Examining the record payout for a professional sportsperson for personal injury in the case of Benjamin Collett –v– (1) Gary Smith and (2) Middlesbrough Football and Athletics Club (1986) Ltd QBD [2008]

When I was practicing in the area of personal injury law one of the biggest headaches I had to deal with was in relation to clients wishing to bring a damages claim for future loss or loss of chance. That is to say that as a result of the negligence of another party and the extent of the injury itself, the injured party lost out on future wages/income or the loss of the chance to earn future income. When it came to my own clients the losses involved were generally fairly small (even if my clients often thought that they were entitled to thousands upon thousands of pounds in compensation). In this post I will be examining the case of Benjamin Collett v (1) Gary Smith (2) Middlesbrough Football and Athletics Company (1986) Ltd: QBD [2008] which involved a record payout for a sportsperson in a personal injury case including claims for future loss and loss of chance.

The court in this matter was required to assess damages for personal injury caused to Benjamin Collett, the claimant ex-footballer, by a negligent tackle perpetrated by Gary Smith, the first defendant footballer, for which Middlesbrough Football and Athletics Company Ltd, the second defendant football company and employer of Smith, were vicariously liable for.

Collett had been an active member of Manchester United’s youth academy having joined at the age of nine and was in the club’s FA Youth Cup-winning team in 2003. By the time he was 16 years old, he had been offered a two-year scholarship contract with the club and a one-year professional contract thereafter. Collett became a skilled footballer and was presented was due to be presented with a prestigious award for his efforts on the field for his team. However, before Collett could be given the award, he suffered an injury when he was tackled by Smith during a match against Middlesbrough. The tackle was high and ‘over the ball’ and as a result Collett suffered a fracture of the tibia and fibula in his right leg (injuries that many Arsenal fans are quite familiar with in recent years following the injuries to players such as Diaby, Eduardo and Ramsey). Despite his extensive efforts to continue his pursuit of a professional footballing career after his injury, Collett was unable to play to the same standard as he had done prior to the incident with Smith. Collett eventually took the decision to retire as a footballer in 2007 and instead began to pursue a degree in English in the hope of having a career in journalism.

Liability for the injury was admitted by both defendants but the quantum of damages (i.e. how much compensation was due to Collett) was hotly disputed between the parties. In instances of loss of chance the law is invited to assess hypothetical outcomes that are always open to interpretation. The measure of damages awarded to the Court is to ensure that a claimant is “no worse off” having suffered the breach of their duty of care. In each case, a claimant must prove the cause of action on the balance of probabilities to the Court. For these purposes, the Court is required to speculate on what would have happened had there been no negligence. In many cases, loss and damage might still have been sustained at a later date. But there might always have been a chance that no long-term injury, loss and damage would have occurred to the claimant.

Collett’s legal team, led by Richard Hartley QC, argued in the High Court that the injury stopped him being offered a three-year contract with Manchester United and the potential to earn millions of pounds in match fees and merchandising deals. They speculated that Collett could have earned more than £13,000 a week, making him more than £16million, if he had played until the age of 35. This seems relatively conservative bearing in mind the current wages demanded by some players in the Premier League.

Expert evidence was key in deciding this case. Football pundits compared Collett’s playing ability to that of Welsh winger Ryan Giggs and tipped him to become a Premiership star and household name. Even Sir Alex Ferguson gave evidence at a hearing in which he said, “I thought the boy showed fantastic focus, a great attitude to work hard and they are qualities to give any player an outstanding chance in the game.”

Mrs Justice Swift held the following; that there was the overwhelming likelihood was that Collett would have been under contract with Manchester United at least until the age of 21 years. On the evidence, Collett was entitled to a total past loss of earnings of £549,417. This was reduced to £456,095 to take into account the risk of future injury and other contingencies that may have occurred in Collett’s future career.

Furthermore, those of Collett’s contemporaries with similar, or even lesser, abilities had already established themselves at Championship level or above. Thus, barring injury or some unforeseen contingency, Collett would have likely played professional football, at least at the Championship level, throughout his career. In determining the appropriate multiplier it was necessary to consider at what age Collett was likely to have retired from the professional game. On the evidence heard, Collett would have, in all likelihood, continued to play professional football for a further 11 years at Championship level at least, with a good possibility of playing for a Premier League club as well through either transfer or via club promotion. Taking into consideration the risk of future injuries and other contingencies, and deducting his earning potential pursuing a career in journalism, Collett was entitled to future loss of earnings totalling £3,854,328.

Finally, although there was a possibility that Collett might have made a career for himself in football management and coaching, the Court decided that such a loss was too speculative to form a basis for an award of damages. Therefore, no award would be made in respect of Collett’s loss of the chance to become a football manager or coach.

The judge said: “I found him (Collett) a most impressive young man. He was plainly intelligent and it is clear that he has brought – and will in the future bring – to his academic studies the same dedication and commitment that he formerly applied to football.” She went on to say that Mr Collett’s “positive attitude towards his injury and to the devastating blow of being unable to pursue his chosen career does him ‘great credit’.”

Collett’s solicitor, Jan Levinson of Beachcroft LLP, said that the award “reflects Ben’s talent and potential prior to the tackle as one of the brightest young footballers in the country. Having said that, Ben would have preferred to have earned this through a full career in the game.” Mr Levinson added: “The judgement announced today is the highest award ever given to a professional sportsman or sportswoman. Thankfully, injuries of this severity are not a common occurrence on the football or any sporting pitch, so I do not see this successful claim opening the floodgates to litigious action by sportsmen.” (Try telling that to Arsenal FC, their players, and their fans!)

The award of damages was much lower than what Collett had claimed for even though it was still a record amount under English law. Both Gary Smith and Middlesbrough Football and Athletics Company (1986) Ltd appealled the decision claiming that the award was excessive. In June 2009 the Court dismissed their appeal, Lady Justice Smith and Lord Justice Carnwath agreed that not only was the compensation for a lost career not excessive, but there was a chance Collett could have achieved even more as a footballer, not less.

Future loss or loss of chance claims will always be very tricky to prove successfully in Court, whether they be for a few hundred pounds or several million. The burden of proof is on the claimant to prove their claim and this is not always straight forward. In Collett’s case the expert evidence, specifically from Sir Alex Ferguson no doubt proved crucial in his claim being accepted by the Court. If only all of my clients had had that kind of heavyweight support behind them many of my cases would have been so much easier to prove.

Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.

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