Gibbens v Co-operators Life Insurance Company: “Accident” Insurance and Injuries Resulting from Unprotected Sex

Today, the Supreme Court of Canada (“SCC”) will release judgment in Gibbens v Co-operators Life Insurance Company, 2008 BCCA 153, an interesting case hinging on the proper interpretation of an insurance policy. I concede that issues surrounding insurance law may not seem terribly interesting at first rub, but the respondent’s extraordinary circumstances give rise to a number of unique, pressing, and readily accessible legal questions.

The respondent Mr. Gibbens entered into a life insurance contract with the applicant Company, one provision of which promised a $200,000 payment if the insured furnished proof of paraplegia (total paralysis of both lower limbs) resulting directly and independently of all other causes from injuries occasioned solely through accidental means, without negligence on the insured’s part.

During January and February of 2003, the respondent had unprotected sex with three women. On February 17, he attended his family physician complaining of headaches and muscular pain, where he was diagnosed with a viral illness and prescribed symptomatic treatment. Over the next few days his condition deteriorated to include urinary retention, kidney/flank pain, pelvic discomfort, and vomiting, until he entered the emergency room on February 21. Upon examination he was noted to be shaky and weak and possibly suffering from alcohol withdrawal. His condition further deteriorated, and by February 23, he experienced total paralysis from the mid-abdomen down. His injuries had rendered him paraplegic. The respondent was subsequently found to have been infected with HSV-2 (genital herpes), almost certainly during coitus with one of his most recent partners, which had caused inflammation of the spinal cord (transverse myelitis) and led to permanent injury. The odds of transverse myelitis resulting from HSV-2 infection are in the order of one to millions.

The question before the SCC, and which I pose to my readers, is how should we define “accidental means” within the meaning of the respondent’s insurance policy? Ought we to simply ask whether he expected to experience an injury? After all, the expression “accident” is generally used to denote an unlooked-for event arising from external factors that is neither expected nor designed. Or perhaps that is too broad of an inquiry, as it may encompass many injuries resulting from unforeseen natural causes? And what is the significance of the respondent’s risky sexual behaviour? Were his unsafe practices sufficiently “negligent” to preclude his recovering under the policy?

The applicant Company denied the respondent’s insurance claim on the grounds that transverse myelitis is a disease that arises naturally (if rarely) in the ordinary course of events; alternatively, STI-transmission was a reasonably foreseeable consequence of his engaging in unprotected intercourse. The respondent ultimately brought a successful civil suit against the applicant, convincing both the trial and appellate courts that his injuries were brought about by “accidental means” within the meaning of the insurance policy.

What should qualify as an “accidental means”?

The Court of Appeal for British Columbia reasoned that “accidental” should be construed in accordance with the “ordinary person’s understanding” of the term. As a starting point, whether an event is described as an “accident” may depend on the consequences that an an individual had or did not have in mind upon carrying out the affecting conduct. Typically, unexpected injury is seen as accidental and expected injury as non-accidental. If we regard “expectation” to be the pivotal question, as the SCC did in Martin v American International Assurance Life Co, [2003] 1 SCR 158, then the respondent quite obviously did not expect to contract HSV-2 and experience paraplegia upon unprotected intercourse. His resulting injury would therefore be an “accident” under the policy.

Expectations alone may not be determinative, however, as unexpected consequences may be deemed “non-accidental” in certain contexts. Most notably, “accident” in the medical context is not typically used to describe illness per se or illness occurring naturally. Paralysis following a stroke, for example, would not be considered an “accidental” consequence even if such injury was not foreseen by a patient. In ordinary parlance, then, the expression denotes something more than just the unexpected. There must also be some untoward, external influence pressing on an event for it to qualify. On this basis, the Court of Appeal held the respondent’s transverse myelitis did not arise naturally from internal causes, but rather from an “unlooked-for mishap” (specifically, the introduction of the herpes virus into his body by a sexual partner). Although the court concedes such an influence is “close to the line,” it is sufficient to render his injury “accidental” within the scope of the insurance policy. In my own respectful view, this finding is the result of a fair, pragmatic, and commercially realistic interpretation of the policy’s terms, and one which should be upheld by the SCC.

Should an injury flowing from unprotected consensual sex qualify as “accidental”?

There remains the question of whether the respondent’s activities were contributorily negligent. The applicant Company had argued that its insurance policy excluded coverage for injuries resulting in whole or in part from negligence on the insured’s part, and cited his risky sexual practices as reason to deny him recovery under these terms. This issue is not traversed in detail by the British Columbia Court of Appeal, as there was “an absence of any evidence as to the circumstances of Mr. Gibbens’ sexual activity.” The trial judge disposed of the applicant’s argument with similar brevity: although the respondent was unaware of his partners’ serostatus prior to engaging in intercourse, the risks attendant upon such behaviour did not indicate a “reckless abandon and exposure to a known, and obvious danger.” If they had, presumably the respondent’s own actions would have been considered a material contributing cause of his injuries, rendering them negligently self-inflicted (at least in part) and precluding a finding that they were solely brought about by an unexpected, external influence.

Neither of the lower courts comprehensively explains this concept of “reckless abandon”  and its role in insurance law. Does it imply that the insured owes – if I may appropriate the phrase – a “duty of care” to himself?  To recover on an insuarce policy, must the insured discharge this duty by taking such reasonable precautions in sexual relations that his conduct may never be considered “reckless”? If so, and in my respectful view, it is imperative courts recognize that taking reasonable precautions by practicing safer sex may be impractical or impossible some or all of the time for many insured persons. It may even be impractical or impossible for some insured to enquire after their partner’s serostatus, never mind situate a latex barrier method, before consenting to intercourse. I am thankful, then, that the lower courts did not attribute any legal responsibility to the respondent for his injuries, and that they did not assign any moral blameworthiness to his actions without an evidentiary backing. I trust that the SCC will similarly refrain from doing so.

I also reserve (very faint) hope that in its reasons, the Court will speak to the serious problems with such negligence inquiries in the sexual health context more generally. I have previously argued here and here regarding the dangers of “objective” standards in criminal laws surrounding HIV-transmission, and I believe the same arguments apply in the torts and insurance contexts.  In situations of considerable power imbalance, where dynamics may prevent women, prisoners, sex workers, or others in abusive relationships from taking reasonable precautions by practicing safer sex, and/or where a lack of education or access may prevent individuals from adopting these practices, the imposition and enforcement of objective standards of reasonable care may be unethical, unwise, and unjust law.