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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/05/2014

Mr Justice King:

Overview

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

• The first is the twisting injury sustained on the 12^th August 2005 in which the Claimant suffered a rupture of the Anterior Cruciate Ligament ('ACL') and a tear of the posterior horn of the lateral meniscus for which he underwent appropriate surgical treatment. This was followed by a programme of rehabilitation for which the Second Defendant as the employee of the Third Defendant was responsible.

• The second is the discovery following an arthroscopy on 18^th July 2006 of extensive chondral damage in the knee, in particular degenerative changes in the medial compartment and the lateral compartment together with the presence of numerous loose cartilaginous bodies.

• The third is the discovery in an MRI scan of 20^th August 2007 of a complex tear of the posterior horn of the medial meniscus in respect of which the Claimant underwent an operation for its sutured repair in an arthroscopy of the 7^th September 2007.

• The fourth is a complication of that operation, namely the subsequent infection of the knee by a particularly virulent bacterial organism known as staphylococcus aureaus ('Staph A') causing septic arthritis in the knee and which in turn gave rise to further chondral (cartilage) damage to the knee and other damage to the joint. This infection was first identified and treated by aspiration, washout, debridement and the intravenous introduction of appropriate antibiotics in an operation on Wednesday 19^th September 2007.

• The fifth is the failure of the medial meniscus repair. In that operation of 19^th September whose purpose was to treat the infection/septic arthritis, the decision was taken by the treating surgeon, Mr Parkinson, not to give up on the meniscus repair which was left intact in the hope that it would still succeed. In the event that hope was not fulfilled and on the 12^th October 2007 an operation was carried out in which the medial meniscus tear was found to have propagated and not healed. In other words the repair had failed with the result that a medial menisectomy was performed and the sutures removed.

2. 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.

The claim against the Second and Third Defendants

3. 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.
4. 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'.
5. 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):

'1. Failing to compile records which contain sufficient detail as to the Claimant's condition including complaints of pain or discomfort, his response to his rehabilitation and his suitability to move to the next stage of that rehabilitation generally and particularly throughout the entirety of the 24 week rehabilitation period commencing in October 2005;

2. Failing at other times when the Claimant was under his care to compile any records at all, for example in the period of the 8 week rehabilitation following the advice of Mr Rees in September 2006;

3. Causing or allowing the Claimant to start jogging too early namely in week 7 of the rehabilitation programme in 2005;

4 Alternatively to 3 above, causing or allowing the Claimant to move from walking to jogging to running too quickly in Week 12;

5. Causing or allowing the Claimant to carry out inappropriate activities before his left quadriceps had sufficient strength as judged by the isometric tests carried out on 18^th January 2006 and 10^th February 2006 and the measured wasting of the thigh;

6. Causing or allowing the Claimant to return to inappropriate activities from early April 2006 before his left quadriceps had sufficient strength as judged by the isometric tests carried out at Lilleshall ;

7. Failing to follow the protocol of Pieterson and Renstram in the manner set out in paragraphs 3 to 6 above;

8. Adopting a standard of care as exemplified by the standard of record keeping and generally to the Claimant's recovery from his original injury in 2005 and to his return to training and playing in late 2006 to 2007 following the advice of Mr Rees in September 2006 that fell below that of a reasonably competent physiotherapist.'

6. 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:

starting the Claimant jogging too early Week 7 of the 2005 rehabilitation programme;

moving the Claimant from walking to jogging to running 'too quickly' in Week 12;

as reflected in results of the isometric testing of 18^th January and 10^th February 2006, and the measured wasting of the thigh, causing/allowing the Claimant to carry out 'inappropriate activities' before his left quadriceps had sufficient strength;

as reflected in the isometric tests at Lilleshall causing/allowing the Claimant to return to 'inappropriate activities' from early April 2006 before his left quad had sufficient strength.

Albeit a fifth specific particular is made, namely that each of the above was a failure to follow the particular Protocol which had been adopted for the purposes of the rehabilitation.

The Claim against the First Defendant

7. 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 of the First Defendant

8. 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:

'For the purpose of this action alone, the first defendant admits that on 17 September 2007 when he spoke to the second defendant, the first defendant should have asked about the full range of blood tests from the 16 September. He further admits that had he done so those results, in particular the white cell count and the CRP and ESR result taken together, he would have advised (sic) that the Claimant be taken urgently to hospital (as he had advised on 16 September).

The first defendant further admits that this advice would have been followed and that it is probable that, on being seen at hospital, urgent steps would have been taken to deliver competent treatment, namely antibiotics and surgical treatment.

The first defendant admits that referral on the 17 September would have altered the outcome for the Claimant at least so far as two days of relief from his symptoms is concerned. No other loss or damage is admitted.'

By that letter the First Defendant made clear that the other allegations of negligence then pleaded against him in relation to other days, in particular the 11^th and 14^th September 2007 continued to be denied.

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

'In the light of the First Defendant's admissions … the Claimant will not pursue his other allegations of negligence in respect of a failure to diagnose septic arthritis relating to other days against the first defendant'.

10. 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).
11. 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.

The factual background to the claim

12. 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:

'At arthroscopy there was a substantial haemarthrosis and a synovitis. There was patchy fibrillation on the posterior surface of the patella. The medial compartment was normal. There was a complete rupture of the anterior cruciate ligament. The posterior cruciate was normal. There was a tear of the posterior horn of the lateral meniscus which was excised arthroscopically. There was a small amount of the popliteal bridge remaining.'

13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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).
21. 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 .
22. 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):

'James returned today. The wounds have healed nicely in front of the left knee and the sutures have been removed. He can now start a rehabilitation programme and for the next few days should weight bear with the help of crutches. I am sure these could be discarded when comfort dictates.

I will see James in 4 weeks time with X-rays of the left knee on arrival.'

23. 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.

'Bike, leg routine, abdo App Compex. Ice Abd min squat

Head tennis (sit down).'

Mr Rostron's report back to the First Defendant was in the following terms:

'James was reviewed today. His progress is excellent. He does have

an intermittent effusion which is being treated symptomatically with ice

and appropriate anti-inflammatory tables. However his left knee feels

stable.

Clinical examination reveals that Lachman's is abolished as is the pivot shift. He has regained full flexion of the left knee.

X rays of the left knee show the bone plugs to be nicely incorporated

James will step up his rehabilitation programme and I will see him again in 6 weeks time'

24. 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.
25. 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.
26. 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):

'James was reviewed today. His progress is excellent following the ACL graft of the left knee. He has no ongoing symptoms apart from occasional minor effusion after excessive activity. The left knee is stable and both Lachman's test and the pivot shift remain abolished.

He can increase his rehabilitation programme and I will see him again in three months time with x-ray of the knee on arrival.'

27. 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.
28. 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.
29. 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.

The stay at Lilleshall: the emergence of muscle strength deficits.

30. 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.
31. It is useful, as an introduction, to rehearse the particular material allegations now being made namely:

'causing or allowing the Claimant to carry out inappropriate activities before his left quadriceps had sufficient strength as judged by the isometric tests carried out on 18^th January 2006 and 10^th February 2006 and the measured wasting of the thigh' ...allegation 5) and

'causing or allowing the Claimant to return to inappropriate activities from early April 2006 before his left quadriceps had sufficient strength as judged by the isometric tests carried out at Lilleshall'.(allegation 6)

Measured wasting of the thigh

32. 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 isometric testing

33. 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:

'We do agree that isokinetic testing is not a good measure of functional ability. It is noted in the papers, especially Kvist's 2004 review, that it is not used by every practitioner and it is not considered essential. Should you use the testing it is an additional piece of evidence to add to the overall impression of the player's capacity and point of rehabilitation. It is not the 'Gold standard' and the results should not be seen as such. It was commented that whilst both of us have access to Isokinetic machines in our practices we do not use them for ACL rehabilitation testing, preferring our experience and patient assessment.'

34. 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'.
35. 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.
36. 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').
37. 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.
38. 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.
39. 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:

'Thank you for seeing James who is now in week 22 post Bone-Patella tendon autograft reconstruction of his left ACL on 27^th Sept 2005 having sustained the injury in training on 12^th August 2005 and undergoing an arthroscopic excision of a torn posterior horn of the lateral meniscus on the 23^rd August 2005.

