Johnson v American Home Assurance Co

[1997] HCATrans 297

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P29 of 1997

B e t w e e n -

ANDREW WINN JOHNSON

Appellant

and

AMERICAN HOME ASSURANCE COMPANY

Respondent

BRENNAN CJ
McHUGH J

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 23 OCTOBER 1997, AT 11.04 AM

Copyright in the High Court of Australia

MR M.J. McCUSKER, QC:   May it please your Honours, I appear for the appellant, together with my learned friend, MR R.J.L. McCORMACK. (instructed by Dwyer Durack)

MR C.J.L. PULLIN, QC:   May it please the Court, with MR G.I.K. MACNISH, I appear for the respondent. (instructed by Cocks Macnish)

MR McCUSKER:   Your Honours, the notice and grounds of appeal appears at pages 59 and 60.  As a preliminary matter, I ask leave to amend the notice of appeal at page 60.  The slight amendment which I wish to make but nevertheless an important one for the purpose of considering this appeal, is that the order sought is that the matter be remitted to, as it presently reads “the Full Court”.  We would ask that, and we have consulted with the respondent on this, but ask that it be remitted to the trial judge rather than to the Full Court.

KIRBY J:   Do we do that, or do we not simply remit it to the Supreme Court?

MR McCUSKER:   Well, perhaps remit it to the Supreme Court.

KIRBY J:   Because their internal arrangements are really up to them.

MR McCUSKER:   Certainly, your Honour.

KIRBY J:   So you would want the deletion of the “Full Court of”?

MR McCUSKER:   Yes, simply the Supreme Court of Western Australia.  I have discussed this with my learned friend and he agrees that that is the appropriate order to be sought if the appeal were successful.  Your Honours, I would ask for leave to amend accordingly.

BRENNAN CJ:   Yes, there will be leave to amend accordingly.

MR McCUSKER:   Thank you, your Honour.  This appeal concerns a small but very important point in terms of construction of an insurance policy.  Your Honours have, I think, the appellant’s outline of submissions in support of his appeal.  The issue that arises is the proper construction of the term of a policy and its application, of course, where, as we put it in paragraph 3 of the outline of submissions, the cover which was provided was for:

“Permanent Total loss of use of one limb” -

That wording appears at page 16 of the appeal book at line 6.

“Limb” is defined to include “a foot at or above the ankle”; and “Permanent” to mean “lasting 12 calendar months and at the expiry of that period being beyond hope of improvement”.

It is common ground that the appellant suffered a very serious injury to his foot.  The view of the specialist orthopaedics was that amputation was desirable, that he resisted.  It is still said to be probable that the foot would have to be amputated at some future date.  Nevertheless, the appellant, and within the 12 months period, after several months of hospitalisation, was able, with the use of what are called orthotics or inserts, to achieve locomotion to a limited extent and to achieve also standing, balancing, that is on both limbs, and squatting.

The question is whether the fact that he was able, by the use of orthotics, to make use of the foot in this way takes him outside the cover which is provided for “Permanent Total loss of use of one limb”.  It is our submission, essentially, that the courts below, both the trial judge and the Full Court, in approaching this matter were misled by the employment of the term “use” in different contexts.  One can make use of something but nevertheless, one may have lost the use of that limb.  And the Full Court, in fact, touched on this by way of illustration of what would come within the policy..

For example, your Honours, suppose one were to suffer an accident as a result of which the leg was permanently paralysed, not amputated but permanently paralysed, but by the use of callipers and sticks the injured person was able to make use of the paralysed leg for the purpose of locomotion and balance, things of that nature.  Making use of it in that way, in our submission, does not take the injured person outside the policy.  That person has still suffered total loss of use of the limb.

The Full Court’s reasoning, although that was conceded by way of example by the Full Court in its reasons, would lead to the conclusion that in that circumstance the injured person would not have suffered total loss of use of the limb because the injured person was still able to make some use of it.  By way of further illustration of the point, suppose a person had ‑ ‑ ‑

BRENNAN CJ:   I know you say that that was accepted, but why was it accepted?

MR McCUSKER:   It was simply said by the Full Court in the course of its reasons but, of course, if there ‑ ‑ ‑

BRENNAN CJ:   What argument do you put now in order to support it?

MR McCUSKER:   In order to support the ‑ ‑ ‑

BRENNAN CJ:   The proposition.

MR McCUSKER:   The proposition that total paralysis would take the ‑ ‑ ‑

BRENNAN CJ:   Yes.

MR McCUSKER:   Yes.  We say, your Honour, that the proper construction of this phrase, it is a common ground and was certainly the approach taken by the Full Court, that cover still applies even if there has not been severance.  Severance, of course, means that one has lost, not simply the use of the foot but the foot itself.  But if it is something short of severance that can still bring one within the cover, what then is that?  A foot may be so badly injured but the only use that can be made of it, for example, is to push things out of the way or, perhaps, simply to enable the use of the person who is injured to stand up.  But is that facility to stand up a use of the foot?  I put that badly.  Is the fact that there is that facility sufficient to take it outside the terms of the cover, that is total loss of use of the foot.

What we say, your Honours, is that if it is accepted that something short of severance will still attract the cover, then it is difficult to imagine a limb being unable to be made use of in some fashion if it is still there.

BRENNAN CJ:   That raises the point, does it not?

MR McCUSKER:   It does.

BRENNAN CJ:   In other words, it is not a question of severance or not but whether any of the functions which are the ordinary functions of the affected portion of the body remain?

MR McCUSKER:   Yes.

BRENNAN CJ:   Weight bearing on a foot is one of them.

MR McCUSKER:   Weight bearing on the foot, your Honour, that would mean, if that simple facility were enough to take it outside the cover, that would mean there would have to be severance in order for the cover to be applicable.

BRENNAN CJ:   That may be right.  In the case of a foot, that may be right.

MR McCUSKER:   That may be right, your Honour.

BRENNAN CJ:   On the other hand, if you take the fingers of a hand, if they were simply flapping around in the breeze, then it would be a different matter.

MR McCUSKER:   Suppose your Honour, to take the hand, all the fingers were amputated and all that was left was the balance of the hand and the thumb but the injured person was able, by means of some difficulty and pain but nevertheless able to pick up some light objects between the thumb and the balance of the hand, paper, for example, has that person suffered a total loss of use of the hand or is the fact that it can be made use of taken outside the policy cover.  That is the issue.

Take a further instance where a person has suffered that kind of injury to the hand but has had artificial fingers fitted and some form of mechanical means whereby the fingers can be operated, so that by means of the artificial fingers joined to the balance of the hand, that person is able to lift things and perhaps even write, perhaps lift utensils and the like.

