2008 BCCA 153 Gibbens v. Co-operators Life Insurance Company

Before:	The Honourable Madam Justice Newbury
	The Honourable Madam Justice Saunders
	The Honourable Mr. Justice Frankel

B.A. Laughton, Q.C. L. Terai	Counsel for the Appellant
G.J. Collette R. Anderson	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
January 8, 2008
Place and Date of Judgment:	Vancouver, British Columbia
April 15, 2008

Written Reasons by:

The Honourable Madam Justice Newbury

Concurred in by:

The Honourable Mr. Justice Frankel

Concurring Reasons by:

The Honourable Madam Justice Saunders (Page 23, para. 34)

Reasons for Judgment of the Honourable Madam Justice Newbury:

[1] Mr. Gibbens, plaintiff in the court below, is a beneficiary under a group insurance policy issued by the defendant Co-operators Life Insurance Company (the “Insurer”) which insured him against various types of disability and bodily injury, including paraplegia, or loss of use of both legs. In early 2003, he had unprotected sex with three women. According to unchallenged expert opinion, it is “virtually certain” that as a result, he became infected with type 2 herpes simplex virus (HSV-2) and that that virus caused transverse myelitis (inflammation of the spinal cord) resulting in his total paralysis from the mid-abdomen down. The question for this court is whether the chambers judge below was correct in ruling that Mr. Gibbens’ paraplegia was sustained “directly and independently of all other causes from bodily injuries occasioned solely through external, violent and accidental means” within the meaning of the insurance policy.

[2] For the reasons below, I have concluded that the chambers judge below was correct in so ruling and that this appeal must be dismissed.

BACKGROUND

[3] The matter came to the Supreme Court of British Columbia by way of special case pursuant to Rule 33. The agreed statement of facts was as follows:

1. The Plaintiff, Randolph Charles Gibbens, is 45 years of age, having been born on March 26, 1961. He quit school during Grade 9 when he was 14 years of age. He received no other formal education or training. On or about May 1, 2001 the Plaintiff commenced employment doing high pressure water blasting. At the same time, he became a member of the International Brotherhood of Painters and Allied Trades, Local 138 (the “Union”).

2. On January 1, 1999 the Defendant, Co-operators Life Insurance Company (Co-operators) entered into a contract of group insurance with the Union, which contract is described as IUPAT District Council 38 Health Welfare Trust Fund, Policy No. G 6639 (the “Policy”). …

3. As a term of the collective agreement, the Plaintiff’s employers were required to pay premiums on behalf of the Plaintiff to Co-operators based on the hours worked by the Plaintiff. Coverage becomes effective upon an employee reaching a threshold number of hours. The Plaintiff’s effective date of insurance with Co-operators was February 1, 2003.

4. Pursuant to the Policy the Plaintiff was insured for Accidental Disease/Dismemberment Benefits, including a $200,000 payment if the Plaintiff furnishes proof of paraplegia (total paralysis of both lower limbs) or loss of use of both legs resulting directly and independently of all other causes from bodily injuries occasioned solely through external, violent and accidental means, without negligence on the Plaintiff’s part. …

5. The Plaintiff had unprotected sex with three women during January and February of 2003. The plaintiff did not know any of the women to have Herpes Simplex Virus Type-2 (HSV-2) (genital herpes).

6. On February 17, 2003 the Plaintiff attended his family physician complaining of headaches and myalgia (muscular pain) with back pain. His doctor diagnosed a viral illness and prescribed symptomatic treatment.

7. On February 21, 2003 Mr. Gibbens attended the emergency department at Eagle Ridge Hospital complaining of urinary retention for two days, some recent kidney/flank pain, supra pelvic discomfort, vomiting for two days, very shaky/ataxic (uncoordinated) that day. On examination he was noted to be shaky/weak and it was hard for him to sit-up. He was diagnosed with urinary retention, possible alcohol withdrawal and epigastric pain not yet diagnosed. Mr. Gibbens continued to deteriorate and on February 23, 2003, he was paraplegic.

8. The Plaintiff was subsequently found to have been infected with HSV-2 which caused inflammation of his spinal cord (transverse myelitis) resulting in a permanent T3 ASIA C spinal cord injury (total paralysis from mid-abdomen down).

9. It is likely that the Plaintiff acquired the HSV-2 from having unprotected sexual intercourse with a partner in the 14-30 days prior to the onset of his illness from an otherwise inapparent first HSV-2 infection with HSV-2 myelitis (inflammation of the spinal cord) as a complication thereof. Transverse myelitis from HSV-2 is a rare occurrence in the order of 1 in millions.

