The Hollow Homage: Referencing the Ordinary Person When Defining “Accident” in Insurance Contracts

This comment explores the courts’ long-standing tradition of referencing the ordinary person when interpreting the word “accident” in insurance contracts.

In Sabean v. Portage La Prairie Mutual Insurance Co.,1 a unanimous Supreme Court of Canada established that the first step when interpreting standard form contracts is to give words their ordinary meaning.2 Referring to the ordinary person when defining words ensures that the reasonable expectations of both parties are protected.3 However, this comment will argue that relying on the ordinary person when determining the meaning of the word “accident” is problematic.4

Jurisprudence shows that “accident” should be given an ordinary meaning.5 Yet, many courts have observed that defining “accident” is not as simple as acknowledging what the ordinary person would imagine the word to mean. Judge McAuliffe, an American, aptly observed that determining what qualifies as an “accident” is “one of the more philosophically complex simple questions.”6 In Kolbuc v. Ace INA Insurance,7 Justice Sachs noted, “[f]or an ‘ordinary word’ the word ‘accident’ has generated a considerable amount of debate in the case law.”8 Gordon Hilliker observed that “[t]he term ‘accident’ has likely generated more litigation than any other word used in an insurance policy.”9

The first problem with inquiring about the ordinary person is that there are contradictory ordinary definitions because there is no universal ordinary meaning for “accident.” The classic ordinary meaning of “accident” is found in Fenton v. J. Thorly & Co..10 In Fenton, the House of Lords held that the “ordinary sense of the word” “accident” is defined as an “unlooked-for mishap or untoward event which is not expected or designed.”11 Despite the wide approval of Fenton,12 the ordinary sense of the word “accident” is broader than the Fenton definition.13 Moreover, if courts exclusively considered a decision from the English House of Lords written in 1903 when interpreting “accident,” it would not be fair to say that courts are considering what the truly ordinary person believes.

There is no one source to which legal experts should refer when determining the ordinary meaning of “accident”; the ordinary meaning is derived from intuition. Any particular ordinary person might disagree about what is, or is not, an “accident” and judges are not suggesting that a survey determine what the average, ordinary person would think. Citing the ordinary person only asserts that what the judge intuitively feels about a word should be granted some weight.

Relying on the understanding of a fictitious ordinary person could result in wildly different definitions for “accident.” For instance, when referring to vehicle collisions many ordinary people use “accident” synonymously with collision. Even The Automobile Accident Insurance Act14 defines “accident” as “any event in which property damage or bodily injury is caused by a motor vehicle.”15 This definition stands in stark contrast with the Fenton definition.

The ordinary person has even been cited in support of completely contradictory assertions. In Kolbuc v. Ace INA Insurance,16 the Ontario Court of Appeal held that when the insured contracted the West Nile virus while at work, this was an accident because he “had no reasonable expectation that he would get West Nile virus from the activity in which he was engaged.”17 According to the Ontario Court of Appeal, being bitten by a mosquito “falls within the ordinary definition of an accident.”18

Yet, a different conclusion was reached in Co-operators Life Insurance Co. v. Gibbens.19 In Gibbens, the insured contracted genital herpes which, due to a rare complication, caused total paralysis from his mid-abdomen down.20 Mr. Gibbens did not intend or expect to contract herpes.21 Justice Binnie concluded that “[i]n ordinary speech, we would not say that the bubonic plague was the result of a pandemic of accidents” despite the fact that the bubonic plague was transmitted by fleas.22 Binnie J. held that “not every unexpected mishap is an accident.”23 Binnie J. did not explicitly comment on the merits of Kolbuc, although his reasoning suggests that his view of the ordinary person’s interpretation of “accident” does not include diseases. 24

It is illustrative of the irrelevance of referring to the ordinary person that two appellate courts referring to the ordinary meaning can reach entirely contradictory results.

Second, little is gained in support of a court’s decision by defending their intuition through bold claims that the ordinary person would agree with them. Courts should, and do, still examine case law and principles of insurance law to assess “accident” rather than simply assessing the ordinary meaning. For instance, former Chief Justice McLachlin, in Martin v. American International Assurance Life Co.,25 addressed a case where a doctor intentionally injected himself with opiates which caused his unintentional death.26 Early in the Chief Justice’s reasoning she stated the following:

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.27

This conclusion that intention is key to defining “accident” in ordinary parlance is not the end of the discussion. McLachlin C.J.C. proceeded to examine extensive case law that supports her proposition that where a person expects death, said person’s death is not an accident.28 To what end does McLachlin C.J.C. refer to the ordinary person? The same conclusion could have been reached without stating her intuitive response to the case as expressed through the ordinary person.29 Even in Gibbens and Kolbuc, the courts based their decision on a variety of legal authorities.30