It is our submission that simply because there has been a restoration of certain functions by reason of the use of artificial means does not take the injured person outside the cover.  The natural meaning, the proper meaning to be given to this term “total loss of use of the foot” in this case is total loss of use of a foot without aids and as a foot, not as, as it were, simply a means of balancing and not as a means of enabling the leg to function, that is to achieve some degree of locomotion, but as a foot.

If you take, as I said for example, the paralysed limb with callipers which would enable some use to be made of the limb as distinct from it being amputated.  It is our submission that in that case the cover would still apply because there has been total loss of the underlying physical attributes of the limb even though it can be made use of in some way.

There are, as we have put in the outline, your Honour, very limited authorities in this area, oddly enough because the phrase itself has quite extensive use in insurance policies.  It is employed in various forms.  The only two common law decisions that we have found in researches which have some close relevance are those which are referred to at paragraph 12 of the outline, page 5.  The first of those is at - in fact both are decisions of the Supreme Court of Alabama and the first of those is Life & Casualty Ins Co v Peacock (1929) 220 Ala 104 of the report.

BRENNAN CJ:   Is this really going to illuminate the problem before us, Mr McCusker?

MR McCUSKER:   Not very greatly, your Honour, I must accept.  It is simply by way of illustration of the approach that some courts have taken.

BRENNAN CJ:   If you having read the case are able to articulate some principle then you may wish to develop that principle and cite this in support of it.  But otherwise, to comb through or to trawl through a number of cases from the Supreme Court of Alabama, estimable though that tribunal is ‑ ‑ ‑

GUMMOW J:   Particularly in 1929.

BRENNAN CJ:    ‑ ‑ ‑is not likely to yield a great harvest for us.

MR McCUSKER:   We do, in answer to Justice Gummow, have a 1938 decision but the principle that we seek to elicit from these cases is simply this.  That “loss of use” in this context first does not require amputation to apply.  Second, it must be total loss of practical use of the limb and third, and importantly here, there may be such total loss of practical use notwithstanding that with the use of some artificial aid, and here orthotics, inserts, some limited functions may be performed, that is with the use of aids.  Now that is the proposition that we put.

The Full Court and the trial judge simply took the approach that because, by the use of artificial aids, some use could be made of the foot, that took the injured person outside the cover.  Our submission is that it is wrong to approach it on the basis that with some form of artificial device or aid some use may be made of the foot.  The real question is has the person lost the use of the foot, total loss of use of the foot as a foot?  The answer is not to be found by saying, “Yes, but with artificial devices that person can do some things that are functions of a foot and may use or make use of the foot in so doing.”

KIRBY J:   Is this what the Alabama courts say?

MR McCUSKER:   Yes, your Honour, I hasten to say that I will not comb through the case, but in both cases  ‑ ‑ ‑

KIRBY J:   You do not have to comb through them, but no doubt in Alabama they would have a laugh about the citation of Australian decisions too.  But we have used the same language, these are universal provisions in insurance policies and are quite useful, I think.

MR McCUSKER:   Your Honour, in the two Alabama decisions that we refer to, the point is very graphically illustrated.  In both cases the questions which arose for the Supreme Court to determine were, of course, questions that arose from a jury trial.  The question was whether the trial judge had given appropriate directions to the jury.

In the first of those two cases, one foot of the plaintiff girl was severed and the toes of the other foot were severed.  The claim was on the basis of total loss of both feet.  It was, in evidence, that she could not walk barefoot without falling over, but she could walk and run and play to some limited extent if she had an insert - a spring and insert in one shoe.  The direction sought by the insurer was to the effect that, because of those capacities, she could not be said to have suffered total loss of use.  The Supreme Court of Alabama said, and I have quoted the relevant passage.  It is at the top of page 6 of our outline:

“the word “loss” should be construed to mean the destruction of the usefulness of that member, or the entire member, for the purpose to which in its normal condition -

and that is what we emphasise ‑ ‑ ‑

GUMMOW J:   The phrase here is “total loss”.

MR McCUSKER:   Yes, “total loss”.  That is true.  It is susceptible to application and the other case, your Honours, the 1938 decision to which I have referred, was one where the plaintiff did not have his limbs severed or his feet severed although the medical evidence was that he would be better off if he did and used, what was said “cork” replacements, but he could, nevertheless, with the use of two canes, walk.  He could achieve locomotion. 

The Court there held that it was open to the jury to find that there had been “entire loss - that was the phrase used in that case.

“entire loss of use” of both feet and that the trial Judge was right in refusing to charge the jury ‑ ‑ ‑

when invited to do so by the defendant insurer ‑ ‑ ‑

“if the plaintiff is able to walk, with the aid of canes, about his home, and to his automobile, and from his automobile to his office...then the plaintiff has not suffered the entire loss of use of both feet...”

The Supreme Court held that the trial judge was correct in refusing to so direct the jury.

KIRBY J:   Is this a case where it is all or nothing?  You either get the amount or you do not get a percentage?

MR McCUSKER:   No, it is all or nothing, your Honour, yes.  It is a total loss of use of the foot and there is no provision, the claim was not made on the basis of a percentage loss.  It is total loss.

KIRBY J:   But you say the focus of the policy is on the foot, it is not on the foot plus a prosthesis.

MR McCUSKER:   That is so, your Honour.

KIRBY J:   That is what people insure for and they are entitled to be compensated if their foot is damaged as distinct from some other artificial way of enlarging or advantaging their foot.

MR McCUSKER:   Quite so, your Honour, and I know that the respondent refers to some decisions which may be of some relevance but they deal with claims for loss of sight, or loss of vision and in each of the cases there was either a facility to restore the loss of sight by means of operation to remove a cataract in one case, or to restore the loss of sight by a lens implant or spectacles, and in those cases it was held that there had not been total loss of vision.  This is not that kind of case.  We are talking about total loss of use of the foot, not total loss of a capacity to walk.

KIRBY J:   It is not a total loss of mobility?

MR McCUSKER:   No, that is it, so it is a different point entirely.  If the insurer has sought to exclude a claim where the injury, horrific though it may have been, still left the insured capable of locomotion then it should have said so.  In our submission, the policy is silent on this issue of whether the use of orthotics or artificial aids excludes a claim and the policy should therefore be construed beneficially in favour of the insured so as to conclude that whatever the insured may do, and this is a point of general significance of course, whatever the insured may be able to do, with artificial assistance and mechanical devices and the like, is irrelevant to the question of whether there has been a total loss of the use of the limb as a limb.

