A legal battle that had its origin
in 2003 ended in 18 December 2009 in victory for Canadian insurer
Co-operators Life Insurance with the country’s highest court, the
Supreme Court of Canada (SCC), ruling in its favour.
In the case, the Canadian Life and Health Insurance Association acted as
intervener on the insurer’s behalf in an appeal against the
British Columbia Supreme Court’s award to Randolph Gibbens of a
C$200,000 ($190,000) claim under his group insurance policy.
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According to the Supreme Court’s ruling, which
ran to some 50 pages, Gibbens’ claim was under the critical disease
section of the group policy and followed his paralysis from his
mid-abdomen down. At issue was the manner in which the paralysis
had been sustained by Gibbens – his contraction of genital herpes
as a result of having had unprotected sex with three women in
2003.
The herpes in turn caused transverse myelitis,
a rare complication of herpes which results in paralysis. This,
claimed Gibbens’ legal team, fell under the policy’s definition of
a disability suffered through “external, violent” and, specifically
in this case “accidental means”.
In its ruling the SCC noted: “The insurance
company does not contend that risky behaviour disqualifies him
[Gibbens] from coverage. It recognises 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”.
Expressing its agreement with the insurer, the
court continued: “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.
“Such a conclusion would stretch the
boundaries of an accident policy beyond the snapping point and
convert it into a comprehensive insurance policy for infectious
diseases contrary to the expressed intent of the parties and their
reasonable expectations.”