10. A copy of the medical/legal report of infectious disease specialist, Dr. Fred Y. Aoki, dated August 31, 2006 [was attached as Appendix B to the special case]. A copy of “Transverse Myelitis” chapter in Current Therapy in Neurologic Disease Sixth Edition [was attached as Appendix C to the special case].

11. The Plaintiff did not intend or expect to contract HSV-2 or develop transverse myelitis when he engaged in unprotected sexual intercourse with the women. The Plaintiff was aware that there is a risk of contracting a sexually transmitted disease when having unprotected sexual intercourse.

12. The Policy is a policy of “life insurance” within the meaning of the Insurance Act and is governed by Part 3 of the Insurance Act.

[4] Also in evidence was a report prepared by Dr. Aoki, an expert in infectious diseases. Dr. Aoki interviewed Mr. Gibbens and examined the laboratory report on a blood sample taken February 8, 2006 and other available medical information. In his opinion, this information supported the diagnosis of transverse myelitis caused by HSV-2 infection. The doctor described the likely course of the infection thus:

Transmission can only occur when there is infectious virus in the genital tract. This occurs whenever the virus is activated and replicates, with centrifugal movement down the genital (sacral) nerves back near the genital site where the virus initially entered the body during coitus with an infected partner. When the virus reaches the skin, it can cause a skin sore of variable degree and with symptoms ranging from none to easily evident. The readily evident sore occurring on the genitals is analogous to a cold sore. These occur on average 4 times per year but with a range from 0 to many per year. (Lafferty, W.E. et al., Recurrences after oral and genital herpes simplex virus infection. Influence of the site of infection and viral type. N. Engl. J. Med. 1987; 316:1444). More common and also an integral feature of genital herpes is the process called asymptomatic shedding. Asymptomatic shedding can be demonstrated on 2-5% of all days and occurs in everybody who has HSV-2 genital infection, which is, in effect, anyone with an HSV-2 antibody in their blood. It is conceivable that asymptomatic shedding is a manifestation of a genital lesion that is so small that although a few skin cells are infected and spill their virus content onto genital skin, the severity is too miniscule to be apparent. Mertz et al observed that up to 70% of cases of transmission of genital HSV infection occur when the source partner is asymptomatic (Mertz GJ et al. Risk factors for the sexual transmission of genital herpes. Ann Int Med 1992, 116:197). This body of knowledge makes it quite reasonable to conclude that one or more of Mr. Gibbens’ female sexual partners may have been the source of the HSV-2 as a result of having a 17.3% chance of being infected, usually without knowing it, and then passing the virus on during coitus due to inapparent asymptomatic shedding.

So if Mr. Gibbens had an HSV-2 infection, when did he acquire his infection and how? As described above, it is almost a certainty that an adult who has HSV-2 infection would acquire it by sexual intercourse. The probability of acquiring the infection increases if condoms are not used since male condom use may reduce transmission from an infected female to her uninfected sexual partner. Mr. Gibbens did not use condoms consistently during sexual relations with his female partners.

Not surprisingly, the probability of acquiring genital herpes is directly related to the number of sex partners the patient has. Mr. Gibbens describes having multiple lifetime sexual partners, none of whom were known to have genital herpes; all were [women], condoms were infrequently used. With three of these partners he had sexual relations in January and February of 2003, the last, he believes, in the 14 days before he became ill.

[5] Appended to Dr. Aoki’s report was a copy of a chapter in Johnson, Griffin and McArthur, eds., Current Therapy in Neurologic Disease (6th ed., 2001) entitled “Transverse Myelitis” by Douglas Kerr. The author elaborates on the etiology of transverse myelitis (which he describes as an “acute inflammatory process”), stating that it can be caused by many types of pathogens, including rubella, measles, infectious mononucleosis, influenza, and hepatitis A, B and C, as well as herpes viruses. The author also notes that transverse myelitis is a rare disorder, occurring in one to four cases per million people per year, that it can affect people of all ages, and that about one-third of all patients are left severely functionally disabled.

[6] As noted above, the insurance policy under which Mr. Gibbens is a beneficiary was a group policy issued by the Insurer for accidental death, disease and dismemberment. The policy was issued effective February 1, 2003. Mr. Gibbens first began to experience the symptoms of his infection later that month. The provision in question, section A 1.2 of the policy, states:

ACCIDENTAL DISEASE/DISMEMBERMENT BENEFIT

If the Insurance Company is furnished with proof that a Member, sustains one of the following losses, 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 Member’s part, the Insurance Company will pay:

(1) An amount equal to 200% of the Principal Sum for:

(a) paraplegia (total paralysis of both lower limbs), or …

(e) loss of use of both legs … [Emphasis added.]

The policy also insures against “Critical Disease”, a term that is defined to include some virus-borne diseases, including poliomyelitis, but not transverse myelitis.