BRENNAN CJ:   Mr McCusker, you said this was all or nothing.  What is the significance of item 19 in the events on page 16?

MR McCUSKER:   Unfortunately, your Honour, there is no significance in this case because the claim was made on the basis of all or nothing and to claim on a partial basis is not now open to the insured.  The insured asserted that he had suffered permanent total loss of use of the foot.

GUMMOW J:   But that is not the point.  The point is what assistance in construction comes from the presence of 19?

MR McCUSKER:   “Permanent partial disability” raises a different issue entirely, in our submission, with respect.  Disability as distinct from “total loss of use of the limb” as a limb.  “Permanent partial disability” may, for example, arise where there has been damage to the foot but the foot is able to be used as a foot even though its functions have been impaired.  An illustration might be, for example, the loss of a toe or toes which impedes the insured in his ordinary use of the foot but nevertheless there has not been a “total loss of use”.

This is a case - I do not think it is appropriate to go deeply into the facts here - but to illustrate the point this is a case where the appellant suffered what was called an “equinus” or was left with an “equinus deformity” which means he cannot put his heel to the ground and he has got a permanently stiffened big toe and, without the use of these aids, he clearly has suffered, in our submission, “total loss of use” of the foot in the sense that it is no longer capable of being used as a foot, although he may, perhaps, use it for a balance.  But with the aids he is able to achieve some degree, though painful it is, of locomotion but that is not the issue that this clause gives rise to.  It is not a question of whether he has lost the ability to achieve locomotion.  It is the question of whether he has suffered a “total loss of use” of the foot.

GUMMOW J:   Now there is a definition, if that is the way to put it, in paragraph 4 of “total disablement”.  Is there one of “permanent total loss”?

MR McCUSKER:   No, your Honour, there was no definition on “permanent total loss” or “loss of use”.

GUMMOW J:   Well, there is one of “permanent” in 5.

MR McCUSKER:   That is right, at page 14.  As your Honour has pointed out, there is a definition in 7 of “permanent total disablement”.

GUMMOW J:   And of “total disablement”.

MR McCUSKER:   And “partial disablement” as well.

GUMMOW J:   Yes.

MR McCUSKER:   Those provisions would appear to refer to paragraph 19 of page 16, point 19 of page 16 of the appeal book - “permanent partial disability”.

KIRBY J:   Was it agreed below that, subject to the argument about the orthotics, there was a “permanent total loss” of the use of the limb?

MR McCUSKER:   I do not know that it was agreed, your Honour.

KIRBY J:   Is that a factual matter still outstanding?

MR McCUSKER:   It is still a factual matter.  That is the reason it would have to be referred back to the Supreme Court.  The court certainly looked at it on the basis that because, with the use of orthotics, with aids ‑ ‑ ‑

KIRBY J:   Knocked it out.

MR McCUSKER:    ‑ ‑ ‑some use could be made of the foot.  That took it outside the cover.  So it did not make a finding that without the use of aids there was a total loss of use.  That was certainly not agreed.

BRENNAN CJ:   Do we have an orthotic in Court?

MR McCUSKER:   We do not, your Honour, no.  Mr Johnson is here, at the back of the Court, and, no doubt, has one in his shoe.  I could arrange to have it produced.

BRENNAN CJ:   No, no, I just wondered if it was part of the proceedings, that is all.

MR McCUSKER:   I did not think it appropriate to produce that kind of evidence or material.

BRENNAN CJ:   No, well it is not if it - if it is not something which is already in the record and so forth, then it is not to be produced.  I would just like to have some understanding of what is meant by an orthotic.

MR McCUSKER:   It is a special build‑up, your Honour, an insert, if you like.  Someone from the respondent’s side likened it to a Dr Scholl insert, but it is not that.

KIRBY J:   I fear that was myself.  I am afraid I might have said that.

MR McCUSKER:   Perhaps it was, your Honour, but by way of, as it were, suggestion for the respondent.

McHUGH J:   They can take many forms.  Sometimes they are in the form of a wedge that go under and other times, if it is to support a big toe, for example, it could even be a steel bar or built‑up in his shoe.

MR McCUSKER:   That is right.

McHUGH J:   I said on the special leave that Mr Pullin was making it sound like a Dr Scholl’s bandage.

MR McCUSKER:   Sound like a Dr Scholl - Your Honour is quite correct.  Yes, and that is not so.  The special design is that the orthotic has a liquid at the heel, essentially which enables the injured person to achieve some locomotion.  Without that he could not do it at all and what our submission is, essentially by use of this orthotic, by use of these aids, there is no restoration of the use of the foot as a foot.  What has been achieved is an ability to use the leg for the purpose of locomotion.  But the underlying loss of the use of the foot remains.

For example, even though he can achieve some locomotion and can stand, it is out of the question for him to run, to dance or to kick a ball or anything of that nature, the kind of things that would be expected normally, part of the normal condition of a foot.

BRENNAN CJ:   Let me understand if I have correctly the issue for our determination.  It is either found or agreed as a fact that with the orthotic he has some use being a use which would have been available to a normal foot.

MR McCUSKER:   I put it this way, your Honour, that with the orthotic he is able to achieve locomotion.  He is not using his foot as a normal foot. 

BRENNAN CJ:   No, I am not suggesting that.

MR McCUSKER:   No.

BRENNAN CJ:   With the orthotic, he is able to achieve locomotion.

MR McCUSKER:   Yes.

BRENNAN CJ:    Therefore, if the orthotic can be taken into account, as it were, the finding would be against you.

MR McCUSKER:   Yes.

BRENNAN CJ:   If, however, the orthotic cannot be taken into account, what then?

MR McCUSKER:   Then the question for the Supreme Court, that the matter should be remitted to the Supreme Court for determination of whether there has been “total loss”?

BRENNAN CJ:   Whether he has any residual use without the orthotics that might then take him outside?

MR McCUSKER:   Yes, that is so.

BRENNAN CJ:   So we have to approach this on the footing that that issue not having been determined, we are concerned solely with the assumption that that issue may be determined in your favour so that there is no use of the foot other than by use of the orthotic.

MR McCUSKER:   That is no practical use, yes.

BRENNAN CJ:   That is the issue, is it?

MR McCUSKER:   That is the issue, your Honour, yes.  So it is, as I started out to say, a fairly short point here.  This Court is not concerned with examination of the evidence to see whether, if the orthotic were removed, there would be “total loss of use”.

This Court is simply concerned with the question of whether a matter of construction, the use of the orthotic is to be taken into account and if the use of the orthotic enables the insured to achieve locomotion and to stand up and, indeed, to squat as the evidence was, does that mean that he has not suffered total loss of use of the foot?