Lastly, it is worth observing that appealing to the ordinary person does not serve to bolster a legal interpretation. While it is essential that courts do not interpret words in entirely counterintuitive ways, it is undesirable for intuition to dominate legal analysis. Consider three fact scenarios: a person who plays Russian Roulette and shoots himself in the head;31 a man who balances on a wall in his hotel suite thirteen stories up in order to show his friend that he has the nerve to do so, and plummets to his death;32 and a woman who jumps off a boat to save a third party while fully expecting to die is overtaken by the waves.33 Using their intuition, different people, ordinary or otherwise, will have different views as to whether these deaths were accidental. The current state of the law in Canada would suggest that the Russian Roulette death was not an accident but that the second two actions were accidental deaths.34 These are difficult determinations. For instance, the death of a person who dies while attempting to rescue another person is not accidental because of the redeeming social value of rescue behaviour.35 These types of moral determinations are not best decided by a gut feeling about what the average person on the street would think.

Paying homage to the ordinary person in accident insurance cases is hollow; judges do not and should not rest their analysis on the view of the ordinary person. The ordinary person is referenced, but that reference achieves little. Admittedly, honouring the ordinary person might ensure that courts remember Justice Pennell’s sage words, “Eventually justice comes to live with men rather than with books.”36 Perhaps it is worth maintaining the appeal to the ordinary person just so that legal practitioners recall the fact that their analysis must consider the realities of the world. Ultimately, I think that the law will not be made less applicable to the ordinary person by the absence of reference to the mythological ordinary meaning of “accident.”

* BBA (University of Regina), JD Candidate (University of Saskatchewan). Any errors are my own.

1 2017 SCC 7, [2017] 1 SCR 121 [Sabean].

2 Ibid at at para 13.

3 Martin v American International Assurance Life Co., 2003 SCC 16 at para 19, [2003] 1 SCR 158 [Martin].

4 While the word accident appears in many different types of insurance policies, it is normally granted a similar meaning (Gordon G Hilliker, Liability Insurance Law in Canada, 6th ed (Toronto: LexisNexis Canada, 2016) at 211 [Hilliker]).

5 Co-operators Life Insurance Co. v Gibbens, 2009 SCC 59 at para 21, [2009] 3 SCR 605 [Gibbens]; Martin, supra note 3 at paras 15, 19-20; Mutual of Omaha Insurance Co. v Stats, [1978] 2 SCR 1153 at 1162-1164, 87 DLR (3d) 169. See also Barbara Billingsley, General Principles of Canadian Insurance Law, 2nd ed (Markham: Lexis Nexis, 2014) at 159 [Billingsley].

6 Fegan v State Mutual Life Assurance Company of America, 945 F Supp 396 at 399 (D NH 1996). See Gibbens, supra note 5 at para 16.

7 (2006), 79 OR (3d) 161 (Sup Ct), rev’d 2007 ONCA 364, 281 DLR (4th) 417, cited in Billingsley, supra note 5 at 159.

8 Ibid at para 35.

9 Hilliker, supra note 4 at 211.

10 [1903] AC 443 (HL) [Fenton].

11 Ibid at 448.

12 See e.g. Progressive Homes Ltd. v Lombard General Insurance Co. of Canada, 2010 SCC 33 at para 47, [2010] 2 SCR 245; Gibbens, supra note 5 at paras 22, 50; Martin, supra note 3 at paras 15, 20; Hannah v John Doe, 2010 BCCA 141 at para 27, 318 DLR (4th) 699, citing Canadian Indemnity Co. v Walkem Machinery & Equipment Ltd., [1976] 1 SCR 309 at 316, 53 DLR (3d) 1 [Walkem]; York Region Condominium Corp. No. 772 v Lomarb Canada Ltd., 2008 ONCA 272 at paras 24-26, 60 CCLI (4th) 35; Regina Cold Storage Ltd. v Gerling Global General Insurance Co. (1979), 102 DLR (3d) 97 at 98, 4 Sask R 13 (CA).

13 For instance, in Gibbens, Justice Binnie adds to the Fenton definition that “not every mishap is an accident” (supra note 5 at para 22). See generally Billingsley, supra note 5 at 166 (“The court reasoned that the plain and ordinary meaning of accident does not include naturally occurring ailments”); Nelson v Industrial-Alliance Pacific Life Insurance Co., 2012 ABCA 1 at para 7, 519 AR 208 (the Court’s description of the definition of accident depicts Gibbens as modifying the Fenton definition).