[7] The question posed for the Court was whether Mr. Gibbens’ paraplegia comes within the words underlined above. The parties agree that if Mr. Gibbens sustained his paraplegia “directly and independently of all other causes from bodily injuries occasioned solely through external, violent and accidental means”, he is entitled to judgment from the Insurer in the amount of $200,000 plus court order interest and costs.

THE JUDGMENT APPEALED FROM

[8] The reasons of Mr. Justice Cole, the chambers judge in the court below, are indexed as 2007 BCSC 1076. He dealt solely with the question of the meaning of “accident” in an insurance policy, finding that the most helpful authority was Martin v. American International Assurance Life Co. 2003 SCC 16, [2003] 1 S.C.R. 158. The wording of the policy in that case was in all material respects identical to the wording in Mr. Gibbens’ policy. The chambers judge quoted paras. 14 and 19-21 of Chief Justice McLachlin’s judgment and concluded that the “pivotal question” in the case at bar was whether Mr. Gibbens had “expected to become a paraplegic as a result of having unprotected sex” – a question effectively answered in the negative at para. 11 of the agreed statement of facts. The chambers judge rejected the proposition that the riskiness of engaging in unprotected sex with three women precluded a finding that Mr. Gibbens’ paraplegia was caused by “accidental means” within the meaning of the policy. He noted at para. 9 that this finding was sufficient to dispose of the matter, but went on to consider some of the Insurer’s other arguments.

[9] First, it was contended that the question was not whether the plaintiff had expected to become a paraplegic but whether he could have expected to contract HSV-2 – an occurrence the defendant argued could not be described as unexpected and was therefore not accidental. Cole J. did not accede to this argument, ruling that it was contrary to the “holistic” approach endorsed by the Supreme Court of Canada in Martin and that even if the argument was correct, Mr. Gibbens had not expected to contract HSV-2 by engaging in unprotected sex. After noting the examples of “inordinate risk” discussed at paras. 23-6 of Martin, the chambers judge concluded:

In the present matter, the plaintiff’s decision to engage in unprotected sex does not involve the same degree of inordinate risk as playing Russian Roulette. It does not indicate a “reckless abandon and exposure to a known, and obvious danger”. In this respect, I note that the likelihood of contracting HSV-2 by engaging in unprotected sex was not part of the agreed facts before me, for Dr. Aoki’s report only estimates what percentage of the population has HSV-2. [At para. 13.]

[10] Next, relying on Wang v. Metropolitan Life Insurance Co. (2004) 72 O.R. (3d) 161, 242 D.L.R. (4th) 598 (C.A.), (lve. to app. refused [2004] S.C.C.A. No. 580), the Insurer also argued that the cause of the paraplegia was a disease and that contracting a disease does not qualify as an “accident”. In Wang, the insured had died due to an amniotic fluid embolism during childbirth. The trial judge had applied Martin and ruled that because she had not expected to die, her death had been caused by “accidental means”. On appeal, however, Charron J.A. (as she then was) for the majority reasoned that the “expectation test” referred to in Martin was not appropriate in a case where death results solely from a natural cause. In her analysis:

The court [in Martin] referred to other similar authorities and to a number of cases where the general rule that unexpected death is accidental was applied. The court concluded at para. 23 that "[t]he expectation test can be applied generally to all cases in which death appears to be accidental”.

In my view, it is noteworthy that the entire analysis of the court relates to the consequences flowing from the actions or conduct of an insured. Indeed, a good part of the analysis concerns cases where persons engage in risky activities. No reference is made to death resulting from natural causes. The focus of the analysis, as is usually the case, is obviously driven by the factual context of the case, and in that context, it makes eminent sense that "the pivotal question is whether the insured expected to die”.

In my view, the expectation test is not appropriate in a case where death results solely from a natural cause. Such a death is not one "in which death appears to be accidental." If we come back to the examples referred to earlier, a person's unexpected death during his or [her] sleep, caused by aneurysm or other condition with fatal consequences, would not be described as an accident in ordinary and popular language. Nor would such an interpretation accord with the reasonable expectations of the parties. [At paras. 25-7; emphasis added.]

[11] Having concluded that the trial judge’s analysis in Wang was erroneous, Charron J.A. asked whether an ordinary person would describe what had happened to the insured as an “accident” as that term was defined in Welford on Accident Insurance (2nd ed.), namely “… something fortuitous and unexpected as opposed to something proceeding from natural causes; an injury caused by accident is to be regarded as the antithesis to bodily infirmity caused by disease in the ordinary course of events.” Applying this definition, she concluded that although the insured’s death might be described as an “accident of nature”, it had not been an “accident” in the ordinary sense of the word. Further, since the policy expressly excluded death resulting from “physical illness”, the insured’s death was found to fall within the scope of the exclusion. (Para. 46.)

