The Federal Court has dismissed a claim brought by a former NRL player for injury in the form of hemiplegia in a career ending 'crusher tackle' in July 2020. The claim against the NRL’s accident insurer failed because the Court found the player did not suffer from hemiplegia based on the technical medical definition. However, the Court found his condition, although not hemiplegia, was caused by the 2020 crusher tackle, notwithstanding a significant prior crusher tackle injury.
In issue
There were two issues for determination by the Court:
- whether the player's injury constituted 'permanent hemiplegia', and
- whether his injury was caused solely by the 2020 crusher tackle and independently of any other cause, in the context of a previous similar injury.
The background
Ethan Lowe was a professional ruby league football player in the National Rugby League (NRL). In July 2020, during a game for the South Sydney Rabbitohs he was on the receiving end of a 'crusher' tackle (the Incident), which involves a tackled player being placed in a position of excessive flexion of the head, neck or spinal column under the weight of the defending player.
Immediately after the tackle Lowe reported left upper and lower limb numbness, indicative of neural compromise. He played the rest of the game but did not take the field again that season before his retirement from professional rugby league three months later in October 2020. Lowe had also played for the North Queensland Cowboys and had represented Queensland in the State of Origin.
After Lowe’s claim for indemnity under the NRL’s 'Professional Sports Person Personal Accident and Sickness Insurance Policy' (the Policy) underwritten by Lloyd’s of London (the Insurer) was denied, he issued proceedings in the Federal Court. Lowe claimed he was entitled to indemnity under the Policy because he suffered from 'Permanent hemiplegia' and his injury was 'caused by an Accident and solely and independently of any other cause'.
The Insurer’s position was that Lowe did not suffer from hemiplegia, and further - that his injury was not caused solely by the 2020 Incident.
The decision at trial
As the term hemiplegia was not defined in the Policy, the Court looked to the parties’ medical experts for guidance, stating it was reasonable to expect the term to bear its technical medical meaning.
The Court ultimately found that the proper medical definition of hemiplegia is a 'complete or near complete loss of movement down one side of the body' which Lowe, who did not have total loss of voluntary movement in his left side, did not suffer from. While the Court heard evidence that multiple medical practitioners had used the term hemiplegia in describing Lowe’s condition, the Court found that he does not suffer from hemiplegia in the proper medical sense of the word.
The condition he suffered from was hemiparesis, a condition not covered by the Policy, which is used to describe partial, not complete or near complete weakness. The Court considered that Lowe’s expert neurologist’s opinion that he was suffering from 'incomplete' hemiplegia was clouded by her concern for him which had adversely affected her impartiality as an expert witness.
However, as to the causation issue, the Court found in Lowe’s favour with respect to his contention that his injury – hemiparesis – was caused by an accident sustained 'solely and independently of any other cause', notwithstanding his injury was made worse as a result of a previous incident.
The Court heard that in 2016, Lowe was the victim of a similar crusher tackle following which he experienced an immediate tingling sensation throughout his body which dissipated but remained in both hands. Lowe had undergone successful spinal surgery in September 2016, there were no residual symptoms, and he was cleared to return to contact sport in January 2017.
On 31 March 2017, he suffered another injury during a game after receiving a blow to the head which caused hyperflexion to his neck, and reported a tingling sensation in his thigh and both hands. He was cleared to return to the sport and was able to continue playing professional football from 2017 through to 2020.
The Court accepted that the 2016 injury created a predisposition for further injury and that both the 2016 and 2020 injuries contributed to his current condition. The Court relied upon legal authorities to establish that the language used in the Policy that his injury must be 'caused by an Accident and solely and independently of any other cause' does not preclude his claim simply because he had a pre-existing condition that can be said to have contributed in some way to his injury.
The Court reasoned that the 2016 injury left Lowe with a dormant or inactive condition, rather than a significant medical or physical condition. However, but for the 2020 injury, the 2016 injury would have had no physical effect on Lowe and therefore his 2020 injury was still 'caused by an Accident and solely and independently of any other cause'.
Based on the Court's findings regarding the hemiplegia definition, the proceedings were dismissed.
Implications for you
This decision provides guidance on how the Court will determine the proper definition of a technical term where it is not defined in an insurance policy, particularly when the term is of a specialist nature, for example medical terms.
The decision is also a reminder for parties relying on expert evidence that the expert witness has a duty to the Court and must be seen to remain impartial when providing their specialist opinion.
Those involved in and participating in high impact contact sports may take some solace from the Court’s conclusion that a prior similar injury, may not be a barrier to a finding that the injury is nevertheless caused 'solely and independently of any other cause'.
The broader consideration for accident insurers is that, in certain circumstances, a pre-existing, similar injury or condition may not preclude cover for an injury 'caused by an Accident and solely and independently of any other cause' despite the restrictive policy wording.
