England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 March 2010

Mr Justice Owen :

Introduction

1. The defendant, David Farrow, is a highly successful athletics coach. At the material time he was licensed by UK Athletics, the national governing body for athletics, as a level 4 coach, the highest level under UK Athletics system.
2. The claimant, who was born on 12 September 1985, and is therefore now 24 years of age, is an athlete of world class potential. He was coached by the defendant from about June 1999, when he was 13, until they parted company in May 2005.
3. By his claim, which was issued on 26 October 2007, the claimant claims damages for personal injury and consequential loss and damage caused by the negligence, alternatively breach of contract, or in the further alternative, breach of statutory duty on the part of the defendant. Liability is denied; and on 10 October 2008 DJ Britton, sitting in the Bristol District Registry, ordered that liability be tried as a preliminary issue.

The factual background.

4. The background facts are not in issue. The claimant and defendant met at a schools athletic meeting, at which the claimant was competing in the 100 metres. According to the claimant the defendant approached him at the competition, told him that he thought that he had potential and asked if he would like to be coached by him. The defendant's recollection is that they were introduced by another youngster whom the defendant was coaching. In any event, after discussion with his parents the claimant began training with the defendant, initially twice a week, on an informal basis.
5. After about a year the defendant advised the claimant and his parents that he was concerned at the claimant's participation in other sports, in particular contact sports such as rugby and football. At that stage he was playing rugby, cricket and hockey for his school. The defendant told them that the claimant showed potential but needed to put more time into training. His parents were concerned at limiting his options at such a young age; and it was therefore agreed that they would consult his school. A meeting was duly arranged at which the claimant, his parents and the defendant met the headmaster and the head of sports, and it was decided that the claimant would give up other sports to concentrate on athletics.
6. The defendant's role became that of coach and manager. It is common ground that he would see the claimant for training two to three times a week, and would talk to him by telephone on an almost daily basis. The early promise shown by the claimant began to materialise. As he progressed he came to the attention of UK Athletics, and in 2001 was invited to join their programme for athletes with world class potential. The claimant continued to train with the defendant and with a group of other promising young athletes, a number of whom gave evidence in the course of the trial.
7. In early 2004 the claimant and defendant put their relationship on a formal footing by entering into a written contract dated 11 January 2004, the terms of which had been negotiated with the defendant by the claimant's father. The agreement contained the following terms which are of particular relevance to the issues to which the trial of liability gives rise:

"4. THE COACH/MANAGER'S OBLIGATIONS

4.1 The Coach/Manager shall provide coaching and advice to the Athlete (retaining the right to coach other Athletes). Such coaching is to include advice on fitness, health, diet and training schedules, strength and track training schedules, mobility work, injury prevention and rehabilitation, race tactics and strategy, advice on a programme of events to participate in, to accompany the Athlete to events and make himself available to the Athlete at all reasonable time and upon reasonable notice for the purposes of consultation and advice pertaining to the Athlete's career, both competitive and commercial.

5. PERFORMANCE, FITNESS AND INJURIES

5.1 The Athlete undertakes that other than pursuant to his/her obligations under this Agreement he/she shall not during the term of this Agreement participate in any professional or other sporting activity or practice that may endanger his/her fitness or ability to compete without the prior permission of the Coach/Manager.

5.2 The Athlete undertakes that he/she shall at all times during the Term compete to the very best of his/her ability and he/she shall make all reasonable endeavours to maintain his/her form and health so as to be available for regular competition.

6. THE ATHLETE'S OBLIGATIONS

6.1 The Athlete will, during the Term but subject to the Athlete's obligations in his/her education:

(a) make himself/herself available for all competitions and for training and for other duties … as and when required by the Coach/Manager … unless prevented from doing so by his/her obligations under any agreement relating to his/her participation in an international team or by illness, injury or accident or other cause which the Coach/Manager agrees so prevents him."

8. The claimant went on to enjoy a highly successful summer on the track. On 6 June he competed for Great Britain in the 400 metres and the 4 x 100 metres relay. On 20 June he won the 400 metre hurdles at the Midlands Senior Championships. On 3 July he represented Great Britain against Australia in the 400 metres and 4 x 100 metres relay. On 14/5 July he competed in the World Junior Championships, coming seventh in the finals of the 400 metre hurdles and breaking the UK Junior record.
9. The claimant was by now at the end of his school career and had secured a place at Loughborough University for September 2004 to read sports science and mathematics. But in the light of his successful summer on the track, he decided to defer his entry to university in order to train for a year on a full time basis.
10. The claimant continued to compete in September/October 2004 in a range of events up to 3,000 metres. On 15 October he travelled to South Africa with the defendant for a three week period of training at high altitude, returning on 6 November. In January/February 2005 he competed regularly, running at 400m, 800m and 1500m, and on three occasions, 2^nd and 15^th January and 18^th February, setting personal best times. In March 2005 he went to Spain with Team GB to compete in the European Indoor Championships, winning a silver medal in the 4 x 400 metre relay.
11. He continued to race regularly between April and early August 2005, but in May of that year he and the defendant parted company. The claimant subsequently gave formal notice to the defendant terminating their relationship.
12. In October 2005 the claimant took up his place at Loughborough University, but went up approximately two weeks before the start of the academic year in order to train. According to Nicholas Dakin, the Director of Coaching for Track and Field Events at Loughborough University, the claimant was experiencing pain in his back in training sessions, and was therefore referred to Dr Nick Pierce at the English Institute of Sport at Loughborough for investigation. On 29 September he underwent an MRI scan which revealed bilateral spondylolyses at L5, a diagnosis confirmed by a CT scan on 10 October. In lay terms the claimant had sustained stress fractures of the L5 vertebra. His condition was initially treated conservatively with rest, but on 25 August 2006 he underwent surgery to repair the fractures with bone grafting and fixation. Unhappily the fractures failed to unite, and in consequence on 1 March 2007 he underwent further surgery which has successfully united the fractures. But the consequence of the fractures, and of the treatment that the claimant has had to undergo, was that he was unable to train or compete for a period of years. It was not until November 2007 that he was able to resume training.

The issues.