He has come through his rehab virtually without any problems along the way. We are now at the stage of low speed turning/zig-zags with and without a ball, kicking with laces and full accel/decel. His Quads are reduced L to R by 25% concentrically other measurements are available but not reliable. He is pain and effusion free as he has been for a number of weeks. I hope you find him as good a patient as he has been for us.'

40. 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.
41. 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'):

'HPC: … uneventful rehabilitation to date. Now asymptomatic. No swelling or feelings of insecurity. Now running straight lines and zig zags with no problems. Also kicking no problems'

I note also that in the notes of examination on the following page it is recorded amongst other things the presence of a stable knee with a good level of strength and control.

42. 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.
43. 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:

'Re James Hall

Thank you for referring James and for bringing him along this week. His rehab has been sponsored by the PFA. James is making excellent progress following his left ACL reconstruction, which was performed in August 2005. This week James has continued with a programme of predominantly closed kinetic chain conditioning work for his left knee and he has also undertaken some movement/running activities. These have included straight line, side to side and some early rotational work. I performed an isokinetic evaluation of James' left and right thighs (concentric quads and hamstrings at 60º per second and concentric/eccentric hamstrings at 100º and 200º degrees per second). The slower speed concentric/concentric test revealed a left quads deficit of 34% with a slightly greater left hamstring force output (6%) than the right side. However the higher speed hamstring tests revealed significant force deficits on the left side. It is not surprising that these high speeds hamstring deficits are present as to date, James' conditioning programme has quite rightly concentrated on relatively slow movements. This is perhaps one area that can be addressed over the coming weeks i.e. introduction of faster paced hamstring patterned movements. I have enclosed copies of the isokinetic tests for your records.

James informed me today that he had developed generalised low back pain. There was no mechanism of injury and James said that he had experienced similar symptoms before. All active lumbar movements were full range with slight provocation of low back pain at end range. Bilateral SLRs were full and pain free and there were no radicular symptoms. I administered treatment aimed at symptomatic relief (interferential and hot packs).

James has made very good progress to date and is on target for a return to unrestricted training in a month or so. I think that James should be able to make significant inroads into the above mentioned strength deficits over this time, with a continuation of his rehab programme.

Thank you once again for referring James.'

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

1) It makes no adverse comment on the rehabilitation programme to date as reported either by the Second Defendant in his letter of referral or by the Claimant himself; in particular no suggestion that the activities explicitly referred to in the letter of referral low speed turning/zig zags with and without the ball, kicking with laces and full accel/decel were inimical to the known strength deficits

2) It does not suggest that the reported strength deficits in either the quads or the hamstring should be treated as a contra indicator of the continuation of the envisaged rehabilitation programme. It raises no 'red flags'. Far from it, it suggests that the Claimant had 'made very good progress to date' and that he was on target to a return to 'unrestricted training in a month or so';

3) Although it in terms (see the final substantive paragraph) contemplates that the Claimant should over this time, be able to make 'significant inroads' into the entirety of the strength deficits set out in the letter, if it emphasises anything, it is in relation to the need to address the high speed hamstring deficits as distinct from the quad deficits.

The 'hiccup' in the return to training – the referral to Mr Rostron of the 7^th March 2006 followed by a period of 'taking it easy' and Mr Rostron's subsequent 'discharge' of the 28^th March

45. 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.
46. 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:

'James was reviewed today. His progress until yesterday has been absolutely excellent and he was given the go ahead to start training at Lilleshall a couple of weeks ago, however after a ball session yesterday he developed an effusion in the left knee with some discomfort laterally.

Examination confirms a small effusion and diffuse tenderness laterally. There is full extension with slight terminal restriction of full flexion. Lachman's test is negative as is the pivot shift and anterior draw sign.

X-rays of the left knee show the bone plugs to be nicely incorporated with good position of the cruciate ligament.

James is to take it a little easier over the next 2 or 3 weeks to give the knee time to settle.

I will review him again in 3 weeks time.'

47. 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.
48. 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:

'James was reviewed today. His left knee is settled completely after taking it easy for the last 3 weeks.

He can now increase his rehabilitation and look to playing in the next few weeks.

I have not arranged to see him again routinely but will do so if necessary'.

49. 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.
50. 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').

The arthroscopy in July 2006: the discovery of the degenerative changes

51. 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.
52. 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.
53. 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:

'Phone call from Jim Hall: concerned following an incident when James was running in a straight line felt a pain and stopped – since has had some swelling

no pain – instructed to bring him down Early am the 28^th. Rest until then, NSAI + Ibuprofen'

54. 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).
55. 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.
56. 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.
57. The chronology of events is at this stage is not in dispute:

11^th July 2006 review by Mr Rostron who suspects a tear of the medial meniscus although this is not borne out by the subsequent arthroscopy. His reporting letter of even date records an examination revealing 'half an inch of thigh muscle wasting' with amongst other things 'tenderness on the inner side of the left knee' and limited flexion

the results of the arthroscopy of the 18^th July 2006 is recorded in Mr Rostron's letter of the 25^th July 2006 sent to both the First and Second Defendants, in these terms: I highlight the description of the degenerative changes, where the extent of change is measured on a scale of 1- 4 with 4 being the most extreme

'Examination … revealed that the … knee was stable …

At arthroscopy there was excess synovial fluid. There were numerous cartilaginous bodies which were excised. There was minimal fribillation on the posterior surface of the patella. In the medial compartment there was an area of grade 2 degenerative changes on the weight bearing area of the medial femoral condyle. There was an excellent anterior cruciate graft and the posterior cruciate ligament was normal. In the lateral compartment there was evidence of a previous menisectomy and there were grade 3 degenerative changes in the posterior aspect of the lateral tibial condyle and the lateral femoral condyle;'

The extent of the chondral damage there revealed

58. 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.
59. 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):

'Thank you so much for asking me to see this young Everton Academy player. Unfortunately he seems to have run into the ever common problem of early degenerative changes on the lateral side of the joint … you struggled to find any source for the medial pain but what you found was grade 3 changes on the lateral condyle and lateral tibia

At the moment of course he has got no symptoms as he is not playing any sport … the physical examination was unremarkable … just a trace of an effusion, he has got good extension, good flexion and perfect stability …

Plan and Opinion

We are all aware that this is quite a common problem and to me the whole crux of the matter is that meniscus, whether one considers cartilage grafting or not it is always going to be under threat without the meniscus. Before we do anything further Steve is arranging for an updated MRI scan with STIR sequencing …'

60. 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:

'The MRI scan shows that there has been a reasonably small partial lateral meniscectomy. There is still lot of meniscus in situ. The articular surface of the lateral femur indeed is a little scuffed but there is absolutely no chondral signal in the bone. This means there is not a deep lesion'

61. 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:

'The treating surgeon Mr Rostron recorded that he was able to preserve a bridge of lateral meniscus tissue. Mr Bickerstaff is of the opinion that this type of description by a surgeon would indicate that the posterior portion extending through to the middle third of the meniscus would have had to been extensively resected. As a result of the anterior ligament injury and in particular the lateral meniscal tear Mr Bickerstaff believes that it would have resulted in chondral damage in the lateral compartment of the knee.'

62. 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.
63. 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:

'As at 7 September 2007:

The general state of the knee on a diffuse basis shows grade 1-2 degenerative change. More particularly:

1. the back of the patella shows grade 2 degenerative change.

2. the trochlea shows grade 3 degenerative change.

3. the medial femoral condyle shows grade 1-2 degenerative change with an osteophyte on the edge.

4. the medial tibial plateau shows under the medial meniscus a small focal area of grade 3 degenerative change.

5. the lateral femoral condyle shows grade 1-2 degenerative change.

6. the lateral tibial plateau shows grade 1-2 degenerative change overall with underneath the meniscus there being a small focal area of grade 3 degenerative change.

7. there is a 50% loss of the posterior horn of the lateral meniscus.'

64. 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?').

September – November 2006: the 8 week 'gentle training programme' as recommended by Mr Rees

65. 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':

'Following full discussion with all my colleagues none of us think that surgical intervention is the way forward at the moment. (He) is going to get back into a very graduated exercise programme. … we ought to put him back into a gentle training programme and really just see how it goes. At this moment in time consideration of any major surgery is not … the best way forward'

66. 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:

'DR suggested slow progressive rehab. low impact.

