In the recent decision of Co-operators Life Insurance Co. v. Gibbens, the Supreme Court of Canada considered the definition of “accident” in the context of a group insurance policy, which provided coverage for losses sustained through accidental means. The court held that an unexpected bodily injury which is caused by a disease that is transmitted in the ordinary course through natural processes, cannot be accidental.
The insured, Gibbens, had unprotected sex with three women and contracted genital herpes. Gibbens subsequently suffered from a rare but known complication of herpes, transverse myelitis (inflammation of the spinal cord), which resulted in total paralysis from mid-abdomen down.
Gibbens applied for accidental disease/dismemberment benefits under his group insurance policy, which provided coverage for losses “resulting directly and independently of all other causes from bodily injuries occasioned solely through external, violent and accidental means”. Gibbens claimed that while he was aware of the risk of contracting a sexually transmitted disease when having unprotected sex, he did not expect to suffer from transverse myelitis and become paralyzed. Accordingly, Gibbens argued that his condition should be deemed to have arisen through accidental means within the meaning of the policy. The insurer denied Gibbens’ application for benefits.
Trial Decision - Paralysis unexpected result of unprotected sexual intercourse and therefore accidental
Gibbens sued the insurer for coverage under the group insurance policy on the basis that the paraplegia qualified as a “bodily injury” which occurred through “accidental means” within the meaning of the policy. The insurer argued that the paraplegia was caused by disease, and therefore not accidental. The trial judge relied on the decision in Martin v. American International Assurance Life Co., and held that in order to determine whether the injury resulted from an “accident”, what must be considered is whether the consequences were unexpected (the “expectation test”). Accordingly, the question the court asked was “whether Mr. Gibbens expected to become a paraplegic as a result of having unprotected sexual intercourse”. The court stated “disease which does not result from a natural cause may be accidental”. Gibbens was awarded $200,000 plus interest and costs on the basis that paraplegia was unexpected and therefore accidental.
Decision Upheld On Appeal - Paralysis unexpected and the result of an unlooked for mishap and therefore accidental
The insurer appealed the trial judge’s decision. On appeal, the court rejected the trial judge’s finding that one can determine if an event is accidental based solely on whether the event is unexpected. The court held that consideration must also be given to the ordinary meaning of the term “accident”, which has been defined as an “unlooked for mishap or untoward event which is not expected or designed”. The court agreed that the transverse myelitis, which led to the paralysis, “arose from an external factor or “unlooked for mishap” - the introduction of the HSV-2 virus into his body by a sexual partner. Therefore the paraplegia was held to have been caused by accidental means within the meaning of the policy.
Decision Overturned By Supreme Court of Canada - Paralysis unexpected but the result of a disease in the ordinary course of events and therefore Not accidental
The insurer sought and obtained leave to appeal. The Supreme Court of Canada agreed with the Court of Appeal and held that the determination of whether a bodily injury results from an accident cannot be established solely based on the expectation test. The court agreed that the word accident should be interpreted in “ordinary language” as the average person would understand it. Accordingly, in order for an injury to be caused through accidental means, there must be an unlooked for mishap, which caused the unexpected injury.
In this regard, the court stated that if the sole test were the expectation test, then “every bad happening, natural or unnatural, whether caused by disease in the ordinary course of events or otherwise, would be classified as an accident”. To illustrate this point, the court provided the example of an insured sitting on a couch in front of her television set when suddenly she suffers from a stroke and dies. While the stroke and resulting death was totally unexpected, there is no accident involved in the ordinary sense of the word.
The court also acknowledged that while the word accident would not typically include a disease arising from natural causes, it may include a disease which does not arise in the normal course of events. Accordingly, the court stated that Gibbens’ claim is not barred simply because his paraplegia was caused by a disease. The court held that the onus is on the insured to establish that his paralysis was caused by an “unlooked for mishap”.
The court examined the chain of events which led to Gibbens’ paralysis, namely sexual intercourse, which resulted in the transmission of genital herpes that led to transverse myelitis. While the transmission of genital herpes involved the participation of an outside sexual partner, the normal method of transmitting genital herpes is through sexual intercourse. The court acknowledged that while transverse myelitis is an unexpected consequence of genital herpes, it does “occur (though rarely) as a normal incident or consequence of that disease”.
Based on the foregoing, the court concluded that the acquisition of genital herpes by Gibbens, which ultimately led to the transverse myelitis and paraplegia, was not an “accident” since the herpes was acquired in the “ordinary way” absent any mishap or trauma. Accordingly, the court held that the “so-called accident was simply the inception of the disease in the ordinary course of events”. On the basis of this finding, the court allowed the appeal and dismissed Gibbens’ claim against the insurer.