13. The claimant's case is that the stress fractures were sustained in October/November 2004, causing significant pain which affected his ability to train, and which he drew to the attention of the defendant, but which the defendant ignored, dismissing his complaints as symptomatic of lack of motivation on his part. It is submitted that in breach of his duties to the claimant, whether contractual or tortious, the defendant failed to take the complaints seriously, assuring the claimant that there was nothing wrong with him. It is further submitted that he ought to have advised the claimant to have the condition investigated once it became clear that it was a persistent problem, and that had an investigation then taken place, the stress fractures would have been treated conservatively with rest, and that, on the balance of probabilities, they would have united satisfactorily without surgical intervention. The defendant denies that either the claimant or his mother complained to him of persistent back pain, argues that the evidence does not support the onset of acute back pain in the autumn of 2004, and that on the balance of probabilities the stress fractures occurred at a much earlier date.
14. The claim therefore gives rise to a number of factual issues:

i) When did the bilateral L5 vertebral stress fractures occur?

ii) If they occurred in October/November 2004, was the defendant aware of the symptoms to which they gave rise, or ought he to have been aware of such symptoms?

iii) If the defendant was, or ought to have been aware of such symptoms, what, if any, steps ought he have taken in relation to them, and in particular ought he to have arranged for them to be investigated, alternatively to have advised the claimant to arrange for such an investigation?

iv) If such an investigation had then been carried out, and revealed the existence of the stress fractures, what would the management and outcome have been?

But the claimant's case depends upon the answer to the first issue. He contends that he developed the stress fractures in about October/November 2004 when he began to experience pain in the lumbar spine of a quite different nature from that which he had previously suffered in that region. It is the defendant's case that the fractures pre-dated October/November 2004, and were probably of much longer standing. If the fractures developed at an earlier stage, then there could be no causal relationship between the alleged failure on the part of the defendant to respond to the claimant's complaints of back pain during the relevant period, and the injury, loss and damage for which the claimant contends. Accordingly as the first step in establishing liability, the claimant must discharge the burden of proving that the stress fractures occurred in October/November 2004. Unless he is able to do so, the remaining issues become academic.

When did the bilateral L5 vertebral stress fractures occur?

15. The parties each called expert medical evidence on this issue. The claimant called Mr J B Williamson, the defendant called Mr M J Gibson. Both are distinguished consultant spinal surgeons who have a specialist interest in, and considerable experience of the treatment of spinal problems in professional sportsmen and women. In addition to their individual reports to the court, they produced a joint statement dated 24 January 2010 which contained a summary of the large measure of agreement between them. In particular they agreed '…that there was no single feature in the history or the examination which is diagnostic of Spondylolyses but features such as pain on extension and rotation are common features'. They also agreed that it is impossible to state with certainty when the claimant suffered his stress fractures, but disagreed in the conclusions that they drew from the available material. The summary of the differences between them contained in the joint statement provides a framework for consideration of the critical issue, namely the point at which the stress fractures occurred.

"Mr Gibson points out that having reviewed the notes there is a long history of back problems dating back to before 1999. Mr Davenport had osteopathic treatment and was seen by Mr Assante in 1999. He also saw Rod Jaques on 5 October 2001, who documented features typical of spondylolses with limited extension of the lumbar spine, back stiffness and para-spinal muscles spasms. Subsequent multiple attendances to see sport therapists for treatment for back pain.

In Mr Gibson's opinion there is therefore clear documentary evidence to suggest a pre-existing back problem. There is however, no documentary evidence to support an acute presentation of back pain following the high altitude training in South Africa at the end of 2004. Mr Gibson is of the opinion that if he had developed an acute stress fracture at that time, he would have had to cease training for at least a month, probably longer, he would have not been able to return to competing for six months. It is Mr Gibson's understanding, Mr Davenport had no break from training and continued to compete at the highest level.

Mr Gibson is therefore of the opinion that on the balance of probabilities Mr Davenport's spinal pathology pre-dated the high altitude training in South Africa in 2004 and had probably been present since 1999.

Both surgeons noted that Mr Davenport had a MRI scan in 1999, neither had the opportunity to review these scans. We are not sure if the scan was of his back or groin and it was noted that the scan was apparently normal. If this scan was of his lower back and it was normal, it is less likely that the spondylolyses was present in 1999. Mr Gibson notes however that any scans taken at this time did not include the correct image sequences to demonstrate spondyloyses which were therefore frequently not demonstrated by MRI scan at that time.

Mr Williamson has placed more emphasis on the history given to him by Mr Davenport. This is that any back symptoms that Mr Davenport had prior to 2004 were trivial and that there was a step change in the level of his symptoms thereafter.

Mr Williamson was told that after this time the intensity of Mr Davenport's back pain had an adverse effect on his training programme, with him sometimes needing to stop training sessions early and sometimes entirely. Mr Williamson is therefore of the opinion that Mr Davenport's spinal pathology developed in the period of high altitude training in 2004. "

16. The joint report in draft submitted by Mr Gibson to Mr Williamson contained a further paragraph summarising their respective positions. At trial, he, or rather those representing the defendant, sought to withdraw that paragraph. But in evidence Mr Gibson explained that whilst he thought it appropriate to withdraw it as he felt that it encroached upon the role of the court, he agreed that it did fairly reflect their positions. It is in the following terms –

"Clearly the interpretation of this evidence is a matter for the court. If the court should find that the onset of Mr Davenport's symptoms were significant in 1999 or 2001 then Mr Williamson would concede that the situation as outlined by Mr Gibson is more likely. On the other hand, if the court should find that Mr Davenport's back pain symptoms were trivial prior to 2004 and significant thereafter then Mr Gibson would concede that it was more likely that that was the time of the onset of his spondylolses."

Thus it is clear that their conclusions as to the point at which the stress fractures developed were dependent to a considerable degree upon the reliance that they placed upon the history given by the claimant.

17. It is therefore necessary to examine the evidence of the claimant as to his symptoms, and to consider the relevant evidence from other witness, including the defendant, the claimant's previous medical history and other contemporary records before returning to the expert medical evidence. There is inevitably a circularity in the process in that whilst the opinion of the medical experts is strongly influenced by their understanding of the symptoms described by the claimant both in 2004/5 and at earlier periods, the claimant's account of his symptoms can itself be tested by reference to their expert evidence as to the likely effect of such an injury.
18. It was the claimant's evidence that from September 2004 his training gradually increased over the course of about a month, building up to 12 or 13 sessions a week. This was more intensive than any training that he had done before, and the regime was a lot harder. But it was whilst he was in South Africa in October/November 2004 that he began to experience tightness and soreness in his back. He attributed it to the extra training that he was doing, and the hard ground on which he was training in South Africa. In his second witness statement, and in response to a request to identify the point at which he noticed the problem with his back, he said:-

"… My recollection is that it came on during the period when my regime changed and actually was noticeable when I was in South Africa".