Assessing day to day.

2/52 cycle/swim/weights (non- impact)

2/52 step/row/weights

2/52 jog(grass) 10'-10' intervals – 40'

Light ball work

2/52 Jog-sprint Acc/dec/football specific

Circuits: ball work. Twist/cut (no problem). NAD (meaning No abnormality detected)'

67. 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.
68. 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.
69. 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:

'returned pre-season with no reports of any problem. Trained with reserves and 18s without any complaints. Was observed using ice Post training but explained was precautionary; o/e (on examination) NAD (No abnormality detected)'

70. 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:

'17.08 c/o some medial knee discomfort on kicking (L) knee (o) some slight discomfort over hamstring group on palpation and sight discomfort on lat rotation. Knee quiet and non effused

18.08 On bench did not play'

71. 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.
72. 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.
73. 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 events following the discovery of the medial meniscus tear

74. 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.

The Claimant's credibility

75. 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).
76. 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.

Conclusions on claim against the Second and Third Defendants

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

Breach of duty

78. 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.
79. 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.
80. 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.
81. 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.
82. 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.

Jogging too soon

'(3) causing or allowing the Claimant to start jogging too early namely in week 7 of the programme in 2005'

83. This particular allegation depends on a disputed issue of fact (see above at paragraph 25). It flows from the grid entry for week 7 on the programme referring to 'treadmill' and the Claimant's evidence that whenever he went on the treadmill he would be told to jog, although he himself was unspecific as to when he started jogging. The Second Defendant's evidence was that treadmill did not indicate jogging although the treadmill could and was set for hill walking. It is to be noted that there is an entry on the Thursday of week 8 of 'treadmill walk' relied on by both sides of this dispute. What is further to be noted however is that the explicit expression 'jogging' is introduced into the grid for the first time only in week 12 (or rather the day before when no criticism is made). I have already found the Claimant to be an unreliable historian and on this issue I had no reason to doubt the reliability of the evidence of the Second Defendant having particular regard to the use of the term 'jogging' in week 12 onwards (or rather the last day of week 11). The likelihood is in my judgment that 'jogging' was not introduced until the end of week 11/beginning of week 12 (which moreover is consistent with the effusion noted that week). Hence this particular is not established.

Moving to jogging/running too soon

(4) … causing or allowing the Claimant to move from walking to jogging to running too quickly in Week 12

84. This is a hopeless allegation. I am as blunt as this because it depends upon the court accepting it to be reasonable and indeed the only inference to be drawn from the grid entries noted for week 12 indicating that there was a return to running on the Thursday notwithstanding the effusion on the Tuesday. I agree however with Mr Cory-Wright that there is no evidential support as a matter of fact or expertise to support any direct or inferential finding that the activities undertaken by the Claimant in week 12 constituted an unreasonably fast progression from walking to running in that week. I repeat further that which I have already analysed by reference to the proximate report from Mr Rostron of 20^th December 2005 (see paragraph 26 and 27 above) none of which supports the Claimant's assertion that he was at this time being pushed too far giving rise to persistent complaints. Further, I note the expert evidence of both physiotherapists in the joint statement (Qs 10 and 11) that it was reasonable for the Claimant to run in and from week 10 with a range of 2 - 3 months and further, as already highlighted, that minor effusions were commonplace and to be expected (joint statement at Q 13 – again see above paragraph 24 and 27). I record the Second Defendant's evidence that the jog on the Monday was a 'half jog' and the run on the Thursday was a 'slow run'. I do not however find this evidence decisive of the issue, rather it is the lack of any evidential foundation to support the inference sought, as explained above.

The allegations based on the results of the isometric testing

5. Causing or allowing the Claimant to carry out inappropriate activities before his left quadriceps had sufficient strength as judged by the isometric tests carried out on 18^th January 2006 and 10^th February 2006 and the measured wasting of the thigh;

6. Causing or allowing the Claimant to return to inappropriate activities from early April 2006 before his left quadriceps had sufficient strength as judged by the isometric tests carried out at Lilleshall;

7. Failing to follow the protocol of Peterson and Renstrom in the manner set out in paragraphs 3 to 6 above;

85. I deal with these allegations together since they are interlinked.
86. Allegation (5) flows from the propositions that the isometric testing results of January 2006 and February 2006 revealing at the very least a quad deficit in the left leg of some 25% (taken also with the measured left thigh wasting) which I have set out above were such that no reasonably competent physiotherapist could have allowed the Claimant to have undertaken the activities it is known he was asked to undertake prior to going to Lilleshall, namely 'low speed turning/zig-zags with and without the ball, kicking with laces and full accel/decel' and moreover it was a like breach of duty in this regard that in so doing the Second Defendant was departing from the Protocol he was following.
87. Allegation (6) flows from the proposition that the results of similar isometric testing at Lilleshall of some 34% quad deficit meant that no reasonably competent physiotherapist could have allowed the Claimant to have undertaken the training sessions he thereafter did in April and May 2006 (without the physiotherapist being satisfied by retesting that the quad deficit had been reduced to some lower figure 'sufficient').
88. I find neither proposition sustainable in the evidence I have heard.
89. I have already set out the unanimous view of both physiotherapist experts that isometric testing was not an essential part of a rehabilitation programme, that the results of any such testing were only additional pieces of evidence, and that the important assessment to be made in order to allow the player to progress through the programme into ever more strenuous activities was that of functional ability made through observation and assessment of the patient's balance, co-ordination and agility with the 'better indication' of whether progress to any particular activity (as distinct from the results of isometric testing) - such as the stated zig zags etc – being how the player was 'moving' and 'controlling the joint' and 'reacting'. On that basis there was on the evidence nothing to suggest that it was not appropriate for the Claimant to be progressing to the activities complained of in allegation 5. See again my analysis of the findings at and reports from Lilleshall.
90. There was no evidence before me that no reasonably competent physiotherapist would allow a player to progress to such 'allegation 5' or 'allegation 6' activities with the known quad deficit produced by the isometric testing in this case.
91. Much emphasis was put on behalf of the Claimant (and indeed, albeit in different ways on behalf of the defendants) on the range of deficits reported in the published literature at various stages of rehabilitation and the specified exact limits of muscle strength for a return to 'sports' prescribed or recommended in some (but only some) of the published papers and protocols.
92. A leading paper put before the court and much dissected in cross examination was that of Kvist (2004) which was a review of a series of published papers. The Review itself is headed 'Rehabilitation Following Anterior Cruciate Ligament Injury. Current Recommendations for Sports Participation' (emphasis is that of the court). In section 2.3 headed 'When to Return to Light and Contact Sports activities' the following passage appears which appears to identify a wide range of reported deficits at this stage (19 - 44%) which would embrace the 25 % and 34% deficit identified in this case and hence understandably relied on by Mr Buckingham on behalf of the Second Defendant to support the course followed by the Second Defendant:

'Evaluation of muscle strength and performance 6 months after surgery is important because traditionally patients return to contact sports at this time. Most reviewed studies report a 19 - 44% quadriceps muscle strength deficit 6 months after surgery'.

93. Mr Buckingham in the Joint Statement (under Q. 18) also referred to other published papers into which the known deficits of the Claimant 'at this point would fit well', namely:

'a. Kobayashi – 37% deficit at 6/12 mean

27% deficit at 12 months

b. Natri – 15% at 4 years'.

