B.C. man loses insurance battle because herpes rendered him parapalegic

OTTAWA – The Supreme Court of Canada ruled Friday that a B.C. man is not entitled to $200,000 in disability insurance for being rendered paraplegic after having unprotected sex.

The unanimous 9-0 ruling overturns two earlier decisions in the B.C. courts that had sided with Randolph Gibbens.

The case, which pitted the Co-operators Life Insurance Company against the Port Coquitlam man, centred on the meaning of the word "accident" in deciding insurance claims.

At issue was whether Gibbens was the author of his own misfortune for having unprotected sex in early 2003 and then contracting genital herpes, a virus that attacked his spine and paralyzed him from his abdomen down.

"In ordinary speech, ‘accident’ does not include ailments proceeding from natural causes," wrote Justice Ian Binnie. "Genital herpes is a sexually transmitted virus that spreads by sexual intercourse."

The British Columbia courts, while acknowledging Gibbens’s behaviour was foolish, found that he lost the use of his legs by accident because he could not have anticipated it.

The Co-operators, which insured Gibbens through his union’s benefits plan, had argued that the former heavy-water blaster sustained a self- inflicted disease and, therefore, did not meet the insurance policy’s requirement that he became disabled due to "accidental means."

The B.C. Supreme Court, in siding with Gibbens in July 2007, concluded that his "foolish" behaviour was a far cry from engaging in "inordinate risk," such as playing Russian Roulette, laying down on the centre line of a highway during traffic or precariously balancing on a patio ledge.

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

The insurance industry has warned against siding with Gibbens, arguing in a written brief to the Supreme Court of Canada that including diseases in accident coverage would have "potentially profound" effects.