Partial paralysis: the Federal Court dismisses NRL player’s career ending ‘crusher tackle’ injury application

On 2 August 2024, the Federal Court dismissed a claim brought by Ethan Lowe, a former professional National Rugby League (NRL) player who previously played for the Rabbitohs, Cowboys and the Queensland State of Origin Team. Lowe suffered an injury on 18 July 2020 when he was involved in a 'crusher tackle’, which involves forced flexion followed by hyperextension of the cervical spine due to downward pressure on the head by a defender’s weight. Immediately after the tackle, Lowe reported numbness in his upper and lower left limbs, indicative of neural compromise and was consequently forced into retirement (Injury).  

Following the incident, Mr Lowe made a claim on the NRL’s Professional Sports Personal Accident and Sickness Insurance Policy, underwritten by Lloyds of London (Policy). Mr Lowe alleged that he suffered from ‘Permanent Hemiplegia’ as result of the Injury. Insurers denied the claim on the basis that he did not have ‘Permanent Hemiplegia’ and the injury was not ‘caused by an accident solely and independently of any other cause’ as required the Policy. Lowe then commenced an action in the Federal Court seeking a declaration and order for indemnity from insurers. 

The Federal Court faced two issues for determination:

• whether Lowe’s ‘Bodily Injury’ was ‘Permanent hemiplegia’ as defined by the Policy; and
• whether Lowe’s Injury satisfied the definition of Bodily Injury as being ’caused by an accident solely and independently of any other cause’.

In determining these matters, the Court found that the construction of an insurance policy, being a form of commercial contract, should be approached according to the principles of commercial contracts in that words and phrases should be read in their ordinary meaning (CGU Insurance Ltd v Porthouse [2008] HCA 30). 

Firstly, the Court was required to consider the construction of the word ‘hemiplegia’ and whether Lowe suffered from such a condition. Mr Lowe sought relief under Item 1 of the Policy Schedule which defined an ‘Insured Event’ as:

‘Bodily Injury resulting in Permanent paraplegia, Permanent quadriplegia, Permanent hemiplegia or Permanent triplegia’. 

The word ‘Permanent’ was defined in the Policy as:

 ‘Disablement from a Bodily Injury that entirely prevents you from engaging in your usual occupation’… 

The insurers accepted the definition of ‘Permanent’ but raised issue with the definition of ‘Bodily Injury’ being ’Permanent hemiplegia’. The Court noted that it had never heard or seen the word ’hemiplegia’ and regarded it as a technical medical term rather than a word that is used in ordinary English. Before turning to the expert evidence, the Court considered the immediate context in which the word ‘hemiplegia’ appears is in association with references to paraplegia, quadriplegia and triplegia, and as such should be intended to refer to a comparable level of paralysis. However, the Court acknowledged that in circumstances where the meaning of a technical or scientific term is disputed, the meaning may be established by expert evidence (Quasar Resources Pty Ltd v APG Aus No 3 Pty Ltd [2023] WASCA 171). As such the Court relied on two expert reports to determine the definition of ‘hemiplegia’.

After careful analysis, the Court preferred the evidence of Dr Terry Coyne (neurosurgeon) who opined that ’hemiplegia’ is complete or near complete loss of movement down one side of the body and the reference to ’near complete’ extends only to flickers of movement but no real movement in the limb itself. Although Lowe showed signs of partial paralysis on one side of his body, he did not suffer from complete or near complete unilateral paralysis as he was still physically capable of undertaking gym exercises, running and swimming. Therefore, Lowe did not suffer from ‘hemiplegia’ in the proper medical sense of the word. 

In light of Lowe’s failure to satisfy the medical definition of ‘hemiplegia’, the Court was not required to discuss causation. However, considering the substantial body of evidence directed at the issue, the Court addressed whether Lowe’s condition was caused ‘solely and independently of any other cause’. The insurers relied on Lowe’s previous injury in 2016 where he was tackled and downward pressure was placed on the back of his head and briefly compressed his chin into his chest (2016 Injury). Immediately after the 2016 incident, Lowe reported tingling throughout his body and numbness in both hands. It was found that Lowe had suffered a large left paracentral disc protrusion which caused a significant canal stenosis to impinge on his spinal cord. Lowe underwent a successful spinal surgery in September 2016, which saw him return to contact sport in January 2017 with no residual symptoms. 

The Court found that the 2016 Injury left Lowe with a dormant or inactive condition. The evidence established that not only was Lowe asymptomatic between the 2016 Injury and the Injury, but also that he played NRL at the highest level throughout that period. Accordingly, the Court was satisfied that the 2016 Injury would have had no physical effect on Lowe and therefore, his current Injury was caused by an ‘accident solely and independently of any other cause’. 

This article was written with the assistance of Tristan Page, Law Graduate.