He described the symptoms as a burning sensation in the middle of his lower back radiating across the pelvis, and said that it was different to pain that he had previously experienced in that it only came on after longer runs, and went after rest. It was not like the normal training aches and pains that he had suffered in the past.

19. He further says that it was during the 2004/2005 season, which runs from December to March, that his back "became significantly uncomfortable". The pain affected his training in that on occasions he would have to drop out of a training session, and said that in such situations the defendant would say "OK, just leave it there". He says that he would explain to the defendant that his back was killing, and at paragraph 51 of his first witness statement:-

"There were times in training when my back was so sore that I was dragging myself over the line, 15 seconds after everyone else when I should have been winning. I would lie down immediately after the run on the ground where I had stopped. I was in intense pain and the only way to get rid of the pain would be to lie down on the grass on my back. I would just drop to the ground."

He says that on such occasions the defendant would often come over to him, or he would walk over to the defendant after resting, and explain why he had not completed the session.

20. That account is consistent with the history given to Mr Williamson in September 2007, and to Mr Gibson in September 2008.
21. Susan Davenport, the claimant's mother, says in her first witness statement that she first became aware of his having a problem with his back "… at the back end of 2004". She says that he started to complain of an aching back after training. She also gave evidence about an occasion when she picked the claimant up from training in early 2005, and found him lying on the ground in pain. The claimant told her he had a really bad back, and had to lie down on the back seat of the car for the journey home.
22. Martyn Davenport, the claimant's father, also gave evidence. In cross-examination he said that the claimant's back pain developed over a number of months, and that the claimant explained to him and his wife on numerous occasions that he was in severe discomfort from his back after certain types of training.
23. Evidence was also given by a number of young athletes who were trained by the defendant. Emily Pidgeon was called on behalf of the claimant. Her evidence is that she witnessed the claimant becoming unwell during training. At the time she did not realise what was happening to him, because although she saw him struggling, the defendant "was continually on about the fact that Richard was lazy and that there was nothing wrong with him". Her recollection is that he started having problems in the latter part of 2004 at about the time that he went to South Africa. She said that as the weeks went by he started to complain that he was getting pains in his back, that he would often be flat on his back at the end of training sessions lying on the grass because of the pain that he was in, and that as time passed the pain would come on earlier in the session, which meant that he would pull out of training. In cross-examination she said that it was obvious the claimant was in some discomfort and that "We (the other athletes) just knew he had problems with his back".
24. Ryan Preddy was called on behalf of the defendant. He maintained that to the best of his knowledge the claimant did not have a back problem during the relevant period, but conceded in cross-examination that he could not remember whether or not that was the case. Two other athletes were called on behalf of the defendant, Lloyd Pritchard and Peter Kellie. The former had not trained with the claimant during the relevant period, save for some sessions over the Christmas period in December 2004. He said that he was aware that the claimant had suffered from some kind of back problem, but at a much earlier period before he, Mr Pritchard, had gone to university in 2001. He said that he had spoken to the claimant on a number of occasions about his back problem, but that the claimant had not related it to training in South Africa in October/November 2004. He could not help as to when such conversations had taken place. Peter Kellie was at university in the relevant period but had trained with the claimant in his university vacations. His evidence did not assist as to any symptoms suffered by the claimant during the relevant period.
25. The defendant gave evidence that at no point during the trip to South Africa did the claimant mention to him that he was suffering any symptoms of pain and discomfort in his lower back. The claimant did complain of sore feet and pain in his calves, and as a result he arranged for him to be seen by a physiotherapist for massage on three occasions. He said in his first witness statement that if the claimant had at any time told him that he had pain in his back, he would immediately have curtailed any activity that interfered with the back. Moreover he said that when they were in South Africa he was himself suffering from a prolapsed disc, and in consequence was acutely aware of back problems. The claimant had had to help him with his suitcases and bags when they left South Africa, and he had consulted the physiotherapist to whom he had referred the claimant in relation to his own back problems
26. On 10 November 2004 the claimant told him that he had a problem with his knee, as a result of which he arranged for him to be seen at the Regional Performance Referencing Base at Bath University. But he was adamant that the claimant had never complained of back pain during the period in issue, and that he had not witnessed anything during training sessions to lead him to suspect that the claimant had a problem with his back. He accepted that on occasions the claimant had trouble finishing sessions, but so far as he was concerned that was because of sore feet or sore calves, never because of a back problem. Similarly he accepted that on occasions the claimant would lie on his back to recover following a training session, but again believed that that was due to his feet, calves or hamstrings.
27. There is a further aspect of the evidence that bears on this issue. The claimant contends that the defendant was a forceful and controlling personality who demanded a high level of control over the young athletes whom he coached. He gave evidence that the defendant wanted a say in all aspects of his life. The defendant would telephone on an almost daily basis, and would question his mother about what she was feeding him, wanting to control his diet. As he grew older the defendant would check on what he was doing outside training, wanting to know if he had gone out, and whether he had got back at a reasonable time. The claimant's evidence was supported by that given by his mother who said that as the years went by, the nature of her contact with the defendant changed from brief discussions to detailed inquisitions into the claimant's routine outside training. Although she found it surprising, she accepted that that was how professional coaches operated. The defendant's influence became a source of friction within the family. By way of example Mr Davenport gave evidence that "On many occasions, Richard would choose David and training over family events".
28. The claimant's evidence on this issue was also supported by the evidence given by Emily Pidgeon, who was trained by the defendant for seven and a half years from the age of 11. She described their relationship in her witness statement in the following terms:-

"Looking back at my time with David, I had not realised how controlling David was over his athletes. With hindsight, he was incredibly controlling. He controlled everything. David told me what I could eat, he insisted that I weigh my food so I just got enough. He said that if I went to bed hungry then I would burn more fat whilst I slept and keep my weight down.

If I wanted to go out shopping or to the cinema, I had to get permission from David because he wanted to ensure that I did not go to bed too late and get too tired for training. …

If I received any text messages when David was around, he would want to read them and know who exactly they were from."

