By the time this article appears, the finalists of World Cup 2006 will have been decided, and following another defeat thanks to the dreaded penalty shootout, England's hopes have yet again been dashed.

Although debate about who should shoulder the blame for failure will continue to rage, the subject that dominated the press in the run-up to the tournament – Wayne Rooney's metatarsal – is now a fading memory, following the boy wonder's doctor-defying recovery.

While the image of Rooney's pale, sweaty extremity in the morning papers may have sat rather uncomfortably with our toast and marmalade, on this fractured metatarsal appeared to rest not only the hopes of England winning the World Cup, but also the commercial prospects of broadcasters, retailers, bookmakers, licensees and advertisers this summer.

We can be sure that, before being passed into the custody of the England medical staff in Baden-Baden, young Wayne, nestled safe within the pastoral care of his club manager, Sir Alex Ferguson, was receiving the best medical treatment money could buy.

We can also be sure that, were he to suffer additional injury as a result of clinical negligence on the part of his orthopaedic surgeon, Rooney would be entitled to bring a claim in contract or in tort against the clinician – and the claim for loss of earnings could be of frightening proportions.

But what if Manchester United's prospects of regaining the Premiership title or winning the European Cup (I loathe the cumbersome 'Champions' League' moniker) were adversely affected by Rooney's prolonged absence from the field as a result of such negligence? Would the Glazers have a right of action against the negligent surgeon?

Strangely enough, Rooney has featured (by name and fame only) in a recent case in which this principle was considered.

Contract wrangles

In January 2001, West Bromwich Albion FC signed a player called Michael Appleton on a three-and-a-half-year contract. Ten months later, Appleton injured his right posterior cruciate ligament in training. The club's senior physiotherapist arranged for him to have an MRI scan the following day and took him to see an experienced consultant orthopaedic surgeon, Medhat Mohamed El-Safty, to whom the club had referred players before.

El-Safty advised that reconstructive surgery should be performed and, indeed, carried out the surgery; but the operation was unsuccessful. Appleton never fully recovered and as a result, had to retire from professional football. It transpired that El-Safty's advice that the knee should be reconstructed was negligent. Had the knee instead been treated conservatively, at least initially, then Appleton would probably have been fit again within about four months.

West Brom sued El-Safty in both contract and tort for the losses it claimed to have suffered as a result of his admit-tedly negligent treatment of Appleton. The surgeon denied that he had a contract with the club and further denied that he owed any duty to the club in tort.

The existence of a duty in contract or tort was tried as a preliminary issue by Mr Justice Royce in late 2005 and judgment was given on 14 December, 2005: West Bromwich Albion Football Club Ltd v MM El-Safty [2005].

The test

On the evidence, the judge found that there was no contract between the surgeon and the club, notwithstanding their previous history of dealings and the fact that the surgeon looked to the club for payment of his fees.

Perhaps more interestingly, the judge concluded that a doctor could owe a duty of care to a person who was not his patient, but whether or not a duty of care did in fact exist would depend on the circumstances of the case.

In ascertaining the existence of a duty, the questions to be asked were:

. Was the loss reasonably foreseeable?

. Was there sufficient proximity between the parties to give rise to a duty of care?

. Would it be fair, just and equitable to impose a duty of care?

West Brom's case was that the surgeon owed a duty to the club not to advise or treat the player in such a way as to cause economic loss to the club. Thirty-one players had been referred to El-Safty by the club since 1997, with the club paying the surgeon's invoices.

The knock-out phase

Despite considering a very large number of authorities, from Hedley Byrne [1963] onwards, the judge found that all of them turned on their own particular facts, and no case was truly analogous. In answering the questions he framed in relation to the existence of a duty, the judge found that it was reasonably fore-seeable that West Brom might suffer some loss if Appleton was negligently treated so that he was unable to return to football.

However, acceding to the submissions on behalf of the surgeon from Stephen Miller QC of 1 Crown Office Row, the judge answered the second and third questions in the negative, concluding that no duty was owed to the club.

In relation to proximity, the judge noted El-Safty's evidence that whereas he had never visited Bromwich Albion FC's home ground, The Hawthorns, he had a rather closer association with Aston Villa FC, having both visited Villa Park and met Doug Ellis, the club's long-serving chairman.

In these circumstances, the judge drew no distinction between these facts and where a company foreseeably loses money as a result of negligent medical treatment of its managing director.

Public policy

It was in answer to the 'fair, just and equitable' question that the judge considered – perhaps with some foresight – the blessed Wayne (note the apparent hierarchy, Posh):

"Should a consultant, for example, advising a Rooney or a Beckham or a Flintoff have a potential tortious liability to their club/county or England for negligent treatment – a liability running to many millions of pounds? What about negligent treatment of a resident conductor of an orchestra or a leading member of a rock band or the managing director of a major company? The consultant would probably know each patient was a valuable asset. Should the consultant take steps to ascertain their value so as to evaluate his potential liability? Should he seek to put in hand a disclaimer or limitation of his liability? How would he do this? How would insurance premiums be affected? In my judgment, one only has to pose these questions to conclude that it would not be fair, just and equitable for there to be liability in such cases."

Beating the offside trap

I suspect that we have not heard the last word on football clubs seeking to fix the medical profession with liability for economic loss as a result of negligently-treated players. A careful reading of Royce J's judgment should permit the drafting of terms of referral which could make doctors liable in these circumstances.

Meanwhile, spare a thought for the premiums paid by Rooney's doctor…

Richard Booth is a barrister specialising in sports law and clinical negligence at 1 Crown Office Row.