94. In contrast Mr Worth in evidence on behalf of the Claimant, and Miss Bowron in submission, urged a more analytical approach on the part of the court in the interpretation of the reported figures in these various papers by reference to the type of patient involved (whether or not an elite player) and the type of activity to which they returned with a given deficit. It is pointed out that Kvist further into the cited section identifies a recommended greatest acceptable deficiency of about 15% before allowing the patient to return to sports. The critical passage is in these terms:

'In the previously mentioned studies, only few specified exact limits of muscle strength and performance for allowing the patient to return to sports (three references to other papers given, which Miss Bowron demonstrated identified a 10% - 15% maximum strength and performance deficit criteria before return to contact sports) … therefore the greatest acceptable deficiency in isokinetic muscle strength should be about 15% before allowing the patient to return to sports'

95. Then reliance is placed by the Claimant on expressly recommended deficit criteria before return to identified activities contained within both the Pieterson protocol being followed by the Second Defendant and Dr Steadman's clinic protocol produced by Mr Buckingham (Dr Steadman being consulted by the Claimant in 2008) which are well below that of 25% or 34%.
96. Thus in the Pieterson Protocol under Goal '6. Return to competition (6 months and beyond)' the recommendation is that 'return to full unrestricted activity approved upon … Isokinetic strength (at least/greater than) 90% of opposite leg'. The body of the text dealing with ACL injuries states (internal page 281) '… activities that include cutting and pivoting should be avoided until the athlete has regained at least 85% of the strength of the thigh muscles as compared with the normal side'. The Steadman Clinic 'ACL Reconstruction Instruction Rehabilitation Protocol' advises (under heading 24 Weeks Postoperative (6 months)) (this being 'the earliest you should plan on returning to full sports') that 'to return to sports you should have: Quadriceps strength at least 80% of the normal leg'.
97. None of this citation of literature however, in my judgment, supports the proposition that it was and is a breach of the standard of care to be expected of a reasonably competent physiotherapist if he allows a patient player to return to the cutting etc identified activities and then restricted and then unrestricted training without ensuring that the quads deficit is within the criteria recommended in some of the literature. I can only repeat that the evidence was all one way that isokinetic testing is not regarded as an essential part of any rehabilitation programme or protocol and it cannot be an established breach of duty applying the Bolam test, for a physiotherapist not to apply some defined maximum quads deficit criteria, even if it is within the protocol he has chosen to follow, before allowing a player to progress to such activities. Indeed the evidence was silent on the extent to which a reasonably competent physiotherapist could be expected to be aware of the contents of the literature as regards such criteria. Mr Buckingham's evidence which I have no reason to reject was that that which Kvist had advised 'does not happen in reality'. Mr Worth himself conceded that where he worked the principles of isokinetic testing were not used very often and he preferred experience and functional testing.
98. The most that the evidence concerning the known results of the isokinetic testing in this case establishes in my judgment is that it revealed that there was a quads strength deficit which 'needed to be addressed' by appropriate muscle strength work with weights and so forth (Mr Buckingham conceded that much) but that it was not a breach of duty not to 're-test' the deficit to ensure it had been reduced to a defined level, before allowing the Claimant to progress to the activities complained of in these refined allegations of negligence. The real issue in my judgement is whether, in particular post Lilleshall, it is established on the balance of probabilities that the Second Defendant failed to take all reasonable steps to address the muscle deficit before allowing the Claimant to progress to restricted and then more unrestricted training in April 2006 onwards. As Mr Cory–Wright at one stage suggested, the allegation, based on Mr Worth's evidence, comes down to one alleging 'that in the period after the visit to Lilleshall from 21^st to 24^th February 2006 and until the end of that rehab programme in April 2006, (the Second Defendant) failed properly to ensure that the Claimant built up muscle strength in the quads of his left leg'.
99. Notwithstanding the paucity of the Second Defendant's note taking, I can not find this has been established. The Second Defendant was properly and vigorously cross examined about this aspect of muscle strength work. He was adamant that such work was undertaken. In particular this work would be identified in such entries as there were in the rehab grids as 'gym' (for example in week 23). Reference was made to weights routine sheets to be used by the Claimant. I have no reason to reject any of this evidence.
100. As I have already indicated, I find that the Second Defendant was very much a 'hands-on' physiotherapist who was working 'one on one' with the Claimant throughout the rehabilitation programme (including that in September – November 2006) and was personally aware of the Claimant's condition throughout these relevant periods. The suggestion that he simply ignored the known results of the isokinetic testing is not borne out by the evidence. He expressly drew the known results pre Lilleshall to the attention of Lilleshall in the letter of referral. The Newton letter of discharge drew his attention to the results obtained at Lilleshall and not only commented that the Claimant had made 'very good progress to date and is on target for a return to unrestricted training in a month or so' but that he 'should be able to make significant inroads into the above mentioned strength deficits over this time, with a continuation of his rehab programme'; (see again my further observations on this letter at paragraph 43 above). There is no basis for any finding that the Second Defendant simply ignored this letter.
101. Further if, as I find to be the case, the accepted approach to be adopted by a reasonably competent physiotherapist when allowing a player patient to progress to ever more strenuous activities is that of experience, observation and assessment of functional ability, I am quite satisfied that the Second Defendant did adopt that approach. Again the evidence is all one way that when the Second Defendant did detect anything of concern in this regard he took steps to investigate. See for example the 'hiccup' in the progression to training following the return from Lilleshall and the referral to Mr Rostron in early March.
102. Miss Bowron wills me to find – based in particular on the paucity of the record keeping - that no proper on going assessment of the Claimant was ever made by the Second Defendant properly to permit the Claimant's progression to training. She relies on the expression of principle by the Court of Appeal in Keefe v The Isle of Man Steam Packet Company [2010] EWCA Civ 683 at paragraph 19 that 'a defendant who has in breach of duty made it difficult or impossible for a Claimant to adduce relevant evidence must run the risk of adverse factual findings'. That was a deafness claim by Mr Keefe's widow against his former employers alleging a breach of duty in exposing her husband to excessive noise. The county court judge had dismissed the claim on the basis that excessive exposure for periods of sufficient length in hours, had not been proved, although he had also found that they had failed to make noise assessments in breach of duty. The Court of Appeal reversed this decision. The critical expression of principle was more fully expressed thus:

'19. If it is a defendant's duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that the noise levels were not, in fact, excessive. In such circumstances the court should judge a Claimant's evidence benevolently and the defendant's evidence critically. If a defendant fails to call witnesses at his disposal who could have evidence relevant to an issue in the case, that defendant runs the risk of relevant adverse findings see British Railways Board v Herrington [1972] AC 877, 930G. Similarly a defendant who has, in breach of duty, made it difficult or impossible for a Claimant to adduce relevant evidence must run the risk of adverse factual findings. To my mind this is just such a case.'

103. Keefe was applied on causation rather than breach of duty in Shawe-Lincoln v Neelakandan [2012] EWHC 1150 (QB) where Lloyd-Jones J (as he then was) observed (at paragraph 81) that Keefe was not concerned with the reversal of the burden proof but rather with the weight which is to be attached to evidence and the circumstances in which the court may draw inferences.
104. So Miss Bowron argues in a case such as this where it is conceded that the record keeping fell below the standard set by the CSP (Chartered Society of Physiotherapists) that it is improbable that any assiduous objective assessment of the Claimant's function in the face of the known strength deficits function, ever occurred. In her written submissions she put the matter thus:

'(Keefe's) relevance here should be … to consider the black holes in D2's notes in a critical and questioning way and where D2 assets that he would have done or said things then to treat that with scepticism where in fact that should be a note by D2 recording the same;

That may be of particular relevance when considering what steps if any D2 took to ensure C was ready at any stage to progress from one stage of the rehabilitation to another or to return to training in March/April 2006.'

105. I accept the need to assess the evidence of the Second Defendant critically and the need for the court to consider what proper inferences should be drawn from the paucity of the note taking but that said, I cannot and do not make the findings Miss Bowron urges upon me. This is not a case in which there is no other evidence upon which to test the veracity/reliability of that which the Second Defendant told me. See my above analysis of the period up until the Claimant went to Lilleshall and then from his return from Lilleshall to the return to Everton after the between season break at the end of June 2006 through to the arthroscopy results of July 2006. I have also had cause to make findings on the unreliability of the Claimant as a historian. My findings, on the absence of any significant complaints by the Claimant or any observable feature of the Claimant's functional ability giving rise to concern that something was going wrong inside the Claimant's knee until the end of June 2006, stand. I repeat my finding that no criticism is to be made of the Second Defendant's handling of the Claimant's case in the period thereafter leading up to that arthroscopy.

Allegations (8)

8. Adopting a standard of care as exemplified by the standard of record keeping and generally to the Claimant's recovery from his original injury in 2005 and to his return to training and playing in late 20006 to 2007 following the advice of Mr Rees in September 2006 that fell below that of a reasonably competent physiotherapist.'