GUMMOW J:   We do not know whether the appellant can perform, to what extent, if at all, any one or more of those functions without the orthotic do we?

MR McCUSKER:   There was substantial evidence to suggest that it was not possible for him to walk, to stand without holding something, so that there was a considerable amount of evidence.

GUMMOW J:   But are there findings?

MR McCUSKER:   There are no findings, your Honour, because the court below simply said, because he can do these limited things with the use of orthotics, that takes him outside the cover.  So, there is no concluded finding on this issue.

McHUGH J:   It may not be of any relevance, but is there any evidence as to what percentage of the community use orthotics?  My understanding is that a significant percentage of the population use orthotics of some form or another?

MR McCUSKER:   Not this kind of orthotics, your Honour.  This is quite unusual.  This is not a Dr Scholl pad.  This is a specially designed material which enables him to stand and otherwise he could not.  That is the - - -

BRENNAN CJ:   Is it right then that what we have to decide is, as it were, on the footing that it may just as well be an amputation case?

MR McCUSKER:   That is right, your Honour.  We say - - -

BRENNAN CJ:   So, the question is amputation plus orthotics takes you outside.  It seems to be a very artificial framework in which to consider the question.

MR McCUSKER:   Amputation, clearly, would mean that the cover is attracted because you have lost the foot, not just the use of the foot, you have lost the foot, so one follows the other.  But if you have not had amputation, although it was recommended and as in the Alabama case referred to, the doctor there in the second of the 1938 decision said he would be better off amputated, but the person concerned refused that, was able to achieve locomotion, it was still open to the jury, it was held, to find that he had lost the use of his foot, total loss of use of his foot.

KIRBY J:   I think it is important to concentrate on ‘the use of’ because it is not permanent total loss of either foot as it could have been, it is use.  And therefore we are looking not simply at the cosmetic or other disadvantages of amputation, but looking at what is the utility for use of the foot.  You say, well you just look at the foot, but use may connote the importation of things that help you to use.

MR McCUSKER:   I agree, your Honour.  If something short of total amputation may still attract the cover, and that certainly was the view of the court below and there is strong authority in support in that, such as ‑ ‑ ‑

GUMMOW J:   But how does one really approach the case, other than on a hypothetical basis?  Because one does not know what the degree of use, or the extent of use there is, absent this device.

MR McCUSKER:   No, and that is something which would need to be referred back to the Supreme Court for its - - -

McHUGH J:   Your argument is that there has been an error of law on the part of the Full Court and the trial judge in construing the policy, because they took into account the use of orthotics which you say is an irrelevant consideration.

MR McCUSKER:   It is, that is our submission, your Honour, that without the orthotics there was very strong evidence - although there is no agreement, but there is strong evidence as to the inability of the appellant to stand up.  With the equinus deformity he could touch the ground but only with the front part of his foot.

BRENNAN CJ:   The real error of law is not whether the ability to do things with the orthotics gives you some use, but whether the Court has ever addressed the relevant question.  The fact that the orthotics enhances what can be done with the flesh and bones does not answer, or even address the question of whether there is any use of the flesh and bones left.  The fact that they can do something extra does not tell you whether or not there has been a total loss.

MR McCUSKER:   Total loss of use of that foot, yes.  The fact that it can be employed - - -

BRENNAN CJ:   That is as much as we could decide, is it not?

MR McCUSKER:   I think so, your Honour.  The fact that the foot is still there and can be employed, to use a perhaps neutral term, can be employed with orthotics to enable the limb to achieve locomotion does not answer the question, has there been a total loss of use of that foot?  And given that the consensus of orthopaedic evidence was that he would be better off if he amputated the foot and had a prothesis, an artificial foot, because he would be able to achieve at least the same degree of locomotion, that really - - -

GUMMOW J:   Perhaps there is an error of law in construing the word “use” in the policy as unassisted or unaugmented.

MR McCUSKER:   That is the thrust of the appeal, your Honour, that the court below has said because he can, with artificial aids, employ this foot to achieve certain things such as limited locomotion, a hundred metres I think the evidence was, he was able to walk and could do so on good days, as it was put, without the use of crutches, sticks, the view was taken by the courts below that that meant that he had not suffered total loss of use of the foot.  We say he was making use of what was there, the physical appendage, but he had still suffered total loss of use of the foot.

There is an important distinction between making - for example, suppose the hand were paralysed so that it could not perform the ordinary functions of a hand but never the less, the injured person could make use of it by pushing material across a table, a desk, or, indeed, making use of it to push things against the other hand so there is limited uses that are being made of it.  He has still suffered a total loss of use of the hand as a hand.  It is being used for some purposes, limited though they are, it has not been severed and it is there but it is not there as a hand able to be used for the normal purposes for which a hand may be used.  So, too, with the foot here.  It is there as an appendage to the limb and because it is there, and with the use of orthotics, it is possible for the appellant to use the limb.

I referred your Honours to this question of paralysis.  That was raised at page 47 of the appeal book where, at lines 10 to 15, the court said:

We accept that the expression in the policy “total loss of use of a foot”, means loss as a matter of practical utility and that it is not confined to loss by severance - see MacGillivray & Parkington on Insurance Law.

It went on to say:

Paralysis would unquestionably come within the wording of the policy and no doubt other cases can readily be envisaged where aids would not suffice to permit an injured person to make use of his or her foot.

With respect, that overlooks the fact that a paralysed limb, totally paralysed, may be made use of in just the same way as the badly damaged foot here can be made use of.  In the case of a paralysed limb, with the aid of callipers, it can be made use of, but the - - -

HAYNE J:   Well, made use of in the sense that the same function of locomotion can be performed.  But that may tell you nothing about whether you are using the foot in the process of locomotion.  Locomotion can be achieved with a prothesis as simply as the old fashioned wooden leg.  That is not using the foot.

MR McCUSKER:   The phrase ‘making use of the foot for the purpose of locomotion’ is liable - it was used frequently by the courts below, they referred to the appellant making use of the foot with the aid of orthotics.  This appears, for example, in the trial judge’s reasons at page 25 of the appeal book.

KIRBY J:   But he is using the foot for locomotion and one can understand, in a general sense, well here is a man with tiny little things that are pulling and once he gets them, he is basically back to the use of the foot in the usual way except, as you say, for kicking the football.  But for other or most purposes for which feet are used, he is able to use it just by this tiny little thing.

