Insurance — Accident insurance — Accident and Disease benefit — Insured person becoming paralyzed below his mid\u8209 -abdomen after acquiring genital herpes by engaging in unprotected sexual intercourse — Whether insured’s paralysis caused by “external, violent and accidental means” within meaning of insurance policy.

 

The insured had unprotected sex with three women and acquired genital herpes, which in turn caused transverse myelitis, a rare complication of herpes that resulted in total paralysis from his mid\u8209 -abdomen down.  He was aware of the risk of contracting a sexually transmitted disease but did not know that any of the women had genital herpes.  He claimed compensation under his group insurance policy which provided coverage for losses sustained “as a direct 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.  The definition of (critical) diseases in the policy does not include transverse myelitis.  The insured commenced an action and the parties applied to the British Columbia Supreme Court for a determination of whether his paraplegia qualifies as a “bodily injur[y] occasioned solely through external, violent and accidental means”.  The trial judge answered the question in the affirmative and awarded the insured $200,000.  The Court of Appeal upheld the trial judge’s decision.

 

Held:  The appeal should be allowed.

 

The insured’s loss is not covered by the policy.  The interpretation of insurance policies should avoid unrealistic results that would not have been contemplated by the insured and the insurer when they entered into the policy agreement.  The word “accident” is an ordinary word to be interpreted in ordinary language as it would be understood by the average person applying for insurance.  That said, the definition of accident has proven, in practice, to be one of the more philosophically complex simple questions

[16] A century and a half of insurance litigation has failed to produce a bright line definition of the word “accident”.  Insurers have consistently declined to attempt to define the term in their policies.  It has been left to the courts to interpret it, and the courts have found the analysis to pose, as an American court put it, “one of the more philosophically complex simple questions”: Fegan v. State Mutual Life Assurance Co. of America, 945 F. Supp. 396 (D. N.H. 1996), at p. 399.