Unprotected sex covered by disability insurance, court rules

Ian Mulgrew, Vancouver Sun
Man paralysed by herpes after risky activities with three women didn't act with 'reckless abandon,' appeal court finds
A 45-year-old man crippled as a result of herpes contracted from unprotected sex should be covered by his employee disability insurance, says the B.C. Court of Appeal.

The judges decided the sexually transmitted virus Randolph Charles Gibbens contracted from risky extracurricular activities with three women qualified as an injury suffered from "external, violent and accidental means."

In early 2003, the virus attacked his spine, according to unchallenged expert testimony, resulting in Gibbens suffering transverse myelitis and paralysis from the abdomen down.

The Fraser Valley painter claimed coverage under his union insurance plan that included a $200,000 payment "if the Plaintiff furnishes proof of paraplegia (total paralysis of both lower limbs) or loss of use of both legs."

Justice Mary Newbury, supported by Justice David Frankel, said: "Since what happened to Mr. Gibbens was unusual, if not 'unnatural or extreme,' I conclude that his paralysis qualifies as 'bodily [injury] occasioned solely through ... violent ... means' as well as 'accidental' and 'external' means, and is therefore covered by the policy."

Lawyers for the insurer said such reasoning leads to the conclusion that catching influenza after breathing air on a bus would qualify as an "accident."

But Justice Newbury noted it is doubtful any court would take such a view since the parties to an insurance policy would not have intended such a contingency be covered.

Moreover, the policy here would not provide coverage in that event because influenza is not among the "losses" listed in the policy.

Paraplegia, however, is.

Justice Newbury said it might be prudent for insurance companies to change the language of their policies if they had difficulty with the court's interpretation.

The court drew an analogy to a trail-blazing 2007 Ontario Court of Appeal decision.

In that decision, a worker who contracted West Nile virus from a mosquito bite was deemed covered by the accidental-death clause in his employee insurance policy.

He could have taken precautions, but the prospect of catching such a tropical disease in Toronto was considered so remote no one would reasonably expect such a thing.

At trial in this case, the B.C. Supreme Court justice applied what is known as the "expectation test" and concluded the paraplegia was caused by "accidental means" because Gibbens had not expected to become paralysed by having unprotected sex.

His decision to engage in unprotected sex, in the judges' view, did not involve the same degree of inordinate risk as playing Russian roulette.

It did not indicate a "reckless abandon and exposure to a known, and obvious danger" -- the risk of contracting the virus.

The insurer -- Cooperators Life Insurance Company -- appealed, arguing the expectation test is appropriate only where there is doubt as to whether the insured intended death or injury, not where the injury is due to a "disease" or other "natural" cause.

In the complicated arguments before the court of appeal, the firm said that of equal importance to the insured's expectations is whether the injury is "accidental" or due to "accident" in the ordinary meaning of the words.
"Accident" does not usually refer to an illness per se or an unexpected but totally "natural" event such as a heart attack. Normally some unexpected mishap or "external" factor is present.

The transverse myelitis, though, did not arise "naturally," but from an external factor or unlooked-for mishap -- the introduction of herpes virus. It could therefore be regarded as "accidental."

And Justice Mary Saunders, who wrote a concurring opinion, worried that we may see many similar lawsuits in the future.

"The world is populated with pathogens," she wrote. "I dare say no one intends to 'catch' one through regular activities of living and so it may be difficult to perceive a principled difference between the unintended and unexpected contraction of a common ailment from the events before this court. There are, further, uncommon conditions that may be seen as analogous to the situation in [the Ontario case], such as contraction of the hantavirus, which occurs in parts of British Columbia and is associated with deer mice, and Lyme disease associated with wood ticks."

Justice Newbury also considered the meaning of the words "external" and "violent" as used in the insurance policy, which has not been dealt with at length by Canadian courts.

The meaning of "external" and "violent" has been considered in England, but she said those judicial pronouncements were not particularly helpful.

In case law, "violent" seems to mean due to something other than disease or other natural cause, although one would not think this is its ordinary meaning.

The justice sidestepped the issue in the end and said it wasn't necessary for her to resolve the concern given her other findings.

imulgrew@png.canwest.com