A woman who fractured her spine during a trust task at a yoga teacher training course has been granted permission to pursue a damages case against Allianz.

Susanne Wigge took part in a “circle of trust” during the course in NSW’s Kangaroo Valley in June 2014, which involved students catching a falling fellow trainee.

When Dr Wigge, who is a GP, allowed herself to fall she was not caught by fellow students and instead hit the floor and fractured her thoracic spine.

Her proceedings for damages arising from injury, initiated in June 2017, allege the fall was caused by the negligence of course promoter KMYOGA in allowing the exercise to be performed and in failing to supervise it properly.

Justice Christine Adamson, in the Supreme Court of NSW, says the case will hinge on whether yoga – particularly Kundalini yoga – is sport or exercise, and whether an exclusion in the Allianz insurance policy needed an additional comma in the wording “sport exercise and activity”.

KMYOGA is now in liquidation and as a result, Dr Wigge, who paid $4500 for the three-week course, has switched the first defendant in her case from KMYOGA to Allianz, which insured the now-deregistered company for a year from October 2013 under a “Blue Eagle Office Pack” policy.

The policy insured KMYOGA for all amounts it became legally liable to pay as compensation for personal injury occurring in connection with the business, up to a stated indemnity limit.

However, an exclusion stated liability was not covered for personal injury from “participation of such person in any sport exercise or activity such as but not limited to aerobics, athletics, football, aquatic, aerial or equestrian activity”.

Allianz’s legal team argued the words “sport exercise or activity” clearly covered yoga which necessarily involved physical exercise. They say Dr Wigge’s injuries were sustained by participation in an exercise or activity, and therefore liability under the policy was excluded.

But Dr Wigge’s legal team questioned whether yoga and the “circle of trust” exercise fell within that exclusion. While some forms of yoga involve strenuous physical exercise, others may be meditative and involve “no more physical exertion than a game of chess or cards or knitting,” senior counsel Andrew Stone said.

Justice Adamson says the question is “not without difficulty” as the phrase “sport exercise or activity” was not entirely clear and could be read three ways: as “sport, exercise or activity,” or as “sport exercise or (sport) activity” or as “sport exercise or (other) activity.”

“One might think that yoga was plainly an “activity” but whether it is a “sport activity” is a more difficult question,” she said. “Even the assumption, which might on its face appear irresistible, that yoga involves physical exercise might be misplaced if Kundalini yoga is purely meditative and does not involve such poses as might be typical in other forms of yoga,” Justice Adamson said.

Allianz was not able to demonstrate it was “unarguable” that the policy excludes the claim, she ruled.

“Accordingly, leave ought [to] be granted to the plaintiff to continue the proceedings against Allianz,” she said.

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