[12] Mr. Justice Laskin’s dissent in Wang should also be noted. He reasoned that the distinction between accidental death and death from natural causes is a “false dichotomy” not supported by Martin and that in all cases, “the only question to be asked is whether the death was unexpected or whether the insured expected to die.” (Para. 62.) Even where death occurred from “natural causes”, he said, it could still be “entirely unexpected and, therefore, accidental.” He seemed to accept (at para. 65) that an apparently healthy person who dies suddenly of a heart attack would be said to have died “accidentally” because the death is unexpected, while a person with diagnosed congestive heart disease who dies of a heart attack might not be covered. Laskin J.A. also disagreed with the majority on the meaning of “physical illness”, stating that the rarity of an amniotic fluid embolism meant that it could not be described as an “abnormal condition of such quality or degree that in its natural and probable development [it] may be expected to be a source of mischief”. On this point, he relied on a well-known decision of Cardozo J. in Silverstein v. Metropolitan Life 254 N.Y. 81 (C.A., 1930), at 84. (Wang, at paras. 78-9.)

[13] The chambers judge in the case at bar rejected the Insurer’s submission that the consequences of unprotected sex in Wang (pregnancy and the embolism causing death) were analogous to the consequences of unprotected sex in Mr. Gibbens’ case. In Cole J.’s analysis, “Becoming pregnant although potentially unexpected, is not an ‘accident’ in the way that contracting HSV-2 is an accident. Dickson C.J.C. noted in Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 at 1237 that ‘… pregnancy is not characterized properly as a sickness or an accident.’” Finally, Cole J. observed that diseases that do not result from natural causes may nevertheless be “accidental”, citing Kolbuc v. ACE INA Insurance 2007 ONCA 364, 85 O.R. (3d) 652 (C.A.) and Toronto Professional Firefighters’ Ass’n. v. Toronto (City) (2007) 227 O.A.C. 146 (Sup. Ct.). In the former case, the insured, while working as a plasterer, had been bitten by a mosquito and contracted West Nile virus. He died as a result. The Court of Appeal ruled that even though the virus was a disease, his death had been caused by an “accident” within the meaning of the policy, and coverage was affirmed. Cole J. in the present case analogized the facts of Kolbuc to Mr. Gibbens’ situation and concluded that contracting HSV-2 during unprotected sex was an unexpected event and not due to natural causes. In the result, he answered the question posed to the Court in the affirmative and granted judgment against the Insurer.

ON APPEAL

“Accidental Means”

[14] In this court, counsel for the Insurer focussed almost entirely on the meaning of “accident” and “accidental” – although he did contend as well that the words “violent” and “external” should inform the concept of “accidental”. (Counsel did not abandon the idea that “violent” and “external” are also independent criteria, but conceded, rightly, that at least in Canada, courts have all but ignored those criteria. I shall return to that subject later in these reasons.)

[15] The Insurer’s central argument, based largely on the majority’s reasoning in Wang, is that transverse myelitis is a disease that arises naturally in the ordinary course of events and that the “expectation test” enunciated in Martin is therefore not appropriate. On this approach, the test is restricted to cases in which death (or in this case, injury) “appears to be accidental” (Martin, at para. 23), i.e., is the result of deliberate conduct of the insured which leaves it unclear whether he or she intended the resulting death or injury. In Martin itself, for example, a doctor was found dead in his office of an overdose caused by injecting himself with Demerol. It was unclear in the circumstances whether he had intended to take a lethal dose or his death had been accidental. (See also Bertalan Estate v. American Home Assurance Co. 2001 BCCA 131, 86 B.C.L.R. (3d) 1 and Booth v. British Columbia Life & Casualty Co. 2004 BCCA 133, 24 B.C.L.R. (4th) 289.) As Charron J.A. emphasized at para. 19 of Wang, the Supreme Court of Canada did not comment in Martin on the distinction between accidental death and death from natural causes – a distinction that counsel for the Insurer says would be “eliminated” if the expectation test were applied to a case such as this. As he says, no-one expects or intends to contract a condition such as transverse myelitis.

[16] Further, while Mr. Laughton acknowledged on behalf of the Insurer that an accident may cause a disease (as in the “shipwreck” example described in Sinclair v. Maritime Passengers Assurance Co. (1861) 121 E.R. 521, 3 EL. & EL. 478 at 485-6) (K.B.), he contends that Mr. Gibbens’ transverse myelitis, the cause of his injury, was simply his body’s particular reaction to the HSV-2 virus and that his paralysis was therefore neither “accidental” nor “external”. Thus Mr. Laughton again analogized the facts of this case to those of Wang, where the insured’s death resulted from “natural causes” or “happened naturally”; and he distinguished Kolbuc on the basis that whereas being bitten by a mosquito carrying the West Nile virus is unusual and rare, engaging in sexual intercourse is not. Alternatively, conceding that this distinction is difficult to sustain on a principled basis, counsel suggested that Kolbuc might be incorrect.

