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Case summary: Lowe v Certain Underwriters at Lloyd’s of London Subscribing to Policy Number ATCSI00100 [2024] FCA 858 – NRL player loses claim against insurer

Published on December 13, 2024 by Matthew Forshaw

The Federal Court has dismissed a claim for insurance coverage under the National Rugby League’s (NRL) accident policy by former NRL player Ethan Lowe, finding that his injury did not meet the definition of “Permanent Hemiplegia” and was not caused by an accident solely and independently of other causes.

Background

Mr Lowe, a high-profile athlete who represented the South Sydney Rabbitohs, North Queensland Cowboys, and Queensland in the State of Origin series, was forced into early retirement following a serious neck injury sustained during a match on 18 July 2020.

The injury occurred when Mr Lowe was subjected to a “crusher tackle,” a manoeuvre involving the forced flexion and subsequent hyperextension of the cervical spine under the weight of an opposing player. Immediately after the tackle, Mr Lowe reported numbness in his left limbs, indicative of potential spinal cord damage, and was subsequently diagnosed with symptoms that permanently impeded his ability to play professional football.

Mr Lowe made a claim under the NRL’s Professional Sports Personal Accident and Sickness Insurance Policy, underwritten by Certain Underwriters at Lloyd’s of London (the Policy), asserting that he suffered from “Permanent Hemiplegia” as a result of the 2020 injury.

The insurer denied liability, arguing that Mr Lowe’s condition did not amount to “Permanent Hemiplegia” and that his injury was not “caused by an accident solely and independently of any other cause” as required under the terms of the Policy. In response, Mr Lowe sought a court declaration and an order compelling the insurers to provide indemnity.

Key issues for determination

The Federal Court was asked to decide on two critical issues:

1. Whether Mr Lowe’s injury constituted “Permanent Hemiplegia” as defined in the Policy.
2. Whether Mr Lowe’s injury was caused “solely and independently of any other cause,” as required for coverage.

To address these questions, the Court emphasised the principles of interpreting commercial contracts, specifically insurance policies. It reiterated that words and phrases should be read in their ordinary and natural meaning unless defined differently in the policy [1] (see CGU Insurance Ltd v Porthouse [2008] HCA 30).

Issue 1: interpretation of “Permanent Hemiplegia”

The first issue turned on the interpretation of “Permanent Hemiplegia,” a term not explicitly defined in the Policy. The Policy Schedule referred to an “Insured Event” as a “Bodily Injury resulting in Permanent paraplegia, Permanent quadriplegia, Permanent hemiplegia, or Permanent triplegia.” The definition of “Permanent” was also provided, meaning a disablement from Bodily Injury that entirely prevents the insured from engaging in their usual occupation.

The Court noted that “hemiplegia” was a specialised medical term, necessitating expert evidence to clarify its meaning. In considering its context, the Court observed that the term appeared alongside “paraplegia,” “quadriplegia,” and “triplegia,” suggesting it referred to a comparable level of paralysis severity. Expert medical testimony was therefore crucial to understand whether Mr Lowe’s condition fit within this definition.

The Court relied heavily on the opinions of medical experts. Neurosurgeon Dr Terry Coyne testified that true “hemiplegia” involves a complete or nearly complete loss of voluntary movement on one side of the body. Dr Coyne clarified that “nearly complete” means only slight flickers of movement, insufficient to generate purposeful motion. Although Mr Lowe experienced significant neurological impairment, he retained partial mobility and could still engage in activities such as gym workouts, running, and swimming. The Court found that Mr Lowe’s condition did not meet the stringent medical criteria for “Permanent Hemiplegia” and thus did not qualify as an Insured Event under the Policy.

Issue 2: causation and “solely and independently of any other cause”

Despite the conclusion on the first issue, the Court considered whether Mr Lowe’s injury was caused “solely and independently of any other cause.” The insurers argued that a pre-existing neck injury from 2016 was relevant. During that earlier incident, Mr Lowe suffered a left paracentral disc protrusion, leading to significant spinal canal stenosis. He underwent spinal surgery, recovered, and returned to playing NRL at the highest level without residual symptoms.

Lloyd’s Underwriters contended that this 2016 injury had a lingering effect, potentially contributing to Mr Lowe’s 2020 condition. However, the evidence revealed that Mr Lowe was asymptomatic from the time of his recovery in 2016 until the crusher tackle in 2020, suggesting no ongoing physical impairment from the earlier injury. Medical experts confirmed that Mr Lowe’s prior condition was dormant and inactive, with no physical impact on his subsequent athletic performance. The Court accepted this evidence, concluding that the 2020 injury was caused solely by the tackle and not influenced by any pre-existing condition.

Key takeaways

The Court ultimately dismissed Mr Lowe’s claim, ruling that he did not suffer from “Permanent Hemiplegia” as defined by the Policy and therefore was not entitled to indemnity. However, the decision provides valuable insights into how courts approach the interpretation of technical terms in insurance policies. The case highlights the importance of expert evidence in resolving disputes over the meaning and implications of such terms.

From a practical perspective, this judgment serves as a reminder for insured parties, as a policyholder you must carefully consider the specific wording of your coverage and when disputes involve specialised terminology, retaining appropriately qualified experts is crucial.

Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.

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[1] See CGU Insurance Ltd v Porthouse [2008] HCA 30.