14 RSS 1978, c A-35 [The AAIA].

15 Ibid, s 2(1)(a). Portions of The AAIA use the word “accidental” which appears predicated on a common law definition. For instance, comprehensive insurance protects against “direct and accidental loss of or damage to the vehicle” (ibid, s 38(1)). If the word accidental in this provision used the definition of accident found in s. 2, the word accident would be redundant. The section would state that the insurance protected “direct and [any loss that arose out of any incident causing damage or bodily injury which caused] loss or damage to the vehicle.” In addition, the definition of the word “accident” was added after the word accidental was included in s. 38(1) (ibid; The Automobile Accident Insurance Amendment Act, SS 2002, c 44, s 3. Prior to the definition of “accident” in s. 2 of The AAIA the word “accidental” as used in s. 38(1) was defined in a manner consistent with the common law (see Derbyshire v Saskatchewan Government Insurance (1985), 39 Sask R 316 at paras 3, 7 (QB)). It seems more likely that this method for defining “accidental” in s. 38(1) was not changed by adding a definition for “accident.”

16 2007 ONCA 364, 281 DLR (4th) 417 [Kolbuc].

17 Ibid at para 2. See also Craig Brown & Thomas Donnelly, Insurance Law in Canada, vol 1 (Toronto: Thomson Reuters Canada, 2002) (loose-leaf revision 2017 release 3), ch 8 at 32.

18 Kolbuc, supra note 16 at para 2.

19 Gibbens, supra, note 5.

20 Ibid at para 1.

21 Gibbens v Co-operators Life Insurance Co., 2007 BCSC 1076 at para 2, [2008] 7 WWR 314. See also Gibbens, supra note 5 at para 10.

22 Gibbens, supra note 5 at para 64.

23 Ibid at para 22.

24 Ibid at para 64.

25 Martin, supra note 3.

26 Ibid at paras 2-4, 41.

27 Ibid at para 20 [emphasis in the original].

28 Ibid at paras 22-26.

29 In Sabean, which is not a case interpreting the word accident, Justice Karakatsanis made extensive reference to the ordinary person’s interpretation of the contract (supra, note 1 at paras 4, 13, 26, 28-29, 35, 37, 40). Karakatsanis J. was not satisfied “the average person applying for this insurance [would] contemplate the distinct tort and statutory context in Gill in understanding the words of the Endorsement” (ibid at para 29; see Canadian Pacific Ltd. v Gill, [1973] SCR 654, 37 DLR (3d) 229 [Gill]). Yet, Karakatsanis J. still felt the need to differentiate the contract in Sabean from the case of Gill (Sabean, supra note 1 at paras 30-40). While one might suggest that Karakatsanis J. differentiated the case before her from Gill as an alternative line of reasoning, it appears it is Karakatsanins J.’s legal analysis, not her intuition about what the average person would expect, that does the heavy lifting in this decision.

30 Kolbuc, supra note 16; Gibbens, supra note 5.

31 See Thompson v Prudential Ins. Co. of America, 66 SE2d 119, 84 Ga App 214 (1951) [Thompson].

32 See Candler v London & Lancashire Guarantee & Accident Co. of Canada, 40 DLR (2d) 408, [1963] 2 OR 547 (H Ct J) [Candler].

33 Martin, supra note 3 at para 28.

34 First, the Georgian Court of Appeal found that a death which resulted from playing Russian Roulette was not accidental (Thompson, supra note 31 at 123-124). This holding appears to have been cited with approval by McLachlin C.J.C. in Martin (supra note 3 at para 25). The Ontario High Court found that the plaintiff who balanced on a ledge above the ground and fell to his death was not an accidental death (Candler, supra note 32 at 423). Justice Grant for the High Court noted that “Candler hoped and probably believed that he could accomplish the attempted feat without injury and to that extent the result was unintended” but that Candler was aware of the risk (ibid at 422). However, in Martin, McLachlin C.J.C. held that intention is key to determining whether the death is accidental (supra note 3 at paras 21-23). To avoid overruling Candler, McLachlin C.J.C. seems to have inferred that Grant J. had, in fact, concluded that the deceased expected death despite Grant J.’s explicit statement to the alternative: “One might speculate that the trial judge concluded that, despite a hope and belief that he would survive, the insured had knowingly adverted to the risk and must have, on some level, expected death” (ibid at 26). This passage from Martin indicates that if the deceased had not subjectively expected death, the death would be an accident under current law. The last example of a woman dying while attempting to save another is a hypothetical example provided by McLachlin C.J.C. in obiter (ibid at para 28). McLachlin C.J.C. held that a death while attempting to rescue another person is not an accident because: 1) the death is “part of a tragic, accidental sequence of events” (ibid), and 2) “the rescuer’s conduct has high redeeming social value” (ibid).

35 Martin, supra note 3 at para 28.

36 Moddejonge et al. v Huron County Board of Education et al., 25 DLR (3d) 661 at 668, [1972] 2 OR 437 (H Ct J).

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