106. This by its terms is a very general allegation of negligence. In truth it adds nothing to that which is specifically complained in the earlier allegations save (like allegations (1) and (2)) it emphasises the failure to keep proper records and (as does allegation (2)) highlights the lack of proper records in the later 8 week period of rehabilitation following the advice of Mr Rees in September 2006. The lack of detailed notes however cannot in itself amount to a cause of action giving rise to any actionable damage. Its significance is as already explained, namely it enables the Claimant properly to make the submissions he does, that the court should draw adverse inferences against the Second Defendant and conclude (in the particular context of the September 2006 period onwards) that the likelihood is that his standard of care did fall below that of any reasonably competent physiotherapist in allowing the Claimant to progress to full training and competitive games. For the reasons I have already given however I cannot do so. My analysis of what is known by reference to the documents is set out above at paragraph 66 onwards. It is not quite true to say that nothing is recorded of any significance. There are entries suggesting that on training there was 'NAD' (nothing abnormal detected) and a series of entries for early February 2007 concerning problems with the Claimant's ankle but not knee. I remain of the view that had the Claimant during any part of this period being exhibiting signs that something was going wrong with his knee these would have been taken up by the Second Defendant and investigated as he had in the past – but the inference must be in my judgment that there were none. Although not decisive in the context of this case which has concentrated on the Second Defendant's care of the Claimant while undergoing rehabilitation, there is some force in Mr Cory-Wright's suggestion to the Claimant that the coaches would not have selected the Claimant to be part of the squads for competitive games from January 2007 onwards had he been exhibiting symptoms that he was not fit to play. As shown above, when the Claimant returned to the Club in July 2007 the physio record of the Second Defendant was that the Claimant had returned pre season without any complaints.
107. For all these reasons I do not find any breach of duty established against the Second and Third Defendants. I am confirmed in this conclusion by the fact that even Mr Worth. who was critical of the Second Defendant's progression of the Claimant's rehabilitation by reference to the known deficits in the quad strength, originally acknowledged in the Joint Statement (Question 9) that on the question whether the Claimant's rehabilitation had fallen below standard that 'it is a difficult question as the margins are fine' and on the specific question (22) on the appropriateness of the Claimant carrying out the zig zag activities with the known deficits, was originally of the view that 'that he finds it tough to say if the care provided to the Claimant in this regard does fall below the standard to be expected of a reasonably competent physiotherapist' although it is right to record that in oral evidence he said that on reflection he had 'firmed up' on his opinion adverse to the Second Defendant.

Causation as against the Second and Third Defendants

108. In the light of my findings on breach of duty, it is strictly unnecessary for me to determine the issue raised as to causation of damage if a breach of duty had been found. However out of deference to the submissions made I give my conclusions on the issue.
109. It is common ground that this is an issue for the expert evidence of the orthopaedic surgeons rather than for that of the physiotherapists.
110. The case for the Second and Third Defendant is straight forward. Mr Cory–Wright relies upon the reported opinions of both Mr Bickerstaff (his orthopaedic expert) and that of Mr Cannon (for the First Defendant), supported without waiver in oral evidence by Mr Bickerstaff at least, so as to invite the court to find that the Claimant has failed to establish causation on the balance of probabilities. He invites the court to find in the light of those opinions that, given the agreed position there was not at any time during the material rehabilitation any instability in the knee, neither the physiotherapy regime as a whole nor (he would say a fortiori) any of the specific failings now pleaded, can on the evidence have contributed to the chondral damage generally (whether that arising between the original injury in August 2005 and the arthroscopy in July 2006 or that arising between the arthroscopy in July 2006 and the arthroscopy in August 2007) or the medial meniscus tear discovered in August 2007.
111. The oral evidence of Mr Bickerstaff did indeed confirm that which he had already stated in writing, and was to the effect that in the absence of any instability in the knee, neither exercise generally nor 'excessive' exercise in the sense complained of by the Claimant could have caused or contributed to either the chondral damage nor the meniscus tear nor any other damage. This was in confirmation of what he had said for example in his report of 01.11.12 at paragraph 3.9 and 3.10 that:

'a year after surgery Mr Hall's knee broke down and it was evident at the arthroscopy to Mr Rostron that he developed chondral changes within the knee. Unfortunately this is well recognised as a complication following an anterior cruciate ligament reconstruction particularly in the presence of a lateral meniscal tear. Lateral meniscal tears in young individuals who are involved in high impact sports even when occurring in isolation are well recognised to result in early chondral changes within the lateral compartment. It would appear to me that the changes identified at a year post injury are solely as a result of the initial injury sustained'.

112. This was in further confirmation of what he had said at Q1 of the Joint statement to which I have already referred, ('Mr Bickerstaff believes it should be noted that the Claimant did not sustain an isolated anterior cruciate ligament injury in August 2005 … The treating surgeon Mr Rostron recorded that he was able to preserve a bridge of lateral meniscus tissue. Mr Bickerstaff is of the opinion that this type of description by a surgeon would indicate that the posterior portion extending through to the middle third of the meniscus would have had to been extensively resected. As a result of the anterior ligament injury and in particular the lateral meniscal tear Mr Bickerstaff believes that it would have resulted in chondral damage in the lateral compartment'. It was also in confirmation of what he had said at Q9: ('Mr Bickerstaff believes that the cartilaginous changes are not related in any way to the rehabilitation programme').
113. Mr Cannon himself agreed in the Joint report with Mr Bickerstaff both in Q1 and in Q9 ('I believe that this young man had ongoing degenerative changes related to his initial injury and his physiotherapy programme was non-contributory to the outcome').
114. It was only Mr Banks for the Claimant who consistently in his written report, joint statement answers and oral evidence expressed the view that the rehabilitation 'has materially contributed to the early degenerative changes and cartilaginous loose bodies' (Joint Statement Q9 - in which he also describes that rehabilitation as 'poor') (the emphasis is that of the court).
115. On this issue I consider that Mr Banks is the more compelling witness. I accept Miss Bowron's submission that on the issue of causation, Mr Bickerstaff had wrongly assumed (notwithstanding he had, contrary to his evidence, seen the 2007 video) that the loss of the lateral meniscus was more extensive than in fact it was and had failed to take into account that the rate of changes in the initial 12 months to summer 2006 was remarkably high, and highly unusual and that it was remarkably less in the 12 months thereafter (see again at paragraph 58 above). More importantly however it does seem to me that the 'Banks approach' to this issue is both logical and sensible. All experts agreed that chondral damage requires activity to occur even if the thesis is, as per Mr Bickerstaff, that what has occurred here is only the result of expected 'wear and tear' while the knee is in function. In these circumstances given the 'activity' which occurred in this case in the 12 months after the 2005 injury and indeed thereafter had occurred in the context of the rehabilitation programme being litigated in these proceedings, then had I concluded that there had been activities instigated in the programme at the behest of the Second Defendant in breach of his duty of care (whether such activities be described as 'over' activities or otherwise) then I would have had no difficulty in concluding that such breach of duty had materially contributed to the damage complained of in this case (be it the chondral damage discovered in 2006 or thereafter the meniscal tear found in 2007).
116. To be fair to Mr Cannon, he himself in oral evidence appeared to row back from his unqualified agreement with Mr Bickerstaff on this issue and effectively agreed with Miss Bowron that if there was 'over activity with a weak knee', then that too (as well as 'ordinary' wear and tear) must have materially contributed to the damage.
117. This is why had I found in favour of the Claimant on the question of breach of duty I would have been minded to find in his favour on the question of causation albeit there would no doubt still have been an outstanding issue for the quantum trial as to the extent to which the breach of duty had brought forward chondral and other knee damage (in terms of by how many years) which in time would have occurred in any event by reason of 'ordinary' wear and tear.
118. However for the reasons given I have not found in favour of the Claimant on the question of breach of duty. I stress that my conclusions on breach of duty are unaffected by my conclusions on causation. The issue on breach of duty was not whether there was evidence from which the court might conclude that the activities undertaken in the rehabilitation programme had been causative of or materially contributory to the damage complained of in this case but whether it could be shown that the Second Defendant had in pursuing the programme he did and in causing/allowing the Claimant to undertake such activities as he did, fallen below the standard of care to be expected of 'the reasonably competent physiotherapist' (the well known Bolam test - Bolam v Frienn Hospital Management Committee [1957 1 WLR 582). At times Miss Bowron did appear to be relying on evidence said to be indicative of 'over' activity (see for example paragraph 58 above) as evidence determinative of breach of duty. I reject however the legitimacy of this approach to breach of duty. This is not a case of 'res ipsa loquitur' in my judgment.