[17] The Insurer also emphasized the fact that the policy in this case excluded coverage both for “self-inflicted injury” and injuries resulting in whole or in part from negligence on the insured’s part. Mr. Laughton pointed out that Mr. Gibbens had conceded in the agreed statement of facts that he was “aware that there is a risk of contracting a sexually transmitted disease when having unprotected sexual intercourse.” This argument is difficult to accept in the absence of any evidence as to the circumstances of Mr. Gibbens’ sexual activity; and it assumes that the “cause” of the injury was the sexual intercourse — an assumption inconsistent with the Insurer’s other submissions, which assume that the cause of the paralysis was transverse myelitis. Mr. Laughton conceded, correctly, that this was not his strongest point.

[18] Addressing the Insurer’s central argument, counsel for Mr. Gibbens did not seek to resolve the question of whether the expectation test applies to all cases or is restricted to those involving some particularly risky or otherwise ambiguous conduct on the insured’s part, as suggested by the majority in Wang. Instead, Mr. Collette distinguished Wang on the basis that Mr. Gibbens’ paraplegia was not due to a disease or other natural cause. Counsel submits that transverse myelitis is not a “disease” but is simply a description of spinal cord swelling that can occur for many reasons, as the medical evidence indicates. Looking at the facts “holistically”, he says the cause of Mr. Gibbens’ paralysis was his engaging in unprotected sex. Clearly, Mr. Gibbens did not expect or intend to contract HSV-2 as a result, nor would he have expected that the virus would result in paraplegia. Applying the expectation test, then, counsel submits that the chambers judge was correct in concluding that the injury here was “accidental” and fell within the terms of the policy.

[19] Of course, the death of the insured in Wang was also unintended and unexpected. However, Mr. Collette suggests that the distinction between purely “natural causes” such as an embolism, and an “accident” may lie in the fact that we usually refer to an “accident” as something that could have been prevented in some way. The insured in Kolbuc, for example, could have taken greater care to guard against mosquito bites; the insured in Martin could have taken greater care in injecting himself with Demerol; and the insured in Booth could have refrained from trying to take a shortcut, by tree, from the Burrard Bridge to his apartment. Similarly here, Mr. Gibbens could have used condoms. In Wang, on the other hand, there was nothing the insured could have done to prevent the embolism that killed her. According to an expert report cited by the Court at para. 8, it was a rare, unpredictable and non-preventable complication of pregnancy.

[20] Mr. Collette acknowledged that under this approach, becoming infected with influenza after breathing in the air on a bus would qualify as an “accident”. It is doubtful the parties to the insurance policy would have intended such a contingency to be covered. But as counsel pointed out, the policy here would not provide coverage in that event because influenza is not among the “losses” listed in section A 1.2 of the policy. Paraplegia, however, is listed at sub-paragraph 1(a) of section A 1.2.

[21] This was an interesting approach to the question of what constitutes an “accident”, although the focus on preventability closely approaches one that excludes negligently-caused incidents from coverage – a result rejected, at least implicitly, in Martin. We must be guided, however, by its reasoning. In my respectful view, that reasoning should not be reduced down to a bare “expectation test”. Of equal importance was the principle, for which the Court cited longstanding authority, that the words “accident” and “accidental” must be construed in accordance with the “ordinary person’s understanding”, or in “ordinary parlance”. As the Chief Justice stated:

This brings us to the central question. What constitutes death by "accidental means"? As Spence J. pointed out in Mutual of Omaha Insurance Co. v. Stats, [1978] 2 S.C.R. 1153, at p. 1164, the word "accident" is "an ordinary word to be interpreted in the ordinary language of the people". Hence, as the British Columbia Court of Appeal emphasized in the case at bar, we must focus on the ordinary person's understanding of the phrase, and on "whether in ordinary and popular language the event as it happened would be described as an accident" (para. 26). Only in this way can the reasonable expectations of both the insured and insurer be protected. We must therefore inquire how the phrase "death by accidental means" is used in ordinary language.

