The latest litigation explosion in the United States is a flood of claims for sport concussion injuries. It is unlikely there will be a similar wave of litigation in South Africa. There is no noticeable increase in concussion injuries or public awareness of potential claims in South Africa. Nonetheless, insurers should look at their policy wordings to see if they are covering policyholders who are likely to be the target of these claims and to see that they are only insuring risks they intend to insure.
In the US, class actions and individual actions are being instituted by American football players as well as for sports such as soccer, ice hockey, gymnastics and even cheerleading. Claims by players and their spouses are based on negligence, negligent misrepresentation, wrongful death, loss of consortium and inadequate medical monitoring. Claims are made against professional leagues, amateur sporting associations and sporting equipment manufacturers (particularly helmet makers).
Insurers should look at their policy wordings to see if they are covering policyholders who are likely to be the target of sports injury claims.
These claims are being passed on to insurance companies who have been faced with a number of coverage issues. The issues include whether the injuries are progressive or happened as a result of a defined occurrence, whether they happened during the policy periods, whether there is intentional conduct or a sporting injury exclusion, whether there were pre-existing conditions on inception or non-disclosure, and whether the losses are not fortuitous and resulted from a known risk.
The occurrence issues relate, not unlike asbestosis claims, to the question whether the concussion happens at a single point in time or over a successive period of policy years. The medical evidence on this issue is divided and depends on particular sets of facts. Where the concussion occurs over a period of time, there may be grouping of occurrences in the policy wording so that a single proximate cause is not the test.
