Three lessons from ex-footballer’s successful clinical negligence claim
Ebanks-Blake v Calder [2025] EWHC 3327 (KB)
Introduction
As temperatures dropped and trees went up in the days before Christmas, judgment was handed down in the case of Ebanks-Blake v Calder. Mrs Justice Lambert’s decision in the Claimant’s favour, circulated to parties on 18 December 2025, serves as a useful reminder of three important lessons for clinical negligence cases:
- Always remember Bolitho v City and Hackney Health Authority [1988] AC 322
- Expert witnesses must form their opinion on the basis of primary materials
- Beware the pitfalls of an expert practitioner giving lay evidence as a Defendant
Background
The Claimant, Sylvan Ebanks-Blake, is a former professional footballer. His career began in 2002 when, at the age of 15, he was scouted by Manchester United. On 10 February 2005, while playing for the Academy team, he suffered a fracture to his left fibula. He had open reduction and internal fixation surgery the following day and, after a period of recovery, returned to football at the beginning of the 2005/2006 season.
The Claimant subsequently signed for Wolverhampton Wanderers – better known as ‘Wolves’ – in 2008, with the club in the second tier of English football. He was their top scorer in the 2008/2009 season as Wolves were promoted to the Premier League.
On 1 April 2013, during a league match, he suffered a fracture of his lower left fibula as the result of a tackle. He was referred to the Defendant, who was (and is) a consultant orthopaedic surgeon specialising in trauma surgery for elite athletes. On 8 April, the Defendant performed open reduction and internal fixation surgery to correct the Claimant’s ankle fracture. In addition, he performed an arthroscopy of the ankle to examine the internal structures, which involved debridement (i.e. removal) of scar tissue and loose cartilage in the joint. He also performed a microfracture technique on the Claimant’s left talus bone, making a series of tiny holes in the exposed bone to provoke inflammation and the formation of new cartilage.
In December 2013, the Claimant signed a short-term contract with Ipswich Town in the Championship, the second tier of English football. He left the club in May 2014 and went on to play for two lower league teams before dropping out of the football league when he signed for National League North side Telford United. He retired in 2019 after suffering another serious injury while playing for Midland League side Walsall Wood.
The Claimant sued the Defendant for damage for personal injury arising from the latter’s alleged negligence in performing ankle surgery which, according to the Claimant, ought only to have involved reduction and fixation of the fractured fibula. The Claimant argued that the Defendant was negligent in performing an arthroscopy, debridement and microfracture. He contended that, but for the Defendant’s negligence, his ankle would have allowed him to continue to play in the top two tiers of English football for a further three to five years.
This was a split trial with the eight-day hearing focused only on liability.
Decision
The Court found, at [114], that the Defendant’s decision to perform an arthroscopy, debridement, and microfracture constituted a breach of his duty of care to the Claimant.
The finding was underpinned by two separate conclusions:
- firstly, that the Defendant’s rationale for performing the arthroscopy (and the debridement and microfracture to which, it was found at [105], that procedure committed him) was unreasonable; and
- secondly that, irrespective of the Defendant’s rationale in 2013, those procedures were not clinically indicated.
While sympathetic to the Claimant’s case that microfracture had caused him injuries in the form of bone oedema, the Court was (at [126]) “unable to find to the requisite standard that the technique led to the oedema and thus made a material contribution to the Claimant’s pain.”
However the Court did find, at [124], that the effect of the debridement of scar tissue and the removal of degenerate cartilage following arthroscopy “was to cause the Claimant’s pain” and that, “but for the arthroscopy, the claimant would have returned to his pre-accident pain-free state” ([132]) and “would have remained pain free for a period of 3 to 5 years during which time he would have been capable of playing football at a high level” ([133]).
Lesson 1
This judgment serves as a forceful reminder of the principle from Bolitho that practices accepted as proper by a responsible body of other medical professionals with expertise in that particular area can still be negligent if not capable of withstanding logical analysis.
The Defendant, recognised by the Court (at [35]) as the recipient of “a number of prizes and awards”, the holder of “a number of notable leadership and advisory roles”, and “the author of several papers which have a bearing on the issues raised in this litigation”, is pre-eminent in his discipline. His decision to perform an arthroscopy was forcefully defended by Professor Ribbans, an expert witness who is himself a renowned consultant in trauma and orthopaedic surgery specialising in care for elite sportspeople and “responsible for looking after world champions across eight different sports” ([54]).
Nonetheless, the Court decided, at [81], that it could place “little or no reliance upon the defendant’s witness statement or his evidence at trial” and found, at [100], that Professor Ribbans’s evidence “lacks objectivity and balance” and that the expert had allowed his views to be clouded by his respect for the defendant.
This is a powerful reminder that the court, not the expert, is the ultimate arbiter of the standard of care required of a medical professional.
Lesson 2
Admittedly, the Court’s conclusion regarding the evidence of Professor Ribbans was in large part based on the finding, at [95], that his “supportive opinion was, it emerged, based upon […] the assumption that the contents of the defendant’s witness statements and letters to Dr Perry [the Wolves club doctor] about the imaging were correct.”
While that moderates the force of Lesson 1 – potentially attenuating Professor Ribbans’s support for the Defendant’s approach – it helps reinforce another, more practical lesson. Experts should form and express their opinion on the basis of primary materials and not allow their reports to be based on the views of the (expert) client, or exclusively on the client’s view of the facts.
Lesson 3
The Court expressed misgivings, at [79], about the “evolution in the defendant’s evidence” over the course of proceedings. However, it was particularly critical of “the fact that sections of the defendant’s witness statement had been cut and pasted from Professor Ribbans’ report.”
The lesson is clear: practitioners must guard against a situation – diagnosed by the Court in this case at [80] – in which their client’s evidence becomes “an amalgam of what the defendant thought and […] expert opinion.”
Martin Forde KC appeared for the Defendant in Ebanks-Blake v Calder. He did not contribute to this article.