In cross-examination she said that she was "in absolute awe of him" and "absolutely believed everything he told me". But as she grew older, she began to realise the extent of his control and, as she put it, of his "obsession with the rest of my life".

29. The other athletes trained by the defendant, and who were called by him, did not agree that he was unduly domineering, or that the demands that he made upon them were unduly intrusive. The tenor of their evidence was that he was very committed to his athletes, and that he expected a comparable degree of commitment from them. I fully accept that Mr Pritchard, Mr Kellie, and Mr Preddy did not find the demands made by the defendant objectionable. But I am equally satisfied that as the claimant and Miss Pidgeon matured, they found the degree of control that the defendant demanded, increasingly difficult to accept. Athletes who succeed at the level at which the claimant and Miss Pidgeon did, are likely to have strong personalities; and I have no doubt that as they matured there was a clash of personalities between them and the defendant in the sense that they became less and less prepared to accept the degree of control over their lives that he demanded.
30. Mr Dakin gave evidence which shed further light on the defendant's personality and relationship with his athletes. The evidence was contained in his witness statement and was not challenged in cross-examination. It was to the following effect:-

"Knowing David Farrow, he is pretty steadfast in his views on how someone should be coached and is not someone who readily listens to someone else's views. He is also controlling in the way in which he handles his athletes and he dictates how things are done. Younger athletes will tend to accept what their coach tells them in terms of how they train and what treatment they need and I can understand when Richard says he accepted David's advice on things".

31. The significance of the evidence as to the defendant's relationship with the athletes that he trained is that it provides the context within which to assess the claimant's evidence as to his back pain. Two points arise. It was put to the claimant and to his parents in cross-examination that if he had been complaining of back pain of the nature that he now describes, they would have taken steps to investigate it. But it is clear that both the claimant and his parents placed total reliance upon the defendant. As the claimant himself said in his first witness statement:-

"It is hard for people to understand as to why I did not go and see the GP myself. At the time, however, I would never have thought to do this. I always accepted that the defendant knew best.

When I was training with the defendant, I felt I could not do anything without him knowing. Anything that I did had to be done through him. It is not an easy thing to do, to arrange a referral without the defendant knowing. The second he would have said "Let's get a scan", I would have had it done and we would have got my back sorted. But nothing happened without his say so."

It is also to be noted in this context that paragraph 4.1 of the agreement that they entered into provided that his coaching would "… include advice on fitness, health…".

32. Secondly the evidence as to the nature of their relationship is relevant in that the claimant contends that it provides an explanation as to why his complaints were ignored by the defendant. The evidence shows clearly that from December 2004 until they parted company, the defendant considered that the claimant lacked motivation and had an attitude problem. The defendant's detailed training notes reveal his view of the claimant during the relevant period. On 3 November 2004 he recorded "Still grumpy, aim 1k runs after 6 minutes warm up moaning about shins and calves so called it off. He later said it was more his head and was cross with himself. So no real training today (emphasis in the original)". On December 2^nd he recorded "… 4 x 4 minute runs with group. Grumpy as behind. Poor attitude. Spoke to his parents that evening". The defendant gave evidence in his first witness statement that he had received a telephone call from Mrs Davenport on that evening saying that the claimant was being difficult, and that she was not sure that he was doing everything that he could in terms of his training and was lacking in motivation. His evidence was that he told her that he too was worried about the claimant's motivation. But Mrs Davenport gave a different account of the conversation. She said that she raised her concerns about the claimant's back but that the defendant responded saying "You know what Richard is like. He needs to get over it" and "I know when Richard is swinging the lead". It was common ground that after that telephone conversation a meeting between the defendant and the claimant and his father was arranged in a public house in Gloucester. The defendant's account of the meeting is that Mr Davenport accepted that the claimant had lost his motivation, and suggested that he would be more motivated if he could receive more sponsorship. Mr Davenport gave evidence that he could see that there were some difficulties in the relationship between the claimant and the defendant, and that the claimant was feeling "a little bit disillusioned", and he, Mr Davenport, felt that sponsorship might help. He said that the whole point of the meeting was to mediate some sort of reconciliation, as they still had great faith in the defendant.
33. The defendant's training notes record that on 4 December there was a meeting at his house. His evidence was that the claimant had been difficult in training, and that he had telephoned the claimant and asked him to come to the house because "Basically, I had had enough, I was deeply concerned by Richard's attitude. We had a row and I thought that our working relationship had come to an end. I asked him to leave after a heated discussion". But he went on to say that on the following day the claimant appeared again for training.
34. In his note for 23 January 2005 the defendant recorded "Running out of years and patience + peddling for him". On 1 February he noted "Crap attitude, says he can't do 1.49. Ryan's the no. 1. I want 400, hate jogging, whine, whine, whine". On 12 February he recorded "…awful negative, I can't do it attitude".
35. The claimant gave evidence that he thought that the defendant believed that the problem that he was reporting with his back was just an attempt to get out of training. Emily Pidgeon recalled the defendant saying continually at this time that the claimant was lazy and that there was nothing wrong with him. Lloyd Pritchard gave evidence that if you were someone who was lazy and lacked credibility, then any aches and pains would be met by the defendant with some cynicism.
36. Mr Dakin gave evidence that the claimant trained at Loughborough on two or three occasions between May and September 2005. He gave the claimant a schedule of training to take him to the end of the season,

"… but this was very softly softly because he had told me that he was experiencing problems with his hamstrings and had advised that he was having some problems with his back".

When in due course the claimant arrived at Loughborough in mid-September Mr Dakin, now responsible for coaching him, put him through some gentle background work which in the first week involved relatively easy background runs. As he put it, for someone of the claimant's calibre such training should not have caused any problem, but it became apparent that it was affecting him. That provoked the referral that resulted in the diagnosis of the stress fractures. Following their diagnosis, Mr Dakin recalls the claimant telling him that it explained the backache and hamstring problems that he had been experiencing.

