiction between what the Claimant has insisted on telling the court is an accurate account of the timing and nature of the presentation of his symptoms of infection after the operation of the 7^th September 2007 and that which has been accepted on his behalf before the court. The Claimant has for example given a graphic account via his letter before action, his pleaded case and his evidence to the court of his developing within two days of the operation and continuing throughout the following days, symptoms of cold night sweats, fever, dizziness, weakness and intense heat in his left knee and of the First Defendant accompanied by the Second Defendant visiting him at the Lodge on one of those days, pleaded as the 11^th September (the Claimant having reported the symptoms to the Second Defendant the day before) on which occasion the knee was very hot and the first defendant, having removed the splint and bandages, was able to observe pus seeping out of the stitches. Yet it is now accepted on behalf of the Claimant that it was on the 14^th September 2007 (the Friday) that the Claimant was seen that week by the First Defendant (and not at the Lodge) and on that occasion there were no signs or reports of infection (see above).

In any event the evidence of the Claimant on these matters is contradicted by the evidence, which I accept, given to the court not only by Mr and Mrs Elder who were the house parents running the Lodge but by the then assistant club physiotherapist Mr Porter. There is the detailed evidence of the Elders corroborated by the Lodge records that during the week immediately following his operation the Claimant would regularly leave the Lodge for at least a couple of hours and attend the training ground with no reported history of any extreme weakness or fever. The Elders themselves left the Lodge on the afternoon of Friday the 14^th September and did not return until the afternoon of the Sunday the 16^th. It was that Sunday, the 16^th, that the Claimant was complaining that his knee was not well (was ‘bad’) which resulted in his being taken up to the Abbey Hospital at Aintree. Prior to that day the Elders had no recollection of the Claimant complaining about his knee. There was similar evidence from Mr Loyden who had been in charge of the Lodge during the Elders’ absence. He noted in the records that the Claimant had left the Lodge at 11.30 am on the Saturday ‘to go to his Aunties’. His evidence was that to the best of his recollection the Claimant at that time was making no complaints about his knee. The effect of Mrs Elder’s evidence was that the Claimant had not returned to the Lodge until the Sunday afternoon with a suggestion that he had been driving his car. The Claimant strongly denied this suggestion. It is unnecessary for me to decide that particular issue. It is sufficient to record my conclusion that as regards the events of the week immediately following the operation, and in particular the history of onset of symptomology in the knee indicative of infection, the Claimant’s evidence (and indeed that of his father) is not reliable.

In the light of these findings so far, I turn to my conclusions on the claim against the Second and Third Defendants.

Sympathetic though any court must be to what has befallen the Claimant’s knee at such a young age, I find it impossible to hold that the Claimant has established any breach of duty against the Second Defendant and thus the Third Defendant. My reasoning is as follows, remembering always that the test to be applied is whether the Claimant has established that the care provided to him in the delivery of rehabilitation fell below the standard of the reasonably competent physiotherapist.

First and foremost my above analysis of the documented history of the rehabilitation discloses no ‘red flags’ ever being raised of which the Second Defendant ought to have been aware that the rehabilitation programme he had been pursuing between October 2005 and March 2006 or the return to training activities from April 2006 was inappropriate or was putting the Claimant at risk of damage being caused to his knee, notwithstanding the several occasions when a review of the Claimant’s progress to date was undertaken by on any view qualified professionals who by reference to their respective disciplines were clearly in a position to take a history from the Claimant and to identify any concerns in this regard. I refer here to Mr Rostron, the treating consultant orthopaedic surgeon, and to the professionals employed at the national rehabilitation and training centre at Lilleshall, in particular Mr Newton. Far from it, that which I have set out above discloses a general endorsement of that to which the Claimant was being put by way of activities (see for example Mr Rostron’s reports of 8^th November and 20^th December 2005 and my analysis at paragraphs 23 – 29 above; and the discharge letter from Mr Newton of February 2006 – see paragraphs 43 - 44 above). Moreover, again as I have set out, whenever any concerns were expressed, the evidence is all one way that the Second Defendant took them on board. For example, the implementation at the end of the formal 24 week rehabilitation programme of the three week ‘taking it easy’ period at the suggestion of Mr Rostron who it is to be noted at the end of that period expressly stated that the Claimant could now increase his rehabilitation and look forward to playing in the next few weeks. Further, inadequate though these defendants have conceded the records made by Second Defendant were, they do nonetheless reveal that the Second Defendant did on occasion respond to anything of concern of which the Claimant was complaining, for example the effusion noted in Week 12 and the effusion which led to Mr Rostron seeing the Claimant on the 7^th March 2006. See too paragraph 49 above in respect of the period of training sessions between April and May 2006 before the Claimant returned to his home for the between season break.

Further I have already given my reasons for rejecting, as I do, the Claimant’s evidence that he was during this period (or indeed in later periods) making persistent complaints of knee pain or instability in the knee which the Second Defendant was ignoring. My finding is that it was not until the end of June 2006 when the Second Defendant received the phone call from the Claimant’s father, that the Second Defendant had anything drawn to his attention that something might be going wrong inside the Claimant’s knee and that the Second Defendant acted entirely reasonably in response during the period thereafter leading up to the arthroscopy of 18^th July 2006 (and this includes the period at the Army camp). There is of course no refined allegation of negligence directed specifically at the activities to which the Claimant was put at the Army camp in July 2006.

Nor is there any refined allegation specifically directed to the return to training and then playing in late 2006 into 2007 following on the 8 week graduated ‘gentle training programme’ although the court is invited to infer a breach of duty in pushing the Claimant too far throughout this period - in the face of persistent complaints from the Claimant - by reason of the lack of any proper record keeping.

I turn to the discrete allegations of negligence before returning to this general allegation of breach of duty which is said is to be inferred from the keeping of inadequate records.