Factual background material to the claim against the First Defendant. The course of events following the discovery of the medial meniscus tear

119. With my observation on credibility in mind, I turn to record what can be confidently found to be the sequence of events material in particular to the claim against the first defendant, after the discovery of the medial meniscus tear in the operation of the 7^th September 2007, having particular regard to the medical records.
120. As already conceded on the Claimant's behalf there were no signs of infection in the knee when the Claimant was seen by Mr Thomas on Friday the 14^th September which would have been between 1pm and 2pm. Mr Edis QC however asks to me accept the evidence of the Claimant, supported by his father's account of a telephone conversation with his son on the evening of the 14^th when he says he formed the impression that the Claimant was particularly unwell, that his knee was beginning to show material symptoms on the evening of the 14^th. I cannot accept that invitation. I have already found the Claimant to be a wholly unreliable historian on the issue of the history of the development of his symptoms and I did not find his father any the more convincing. Moreover there is the evidence of Mr Loydon that as far as he could recollect when the Claimant left the Lodge at 11.35 in the morning of the 15^th the Claimant was making no complaint about his knee. I am driven to decide the probabilities of that development by reference to what can be sensibly derived from the medical records. On that basis I conclude that the probabilities are that the knee first became symptomatic referable to the onset of the infection caused by the entry of the Staph A bacteria some 6-9 hours earlier, (the period of 'silent' multiplication of bacteria following initial entry accepted by both experts on microbiology) sometime on the Saturday 15^th.
121. I reach this from the history set out by the RMO in the hospital notes for the visit of the Claimant to the Abbey Sefton Hospital on the 16^th when he was initially seen by the nurse at about 8 pm. In particular it is there recorded 'L knee slightly swollen since yesterday. minimal oozing from the R side port. No signs of infection'. When on the 15^th those symptoms first arose it is difficult to say with any certainty but in the light of Mr Loydon's evidence I think it likely that it was later into that day probably sometime in the afternoon.
122. To return to the material chronology. As indicated, the Claimant was seen at the hospital on the 16^th September. It would appear from the RMO notes that he was fully conscious (see record of Glasgow Coma Score of 15/15). I have already set out one material part of the record relating to 'the slight swelling of the knee since yesterday' but observe further that the Claimant was then complaining of 'fever generalised aching' as well as 'generalised musculoskeletal pain, nausea, and weakness'. Reference is made to a raised temperature of 39º 'since 15.00 today'. Blood tests were ordered but the results were not then known immediately .The Claimant was sent home with the recorded impression being that of a 'flu-like infection'. He was put onto antibiotics but these were oral and not the intravenous type required to kill/treat the Staph A. It is the next day, the 17^th, when the Second Defendant spoke to the First Defendant, that the First Defendant concedes that he should have asked about the full blood tests results but did not. Rather the Claimant was continued on the oral antibiotics on the premise he was suffering from a general viral infection. Had however the First Defendant asked for those results he would have discovered that the White blood cell (leukocytes) count (WBC) was raised (18.9) indicative of a host response to an infection and the CRP level (C Reactive Protein) were very high again indicative of a host response to an infection. The result was that it was not until he was examined and treated by Mr Parkinson on the 19^th September that the correct front line treatment for the Staph A infection began.
123. As already indicated that treatment comprised aspiration of the joint (the draining of fluid from the joint, removing pressure within the joint) debridement (surgical removal) of the affected tissue, washout of the joint (flushing out bacteria, bacterial by-products and toxins) and institution of a programme of intravenous antibiotics to kill any remaining bacteria. It is common ground that the broad spectrum antibiotics chosen before identification of the relevant organism, was active against the Staph A.
124. Importantly however, it is to be noted that Mr Parkinson did not interfere with the meniscus repair he had carried out on the 5^th September. After he had carried out that repair on the 5^th September he had explained in a letter (dated 7^th September) to the Second Defendant that he had not rather performed a 'medial meniscectomy' since that 'would have meant resecting a large part of the posterior horn, which was undesirable'. In that same letter he had stated 'this sort of tear has a 50-60% chance of healing'.
125. No one has criticised the decision of Mr Parkinson at this stage, on an obvious risk - benefit analysis, not to give up on the meniscus repair and to perform a meniscectomy there and then given the potential consequences of such a course to the functionality of the knee. He was undertaking a risk – benefit assessment. I would accept however – and no expert of any discipline suggested otherwise - that this inevitably meant that any debridement excluded the area of the recent repair of the meniscus and hence in so far there was any already infected tissue in that area, that would not have been debrided and moreover the suture material would still have remained. Equally what still remained were the two screws used in the ACL repair of 2005. I mention these facts at once because of the evidence that the Staph A bacteria would have a tendency to attach itself to such foreign bodies.
126. In the event the meniscus repair did fail, that is to say it did not heal, and the medial meniscectomy, originally thought undesirable, was performed in the operation of the 12^th October 2007. Further there was evidence of continuing chondral damage. The letter sent by Mr Parkinson of even date is in these terms:

'... the postero-medial portal has continued to discharge and I have taken [James] back to theatre today to re-arthroscope the knee and wash it out …

The findings were somewhat alarming;

1. The medial meniscus tear had propagated. It had clearly not healed. It was unstable and I had to perform a medial meniscectomy, at the same time removing the PDS sutures.

2. The infection had spread to the articular cartilage and there was a certain amount of full thickness articular cartilage loss, both from the femoral condyle and tibial condyle. This again was debrided back to stable tissue. I have sent multiple bacteriology specimens.

3. I also debrided the postero – medial portal and removed a certain amount of infected granulation tissue …

I am not at all clear why this infection is not settling.'

The significance of the failure of the medial meniscus

127. The failure of the medial meniscus repair and whether that is attributable to the admitted breach of duty in delaying the onset of the front line treatment for the septic arthritis, is of particular importance in the claim that is faced by the First Defendant since it is common ground between the orthopaedic experts that such failure inevitably meant the end of the prospect of any football career.

The mechanics of the damage caused by the septic arthritis

128. The essential mechanics of how damage is caused to the knee joint by the Staph A bacteria was not in dispute before me. The mechanics are threefold. For this analysis I am grateful to Mr Edis' synthesis of the overall effect of the expert evidence. First the invasion of bacteria causes purulent effusion - swelling caused by the presence of pus. The release of cytokines and proteases induce a host inflammatory response in the synovium. Second the bacteria separately induce a host inflammatory response and separately cause direct articular damage. In a Staph A infection this will be fuelled by particular Staph enzymes. Both mechanisms dissolve and destroy articular cartilage. Chondrolysis is acute damage caused in this way. The evidence was that once such damage has occurred it is irreversible. Third there is the effect of raised intra - articular pressure which is the effect of the existence of pus (dead white cells) within the joint. This forces the articular cartilage against the hard and unresisting inner surfaces of the knee joint, producing ischaemic tissue death. That is to say damage by reason of the interruption or stopping of blood supply.
129. Damage caused by these processes includes damage to the articular cartilage and damage to the synovium caused by fibrosis (scarring) and adhesions (the abnormal adhesion of one structure to another).
130. The rate at which the damage will occur following the invasion of the bacteria was a matter of some dispute, certainly between the microbiology experts, although what was not in dispute was that Staph A is a particularly aggressive form of infection; that following entry of the bacteria into the synovial joint (in this case the likelihood on the evidence was that this would have been through skin borne bacteria migrating through the not yet healed over portals used for the arthroscopy of the 5th September) the bacteria would be liable to stick to the foreign bodies (suture material and/or screws) and any abnormal tissues caused by the injury/surgery; that the bacteria would multiply there; that there would be a period of silent multiplication of between 6-9/12 hours during which the bacteria will multiply without producing symptoms or signs; that local signs i.e. local to the knee, are likely to appear before systemic illness takes hold and if no or no adequate treatment takes place bacterial growth will continue.
131. The appearance of 'local signs' according to Professor Wilson marks the onset of actual irreversible damage. According to Professor Cartwright, however, this is only the onset of 'potential' damage.