37. I turn then to the claimant's previous medical history. On 19 March 1998 he attended the casualty department at the Dilke Memorial Hospital complaining of an injury to his back, the diagnosis recorded in the subsequent letter to his GP being "muscular injury to back". On 12 August 1999 he was seen by an osteopath, who described her findings as a short lived mechanical problem. But on 25 October 2001 the claimant was seen by Dr Rod Jaques in the specialist sports injury clinic at Winfield Hospital. Dr Jaques is, inter alia, Medical Officer at the British Olympic Medical Centre. He had been asked to see the claimant by Martin Rush, the South West Regional UK Athletics Development Officer. Dr Jaques described the claimant's problem to his general practitioner in the following terms

"Over the last two years he has had intermittent groin and lumbar spine associated with his running. He saw David Asante in 1999 who performed an MRI scan of his back which was reported as normal. Essentially Richard has flare ups which can last a couple of days or six weeks in his lumbar spine producing stiffness on jogging with discomfort after exercise. Sitting makes the lumbar spines stiffer and intermittently he has had both right and left sided groin discomfort."

It does not appear that Dr Jaques saw either the 1999 scan or any report on it, and neither has come to light. There is a difference of opinion between the expert witnesses as to the significance of Dr Jaques' letter, a point to which I shall return.

38. There are no further references in the medical records to any lower back problems between November 2001 and the eventual diagnosis of the stress fractures in September / October 2005. But the claimant was regularly treated at KO Fitness, a sports massage clinic in Gloucester. I heard evidence from both Kim Owen, a sports therapist who set up the clinic, and her sister Nicola Owen, both of whom treated the claimant during the period 20 December 2001 to 5 January 2007. The majority of the treatment was provided by Nicola Owen, but Kim Owen was able to say by reference to the clinic's treatment records that she saw him on 31 May 2002, that being the first occasion upon which there was any reference to back pain in the records. His lower back was recorded as very sore, and as a result he had not been training for the past week. She saw him again on 29 November 2002 when he requested a sports massage for his calves, hamstrings and lower back. In her witness statement she said he was suffering from low level back pain of the type that you would expect from any athlete running in competitive competitions, and she did not consider that it warranted referral to his general practitioner.
39. The records show that the claimant was treated by Nicola Owen, inter alia for tightness in the lower back, in late 2002 and early 2003. In her witness statement she said that she regarded the tightness in the lower back and associated pain, as a normal consequence of his training. The records then reveal treatment for tightness, inter alia, in the lower back on frequent occasions during 2003 and 2004. On 11 October 2004 Miss Owen noted that his calves, hamstrings, shins and lower back were quite sore. She did not find that surprising as he had run and won a 3000 metre race on the previous weekend. She saw him again on 17 December 2004 when she treated tightness in his lower back, hamstrings and calves. On 24 December she noted that his right calf was very sore after training, and treated both his calves and his lower back and lumbar spine. On 7 January 2005 he presented with tight calves and hamstrings and a sore Achilles heel having raced at the weekend; but she did not treat his back. On six further occasions in January and February 2005 she treated him, inter alia, for tightness in the lower back, on most occasions following a race. On one such occasion, 2 February, she recorded "sore and tender in L3/4", and specifically marked L3 on the body diagram on the treatment record form. The records also show that on that occasion she recommended that he see his chiropractor. When asked in cross-examination why she had given such advice, she said that she must have thought that perhaps the problem was not just muscular, and that there might be a problem with the bony structure itself.
40. The records show that she repeated the advice when she saw the claimant on 28 February and 11 March; and she explained in evidence that she did so because she had a continuing concern that there might be a joint dysfunction. But the claimant did not follow her advice.
41. There is a further contemporary source of information as to the claimant's back problems. Having been enlisted in the UK Athletics programme for athletes with world class potential, the claimant was regularly screened, and the records of such screening are available. The first relevant screening report "SW Potential athlete report" relates to the period September 2001 – November 2001. It contains the following report on the claimant:

"From discussion with Dave Farrow and feedback from Darcy appears training programme is all in place. However, concerns over controlling nature of relationship between coach and athletes (Ryan Preddy) and strong possibility that athletes are being pushed too hard too early. Prevalence of injuries in whole group suggests this may be case. Richard had an injury at the first Potential Camp weekend so was unable to physiological test. Reports from screening indicated potentially serious lower back problems of a fairly long-term nature. Referred to Rod Jacques, no screen necessary, improvement of condition and normal training has been resumed…"

42. The "Potential Athlete Update Interview" report dated 15 January 2002 recorded under the heading "Medical (Physio/massage usage)", "Injury concerns over lower back not bothering now. Ongoing massage treatment from Lorraine Shaw and Kim Owen". The "Great Britain Regional Potential Athlete Screening" dated 17 February 2002 recorded inter alia:

"Previous screen indicated a 3-4 month history of intermittent low back pain with objective loss of lumbar range of motion and over activity in the erector spinae muscles.

Since the last screening, the lower back symptoms have eased considerably to the point where Richard now only feels the symptoms after jogging for twenty minutes or so.

…

Passive Physiological Intervertebral Motion Testing…still suggest that there is stiffness particularly at the L4/5 level into right side flexion, right rotation flexion and extension."

The report recommended that the claimant continue with low back stretches "particularly into extension and right rotation", regular massage to lower back and calf, and "If massage not resolving the low back pain possibly source physiotherapist/chiropractor for further treatment to the L4/5 level if symptoms are not continuing to reduce".

43. I come then to the investigation of the claimant's spine in September 2005. The results are conveniently summarised by Mr Gibson in his report to the court in the following terms:

"There is a copy of the MRI scan report dated 29/09/05, when it was noted that the MRI scan showed bilateral spondylolysis, these appear to be chronic in that there is negligible oedema in the vicinity of these lesions. There is no associated spondylolisthesis. L4/5 and L5/S1 discs are degenerate and modestly narrowed. There is no significant protrusion or neural compression. The summary was of a chronic appearing bilateral L5 spondylolysis.

There is a referral letter dated 12/05/06 from Dr Nicholas Peirce, thank you for seeing this 20 year old 400 metre hurdler which is a first year Loughborough student with low back pain. It is noted that he had occasional back pain and stiffening during adolescence. More recently he has a recurrence of his pain which is present all the time. It is noted he had MRI and CT scans which demonstrated bilateral L5/S1 spondylolysis and degenerate discs at L4/5 and L5/S1 levels. He underwent a very carefully structured course debility rehab programme but he has never been able to step up to a high intensive training. Originally his pain was almost entirely on extension and disc pathology was discounted.

