An insured who was advised not to drive by his physician due to epileptic seizures will void his automobile insurance policy if he chooses to drive, despite the fact that the automobile insurer did not enquire about the insured’s medical condition during the application process.

Lucow v. HSBC Canadian Direct Insurance Inc., [2004] B.C.J. No. 2412, British Columbia Supreme Court

In August 2000, Mr. Lucow purchased automobile insurance from the Defendant Canadian Direct Insurance Inc. (“CDI”). CDI did not ask any questions about the applicant’s medical condition when filling out his application for insurance. Unbeknownst to Mr. Lucow, CDI has a policy against providing insurance to individuals with a medical condition which could impair their ability to drive, unless the operator has been symptom-free for the past three years. Had Mr. Lucow been questioned about his medical history when he purchased insurance from CDI, he would have been accepted as an insured because his epilepsy was controlled at the time.

Unfortunately, during the time that Mr. Lucow was insured by CDI, his epilepsy worsened and he began to suffer from seizures. Mr. Lucow was advised by his physician not to drive. On March 4, 2002, shortly after he received this advice, Mr. Lucow drove his vehicle and was involved in a serious motor vehicle accident. The accident was found to have been caused by Mr. Lucow suffering a seizure while driving.

CDI voided Mr. Lucow’s policy of automobile insurance on the basis that his failure to advise them of his medical condition and doctor’s advice constituted a material change in the policy. Groberman J. noted that the appropriate test of material change in risk was summarized in Panajim Developments Ltd. v. Laurentian Pacific Insurance Co. (1992), 12 C.C.L.I (2d) 29 and went on to note that the failure of an insured to seek out information in a particular area may lead to an inference that the information is not material to the policy of insurance. However, the failure to ask questions is only one factor to be considered and is not determinative of the materiality of the information.

Groberman J. determined that the materiality of the change in Mr. Lucow’s medical condition was patently obvious. Mr. Lucow was told by his doctor not to drive and understood that the reason for the advice was that his medical condition made it unacceptably risky for him to drive.

In the circumstances, the Court determined that the change in Mr. Lucow’s medical condition materially affected the risk to drive, and that his automobile insurance with CDI was void.

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