MR McCUSKER:   Not in this case, your Honour.  Well, certainly cannot run, certainly can walk but only for a limited distance, cannot as I said - - -

KIRBY J:   But the policy is in terms of permanent and total - - -

MR McCUSKER:   Total loss of use.

KIRBY J:   Well, once he has got this in, he has not totally lost it.

MR McCUSKER:   He has not lost the - he has gained the ability to achieve locomotion and to use the leg for that purpose.

KIRBY J:   Therefore, he has not totally lost use, he has lost some of the use.  It cannot be total if, with this little supplement, he has got back some aspect of the use.

MR McCUSKER:   The question is whether he has got back an aspect of whether he has some - whether the foot still has a use as a foot or whether it is simply that the orthotics enable him to achieve locomotion in some of the things that you need a foot for.

KIRBY J:   If you follow it through, locomotion is one of the uses of the foot.  Without the orthotics, he has not got it.  But with the orthotics he gets back part of the use of the foot, therefore he has not lost permanent total loss of use.

MR McCUSKER:   Well, it depends in the end on the meaning of the phrase ‘loss of use of the foot’.  Does it mean - - -

GUMMOW J:   Total loss?

MR McCUSKER:   Total loss of use of the foot.  Does that phrase mean that something short - or nothing short of severance can attract the cover and it being the case - at least the view expressed in the court below which, with respect, we say is correct, that you do not need severance to attract the cover, the question then is, well what is it that will deny cover if the foot or the limb can be put to use in some way by mechanical means, does that mean that cover is no longer attracted?

BRENNAN CJ:   I think we understand the issue.

MR McCUSKER:   Yes.  Of course, this all depends upon there being a permanent injury and the question of what is an injury, of course, is really a question of what is the - I will take you to your Honour the Chief Justice’s observations in Australian Casualty Co Limited v Federico 160 CLR 535, and it is in our list of authorities No 10.

GUMMOW J:   There is a definition of injury, is there not?

MR McCUSKER:   Injury is understood as covering a pathological condition caused by any accidental force or event.  Injury is defined at page 13, a somewhat circular definition, this is at the foot of page 13 of the appeal book:

Injury means an injury which occurs fortuitously to You whilst this Policy is in force.

So, the reason I refer to what his Honour the Chief Justice said in Federico is to emphasise that it is a pathological condition.  Now, you do not restore the injury, you do not restore the underlying damage to the pathological condition by the use of either prothesis or an orthotic, some artificial aid.  The underlying loss of use of the foot remains.  The injury remains and the loss of use of the foot remains.  And, of course, in this case, beyond hope of improvement and the injury that has been suffered remains beyond hope of improvement.  The question is, does the use of the orthotics and the ability to achieve locomotion mean that there has been a total loss of use?

KIRBY J:   Your argument would have the same application to loss of the sight of both eyes and loss of hearing.  Just take the body part, you do not look into what you could do to supplement it and you, I suppose, would say that if the insurers want to say that, well they can add a cause.

MR McCUSKER:   Quite so, your Honours.  It really is a question of whether, on the ordinary understanding of this policy, it is appropriate to introduce artificial aids for the purpose of determining whether there has been total loss of use of the limb.  That is really the short point.  I have not taken your Honours through the outline in detail and I will not do that unless - - -

BRENNAN CJ:   I do not think - that would be a work of supererogation I think.

MR McCUSKER:   I think so, your Honour, yes.  There are a number of cases which I have noted under the heading “Practical Utility” at paragraph 9 and here, again, they are decisions of the United States but they do emphasise the point that, although they are not directly on this question of the use of orthotics or artificial aids, but they concern loss of a hand, or loss or a foot, and those cases simply demonstrate the point that you look to see whether, despite the fact that there has not been complete severance of the subject limb, it is so injured as to be useless for its intended purposes as a foot or as a hand.  That is the issue, we say, that the Supreme Court ought to have addressed; that is, without aids, without artificial devices, is this limb so badly damaged that you no longer have the use of it as a foot.  May it please, your Honours, they are our submissions.

BRENNAN CJ:   Yes.  Thank you, Mr McCusker.  Mr Pullin.

MR PULLIN:   May it please the Court.  Your Honours, we say it is important to bear in mind the role of the court when it was dealing with this matter.  Of course, it was not a jury trial but never the less, the court had to give directions in relation to the law and then as the tribunal of fact, make findings of fact.  Now, we say that this phrase ‘total loss of use’ just means what it says.  There is no need to put any gloss on it, but once you have given the appropriate directions of law, then it is a jury question.

Now, there are legal issues which require a direction to be given.  For example, a direction must be given that total loss of use of a foot means loss of practical utility, not just a loss by severance.  In a number of these American cases, insurance companies came along and said loss means total severance, so that direction has to be given.  It was given and there is no objection about it.

There are some cases where a direction might have to be given about the use of the word ‘at’, because loss of a foot is defined to mean at or above the ankle.  There is a case which talks about the law’s view on that, meaning nearness rather than actually at the very point of the ankle.

But once a direction is given, then the jury or tribunal of fact must make a judgment and subject to the one issue that is raised against us about whether there should have been a direction to the tribunal of fact that one must not take into account orthotics or aids, or as is called I think by Justice Gummow, unassisted or unaugmented - and one can use any of those words - it just does become a jury question.  Whether or not one uses some particular kind of aid or not is just one of the matters which will be taken into account.

Now, on the facts in this case, we had a person who is an executive who had to travel to various projects.  He was able to accomplish trips, negotiate airports, climb aeroplane landing steps, disembark, carry his briefcase, return home - all without crutches or sticks.  He can garden, rake leaves, stand on his foot, squat, carry RSJs as the evidence revealed, walk around on slopes and on uneven ground.

Now, that is all the evidence mainly concentrated on the fact that this was done with orthotics, and one was produced and not tendered in court, but it is an insert of what looks like rubber.  We are told that it has some liquid in the back of it, and that slips in to the shoe.  It does sound like, I tried to stress this point with the special leave application and Justice Kirby said that I was making it sound like a Dr Scholl’s advertisement, but that is what the object looks like and as Justice McHugh has said, they are widely used in the community to correct various conditions - flat feet or that kind of thing.

Now, it is a simple point.  If one can take into account simple processes like that, simple intervention like that, then the appellant must lose the case because, quite clearly, there was pretty substantial amount of use made.  Now, if it be the case - - -

KIRBY J:   In your policy you did not refer to an extended foot or a modified or an enhanced foot, you referred to a foot.  If the insured gets this policy they, I think, arguably are entitled to say, well this is my foot they are talking about, not something additional.  If you want to have additional, well you can always slip a little condition in.