He was then seen by Mr Adams a consultant spinal surgeon who also noted that Mr Davenport had a 5 ½ year history of lower lumbar back pain, which had progressed since September of 2005. He noted that the CT scan had bilateral chronic appearance of spondylolysis at L5. The margins were a smooth (sic) smooth and sclerotic and the appearances were of an established non-union…"

44. That concludes the review of the material upon which a judgement as to the point at which the stress fractures occurred has to be made, and I therefore return to the interpretation of that material made by the expert witnesses, Mr Williamson and Mr Gibson.
45. They disagree on the critical issue. Mr Williamson came to the conclusion that the spinal pathology developed during the period of high altitude training in South Africa in October/November 2004. Mr Gibson concluded that on the balance of probabilities it predated the high altitude training, and had probably been present since 1999. Both experts were particularly well qualified to assist the court in resolution of this difficult issue. Moreover both impressed as witnesses who gave their evidence in a thoughtful and considered manner. They agreed in their joint statement that it is impossible to state with certainty when the claimant suffered the stress fractures, and whilst holding to the view that their conclusion was the more likely, they were each prepared to acknowledge the force of the rival arguments.
46. The first point to be made is that both agreed that it is very difficult to make a diagnosis of stress fractures on a clinical presentation. Whilst there are symptoms that may be suggestive of such fractures, such symptoms, most obviously lower back pain, may be attributable to almost any pathology in the lumber spine. Hence the cautious terms in which both approached their interpretation of the available evidence.
47. There was little between them as to their interpretation of the MRI and CT scans performed in late September and early October 2005. As Mr Gibson observed, it is impossible accurately to date such fractures from a scan. But the ends of the fractures were rounded off, suggesting wear and therefore an established non-union. Mr Gibson said in his report to the court they "demonstrated a longstanding old spondylolyses with an established none ...sic) unions, which would certainly have been more than 9 months and had probably been present for several years". That evidence, which was not challenged, would be consistent with the fractures having occurred in October/November 2004, but, per Mr Gibson, more consistent with the fractures having occurred at an earlier stage.
48. Secondly, Mr Gibson gave evidence that such fractures can develop in childhood, but only become symptomatic at a much later stage. He explained that there was a spectrum; some such fractures give rise to no symptoms, others to acute pain. In his experience such fractures can occur without an acute episode, and become symptomatic as pressure increases on the affected vertebra. They may also give rise to a chronic condition in which there is an established non-union, but in which symptoms come and go. In his view, the claimant's presentation is consistent with such a condition. He relies upon the references to back pain in the medical records, the UK Athletics screening records and the records maintained by KO Fitness, as demonstrating long term low grade episodic mechanical back pain dating back to 1998, which suggested to him longstanding symptomatic spondylolyses of L5, with symptoms that progressively worsened. As he put it in evidence, persistent on-going symptoms in one location raise questions as to the underlying pathology.
49. Mr Williamson expressed the view that spondylolyses is not a condition which relapses and remits. As he put it, it is there and the symptoms are produced by activity. Unremitting pain is indicative of an acute stress fracture. But the claimant's account of his symptoms in late 2004 and the first half of 2005 is of symptoms that fluctuated, in that they only came on after longer runs and went with rest. Furthermore in cross-examination he agreed that in cases of chronic spondylolyses, the symptoms can come and go. But he interpreted the earlier history of back pain as being consistent with tightness in the muscles of the lumbar spine attributable to his training and competing at a high level.
50. The experts also disagreed as to the conclusions to be drawn from the letter from Dr. Jaques to the claimant's general practitioner dated 25 October 2001. Mr Gibson considers that Dr. Jaques' description of the claimant's presentation is entirely consistent with existing spondylolyses with no contra-indications. He also pointed to the passage in which Dr. Jaques states that "two years ago he was off running for a total of four months…" as indicating the likely point at which the fractures occurred.
51. Mr Williamson accepted that the symptoms described by Dr. Jaques could be due to symptomatic spondylolysis, and agreed they would have given rise to a high index of suspicion that the claimant had suffered stress fractures in the lumber spine. He accepted that he could not say for certain that the stress fractures were not present at that point, but thought it unlikely on balance. In drawing that balance, he took account of the fact that Dr Jaques is an extremely experienced and well respected sports injury clinician, and thought it inconceivable that Dr Jaques would not have considered such a diagnosis. He inferred from the fact that Dr Jaques did not instigate any further investigation, that he must have ruled it out. He derived support for that conclusion from the fact that Dr Jaques prescribed stretching exercises, and that the whole tenor of his letter to the GP suggested that he thought that the pain was muscular in origin. He also pointed to the reference in the letter to the MRI scan performed in 1999 when the claimant was referred to Mr Assante (see paragraph 37 above), which was reported as normal. His response to Mr Gibson's suggestion that the reference to the claimant having been off running for a period two years earlier, ie in 1999, was that the relevant passage in Dr Jaques's letter did not necessarily mean that he was off running for four consecutive months.
52. As to the inferences to be drawn from the fact that Dr Jaques did not instigate any further investigation, Mr Gibson agreed with Mr Williamson that he would certainly have investigated further and sent the claimant for a scan. His explanation, necessarily speculative, as to why Dr. Jaques did not refer the claimant for such a scan, is that such a diagnosis would not have affected his management of the claimant and was therefore unnecessary. I did not find that explanation wholly convincing.
53. But it must be borne in mind that the letter from Dr Jaques is not a full medical report. It is simply a letter informing the general practitioner of the substance of his consultation and of his treatment plan. As both experts agreed, it must be approached with caution.
54. The next difference of opinion between the experts is in their answers to the question of whether it is possible to reconcile Mr Williamson's hypothesis, namely of acute stress fractures occurring in October/November 2004 with the claimant's subsequent training regime, and more importantly his level of competition in the first half of 2005. Mr Gibson considers that if the claimant had suffered acute stress fractures at that point, he would have had to stop training for a period of the order of three months. He does not consider that such fractures are compatible with an elite athlete continuing to compete and recording personal best times, see paragraph 10 above. He would be extremely surprised if the claimant could have performed at that level so soon after developing stress fractures.
55. Mr Williamson accepted that the effect of such an injury would have been "almost entirely negative, but not absolute." He accepted that the claimant would have been less likely to be able to sustain his level of performance, and that with an acute spondylolysis there must have been a significant decrease in his athletic ability. But he considered that the claimant would have been able to train and compete, particularly over shorter distances. It was his experience that "some patients with acute stress fractures do not have an absolute inability to continue training". In support of that conclusion he related his experience of footballers with such an injury who are able to play for half a match, but not complete a whole game.
56. Finally there was a critical difference between the experts in their approach to the evidence given by the claimant. That was clear from the paragraph in their joint statement that the defendant sought to withdraw, see paragraph 17 above. Mr Williamson placed considerable weight upon the claimant's evidence that in October/November 2004 he began to experience pain of an entirely different nature from that that he had experienced hitherto, and that it began seriously to affect his training. That evidence suggested strongly to him that that was when the fractures occurred. Mr Gibson, on the other hand, based his opinion on the contemporary records. He addressed the claimant's account of the onset of symptoms in October/November 2004 in the following terms in his report to the court:

"If there was a deterioration in his level of symptoms after his period of altitude training in South Africa at the end of 2004, I suspect this was coincidental rather than specifically related to the training in which he was involved."

