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The Serbonian Bog
Published in the December 2009 issue of Litigation Notes - View Article
The Supreme Court of Canada concludes that an individual who became paraplegic as a result of contracting genital herpes could not recover under an accident insurance policy
As a result of having unprotected sex with three women in January and February of 2003, Mr. Gibbens contracted genital herpes. This in turn caused inflammation of his spinal cord (transverse myelitis), which resulted in total paralysis from the waist down. The Co-operators policy provided coverage in the amount of $200,000 if the insured suffered paraplegia as 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 without negligence on the [insured’s] part…”. Critical disease was a defined term and listed a number of diseases, which did not include transverse myelitis.
The Supreme Court of British Columbia found that there was coverage under the policy. The Court placed considerable reliance on the case of Martin v. American International Assurance Life Co., 2003 S.C.C. 16 (CanLII) for the proposition that in determining whether an event is an “accident” one must consider whether the consequences were unexpected. Since Mr. Gibbens did not expect to become a paraplegic as a result of having unprotected sexual intercourse, there was an accident within the meaning of the policy. This decision was upheld by the British Columbia Court of Appeal.
In the Supreme Court of Canada, Justice Binnie begins by commenting that a century and a half of insurance litigation has “…failed to produce a bright line definition of the word ‘accident’ ” and that insurers have consistently declined to define the term in their policies, leaving it to the courts. Quoting from the text, The Law Relating to Accident Insurance, by A.W. Baker-Welford, the Court states that the word “accident”… “involves the idea of something fortuitous and unexpected, as opposed to something proceeding from natural causes; and injury caused by accident is to be regarded as the antithesis to bodily infirmity caused by disease in the ordinary course of events”. The Court goes on to point out that Welford argued that the element of accident may be manifested in the cause or in the result but that Justice Cardozo of the U.S. Supreme Court has famously invoked Milton’s Paradise Lost in warning that “the attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog”. However, Mr. Gibbens’ accident policy contained the “time honoured formula confining the risk to bodily injuries that are ‘occasioned solely through external, violent and accidental means’ ”.
Justice Binnie goes on to review the general principles of interpretation of insurance policies:
“1. Words like “accident” should be given their ordinary meaning.
2. Generous interpretation should be given to the term “accident” unless a policy clearly restricts it.
3. The words of an insurance contract, when ambiguous, should be construed against the drafter (i.e. the insurer)(contra proferentem).
4. Where a policy is ambiguous, effect should be given to the reasonable expectations of the parties.
5. Continuity of interpretation: ‘Courts will normally be reluctant to depart from judicial precedent interpreting the policy in a particular way where the issue arises subsequently in a similar context and where the policies are similarly named. Certainty and predictability are in the interests of both the insurance industry and their customers.’ ”
The Court went on to consider whether or not Mr. Gibbens’ paraplegia was caused by external violent and accidental means. The insurer argued that the words “external” and “violent” in the definition should be given independent meaning. However, the Court considered that these words have “long since been subsumed into the concept of accident”. Quoting from Couch on Insurance, the term “violent” refers to “some act not occurring in the ordinary run of things and may be fulfilled by any force whatsoever, however slight. It has been said that unnatural death, the result of an accident of any kind, imports an external and violent agency as the cause..”.
However, the Court points out that diseases are transferred from person to person through natural processes such as coughing and sneezing in someone’s presence “in the ordinary course of events”. The viruses thus transmitted may in some situations prove to have calamitous and unexpected consequences yet if some transmissions are viewed with hindsight, to be classified as accidents, then the accident policy becomes a comprehensive health policy.
The Court considered the Martin case, supra, and distinguished it on the basis that the death in that case did not occur as the result of a disease. The case involved a doctor who was addicted to morphine and other drugs and gave himself an accidental overdose. The issue related to whether the death was in fact accidental or whether the doctor had committed suicide and the fact that the outcome was “unexpected” was significant in that case. The Court concludes that the fact that a claimant “…can establish that death was unexpected does not thereby, without more, establish a valid 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”. In the case of Wang v. Metropolitan Life Insurance Co., 2004 CanLII 21269, the Ontario Court of Appeal rejected an attempt to apply a simple expectation test to a disease/natural causes situation. In that case a woman was undergoing a caesarean section and died of cardiac arrest brought on by an amniotic fluid embolism. While this was clearly an unexpected outcome, it was a death from natural causes and not “accidental” as that term would be normally understood.
Considering the expectations of the parties, the Court concludes that in Mr. Gibbens’ case the fact that the policy provided coverage for a certain list of critical diseases as well as for bodily injuries “occasioned solely through external, violent and accidental means” would have enabled the insured to understand that he was not purchasing comprehensive health or disability insurance. To conclude that Mr. Gibbens’ acquisition of herpes was an accident “despite the absence of any mishap or trauma other than the acquisition of a sexually transmitted disease in the ordinary way would simply serve to add sexually transmitted diseases to the list of critical diseases in the group policy contrary to the intent of the policy”. The appeal was allowed and the action dismissed.
Co-operators Life Insurance Co.v. Gibbens, 2009 SCC 59 (CanLII)