HIGH COURT OF AUSTRALIA
BRENNAN CJ,
McHUGH, GUMMOW, KIRBY AND HAYNE JJ
ANDREW WINN JOHNSON APPELLANT
AND
AMERICAN HOME ASSURANCE COMPANY RESPONDENT
Johnson v American Home Assurance Company [1998] HCA 14
4 March 1998
P29/1997
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of Western Australia
Representation:
M J McCusker QC with R J L McCormack for the appellant (instructed by Dwyer Durack)
C J L Pullin QC with G I K Macnish for the respondent (instructed by Cocks Macnish)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Johnson v American Home Assurance Company
Insurance – Construction of policy – Whether "permanent total loss" of foot – Some use of injured foot with orthotic aids – No total loss.
Words and Phrases – "Permanent total loss".
BRENNAN CJ. I agree with Hayne J. The appeal should be dismissed.
McHUGH J. I agree with the judgment of Hayne J.
GUMMOW J. The appeal should be dismissed. I agree with the reasons of Hayne J.
KIRBY J. The ninety-first Psalm reflects the common human fear of injury to the foot. The Psalmist promises rescue from various misfortunes. The angels, we are assured, will take charge over the righteous[1]:
"They shall bear thee up in their hands, lest thou dash thy foot against a stone."
[1]Psalms, 91:12.
Unfortunately, angels did not intervene to protect the appellant's foot. But he had an insurance policy. This case concerns his attempt to obtain earthly rescue from the insurer. The question is whether the courts below misconstrued the policy. It provided coverage, in certain circumstances, for "permanent total loss of use ... of [a foot]". The insurer says that if, as a practical matter, use of the foot for mobility could be restored by the use of an insert in the shoe of the insured (an "orthotic"), the injury would necessarily fall outside the cover. The insured contends that the sole "loss of use" to be judged is that of the foot, as a foot. In issue is which construction of the policy is correct. Upon the resolution of that question depends the insured's entitlement to pursue his claim.
In the Supreme Court of Western Australia, the primary judge[2] upheld the insurer's construction. He dismissed the insured's claim. The Full Court[3] unanimously confirmed that decision. Now, by special leave, the insured appeals to this Court.
[2]Steytler J. See Andrew Winn Johnson v American Home Assurance Company unreported, Supreme Court of Western Australia, 16 November 1994.
[3]Andrew Winn Johnson v American Home Assurance Company unreported, Full Court of the Supreme Court of Western Australia, 15 August 1996 (Kennedy, Rowland and Anderson JJ).
An insured suffers a serious foot injury
Mr Andrew Johnson ("the insured"), was injured on 16 February 1991 when he was camping in the south-west of Western Australia. He took hold of a rope which was tied to a branch of a tree adjacent to a…
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- Case
- [1998] HCA 14
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the construction of the insurance policy, particularly the phrase "permanent total loss of use of one limb." The court had to determine whether the use of orthotic devices to mitigate pain and facilitate function negated a finding of "total" loss of use of the foot. The insured argued that the loss should be assessed based on the practical and effective use of his foot as a foot, asserting that the use of orthotics was irrelevant to this assessment.
The High Court, affirming the Full Court's decision, reasoned that the policy's requirement of "total" loss necessitated considering the actual functional capacity of the insured's foot. The court found that the insured's ability to walk, stand, bear weight, and squat, even with the assistance of orthotics, demonstrated that he retained practical use of his foot. The court held that the use of orthotics was akin to using analgesics to manage pain and did not render the residual use of the foot insignificant. Therefore, the loss of use was not "total" within the meaning of the policy. The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: BRENNAN CJ, HUGH J, GUMMOW J, KIRBY J, HAYNE J
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