John is a professional football in the final year of his employment contract with the New England Patriots. Late in the season John and his teammates are facing the Tampa Bay Buccaneers when John receives a hard hit by one of the Buccaneers.

John suffers a significant concussion and other injuries which result in him missing the remainder of the season.

During the off season the medical staff of the Patriots review John's progress and determine he has significant risk of permanent injury should he recommence his football career at this time. Based on the above information, the Patriots decide not to offer John a new contract for the upcoming season or beyond.

John, feeling that the medical staff made a mistake, decides to consult with his own physician and experts in his new home town of St. John's, Newfoundland and Labrador.

John is referred by his family doctor to a neurological expert specializing in concussion related injuries. Because this is a second opinion and relates to an injury occurring outside of the Province, the Department of Health will not pay for the check up and as such John agrees to pay the neurologist, Dr. Ben Smith, the sum of $8,500.00 to do necessary examinations to provide a second opinion.

Following the check up, Dr. Smith drafts an opinion that John is in

perfect health and provides a copy to John and, at John's request, sends one directly to the Patriots organization. Based on this new medical opinion the Patriots reverse their decision and offer John a long term contract paying him $50 million dollars over seven seasons.

Armed with his new contract John takes to the field in the season opener against the Green Bay Packers where early in the first quarter he is running towards a touchdown. At the moment he isabout to cross the end zone he collapses and has to be removed from the field by the paramedics and medical staff on site.

It subsequently comes to light that Dr. Smith, in an effort to optimize his personal gain on the $8,500.00 paid by John failed to complete normal medical examinations which may have revealed the possibility of future clotting in the brain. If noted, this would have prevented his return to the field until further testing was complete.

The stroke received by John has cut short a promising career and resulted in long term permanent physical motor skills impairment. The only positive for John is the continuation of the $50 million dollars in payments the Patriots will make to him over the next seven years.

Might John have a cause of action as against Dr. Smith? If so, on what basis? What damages may be available to John? How might Dr. Smith defend himself? Make sure to use the facts in your Answer. Please answer all questions. (20 MARKS)