MR PULLIN:   Well, that suggested that it must be tested, your Honour, walking around barefoot.  Should he make the journey to test whether he can use the foot, get on the aeroplane, carry his suitcases, do his raking and gardening barefoot to test whether or not there has been a loss of use.  In my submission, the jury will decide that and it is no good talking, in my respectful submission, about paralysis cases and whether or not he has got callipers on, or whether he wears crutches, the jury will sort all that out in making its decision.  There are four cases - - -

HAYNE J:   Do the various examples that you give of the activities in which it is said he engaged simply invite a further question whether he performs those activities using his foot, that is whether he walks using his foot, or whether he is in the position of a man who has, in effect, lost the foot and has a lifeless piece of flesh and bone at the bottom of the limb.

MR PULLIN:   Yes, but the question is, where is the question arising?  Is it arising as a question of law or is it arising for the jury to look at that as one of the considerations in deciding whether there is loss of use.  There are four cases that I wish to refer to where the New Zealand courts and the Canadian courts have looked at this issue, in cases where there has been what has been said to be total loss of sight in an eye, in effect, total loss of use of an eye.  The position is, in one of them, that there was a cataract causing it and the insurance company argued, well the evidence is that if you have an operation, it will remove the cataract.  There is an intervention or an augmentation of some kind, it is an intervention, the surgeon’s knife in that case, in this case, a thickened thong -- when he walks barefeet, he actually puts on a thong which has a thickened section in it.  Must one ignore the use of the thickened thong?  Surely the jury is to decide all of that and sort that out.  We are not to give a direction to the jury that you must test everything that he does walking around barefoot.

BRENNAN CJ:   To sort what out precisely?

MR PULLIN:   To sort out the issue of whether or not there is total loss of use, because a direction of law has to be given about the appropriate - - -

BRENNAN CJ:   What direction of law is given in construing those words to the jury?

MR PULLIN:   The direction that is given is, as a matter of practical use of the foot, has there been total loss of use?  One of the issues is, when looking at it from the factual point of view, do you take into account the fact that in one case he has got crutches?  The jury might easily reach the view that if you can only walk with crutches, as a fact there is total loss of use.  If, in another case, he has to slip in a Dr Scholls, literally a Dr Scholls insert that he goes and buys from the chemist, but can otherwise then can walk perfectly well, the jury will decide whether or not that reveals total loss of use.

In our respectful submission, it is not us that is seeking to imply a term, which is what is being argued against us.  It is the appellant which is seeking to imply a term, that is, that when construing the insurance contract to look to see whether there is total loss, one must imply a term that that determination is made when the claimant is walking barefoot.  That is the term that they are seeking to imply. 

I would like to take the Court to just these four cases.  They are in a bundle that we made available to your Honours, there is just four cases in it.  I understand that it has been provided.

BRENNAN CJ:   The way in which you have just put it, however, does require consideration of two situations.  One is the actual use of the foot as a bare foot or the use of a foot in conjunction with shoes or thongs or thickened thongs or shoes with inserts.  Now your proposition is that the use of the foot for relevant purposes covers all of those things.  Is that right?

MR PULLIN:   Yes, your Honour.

BRENNAN CJ:   The argument that is put against you is use of the foot discounts such use as may be put in conjunction with those external aids.

MR PULLIN:   Yes, absolutely.  That is the issue.  And the question is whether the direction should have been given to the tribunal of fact, in other words whether there should have been a direction by the trial judge to himself when considering the facts, the argument is put that he should have directed himself to ignore the effect that the orthotics or thickened thong had.  So, in other words, I must ask myself whether he can get on the plane, climb up the steps, rake the leaves, carry the suitcase, barefoot.  Because that is the use that has been made of the foot.  The foot is being used for a purpose that can vary infinitely.  In this particular case what he needed to do was to use the foot for its ‑ ‑ ‑

KIRBY J:   The other side of that coin is when he is walking around his home, when he is going into his bedroom and all the other things, he has to wear this addition.  You promised him that if he lost the use of his foot you would pay him this amount.  Now, if you want to restrict that, you can.  Surely you have to do that explicitly.  The focus of attention is on the foot, not on the foot plus supplements.

MR PULLIN:   Absolutely.  But the position is that we are talking about loss of use.  We cannot talk about use in some artificial way, we are talking ‑ ‑ ‑

KIRBY J:   We are talking about loss of use in the bedroom.

MR PULLIN:   But that is some loss.  Let us assume that he does have a loss in that respect.  Let us assume that he cannot kick a footy.  Well, that is some loss.  The jury will say, well, he cannot kick a footy and he cannot walk around in the bedroom but he can get on the plane and go up north to the northwest and get around quite adequately.  He can, as the evidence revealed, leave the doctor’s surgery after walking on a stick and go to a building site and carry a piece of RSJ around.  Admittedly, with this what I call Dr Scholl in the shoe, but is not that all for the jury.

The question is, whether or not, and just coming back to this point, the direction should be given to the jury, you must, in making the assessment, ignore the effect of commonly used, in this case, aids in the form of an orthotic which may be specially designedm but nevertheless is a rubber insert in an ordinary shoe, and that he can actually walk around barefoot but he has got two strips of rubber over the top of his foot with a thong underneath and a bit of rubber underneath which is a bit thicker than the other one and can otherwise rake leaves, work in the garden.  Surely, it is an artificial direction to give to the jury to say to the jury that you must ignore the effect of those very simple devices and we say it is illustrated by these four cases.

If I could take the Court, and I think that will be the close of our submissions.  The first one is - they are probably in order - tab 1 is
Buchanan v Brosnan.

BRENNAN CJ:   1929 must have been a good year for this type of litigation.

MR PULLIN:   Yes, it was, your Honour.  We get more modern though in our cases and end up with 1984.  This was in the Court of Arbitration in Christchurch, Mr Justice Frazer, and one can see the injury suffered in this particular case is set out in the first column - a piece of steel flew up into his eye and he developed a cataract.  Over in the second column - this is in the second paragraph:

In order for the plaintiff’s claim for compensation on the basis of the permanent loss of the sight of the left eye to succeed, it must come within the second schedule to the Act.  The words used in the schedule are “the total loss of the sight of one eye”.  If the remaining degree of vision in the eye were not correctible by the use of a glass, there would be no question of the eye being industrially useless, which is equivalent to the total loss of sight.