The production of biofilm

132. This is a topic to which I shall have to return on the question of avoidable damage had the Claimant been treated earlier. However, I record that it is common ground between the microbiologists that Staph A will stick to foreign bodies and form a biofilm that protects it against the actions of any antibiotics, and on the findings I have made the Staph A would have been attached to those foreign bodies sometime on the 15^th September and hence would have had some two days to form a biofilm.

The extent of the damage caused by the septic arthritis in this case.

133. This court is not concerned with the exact assessment of damage caused by any breach of duty. Rather it is concerned with the issue of causation of damage in relation to such breach and in relation to the First Defendant the question is as to what proportion of the damage caused by the septic arthritis can be attributed to his breach in delaying the instigation of frontline treatment. However I would accept that the best evidence to date of what has resulted is by way of comparison between the arthroscopy findings as at 7^th September 2007 (see above paragraph 63) and the arthroscopy findings of Dr Steadman whom the Claimant consulted in September 2008 (my medical bundle at p 885). Although it was common ground that these findings should be approached with some caution, I would accept Mr Cannon's overall view that such comparison reveals; a) generalised diffuse chondrolysis (destruction of the cartilage) to a greater level than before; b) a new presentation referable to damage at the anterior part of the femur on the lateral compartment; c) a new presentation of bruising of the bone often associated with loss of articular cartilage; d) worsening damage to the trochlea and e) generalised thinning of the cartilage in the medial compartment at a greater extent than before; very significant chronic synovial damage, i.e. scarring and adhesions.

Court's conclusions on claim against the First Defendant

134. The central question for me to resolve on the claim against the First Defendant is as to the degree of damage to the Claimant's knee which can be shown, on the balance of probabilities, to have been caused by the admitted negligence of the First Defendant in causing the two day delay (between the 17^th and the 19^th September) in the instigation of proper treatment for the Staph A infection and hence the septic arthritis to which it gave rise, which it is common ground is likely to have been commenced late afternoon on the 17^th had there been no such negligence. That is to say treatment coincident with what was ultimately commenced on the 19^th, namely the wash out, and the administration of intravenous antibiotics and debridement more particularly set out at paragraph 123 above. It is equally common ground that as on the 19^th, the likely treatment on the 17^th would not have involved interfering with the meniscal repair which would in all likelihood have been left in situ, including of course the sutures and screws.
135. In answering that question it has always to be remembered that the Claimant's knee was already in a permanently damaged degenerative state as evidenced by the arthroscopy of the 7^th September. Hence what the court is having to assess is the proportion of additional damage shown to have been caused by the septic arthritis (as evidenced by the arthroscopy findings of Dr Steadman of September 2008 - see again paragraph 133) which can be shown to have been caused by the delay in treatment. This in turn – on the evidence I heard from all experts - turns on the court's findings to the likely period of time which the infection had been in place and developing before that delay began and the extent to which the infection had already become entrenched and permanent damage had already occurred.
136. The starting point accordingly for the court's conclusions on this question of attributable damage must be my above findings recorded at paragraphs 120 and 121 that it was in all likelihood sometime in the afternoon of the 15^th September that the Claimant's the knee first became symptomatic referable to the infectious bacteria which had entered some 6 – 9 hours earlier. In other word there was in this case two days of non negligent untreated active infection (between the 15^th and the 17^th) with any damage occurring during that period being unavoidable, set against a following two day negligent delay in front line treatment and hence two days of avoidable damage.
137. Miss Bowron on behalf of the Claimant invites me to find based on the evidence of the Claimant's expert microbiologist, Professor Cartwright, that no permanent irreversible damage had occurred during those initial two days of active infection, and that timeous treatment after those days beginning on the 17^th would have avoided all damage since such treatment would have avoided the persistence in infection which did occur and which was the cause of such permanent damage which has occurred attributable to the septic arthritis, in particular the breaking down and failure of the meniscal repair. This opinion of Professor Cartwright all depends however on the validity of his 'biofilm thesis', that is to say his thesis that the two days in which the Staph A had had to form a biofilm while attached to the foreign bodies represented by the sutures and screws (see paragraph 132 above) to protect itself against the actions of any (hypothetical) antibiotics, would not have been long enough to produce a sufficient biofilm. In support of his views Professor Cartwright relied upon a published Danish paper 'Rabbit model of septic arthritis' as providing, by reference to an animal model of joint infection, a 'robust' model of the likely timing of the different mechanisms of chondral damage, namely the softening of the cartilage caused by the release of enzymes by the white blood cells and the bacteria starting after about 2 days, (with the prospect of reversal if speedy treatment provided) and the lifting of the cartilage off the bone by the heavily inflamed synovium not starting to occur until about 5 days.
138. Miss Bowron urges upon me the conclusions: that Professor Cartwright's evidence should be accepted as being based upon a 'rational and complete analysis of the facts'; that his explanation of how the problem caused by the formation of the biofilm on the sutures on the medial meniscus, would have been avoided with earlier treatment, was a rational one; that Professor Wilson in the expert joint statement (Defendant's Agenda Q10) had appeared to agree that earlier treatment would have avoided the persistence in infection and came close to agreeing such in cross examination; that the court could confidently reject the evidence of the orthopaedic experts that the likelihood is that whatever the position pre the onset of the infection, the non negligent period of non treatment, meant that the meniscal repair was likely to have broken down in any event, since this was predicated upon a hypothesis which Professor Cartwright's expertise had dispelled, namely that there would have been colonisation of the sutures, biofilm formation and the persistence of infection; that although it had to be conceded that neither 'the biofilm thesis' nor the Rabbit Paper with its indicators on the likely cycle of the infection, had been referred to in Professor Cartwright's original report, his long considered conclusion set out in his original report had been that treatment on the 17^th September would have avoided any further damage to the cartilage of the knee and any damage to the synovium because 'that comes later in the cycle of infection'.
139. After careful consideration however I have been unable to accept Miss Bowron's submissions and have been unable to accept Professor Cartwright's evidence on these matters, for the following reasons.
140. First, his evidence that no irreversible damage had occurred by the 17^th September is at odds with the evidence of all other expert witnesses. Professor Wilson's unchallenged oral evidence was that the onset of local signs and symptoms (which on the court's findings occurred on the 15^th September) marked in all probability the onset of irreversible damage, and the orthopaedic experts all agreed that some irreversible damage had been caused by the 17^th September. Furthermore, it is at odds with Professor Cartwright's previous (and varying) expressions of opinion in the course of these proceedings. As was pointed out by Mr Edis, Professor Cartwright in the course of the Joint Statement, accepted propositions that '… By the time the oral cephalexin had been started the knee had already been infected for around 2 days … and damage to cartilage (chondrolysis ) would already have been occurring' (Claimant Agenda Q.13) and 'irreversible damage to cartilage can occur very quickly (within a day or two) of the introduction of bacteria …' (ibid Q 20) and 'it it would be reasonable to expect that any damage would have been very considerably lessened with effective treatment starting on the 17^th' (ibid Q 22) (the underlining is the emphasis of the court). Further in the course of the hearing it emerged that Professor Cartwright had agreed with Mr Banks in an out of court discussion before trial that the proportion of the 'septic arthritis damage' which would have been avoided by treatment on the 17^th September, should be put at 50%, while it was put in cross-examination of Mr Cannon on behalf of the Claimant – on a day before Professor Cartwright gave his evidence – that the correct proportion was some 25%; and in the course of his own oral evidence Professor Cartwright at one stage himself put forward 20%.
141. I could and cannot in these circumstances accept Professor Cartwright as a reliable witness on this question of avoidable damage had treatment begun on the 17^th September (I reach this conclusion without the further aid of the complaints made by Mr Edis of Professor Cartwright's failure to discharge his duties to the court as an expert witness, upon which I find it unnecessary to adjudicate). I accept that Professor Wilson himself did not speak with any clarity on this question when asked to do so on the assumption that the persistence of infection which did occur was avoided. However Professor Wilson did give wholly credible and persuasive evidence which I accept when explaining why the Claimant's case now being put on the insufficiency of time for an effective biofilm to form, should not be accepted. As summarised by Mr Edis, the effect of his evidence was that antibiotic penetration was much harder once a biofilm had formed, that it takes but a single organism to produce persistence; that the blood tests as at 8pm on the 16^th September 2007 which demonstrated an entrenched infection (high levels of bacteria) and the existence of proteins and enzymes (consequently high levels of inflammatory markers – ESR and CPR), all showed there had been ample time by 17^th September for a biofilm to have formed. I observe further that Professor Cartwright himself had done no research into and had no knowledge on how quickly a biofilm could form on suture material.
142. I further accept that the Rabbit Paper (if in fact it was being used for this purpose) can found no sound methodological basis upon which, by reference to data emerging from an animal model, to proceed from the general to the particular, that is to say to the particular facts of the Claimant's case. Not only is the paper dealing with rabbits rather than humans it is dealing with healthy subjects rather than ones without any prior pathology in their knees and without any foreign bodies in their joints. As Mr Edis submitted, it does not purport to provide a reliable guide as how quickly damage will occur in rabbits with already damaged knees, let alone humans and both microbiologists here had agreed in their joint statement that pre-existing damage/surgical intervention (as in this case) increased to some degree (Professor Cartwright would use the qualification 'modest') the susceptibility to infection and further damage in the Claimant's particular knee.
143. Finally, it is noteworthy, (for the purpose of further explaining the court's rejection of Professor Cartwright's evidence) that, as emphasised by Mr Edis, the orthopaedic experts (at least those who had direct clinical experience of managing such infections) namely Mr Cannon and Mr Banks, agreed that two days of untreated infection would have led to persistence unless and until the suture material was removed.