As a starting point, we note that the accidental nature of a particular means of death depends, in ordinary parlance, on the consequences that the insured had or did not have in mind. When we speak of an "accidental" means of death, we normally have in mind a situation in which someone's action has had results that this person did not intend or expect. Unintentional or unexpected death is seen as accidental; intentional or expected death as non-accidental. In Canadian Indemnity Co. v. Walkem Machinery & Equipment Ltd., [1976] 1 S.C.R. 309, at pp. 315-16, Pigeon J. explained the term "accident" with reference to Halsbury (vol. 22, 3rd ed.) as "any unlooked for mishap or occurrence" (emphasis in original). Similarly, in Stats, at p. 1164, this Court, per Spence J. quoted Lord Macnaghten's comment in Fenton, [Fenton v. J. Thorley & Co., [1903] A.C. 443], at p. 448, that "the expression 'accident' is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed". [At paras. 19-20.]

[22] Applying this reasoning to the facts of Wang, I would not have thought that the insured’s death from an embolism would in ordinary parlance be described as an “accident”, any more than death due to a heart attack or stroke would be – unless brought on by some “untoward event” such as negligence on the part of another, for example. The word “accident” is not normally used to describe illness per se or even an unexpected but totally “natural” occurrence. There must also be some unexpected mishap or “external” factor at work. Certainly the cases cited at para. 22 of Martin all involved some such mishap or factor – the oncoming train in Cornish v. Accident Insurance Co. (1889) 23 Q.B.D. 453 (C.A.); the inhalation of chloroform in Brown v. Continental Casualty Co. 108 So. 464 (La. S.C., 1926); the miscalculation of nitrous oxide in Bertalan Estate, supra. Unfortunately for purposes of this case, the Chief Justice did not go on to consider the more difficult cases such as those cited by Laskin J.A. at para. 64 of Wang – e.g., Hamlyn v. Crown Accidental Insurance Co. Ltd. [1893] 1 Q.B. 750 (C.A.), where the insured dislocated his knee when picking up a marble from the ground; Claxton v. Travellers’ Insurance Co. of Hartford (1917) 36 D.L.R. 481 (Que. C.A.), where the insured suffered a hernia when swinging a golf club; or J.C. Murphy v. Continental Casualty Co., 269 So. 2d 507 (1^st Circ. C.A., 1972), where the insured died due to a ruptured oesophagus caused by severe vomiting. Laskin J.A. notes that the injury or death in all of these instances was found to be “accidental” – conclusions with which the majority in Wang might have disagreed.

[23] Without commenting on the overall reasoning of the Court in Wang, however, and giving a “generous” meaning to “accidental” (see Martin at para. 20), I would conclude that Mr. Gibbens’ transverse myelitis did not arise “naturally”. Rather, it arose from an external factor or “unlooked-for mishap” – the introduction of the HSV-2 virus into his body by a sexual partner in the manner described in the medical evidence quoted above. Although it is close to the line, this is in my opinion sufficient to qualify as “accidental” in the ordinary meaning of that term. Further, if I were wrong in my view of Martin and the only question was whether Mr. Gibbens’ bodily injury was unintended or unexpected, it is obvious that it was, and that it was therefore caused by “accidental means” as required by the policy.

“External” and “Violent”

[24] Unlike the policy at issue in Wang, Mr. Gibbens’ policy also required that the bodily injury be occasioned by “external” and “violent” means. Counsel for the Insurer did not make much of these requirements. Mr. Laughton noted the comment of Quigley J. in Koch v. Empire Life Insurance Co. (1981) 29 A.R. 49 at 61, 124 D.L.R. (3d) 161 (Q.B.), that once the death (or injury) has been shown to be caused by accidental means, the “addition of the words ‘violent or external’ do not really add very much.” (At para. 28.) On this point, Quigley J. referred to various American cases in which the insureds died as a result of aspiration of food material and resulting asphyxiation. In Life Ins. Co. of Georgia v. Thomas, 133 Ga. App. 134 (C.A., 1974) for example, it was said that the insured’s death was “sudden and violent in that the clogging of his windpipe prevented the body from receiving oxygen from the air through the lungs. Clearly death here was by accidental means.” (My emphasis.)

[25] The meaning of “external” and “violent” has been considered in England, but the judicial pronouncements are not particularly helpful. In Hamlyn v. Crown Accident Insurance Co., supra, the policy covered injuries caused by “violent, accidental, external and visible means”. Lord Esher, M.R. said at 753 that the word “external” must be taken to mean the “antithesis of internal” and similarly, Smith L.J. said at 755 that it must be understood as meaning “the opposite of internal”. With respect to the requirement that the cause be “violent”, Lord Esher said the expression must be taken to mean “the contrary of ‘without violence at all’”. (At 753.) In the result, the insured (who had bent down to pick up a marble and wrenched his knee, disabling him for nine weeks) was held to have suffered an injury that was “violent, external and visible” as well as “accidental”.

