HERPES IS NO ACCIDENT ACCORDING TO SUPREME COURT OF CANADA: Co-operators Life Insurance Co. v. Gibbens, 2009 SCC 59

In January and February of 2003, Mr. Gibbens engaged in unprotected sex with several women, which resulted in him acquiring genital herpes. This triggered a medical condition known as transverse myelitis, which paralyzed him from the mid-abdominal region down, in what was no doubt a rare occurrence.

Mr. Gibbens had an insurance policy, which provided coverage for losses sustained “as a direct result of Critical Disease or resulting directly and independently of all other causes from bodily injuries occasioned solely through external violent and accidental means, without negligence.

The insurance policy contained a section, which provided coverage for certain enumerated “Critical Disease[s]” but transverse myelitis was not included in that list. As a result, Mr. Gibbens decided to claim compensation in the policy amount of $200,000 on the basis of his condition, being the result of an “accident”. The term “accident” was not defined in the policy.

At trial, the judge was of the view that for transverse myelitis to be considered “accidental”, the means of acquiring it must have been unexpected. As such, the judge framed the issue of determining “accident” as whether Mr. Gibbens expected to become a paraplegic as a result of having unprotected sexual intercourse. On the basis of this reasoning, the court concluded he could not have expected this consequence and it awarded the policy payout of $200,000. The insurers then appealed.

On appeal to the British Columbia Court of Appeal, the court agreed with the trial judge that Mr. Gibbens’ transverse myelitis was an accident, and that it arose from an external factor or “unlooked-for mishap” being the introduction of the herpes virus into his body by a sexual partner sufficient to qualify as “accidental” in the ordinary meaning of that term. The insurer then appealed to the Supreme Court of Canada.

At the Supreme Court of Canada, the insurer argued that the consequences of the disease were a result of a “natural” cause acquired through sexual intercourse and as such cannot be said to be “accidental.” The Court agreed with this position and emphasized the available case law, which typically precluded accidents to include ailments proceeding from natural causes. The court also emphasized the commercial importance of not allowing what was intended to be an accident policy from becoming misconstrued as a comprehensive health insurance policy to cover non-enumerated diseases, especially when lower premiums were being charged than what otherwise could have been charged for the insurer to take on these risks.

The Supreme Court of Canada also discussed the importance of maintaining the reasonable expectations of the parties and that permitting transverse myelitis to be included as “accidental” in these circumstances would open the door to putting insurers on the hook for commonly derived consequences acquired from the natural transmissions of diseases through coughing, sneezing, or shaking hands. In other words, it appears that the natural spreading of disease devoid of any associated mishap or trauma should not be considered accidental in the view of the Supreme Court of Canada.

The Supreme Court of Canada cited Justice Cockburn’s 1995 British judgment from Sinclair where the relationship between accident and disease was distinguished:

“[D]isease or death engendered by exposure to heat, cold, damp, the vicissitudes of climate, or atmospheric influences, cannot, we think, properly be said to be accidental; unless at all events, the exposure is itself brought about by circumstances which may give it the character of accident.  Thus (by way of illustration), if, from the effects of ordinary exposure to the elements, such as is common in the course of navigation, a mariner should catch cold and die, such death would not be accidental; although if, being obliged by shipwreck or other disasters to quit the ship and take to the sea in an open boat, he remained exposed to wet and cold for some time, and death ensued therefrom, the death might properly be held to be the result of accident”.

As a result, it would seem that acquiring Herpes triggering transverse myelitis alone through ordinary and natural means is not in and of itself enough to constitute an accident. However, had the disease been originally acquired by some non-natural exposure such as through a sexual assault, or some medical procedure gone wrong, perhaps this might have been considered an accident in the eyes of the Supreme Court of Canada in the absence of an explicit definition of “accident” to the contrary within the policy itself.

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