Court's final conclusions on damage attributable to the First Defendant's breach of duty

144. I remind myself that the onus is on the Claimant to prove on the balance of probabilities what damage has been caused by the First Defendant's admitted breach of duty. Having rejected Professor Cartwright's evidence, the court is driven to rely upon the unanimous expert opinion of Professor Wilson and the two orthopaedic surgeons who gave an opinion on this issue (Mr Banks and Mr Cannon) in finding as I do that, subject to the question of the failure of the meniscal repair (as to which see below), the likelihood is that 50% of the septic arthritis induced damage would have been avoided by treatment on the 17^th September and hence this is the damage for which the First Defendant is responsible. This is of course a purely linear approach to apportionment as to which Miss Bowron has made legitimate criticism on grounds of rationality and logic, but I accept Mr Banks' evidence that there is no better model to use in the circumstances of this case.

Caveat: the failure of the meniscal repair

145. I make however one important caveat to the above finding. It concerns the issue whether, absent any negligence on the part of the First Defendant, the meniscal repair which was found not to have healed by Mr Parkinson on the 12^th October, would have succeeded or would have failed in any event. This is important since even if, as I have found, the First Defendant is responsible for 50% of the septic arthritis induced damage, this would not, on the evidence, make him responsible, even to the stated degree, for the difference between a career in professional football and not having one if regardless of the delay in treatment the meniscal repair would have failed. As already indicated it is common ground that such failure inevitably would have such an impact on the functionality of the knee as to end the prospect of any meaningful football career. All experts emphasised in support of this proposition, the crucial role of the meniscus in the proper function of the knee, the fact that the Claimant had already lost some part of his lateral meniscus, the separate degenerative changes affecting the Claimant's knee, the fact that it is common practice (as happened in this case) that once a repair has failed the detached (or not yet securely re-attached) area of the meniscus is removed without any attempt at redoing the repair, and the loss – if the repair failed – of a significant amount of medial meniscus.
146. Given again the burden of proof upon the Claimant, Mr Edis posed the question for the court as being whether it has been shown on the balance of probabilities that the additional damage caused by the negligent delay turned a career (of any length) in professional football from a probability to a mere possibility.
147. One of the disputed issues before the court was whether the Claimant could establish that it was more likely than not that this medial meniscus repair would have succeeded even if there had been no infection at all. Mr Cannon and Mr Bickerstaff put the prospects of a successful repair absent infection at no higher than 50-50 (Mr Bickerstaff based on experience put it less). Only Mr Banks put the prospects at a higher level ('50-60%, probably nearer the upper end of the bracket'), in line with the view expressed at the time by Mr Parkinson the operating surgeon (an expression of opinion however which I regard as not admissible before me).
148. I do not however consider it necessary to resolve this particular issue. Nor is it necessary for me to resolve another other hotly contested issue: whether, even if the meniscal repair had succeeded the state of the Claimant's knee as at the 7^th September 2007 was such, that there was no likelihood of the Claimant being able to sustain the rigours of a career in professional football of any appreciable length at all (the view of Mr Cannon and Mr Bickerstaff as against the more optimistic view of Mr Banks).
149. I find it unnecessary to resolve those particular issues since all the orthopaedic experts including Mr Banks for the Claimant were agreed that 'once the septic arthritis had set in for 48 hours the meniscal repair was probably going to fail' (the words of Mr Banks), in other words (to quote Mr Edis' formulation in submission) 'all the expert orthopaedic surgeons are agreed that even if the a priori chance of successful healing was more than 50% the period of non negligent infective damage put paid to that chance as a probability'. The only witness who asserted the meniscus repair would not have failed if the infection had been treated by the 17^th September was Professor Cartwright but I have already explained why his evidence is not reliable and why it is evidence I cannot accept. In any event Professor Cartwright expressly deferred on this issue to the opinion of the orthopaedic surgeons (in line on this question of deference with the evidence of all experts save Mr Banks).
150. I have no reason in these circumstances to reject the collective opinion of the orthopaedic surgeons. At its highest the evidence of Mr Banks (at the end of his cross-examination by Mr Edis) was that the negligence of the First Defendant caused the Claimant to lose no more than the possibility of a better outcome (which in law of course cannot sound in damages as an actionable loss – see Gregg v Scott [2005] UKHL 2).
151. I accordingly record my finding under this 'caveat' that the Claimant has not established on the balance of probabilities that the meniscus repair would have succeeded but for the negligence. On the evidence I find the probabilities are that, absent any negligence by the First Defendant, the period of the non-negligent untreated infection and the non-negligent exposure to its effects was such that the repair would have failed in any event, the not yet re-attached piece of meniscus would have been removed and there would have been no attempt to redo the operation thereby further impairing the overall function of the meniscus.
152. These findings further must mean that absent the negligence of the First Defendant the Claimant would still have had a bilateral diminished function of the meniscus and significant and symptomatic degenerative changes to his left knee which is likely in any event to have deprived him of any prospects of a meaningful professional career in football.

The effect of my ruling in paragraph 144 on the claim against the First Defendant

153. Subject to the above caveat, I accordingly find that the admitted negligence of the First Defendant has caused 50% of the septic arthritis induced damage to the Claimant's knee. As to precisely what that damage amounts to must ultimately be a matter for the trial on quantum. As indicated the best evidence to date is to be found in the comparison between the findings of the arthroscopy of the 7^th September 2007 and the findings of Dr Steadman of 2008 as explained by Mr Cannon (see again paragraph 133 above). There is further assistance to be found in a report of Mr Williams of 29^th September 2009. The exact effect of that damage upon the Claimant will be a matter for the quantum trial. However I record that Mr Cannon accepted that a 50% reduction in the damage he has identified would have had an effect on function as regards pain levels and stiffness (subject always to the caveat which I have recorded above). It will however be for the quantum trial to investigate what those increased levels of pain and diminished function attributable to the negligence of the First Defendant amount to, in accordance with my findings on causation. There may well be an issue which was not investigated before me in any meaningful way, as to whether the First Defendant's negligence did no more than accelerate the onset of the damage identified to date by Mr Cannon, and as to the length of that acceleration.

Final conclusions

154. It follows that the Claimant has succeeded against the First Defendant in this claim to the extent of my findings on causation of damage.
155. As against Second and Third Defendants, the claim fails for the reasons given.
156. I invite submissions from the parties as to the form of the order to be made in consequence of this judgment and as to any consequential issues arising on costs or otherwise.