Date: Sun, 18 Dec 2005 21:17:54 -0500

From: David Cheifetz

Subject: Doctors' duties

Andrew & Andrew

Let me see if I have this correct.

1. WBA tried to sneak in, in the guise of an ordinary negligence action, what would be a type of per quod servitium amisit action that England's common law never allowed. I'm assuming Appleton wouldn't have qualified as a domestic servant.

2. Yet, nobody mentions that small conundrum (in the reported reasons). It's not surprising WBA's lawyer didn't, if he recognized that that is what he was trying to do. Actually para 68 and 69 imply that nobody spotted it. One would think that had the trial judge seen it, he would have also made the point that even if were inclined to find that a duty of care could exist under new principle, he was precluded by stare decisis.

3. The trial judge said, only, about prior cases [para 68] "In spite of the best endeavours of Counsel no reported case has been found where a duty of care has been held to exist in these circumstances. That comes as no great surprise." Classic understatement, no?

4. Given (1), it certainly wasn't a surprise if WBA's counsel didn't leave English case-law. He could have found Canadian common-law precedent; however, it would have done him no good as that law is based on an extension of per quod servitium amisit beyond the domestic servant, declining to accept the old English limitation.

Regards,

David

----- Original Message -----
Sent: Friday, December 16, 2005 8:52 AM
Subject: ODG: RE: doctors' duties

As to damage, what about:

1. Acquisition and/or wage costs of replacement player.
2. Loss of chance to obtain fee by transferring player following recovery.
3. Loss of "user" of player in remaining period of contract following recovery.

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