And then a little further down - well, I will read the rest because the reference to the analogy of the use of an artificial foot and the use of a glass is unsound:

In the former case the man has suffered the total loss of his foot ‑

in other words, severed and replaced with an artificial foot -

and has so brought himself within the words of the second schedule, for the artificial foot is only a substitute for the foot he has lost.  In the present case the plaintiff has not lost the sight of his eye.  The sight is still there, though an artificial aid is necessary to make it useful.  The glass is an aid to the eye, not a substitute for it.  Nobody would think of saying that a man had totally lost his sight if, with the aid of glasses, he could see well enough for all practical purposes.

Now that means that if any one of us with a policy like this, and there is an eye provision, we suffered some injury which meant that we could not see any better than any one of us can see without glasses and we add glasses, that we should then recover the $500,000.  It cannot be right, your Honours.  I know that, with insurance policies, one construes it in favour of the insured but we say this is just going too far.  The next case ‑ ‑ ‑

McHUGH J:   Well, I have to tell you that judgment does not impress me.  I would have thought if he has one sixtieth of normal vision as a result of an industrial accident, he has lost the total loss of the sight of his eye.

KIRBY J:   They were hard times back there in 1929.

MR PULLIN:   Yes, there were a couple of worse cases we did not refer to, your Honour, but they are all on their own facts and we say that is for the jury to decide.  But even that case would be for the jury to decide.  The direction would be given, “You can take it into account but you will make the judgment.”  Now, the jury might well have said, look, in practical terms, this man cannot see.  You can take into account the aid, there is nothing wrong with that, but you, the jury, go away and decide it.  In our submission that is where the issue is decided, at that point in the jury room, not when the direction is being given.

BRENNAN CJ:   But that was not the case of aids at all though, was it?  It was a question of the surgeon’s knife.  Do you have to go under the surgeon’s knife in order to get your sight back.

MR PULLIN:   Yes, that is right, but the retina was perfectly operable.  In this case let us assume that the injury that was suffered here was as bad as it was and the evidence was, well you can restore full use of your foot by a simple operation and the applicant said, “No, I do not want to make it”.  It is exactly what we see in one of these cases.  So, does that mean that he gets his $500,000?  Because intervention is the word to use - intervention by surgeon’s knife, augmentation in this case by the use of a thong that is a bit thicker than the other one, or the use of an insert into the shoe.  Surely that is a jury question.

McHUGH J:   Perhaps it is important to understand what is meant by limb or foot as the case may be.  For example, somebody may have a hip that is totally smashed so that, in its natural condition, the leg is totally useless but, as a result of devices, metal devices that can be put in - people get new hips ‑ one can use the hip.  But do you say that person has not lost the total loss of the use of the leg?

MR PULLIN:   Well, in the jury room I would say definitely yes, your Honour.  But the direction that would be given would be - I mean in that case - this is the trouble with the different set of circumstances in each case - but, in that particular case, if, in fact, the hip had been smashed and replaced with an entirely artificial one, I do not think anyone is going to be able to successfully argue that there has been a total loss of use of the foot because it is not the foot that is being used then.  You are using a nice stainless steel device not the hip joint at all.  And the same with severance of the foot, if you have the foot severed and you get a replacement and it works, with modern technology, fabulously well, you have still lost the use of your foot.  It is not your foot that is being used, it is the artificial device which completely replaces it.  But to say that it can be said that the foot is not being used when you have a thong on it is, in my submission, stretching things too far and that what really is being revealed by all of this, that it is a jury question.

I do want to refer - there are only three more cases, your Honour, and they are all short ones.  Tab 2 is the case of Boyes v Smyth and I think I only need to mention this in passing, this was the Court of Appeal in Wellington, we have moved forward to 1933 and this ‑ ‑ ‑

GUMMOW J:   The crucial passage seems to be at 1434 at line 30.

MR PULLIN:   Yes.  Well, the facts of this case were said, opposite line 23, the facts of this case are precisely the same as those in Buchanan v Brosnan.  Then once, again above that, you see it is total loss of the sight of one eye and the question is whether the plaintiff here has suffered the total permanent loss of the use of the sight of one eye.  Now, the fact that it is a jury question, I actually cite an authority, but in this case it is an 1894 Wisconsin Supreme Court authority.  It is not the one that is referred to just here but I think it is in the bundle of the other side’s authorities.  I just refer to it - it is the case of ‑ ‑ ‑

GUMMOW J:   All that is being said is that these are ordinary English words.

MR PULLIN:   Yes, exactly so, your Honour.  Lord v American Mutual Association (1894) 89 Wisconsin 19, I think it is - I am not sure where it is, which tab - No 4 in my learned friend’s bundle.  If I could just take you to the phrase because we say it needs to be said ‑ ‑ ‑

BRENNAN CJ:   This had better be good, Mr Pullin.

MR PULLIN:   No, I will not.  I will not waste your time, your Honour.  It says it is a jury question, that is what it says.  But I will take you then to
Long v Graham (1967) NZR 1030 back in my bundle.  It is tab No 3.  Now this was, once again, injury with a power drill - a piece of steel breaks off and goes into the eye and then, opposite line 45:

The sight of the left eye gradually deteriorated through the formation of a cataract -

and then a little further down -

Operative treatment to remove the cataract and install a contact lens was discussed with his medical advisers but the plaintiff from the first, and has ever since, decided against such a course -

Then over the page at 1031 opposite line 27:

It is agreed that in the left eye there is perception of light only - indeed, even this only by “good light projection” - and that this will never improve without operation.

Then over the page 1032 opposite line 15:  “Beyond hope of improvement”, was a phrase which appeared there and it is the same phrase that appears in the definition.

KIRBY J:   Do you think if you said to a person “he has lost his vision” that they would think that merely means that he has lost perception of light and shade or do not you think that would mean to most people, well, he cannot see?

MR PULLIN:   Absolutely, your Honour.  But remember the phrase here is “permanent total loss”.  This is what this event must be and the word “permanent” which is defined in the policy on page 14 of the appeal book means lasting 12 calendar months and that the expiry of that period being beyond hope of improvement.  Now, this is exactly the same policy - really the same consideration is at work here - and then opposite line 45 a little further down still in this case Long v Graham:

He will continue to have that total loss of vision unless and until he has the cataract removed and a contact lens fitted.

Well, he was coming along to the insurer and saying, I am not doing it, please give me the money.  Then, over the page, 1033, second line down:

None the less, a thing cannot be permanent stricto sensu if its “permanency” can be brought to an end at will and the bald fact is that the plaintiff could, if he wished, end tomorrow his present state of loss of vision -

As I read the medical evidence the sight is still there, the retina in good condition and healthy, but masked, so to speak, by the cataract just as sight would be masked by loss of the control of an eyelid which had closed, yet could be opened (as I have seen done) with plastic surgery and the use of the wrinkles of the forehead.

