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Supreme Court pulls insurance award in sex 'accident' claim

The Supreme Court of Canada has taken away a $200,000 insurance award made to a Vancouver man who became paralyzed after a series of medical calamities arising from him having unprotected sex.

In a ruling that stressed the importance of using realism when interpreting insurance policies, the Court said that the tragic consequences of the plaintiff's may have been completely unexpected, but they could not be considered as an accident under his policy.

The insured man - Randolph Charles Gibbens - had unprotected sex with three women in early 2003 and acquired genital herpes. It led to him suffering transverse myelitis - a rare complication of herpes that causes inflammation of the spinal cord. He became totally paralyzed from his mid-abdomen down.

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The Court said that Mr. Gibbens was aware that having unprotected sex could result in him contracting a sexually transmitted disease, although he did not actually know that any of the women had genital herpes.

Mr. Gibbens later claimed compensation under a group insurance policy signed with the Co-operators Life Insurance Co. It provided coverage for losses sustained 'as a direct result of a critical disease or resulting directly and independently of all other causes from bodily injuries occasioned solely through external, violent and accidental means" - provided there was no negligence on his part.

At trial, a B.C. Supreme Court judge ruled that Mr. Gibbens' paraplegia qualified as a, 'bodily injury occasioned solely through external, violent and accidental means.' His award of $200,000 was later upheld by the B.C. Court of Appeal.

"Accident insurance is not comprehensive health insurance," Mr. Justice Ian Binnie said for a 9-0 majority today. "Mr. Gibbens contracted a sexually transmitted disease in the ordinary way through sexual intercourse. In most cases genital herpes is a minor irritant (if indeed there are any symptoms at all).

"I agree with the courts in British Columbia that Mr. Gibben's paralysis was tragic and unexpected but I do not agree with them that it was caused by, "external, violent and accidental means" within the meaning of the insurance policy," he said.

Judge Binnie said that there must be a sense of realism applied to the interpretation of insurance policies, excluding exotic interpretations which depart from what insured and the insurer could reasonably have contemplated when they entered into a contract.

"The word 'accident' is an ordinary word to be interpreted in ordinary language as it would be understood by the average person applying for insurance," Judge Binnie said.

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The case called for the court to carefully define the word, 'accident,' differentiating between events that happen unexpectedly.

"Accident insurance is not comprehensive health insurance and it is evident that the parties in this case did not expect the policy to cover all loss or bodily injury," it said.

Mr. Gibbens' policy specifically provided coverage against a number of 'critical diseases,' but transverse myelitis was not listed among them," Judge Binnie said.

"In ordinary speech "accident" does not include ailments proceeding from natural causes," he said. "Genital herpes is a sexually transmitted virus that spreads by sexual intercourse. The causal chain that led to the insured's bodily injury was sex that transmitted herpes that led to transverse myelitis.

"Transverse myelitis is an unexpected consequence of genital herpes that occurs rarely but it is a normal incident or consequence of the disease. Since the transmission followed the normal method by which sexually transmitted diseases replicate, the bodily injury proceeded from natural causes.

The Court said that it is not sufficient for an individual to claim that they suffered harm from a situation they did not anticipate - as Mr. Gibbens had. "If a man, sitting at a bus station, is hit by a bus that has careened out of control, that is unquestionably an accident - but it is not an accident by virtue of the fact that the man did not expect it.

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By the same token, it said that a person who suffers and stroke and dies while watching television is the victim of an unexpected tragedy - but not an accident.

"Otherwise, every bad happening, natural or unnatural, whether caused by disease in the ordinary course of events or otherwise, would be classified as an accident," Judge Binnie said. "The tragedy is totally unexpected. Yet, there is no accident involved in any ordinary manner of speech."

He noted that neither the Court nor the insurance company was placing any emphasis on the fact that Mr. Gibbens engaged in unprotected sex.

"The insurance company does not contend that risky behaviour disqualifies him from coverage," Judge Binnie said. "It recognizes that one of the reasons people buy insurance is to provide protection against the consequences of risky behaviour. Rather its point is that the transmission followed the normal method by which sexually transmitted diseases replicate and thus the bodily injury "proceed[ed]from natural causes."

He said that a virus transmitted from one individual to another may "prove to have calamitous and unexpected consequences," but it cannot trigger insurance claims under an accident policy - without effectively turning the policy into a comprehensive health policy - policies which almost invariably carry much higher premiums.

"The Court has provided a welcome confirmation that there is an important distinction between an accident and a naturally occurring disease or bodily infirmity," said Patricia Jackson, a lawyer who represented the Canadian Life and Health Insurance Association in the case.

"It is not an accident when a person suffers the natural effects of a disease, however unexpected - such as when a person acquires an easily transmissible disease such as the swine flu or SARS," Ms. Jackson said. "The decision is an important one for the insurance industry. It was concerned that the lower court decision, if upheld, would have altered decades of established case law and vastly broadened the scope of existing accident insurance policies."

However, the Court warned that insurance companies not to think that they have carte blanche to reject any claim that results from an illness or disease. "Unlisted diseases or other bodily infirmities might still be covered if attributable to some antecedent event or events that could, together with an unexpected result, be characterized as accidental," it said.

"The burden of proof however, remains squarely with the plaintiff. If he or she fails to establish on a balance of probabilities that the bodily injury resulted from an accident, the claim will fail. And so it is in this case."

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Justice reporter

Born in Montreal, Aug. 3, 1954. BA (Journalism) Ryerson, 1979. Previously covered environment beat, Queen's Park. Toronto courts bureau from 1981-85. Justice beat from 1985 - present. More

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