Materiality and waiver

Cheung Kwan Wah v China Ping An Insurance (Hong Kong) Co Ltd [2012] HKDC 802, 26 June 2012, a decision of Deputy District Judge Grace Chan in the Hong Kong District Court, is an illustration of the operation of the waiver principle applicable to non-disclosure in the context of express limited questions asked by the insurers. The case was argued on the basis of both materiality and waiver, and they lead to the same conclusion. Of interest is the suggestion that an insurer who does not provide any space on the proposal form for the disclosure of additional evidence cannot complain if nothing is actually disclosed.

Cheung: the facts

CKW was the owner of a Porsche. On 22 January 2010 he completed a motor insurance proposal form issued by the defendant insurers. The proposal asked a series of questions which were to be answered by ticking “yes” or “no” boxes. Question 3 was as follows: