Expert Witness Journal Issue 65 February 2026 - Flipbook - Page 50
arthroscopy (keyhole surgery generally used to
examine and treat joint problems) with debridement
of scar tissue and loose cartilage in the ankle. This
surgery was performed one week after the injury.
As outlined further below, it was alleged that the
decision to perform an arthroscopy was negligent.
The outcome
Liability turned on the di昀昀erence between the
contemporaneous notes and the defendant’s
evidence at trial, which were markedly di昀昀erent. At
trial, the defendant’s evidence was that the claimant’s
injuries in 2013 were so serious and so striking that
they stuck in his memory; his evidence was that the
injuries were so severe as to be potentially career
ending. However, this was not the suggestion from
his contemporaneous notes in 2013, which suggested
an altogether less signi昀椀cant ankle injury, which
was predominantly chronic in nature (arising
from the 2005 injury). Speci昀椀cally, the defendant’s
contemporaneous pre-operative notes recorded the
following:
The claimant returned to playing professional
football, but his case was that the alleged negligence
curtailed his career. The claimant’s case was that but
for the decision to perform an arthroscopy, he would
have been able to continue playing at an elite level
(Premier League or Championship) for a further 3
to 5 years. In fact, the claimant dropped down the
leagues, playing for Chester昀椀eld in League 1 in 2015
before ultimately deciding to stop playing league
football at the end of the 2016/17 season. He was
playing in a non-league match in January 2019 when
he su昀昀ered a further left 昀椀bula fracture and decided
to retire from the game.
•
“He has not had any signi昀椀cant symptoms in his ankle
since the previous fracture other than some sti昀昀ness...”.
•
“Clinically today the ankle itself appears a little
swollen but there is no tenderness across the medial
aspect of the ankle…and there is no signi昀椀cant
tenderness around the lateral ligament complex – in
particular there is no tenderness around the AITFL
[anterior inferior tibio昀椀bular ligament].”
The issues
Despite his 2005 injury, the claimant’s ankle joint
had been pain free. He had adapted his playing
style to accommodate ankle sti昀昀ness, and this
had allowed him to play at the highest level of the
football pyramid.
Whilst the defendant noted some abnormalities
around the ligaments, he also expressed the view
that these were older injuries.
The claimant argued that he had su昀昀ered no acute
injury to the ankle ligaments in the 2013 injury
to justify an arthroscopy. An arthroscopy would
inevitably involve the removal of arthro昀椀brosis in
order to visualise and access the ankle joint, and
removal of degenerate cartilage. However, the
claimant’s case was that this arthro昀椀brosis and
cartilage had in fact been serving a useful function,
i.e. cushioning for the ankle joint, and that its
removal altered the biomechanics of the joint and
caused pain, instability and an acceleration of
degenerative changes. The claimant’s case was that
an arthroscopy should not have been performed on
a pain-free and functioning ankle.
This “evolution” (as the judge described it) of the
defendant’s evidence was brought sharply into focus
by the fact that sections of his witness statement,
including the important issue of his rationale for
recommending and performing the arthroscopy,
had been taken directly from his own orthopaedic
expert’s report, so much so that the judge remarked
that:
“
Against this background, the judge was persuaded
that the defendant’s real rationale for performing
the arthroscopy was to investigate potential
instability in the ankle joint, and not to treat what in
fact was found to be a much less serious ankle injury
than that suggested by the defendant in his evidence
at trial.
The defendant argued, on the other hand, that
the 2013 injury involved signi昀椀cant acute injuries
to structures within the ankle, leaving the ankle
unstable. The defendant’s case was that an
arthroscopy was the ‘gold standard’ intervention
for an unstable ankle and that it would have been
negligent not to have undertaken the procedure.
The defendant further argued that the arthroscopy
had in fact prolonged the claimant’s playing career.
In 昀椀nding that there had been a breach of duty in
undertaking the arthroscopy, the judge found,
amongst other things, that “it would be wholly illogical
to perform an invasive procedure for the purpose of
examining a structure which you believe clinically and
radiologically to be normal.”
The case largely hinged on the extent to which
the claimant’s 2013 injury involved an acute
injury or whether there had simply been a modest
exacerbation of a chronic (long-standing) ankle
injury. This is because the defendant accepted in
cross-examination that a chronic process does not
require an arthroscopy.
EXPERT WITNESS JOURNAL
“I am led to the irresistible conclusion that the
defendant’s witness statement and his account at
trial are almost certainly an amalgam of what the
defendant thought and Professor Ribbans’ [the
defendant’s orthopaedic expert] expert opinion.”
From a causation perspective, the judge also found
that the removal of the scar tissue destabilised the
claimant’s ankle joint by removing the cushioning
48
FEBRUARY 2026
