No Condom, No Accident

A B.C. man who became paraplegic after contracting herpes from unprotected sex lost a $200,000 disability award Friday when the Supreme Court of Canada sided with his insurance company in a ruling that concluded that his misfortune, while tragic and unexpected, was not an accident.

The unanimous court said that allowing Randolph Gibbens to cash in "would stretch the boundaries of an accident policy beyond the snapping point" by effectively turning it into health insurance for disease sufferers, with lower premiums.

The case, which pitted the Co-operators Life Insurance Company against the former high-pressure water blaster, centred on the meaning of the word "accident" in
deciding insurance claims.

The ruling overturned two earlier victories for Gibbens in British Columbia courts, which had ruled that he lost the use of his legs by accident because he could not have anticipated it.

Gibbens, who is in his late 40s and lives in the Vancouver suburb of Port Coquitlam, contracted a rare form of genital herpes after having unprotected sex with three women in early 2003. The virus attacked his spine and paralyzed him from his abdomen down.

"I agree with the courts in British Columbia that Mr. Gibbens'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," Justice Ian Binnie wrote in the 9-0 decision.

"In the case of Mr. Gibbens we are dealing with a disease transmitted in the ordinary course of having sex."
The B.C. Supreme Court, in siding with Gibbens two years ago, said his paraplegia was an unexpected outcome of having unprotected sex and that his behaviour, while foolish, was a far cry from engaging in "inordinate risk," such as laying down on the centre line of a highway during traffic.

The ruling was upheld in the B.C. Court of Appeal.

The Supreme Court, however, said it is not enough that an outcome be unexpected.

"In ordinary speech, 'accident' does not include ailments proceeding from natural causes," Binnie wrote.

"It cannot be correct that passengers sitting in an airliner who catch the SARS virus through the externality of the plane's air circulation system, or riders on a bus who catch 'swine flu' from an infected fellow passenger, or people who contract any number of infectious diseases because of a failure to wash hands in disinfectant, or to smack a circling mosquito, have valid claims under an accident policy."