[26] In N.W. Commercial Travelers’ Ass’n. v. The London Guarantee and Accident Co. (1895) 10 Man. R. 537 (C.A.), the insured was covered for bodily injuries “effected through external, violent and accidental means”. He had been a passenger on a wagon being driven along a snowy prairie road. The wagon broke down. The insured was unable to ride and elected to remain where he was while the driver rode to the nearest town for assistance. The weather turned very cold and the insured died of exposure before help arrived. The trial judge had no difficulty in finding the insured had died of bodily injury that was “external” and “visible”, and then turned to the question of whether the injury had been effected through “external, violent and accidental means”. Mr. Justice Bain reasoned as follows:

Perhaps the meaning that is most obvious when we speak of something having been caused or effected by violent means is that a greater or less degree of physical force has been used to bring about the result. But the word “violent” is also used to express that which is unusual or unnatural or extreme, and I think it is reasonable to suppose that it was used in the policy in a somewhat wide and general sense. Whoever drew the policy seems to have considered that an injury or disease resulting from sunstroke might be covered by the policy, unless sunstroke were expressly excluded, as it has been; and it seems to me that an injury which is the direct result of freezing, that is, freezing itself from exposure to cold and high wind, can be more properly spoken of as violent than could an injury resulting from sunstroke. In the courts in the United States, deaths caused by drowning, poison, and from inhaling noxious gases, have been held to have been caused by violent means; and in Bacon v. U.S. Mutual Accident Association, 44 Hun. 599, the Court said: “We say a man dies a violent death without necessarily implying anything more than that he dies not in the ordinary course of nature and disease.” If this view be correct, then Church’s death was a violent one; and while I find myself in some doubt as to the meaning that should be given to the word in the policy, it is better perhaps that I should follow the view that has already been judicially taken of it. [At 543-4; emphasis added.]

[27] The trial judgment was upheld on review by the Full Court. Mr. Justice Dubuc cited Hamlyn, supra, for the proposition that “external” when applied to bodily injury “means something extraneous, from the outside, as distinguished from internal disease or infirmity.” On the question of “violent”, he continued:

Violence taken alone supposes the idea of physical force. As applied to death, however, it has a particular and more extended meaning. A violent death means a death produced by physical force, of course; but it means also a death resulting from other means than disease or other natural cause. So death by drowning, by poisoning, by inhaling deleterious gases, is ordinarily called a violent death.

Bacon in his book On Benefit Societies and Life Insurance, says in his chapter on Accident Insurance, p. 967: “It is universally understood that when it is said that one died a violent death, that it was unnatural – a death not occurring in the ordinary way; and in fact the definition of the word ‘violent’ is ‘unnatural,’ and in using this word the insurance company was attempting to prevent the assured from asserting a claim;” and at p. 982, “That a death is the result of accident, or is unnatural, imports an external and violent agency as the cause.” [At 550-1; emphasis added.]

Dubuc J. therefore concluded that the insured’s death was “certainly a death from violent means within the meaning of the policy.” Killam J. and Taylor J. also agreed with the reasoning of the trial judge. (See also paras. 9-11 of Aguilar v. London Life Insurance Co. (1990) 70 D.L.R. (4th) 510 (Man. C.A.), (lve. to app. refused. [1991] 1 S.C.R. v).

[28] American case law would seem to be to the same effect. The editors of Couch on Insurance (3rd ed., 2005), for example, write that:

“Violent” refers to some act not occurring in the ordinary run of things and may be fulfilled by any force whatsoever, however slight. [Citing Schonberg v. New York Life Inc. Co., 104 So. 2d 171 (1958); Arnstein v. Metropolitan Life Ins. Co. 196 A. 491 (1938); and Pan Am Life Ins. Co. v. Andrews 93 A.L.R. (2d) 560 (1960).] It has been said that unnatural death, the result of an accident of any kind, imports an external and violent agency as the cause, within the meaning of an insurance policy limiting recovery to death caused through “external, violent and accidental means.” [At §139:18; emphasis added.]

[29] It is difficult, in light of these authorities, to disagree with Quigley J.’s statement in Koch that once the death (or injury) has been proven to have resulted from accidental means, the words “external” and “violent” do not seem to add much – even though under the usual rules of contractual interpretation, a court should strive to give meaning to every word. Were this a matter of first instance, I would not have thought that Mr. Gibbens’ paralysis, even though “accidental”, would be said to have arisen through “violent means” in the ordinary meaning of that phrase. I note that the Oxford English Reference Dictionary (2nd ed., 1996), for example, defines “violent” as follows:

1. Involving or using great physical force, esp. aggressively (a violent person; a violent storm; came into violent collision), 2(a) Intense, vehement, passionate, furious (a violent contrast; violent dislike), (d) vivid (violent colours) 3. (of death) resulting from external force or from poison … 4. Involving a period of unlawful exercise of force (laid violent hands on him).