Conclusion as to Issue 1

57. I have come to the conclusion that it is more likely that the bilateral L5 vertebral stress fractures occurred at an earlier stage than they occurred in October/November 2004. There is no single feature of the evidence that is determinative of the issue, but the principal reasons for arriving at that conclusion are as follows.
58. It was common ground between the experts that spondyloyses occurring in October/November 2004 would have been marked by the onset of acute pain in the lumbar spine. Given that the claimant was an elite athlete then training on a full term basis, he could be expected to have been able to give a clear account of when he began to experience such symptoms, if not to the day, at least within a relatively short time frame. But close analysis of his evidence demonstrates that he was unable to do so. In his first witness statement he said that he "…first began to suffer from some pain in my back when I was away in South Africa…I felt as though my muscles were tightening up from being tired…it was around this time, whilst in South Africa that the tightness and soreness in my back started." But in a later paragraph he said that it was during the 2004/2005 season, which runs from December to March, "…that my back became significantly uncomfortable." In his response to the defendant's part 18 request, he said that a development of lower back pain was gradual, but his "…best recollection is that they had reached a significant level by January or February 2005 at the latest". In cross examination he said that he was in "serious pain" in late October through to November. He was also cross examined about the paragraph in his witness statement in which he had said that he had explained to the defendant that " my back was killing", and said that he did not have an exact date for that paragraph, but that it would have been December – March. His evident uncertainty as to when he first began to experience significant symptoms, serves to undermine the hypothesis that there was an acute spondyloyses occurring during the three week period that he spent in South Africa in October 2004.
59. Secondly his case was advanced upon the basis that the probable cause of an acute spondyloyses was a marked increase in the intensity of his training from September 2004. There was an increase in the number of sessions as the claimant had begun training on a full time basis; but I accept the evidence of the defendant, given by reference to his training programmes for the claimant, that it was a moderate increase from the same period in the previous year, and was not therefore significantly more than he had done in the past. It is also to be noted that in this context that in their joint statement, the coaching experts whose reports were before the court, agreed that the regime undertaken in 2004-2005, based on the defendant's training log, was within the range of acceptable coaching (level 4) for an athlete of his ability and aspirations. I am not persuaded that there was a change in the level and intensity of training in September 2004 such as to provide an explanation for the development of spondyloyses.
60. If there was an acute spondyloyses in October/November 2004, it would be reasonable to assume that the claimant would have mentioned the resulting symptoms to those by whom he was treated during the relevant period. When in South Africa the claimant was treated by a physiotherapist, Evan Verster on three occasions, 1, 3 and 5 November. The defendant exhibited an email from Mr Verster dated 6 November 2008 to his second witness statement in which Mr Verster says that he treated the claimant for lower leg discomfort. It is not suggested by the claimant that he told Mr Verster that he had a problem with his back. On the contrary, he said that he was being told by the defendant that the pain in the back was nothing to worry about, and he did not want to go behind his back. I do not find that convincing. He had been referred to Mr Verster by the defendant, who, it is to be remembered, was himself then being treated by Mr Verster for a back problem (see paragraph 25 above). It is difficult to understand why, if he was then suffering from an acute problem in the back, he did not mention it to Mr Verster.
61. Shortly after returning from South Africa the claimant suffered a problem in his right knee which became swollen after training. As a result he was referred by the defendant to a sport's doctor, Dr Jackson, whose injury notes address the knee problem, but makes no mention of any back problem. At the follow-up appointment on 15 November, the claimant was seen by Dr Jaques, who had seen him in October 2001 (see para 37 above). Again there is no mention of any back problem in his note. The claimant does not suggest that he mentioned the back problem to either Dr Jackson or Dr Jaques, giving the explanation that he had been told by the defendant that his back was not a significant problem. Again I do not find that a convincing explanation. Those consultations were within a matter of days after his return from South Africa where it is alleged that he sustained the bilateral stress fractures. If he was suffering from a serious problem in the back at that point, it appears to me to be overwhelmingly probable that he would have told the doctors about it bearing in mind that he was being seen in a specialist sports clinic, and that he had seen Dr Jaques three years earlier in relation to a lower back problem.
62. Between November 2004 and May 2005 the claimant was treated on a number of occasions at KO Fitness and received treatment to his back. The treatment notes maintained at the clinic make a number of references to a tightness of muscles in the lower back, and on 2 February 2005 to "Sore and tender in L3/4". But there is no reference to pain and discomfort of the nature that the claimant says that he suffered during that period. Moreover Ms Kim Owen recommended that he see his chiropractor on three occasions, advice that he did not follow. When asked in cross examination why he had not taken that advice, he said that he was suffering significant back pain, but had been told by the defendant that he did not require attention. Again, I do not find that explanation convincing. Had he been suffering in the manner that he now describes, he would surely have followed the advice, bearing in mind that he had previously consulted the chiropractor.
63. There is also force in the point made on behalf of the defendant that there would have been physiotherapists and doctors at the events at which the claimant participated in 2005, in particular in the European Indoor Championships held at Madrid in March 2005 where the claimant competed as part of Team GB. There is no evidence to suggest that he raised the condition of his lumbar spine with doctors or physiotherapists on any of those occasions.
64. In this context it is relevant to consider the evidence given by Mr Dakin, who first became involved with the claimant in May 2005 when he gave the claimant a schedule of training to take him though to the end of the season (see para 36 above). I accept the evidence given by Mr Dakin, whom I found to be an impressive and reliable witness, that the claimant then told him that he was experiencing problems with his hamstrings and with his back. But had the claimant then been suffering from the level of pain and discomfort in his back indicative of an acute spondylolyses, I would have expected him to have been much more explicit in what he told Mr Dakin.
