The primary issue the court had to determine in an August 2024 Australian Federal Court judgment was whether the insured’s “Bodily Injury” was “permanent hemiplegia” as defined by the insured’s Professional Sports Personal Accident and Sickness Insurance Policy.
The insured, a former professional football player had suffered a significant injury while being “crusher” tackled. “Bodily Injury” was defined in the policy as:
A “identifiable physical injury which is caused by an Accident and solely and independently of any other cause (except Illness directly resulting from or medical or surgical treatment rendered necessary by such Bodily Injury) results in Your death or disablement within twelve months from the date of the Accident.”
“Permanent” was defined as:
“disablement from a Bodily Injury that entirely prevents you from engaging in Your usual Occupation as stated in the Schedule [namely, professional rugby league player] and which either lasts for at least 12 months and then be without prospect of improvement, or is and when We determine that You are Permanently Totally Disabled, whichever happens first.”
The term “hemiplegia” was not defined in the policy.
The court held that the term was intended to be used as a term of art in the policy and regarded it as a technical medical term rather than a word which is used in ordinary English.
Both parties led expert evidence as to the technical meaning and usage of the word “hemiplegia”.
The court said that reasonable people in the position of the parties would expect the terms “paraplegia”, “quadriplegia”, “hemiplegia” and “triplegia” to bear their technical medical meaning. The court noted the immediate context in which the word “hemiplegia” appeared in association with references to paraplegia, quadriplegia and triplegia, any of which leads to the same indemnified monetary benefit. “Hemiplegia” was intended to refer to a comparable level of paralysis to that conveyed by “paraplegia”, “quadriplegia” and “triplegia” when applied to the limbs in question.
The court accepted the evidence of the expert for the insurers where it conflicted with the insured’s expert evidence and that the term “hemiplegia” refers to complete or near complete loss of movement down one side of the body, understood in the sense that “near complete” extends only to flickers of movement but no real movement in the limb itself.
On the evidence the court found that it was clear that the insured did not suffer from complete or near complete loss of movement down one side of the body, and therefore does not suffer from hemiplegia in the proper medical sense of the word. That was the case even if the court accepted the more generous approach of the insured’s expert that hemiplegia includes “severe weakness”.
In the circumstances the insured did not qualify for any benefits under the policy.
It is useful to ensure that terms central to the determination of an indemnity are defined in the policy to avoid a dispute as arose in this case.