In the case of Co-operators Life Insurance v Gibbens, 2009 SCC 59, the insured contracted herpes through unprotected sex and, as a result, developed transverse myelitis, a rare complication of herpes, which left him paralysed from the waist down. The insured was a party to a group insurance policy that provided cover for accidental bodily injuries under which he attempted to make a claim for his injury.

The relevant question before the Canadian Supreme Court was whether the insured's injury was the result of an accident. The court found that the word 'accident' was an ordinary word and should therefore be interpreted as it would be understood by the average person. It also found that when interpreting insurance contracts the court must avoid unrealistic results which would not have been contemplated by the parties when they entered into the agreement. As a result, the court concluded that, under the terms of the insurance policy, the insurers would not have envisaged that the policy would cover all loss or bodily injury. The court also found that, in most cases, a naturally occurring injury did not constitute an accident. Therefore, as the insured contracted herpes in the natural way and his injury was the result of that natural transmission the injury could not be said to be an accident. Consequently, the insured was not entitled to an indemnity under the terms of the insurance.

This decision makes it clear that accidental insurance policies will not provide cover for the majority of disease claims which should, instead, be covered by comprehensive health policies. With the rise of SARS and hospital super bugs, similar claims under accident policies may increase. Following this judgment, insurers will now have a useful tool in fighting such claims.