65. It is also necessary to consider the evidence as to whether the claimant and his parents raised the question of back problems with the defendant during the relevant period. As to that there is a stark conflict of evidence. The defendant is emphatic that the problem was not raised with him, and moreover that had it been, he would immediately have referred the claimant for appropriate investigation and treatment. That was borne out by the undisputed evidence that it was he who had arranged physiotherapy for the claimant in South Africa, and had referred the claimant for specialist attention at the Regional Performance Referencing Base at Bath when he suffered the problem in his right knee shortly after his return from South Africa, see paragraph 26 above.
66. But resolution of this issue is complicated by another, namely that of the claimant's motivation during the period in question. It is the claimant's case that the defendant had formed the view that he was lazy and lacking motivation, and that is why he disregarded the claimant's complaints about his back. There can be no doubt on the evidence before me that the defendant was becoming exasperated with the claimant, and did not consider that he was showing the commitment necessary to achieve his potential. That is clear from his own training notes (see paragraphs 32 - 34 above), and from the evidence of others who trained with the claimant. It was the defendant's evidence that his concern about the claimant's motivation was shared by the claimant's parents, hence the meeting at the public house in Gloucester to which I have referred at paragraph 32 above. But it is the telephone conversation between the defendant and Mrs Davenport that preceded that meeting that illustrates the conflict of evidence at its starkest. Mrs Davenport says that she raised concerns about the claimant's back in the course of the conversation, but that in effect the defendant dismissed them; whereas his account was that she told him that the claimant was being difficult and was lacking in motivation, but did not mention his back. It was in this context that revealing evidence was given by Mr Rob Whittingham who was called on behalf of the defendant. Mr Whittingham is the managing director of two companies, one of which has produced the British Athletics Annual for the past 20 years, which he edits. He is also the treasurer of the Association of Track and Field Statisticians. He attended the indoor meeting in Manchester in 5 January 2005 at which the claimant was racing, and by chance sat next to Mrs Davenport, whom he had not met before. They fell into conversation, and in particular discussed the claimant's performance. His account of the conversation was that Mrs Davenport then went on to say the she considered the claimant to be lazy and lacking self motivation. Mrs Davenport gave a different account. She claimed simply to have told Mr Whittingham that the claimant had the potential to do better. On this issue I prefer the evidence of Mr Whittingham. He was an entirely independent witness in the sense that it emerged he was contacted by those instructed on behalf of the defendant because of his deep knowledge of performance statistics. But in addition to giving his view as to the claimant's statistical profile, he volunteered his account of his conversation with Mrs Davenport. In evidence he explained that he had a very good recollection of the conversation as he rarely sat with mothers of leading athletes. He went on to say "the thing that stood out was that she said he was lazy." In my judgment that evidence lends considerable weight to the evidence given by the defendant as to the content of the telephone conversation with Mrs Davenport that had taken place about a month earlier. I am satisfied that at that stage the concern that was shared by the defendant and the claimant's parents was to his motivation.
67. I turn then to the question of whether the claimant could have continued to train and perform at the level he did in the first half of 2005 if he had suffered an acute spondyloyses in October/November 2004. Mr Gibson explained that the effect of such fractures would have been pain on exercise such as to prevent training or competing. He explained that if the claimant had tried to run, his back muscles would have gone into spasm; and it was his view that the claimant would not have been able to continue to train or to compete at the level he did. He pointed in particular to the personal best times that the claimant recorded in early 2005. Mr Williamson accepted that his performance would have been impaired, but sought to argue that he would have been able to compete over shorter events, and also referred in this context to his experience in treating footballers with the same condition who are able to play for half a game. But on this issue I found Mr Gibson's views persuasive. In my judgment it is unlikely that the claimant could have trained and competed at the level that he did had he been suffering from an acute spondyloyses since October/November 2004. I am reinforced in that view by the DVD clips of the claimant both training and competing during the relevant period.
68. There is then the question of the claimant's previous medical history. Mr Gibson argued, and I accept, that the records are entirely consistent with the fractures having occurred at a much earlier stage. They fit the pattern of a chronic spondyloyses with fluctuating symptoms; and Mr Williamson agreed that there were no clinical findings in the records that amounted to a contra-indication of spondylolyses having occurred at an earlier stage. As to the consultation with Dr Jaques in October 2001, the question is what inferences can be drawn from his clinical findings. Both experts agreed that on his recorded findings, they would have a high index of suspicion of spondylolyses, and would have had the claimant scanned. It was therefore not surprising that Mr Williamson agreed that there was nothing in Dr Jaques letter to the GP that was inconsistent with an existing spondyloyses. I am also satisfied that in retrospect it seems likely that the reference to the claimant being "off running for a total of four months" marks the point at which the fractures occurred.
69. I also consider that further support for Mr Gibson's conclusion is to be found in the UK Athletics screening records, see para. 41-42 above.
70. Finally I give weight to the unchallenged evidence from Mr Gibson that the appearance of the fractures in the scans taken in September 2005 demonstrated long standing old spondyloyses which had certainly been there for more than nine months and "had probably been present for several years".
71. In addressing this issue I have given careful consideration to the account of his symptoms during the relevant period given by the claimant. I accept that from time to time he suffered pain and discomfort in the lumbar spine, triggered by certain aspects of his training, and which on occasions affected his capacity to train. That would be consistent with the chronic condition described by Mr Gibson in which there is established non-union with symptoms that come and go, and with the treatment records maintained at the KO clinic. I also accept that it is likely that on occasions he complained about his back to the defendant, but that the defendant, who by that time had formed the view that he lacked motivation, dismissed such complaints as an excuse to avoid those parts of his training schedule that he did not enjoy. But in the light of the matters set out above, I do not consider that his description of symptoms of such severity as to be indicative of an acute spondylolyses occurring in October/November 2004 can be relied upon.
72. In my judgment the claimant has failed to discharge the burden of proving that on the balance of probabilites, the bilateral L5 stress fractures occurred in October/November 2004. It follows that the remaining issues identified at paragraph 14 above do not arise for consideration, and the claim must fail.