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Courting the risk in the insurance law context

This book was written by Michael Dew, a Vancouver lawyer who practices civil litigation, including representing persons who have been denied coverage under property insurance policies, or liability insurance policies. If you have been denied insurance coverage and require assistance with making a claim against your insurer call Michael at 604 895 3160.
As an activity becomes more risky, and the likelihood of harm occurring increases, courts are more likely to find that the loss was not an accident. The phrase “courting the risk” (taking the risk on a date?!) is sometimes used to refer to an event for which the occurrence of a loss is a reasonably expected outcome:
However, the decision to “court the risk” of death, as Spence J. phrased it in Stats, supra, at p. 1162, becomes at some point equivalent to an intention to die.  Thus, when someone takes a risk that most people would expect to cause death, it is common to say of the death “That was no accident”.  To say this is not to speak metaphorically, but to express a common view of where the category of accidents ends.  The test does not change for cases involving conduct that brings with it a high risk of death; the test remains whether the death was designed or expected.  The first question is always “What did the insured, in fact, expect?”  If we cannot be sure, as is often the case, then we may ask what a reasonable person endowed with the factual beliefs of the insured and placed in the circumstances of the insured would have expected.
(Martin v. American International Assurance Life Co., 2003 SCC 16 at para. 20 - 23).
In Co-operative Fire & Cas Co. v. Saindon, [1976] 1 S.C.R. 735 two neighbours got into a dispute over the cutting of cherry tree branches. One of the men raised a lawn mower above his head in a threatening manner and when the other put up his hands to protect himself the fingers on his left hand were severed. The victim sued for his injuries and the defendant called on his insurer for indemnity. The majority of the Supreme Court of Canada held that the insured was not entitled to coverage because it was not an accident:
No doubt the word ‘accident’ involves something fortuitous or unexpected, but the mere fact that a wilful and culpable act—which is both reckless and unlawful—has a result which the actor did not intend surely does not, if that result was one which he ought reasonably to have anticipated, entitle him to say that it was an accident.
(Co-operative Fire & Cas Co. v. Saindon, [1976] 1 S.C.R. 735 at 748 per Richie J., for the majority, citing Gray et al. v. Barr, [1971] 2 All E.R. 949 at 969).
The minority would have allowed coverage on the basis that although the insured intended to scare the victim, he did not intend to physically harm him:
[A]n act or omission which involves a calculated risk or amounts to a dangerous operation from which injury or damage results cannot be said to be done or omitted with intent to cause the injury or damage in the absence of a specific finding that there was such intent.
(Co-operative Fire & Cas Co. v. Saindon, [1976] 1 S.C.R. 735 at 740, per Laskin C.J., dissenting)
And further:
[W]here intent to cause injury is relied upon by an insurer as an exclusion from otherwise comprehensive coverage, it cannot succeed merely by showing that a deliberate act was involved which was not an accident, without also showing that there was an intent to cause the injury and not merely that there was a likelihood that injury might result from the act.
(Co-operative Fire & Cas Co. v. Saindon, [1976] 1 S.C.R. 735 at 741 per Laskin C.J., dissenting).
In Candler v. London & Lancashire Guarantee & Accident Co. of Canada et al., 1963 CanLII 155 (ONSC) a young man balanced upon the railing of a high balcony ostensibly to demonstrate his fearlessness, but fell to his death. In finding that there was no coverage under the life insurance policy in question the court held that the death was not an “accident” within the meaning of the policy:
Even though Candler's acts were grossly negligent such fact would not of itself exclude recovery under the policy in the absence of such an exception. As to whether death occurred by "accident" or by "accidental means" is determined rather by the foreseeability of the result naturally following the deceased's actions. If the fall from the coping was not an unusual or unexpected incident associated with the deceased's actions, it cannot be termed as occurring by accidental means. There can be no doubt that Candler was quite aware of the danger of falling, particularly when he placed his body at right angles across the coping and with his hips and feet extending out into space. The purpose of his action was to show his friend that he had sufficient nerve to take the risk of falling that was obviously associated with his actions. It was so evident to Simmonds that, to use his words, he was petrified at the display. His efforts to dissuade Candler from engaging in such act consisted partly in telling him that he need not so act to show Simmonds that he had nerve. This very statement indicates that Candler was courting the risk of falling. His statement that he would show he still had nerve is the conclusive evidence that he appreciated the risk involved. If part of the coping had given away or some other unforeseen act had occurred thereby causing him to fall it might well then be held that it was an accident, but there is no room for such a finding... Once the deceased engaged in the dangerous exercises above described, from which one of the natural and probable consequences might well be a fall to the ground below, even though he felt he could accomplish the fact without falling, it must be taken that the mishap was not accidental or caused by accidental means unless there was some other unusual or unexpected occurrence in addition to the voluntary act of the deceased and which could not be reasonably foreseen and which produced the fall, before it can be classed as accidental. Here there was no other element besides the deceased's own act which brought about the result or contributed to his death. The nature of the deceased's acts which brought about the fall and the circumstances under which such acts were performed are the determining facts in deciding whether the result was accidental or not. Here, although Candler hoped and probably believed that he could accomplish the attempted feat without injury and to that extent the result was unintended, still there was present in his mind the risk involved because it was by such act that he was attempting to persuade his friend that he still had nerve.
I therefore hold that Candler's death was not caused either by accidental means or by accident within the meaning of such policy. For that reason the plaintiff cannot succeed against either defendant.
(Candler v. London & Lancashire Guarantee & Accident Co. of Canada et al., 1963 CanLII 155 (ONSC)).
In Booth v. British Columbia Life & Casualty Co., 2003 BCSC 668 the deceased was impaled on the branch of a tree alongside the Burrard Street Bridge in Vancouver. There was no direct evidence of the circumstances of the death, but the deceased was known to frequently climb off the bridge and down the tree as a shortcut to his apartment. In finding that there was coverage under the life insurance policy in question, the court found the death to be accidental:
I am satisfied that a reasonable person in the position of the deceased would not have expected to die by using the tree as a shortcut.  It is apparent that he used it many times before, that some of his friends knew that he had done that, and indeed one of his friends had used the same shortcut more than once and did not consider it risky or dangerous.  In the circumstances, I conclude this death was accidental.
(Booth v. British Columbia Life & Casualty Co., 2003 BCSC 668).
Admittedly, cases considering whether a loss occurred due to an accident can sometimes seem inconsistent. Such inconsistencies can sometimes be reconciled by asking whether the courts in the particular cases focussed on:
  • whether the cause of the loss was expected, or  
  • whether the loss itself was expected.