[30] There is authority, however, for the proposition that in construing insurance contracts, courts will normally be reluctant to depart from judicial precedent interpreting the policy in a particular way: see Algoma Steel Corp. v. Allendale Mutual Insurance Co. (1990) 72 O.R. (2d) 782 (C.A.), (lve. to app. refused, [1991] S.C.C.A. No. 493). In that case, Mr. Justice Blair quoted with approval from E.R. Hardy Ivamy, General Principles of Insurance Law (5th ed., 1986) as follows:

When words in a policy have once been judicially interpreted, they will be construed in the same way should their meaning be in issue in a subsequent case.

Where the Court has already decided the meaning of words used in a policy of insurance, the doctrine of precedent will be applied, and the same interpretation will be given should the meaning of the same words be in issue in a later case. [At 334.]

(See also Ivamy (6th ed., 1993) at 355; Legh-Jones, Bird and Owen, eds., McGillivray and Parkington on Insurance Law (10th ed., 2003) at 278-9; and G.R. Hall, Canadian Contractual Interpretation Law (2007) at 93. The latter also writes, however, that in an era in which the “factual matrix” plays an increasingly important role in contextual interpretation, the role of precedent plays a correspondingly diminished role.)

[31] In giving due regard to precedent, I do not intend to depart from the cardinal rule that in interpreting contracts, including contracts of insurance, the overriding objective is to give effect to the parties’ intentions at the time they entered into the contract: see Brissette Estate v. Westbury Life Insurance Co. [1992] 3 S.C.R. 87 at 92; Martin, supra, at para. 16. Thus the first enquiry is always into the factual matrix surrounding the making of the contract, and two contracts with identical terms but different factual contexts may be construed differently. But where a form contract such as an insurance policy prepared by one party is signed without negotiation by the other, or where (as in this case) the insured is simply the beneficiary under a policy negotiated by his union, the notion of the insured’s intention may be no more than a fiction. For this reason, a court may seek to impose what it regards as a “commercially realistic” interpretation that assumes the author of the contract would have been aware of judicial authority and that the court should not create confusion on a question of law in the insurance industry without good reason. (See McGillivray and Parkington, supra at §11-3.)

[32] Given the scarcity of judicial authority on the meaning of “violent”, I conclude, like Bain J. in N.W. Commercial Travelers’ Ass’n., that the more prudent course is to “follow the view that has already been judicially taken” of the meaning of “violent” in the insurance policy at issue in this case. 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.

[33] For these reasons, I would dismiss the appeal, with thanks to counsel for their helpful submissions.

“The Honourable Madam Justice Newbury”

I Agree:

“The Honourable Mr. Justice Frankel”

Reasons for Judgment of the Honourable Madam Justice Saunders:

[34] I have had the privilege of reading the reasons for judgment of Madam Justice Newbury. She has described the tragic and unintended consequences for Mr. Gibbens of his sexual encounters, and discussed the leading authorities in this area of law. I agree with her that the state of jurisprudence weighs in favour of Mr. Gibbens and accordingly the appeal should be dismissed. I add these comments.

[35] The seminal authorities on the intersection of medical causes and accidental causes of injury are very old. The recent case on which this appeal turns, Martin v. American International Assurance Life Co., [2003] 1 S.C.R. 158, 2003 SCC 16, did not concern the introduction of a pathogen into the insured’s body or the development of what by any standards must be considered a disease. For that type of case one looks back as far as the shipwreck example provided in Sinclair v. Maritime Passengers’ Insurance Co. (1861), 121 E.R. 521, 3 EL. & EL. 478 (K.B.). Sinclair ante-dates much of the work of Louis Pasteur and broad acceptance of what is commonly termed “germ theory”.

[36] The understanding of pathogens is now so well understood that, whereas there was a time when the cause of malaria was a mystery, today it is well-known that West Nile Virus may be contracted from the bite of a ubiquitous insect, now famously the subject of Kolbuc v. ACE INA Insurance, 2007 ONCA 364, 85 O.R. (3d) 652.

[37] The world is populated with pathogens. 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 Kolbuc, 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.

[38] It may be that on a robust application of the language of the insurance contract such causes would not be external or violent. Yet, as Madam Justice Newbury has said in para. 32, the more prudent course is “to follow the view that has already been judicially taken”, and leave it to the insurance industry to adapt policies relying upon the long trail of jurisprudence to guide it.

[39] With these additional thoughts, I, too, agree the appeal should be dismissed.

“Honourable Madam Justice Saunders”

Citation:	*Gibbens v. Co-operators Life Insurance Company,*
	2008 BCCA 153