KIRBY J:   But this is getting into the human body and actually changing the structure of the ‑ ‑ ‑

MR PULLIN:   Absolutely, an intervention.

KIRBY J:   Whereas what has happened in this case - the present case - as I understand it, you cannot get in and improve the foot, you can only lop it off but that something external to the foot has been added.

MR PULLIN:   Well, your Honour, the surgeon in this case reaches for the knife, applies it and inserts a piece of plastic.  In our case the appellant reaches for a thickened thong and slips it on to his foot.

KIRBY J:   But I think there is a distinction - one is actually getting into the neurological and other structures of the limb or of the object of the policy, whereas what has happened in this case is that apparently cannot be done.  This is external supplement.

MR PULLIN:   Well, your Honour, we must apply the ordinary meaning of these words.  We say that the correct direction to the jury would be:  in deciding whether there has been “permanent total loss” you must apply the ordinary meaning of those words and you will go away ‑ ‑ ‑

KIRBY J:   But you are leaving off the critical word - it is permanent and total loss of the foot.

MR PULLIN:   Of the foot, yes.

KIRBY J:   It is not permanent and total loss in a vacuum.

MR PULLIN:   Well, then the ordinary shoe could not be used because you would say, well, I cannot look at the shoe, you must have him do all these things without a shoe.  Because there may well be factual circumstances where, with the support of ordinary lace-up shoes, one could use the foot perfectly well, but without, not be able to do so.

KIRBY J:   Surely the instruction to the jury would have to be:  ladies and gentlemen of the jury, the policy says foot, you have to concentrate on the foot.  You must not be looking at foot plus something else.  It is the foot.

MR PULLIN:   That is the argument, your Honour.  If that is right, well, we must go back and find out what he can do with just his foot.  It never was, when one looks at the approach in the case, and reason it has to go back is because the outline of submissions did not raise a suggestion that there should be a direction by the trial judge to himself in the terms that is now being sought and, indeed, when it went to the Full Court the argument, as one can see from the notice of appeal, is all about findings of fact that were made.  And it is only when we get here that we suddenly have raised the suggestion that there should have been a direction given by the judge to himself in considering the facts in the case to totally ignore the use of the shoe, the inserts and the thong, because it may be on the evidence and, in fact, with the shoe he can get about a bit as well and get significance use that means it is not permanent total loss of use.

BRENNAN CJ:   Mr Pullin, I must say that for myself, it seems to me that those cases that you have been referring us to place the bar at a height higher than you need to leap over.  I mean, it is not a question of intervention by surgical procedure that you are concerned with there, it is what use can be made of the foot, including the use that can be made of it in conjunction with orthotics.

MR PULLIN:   And with the thong.  But we say the principle is the same and the reference is to intervention.  Whatever the intervention - surgeon’s knife, the picking up of the thong or the insertion of the orthotic - that is the issue.  We are told by the appellant in submissions that that is a direction that should have been given, to ignore the effect that they would have and just look at the foot.  In other words, test in bare foot to see what he can do.  And we say that that cannot be correct.  “Permanent total loss of use of the foot”, they are ordinary words, a jury understands them perfectly well with some direction about not thinking that it has to be severance when it talks about total loss, and then retire to the jury room and make a decision.  We say that it is a jury question.  The jury looked at it, made a decision.  We had a video but there is no need to show that, the way that we are now arguing the case, which is just about the direction that was given.  We say that there was no need to give that direction - the judge to give that direction to himself.

The final case, your Honour, is Re Lloyd and Commercial Union Assurance Co of Canada and that is No 4 in that bundle.  One can see it was another case involving an eye from the headnote.  There was severe impairment as a result of an injury but nearly normal vision with a contact lens.  Opposite e on page 79:

She can see shapes in the normal range, but they are out of focus and blurry.  She can distinguish colours and shapes, but cannot appreciate detail.

Now, if left to a jury, the jury might quite properly come to the conclusion that that is total loss of use -

With a contact lens, she has almost completely normal vision -

Now this is not the intervention by surgeon’s knife.  This is the equivalent of the rubber thong going on to the bottom of the foot -

she has almost completely normal vision and it is expected that she can maintain that for life.  Conventional spectacles do not assist.  Without use of a contact lens, her sight from her right eye will never improve.

And then over the page just above e quoting from another case:

the loss of sight by atrophy of the optic nerve or in some other manner which is irrecoverable, but it cannot be reasonably construed to cover a case where sight was lost but through surgery and the use of glasses normal vision is again enjoyed.

And then down the bottom of the page:

When there is almost normal vision for life with the use of contact lens, it is my opinion that there has not been the total and permanent loss of use of sight within the meaning of the policy herein.

If, the conclusion of the Court is, as has been suggested to me, that one must ignore any kind of artificial aid then this kind of policy which seems to be pretty common, when you get to an eye case, because exactly the same considerations apply, a person who can see perfectly well with contact lenses will win a case in those circumstances.  And in our submission that is not within the ordinary meaning of the words “total loss of use”.  It is a matter for the jury to consider.  They might consider it.  They might not.  But it is for them to decide.  The judge in this case looked at the evidence, looked at the video evidence, considered that the appellant had, to

use the expression that he used, “yielded to the temptation to exaggerate the symptoms”.  All of that is a matter for the jury to weigh up and make a decision on and in our submission there was no misdirection.  In fact there was no error in failing to give the direction which is now contended for.

My learned junior says that I should not have conceded, your Honour, that the hip might have been a case where the jury would have awarded the $500,000.  That, as I say, is a jury question that this juror would have voted the other way to me in the jury room.  They are my submissions, your Honour.

BRENNAN CJ:   Thank you, Mr Pullin.  Yes, Mr McCusker.

MR McCUSKER:   Briefly, your Honour.  Whilst it is true that it is a jury question in the end, the question is whether the direction here was the proper direction given and the direction essentially is that referred to at page 48 of the appeal book where the Full Court said, that is starting at the second line of that page:

This is on the basis, which we accept, that it is, in reality, the use of the inserts which has enabled the appellant to make as much use of his foot as he does.  We are, however, unable to accept that the use made by the appellant of his foot with the benefit of aids is simply to be ignored.

So what the court did was - and this was taking up the same approach that the trial judge took - to say you do not just look at the foot, you look at the use of the aids and if you can achieve locomotion with the aids in conjunction with the foot, that is sufficient to take it outside the cover and that, in our submission, is the wrong approach.  Your Honours, I did say in the course of discussing, I think, with the Chief Justice the question of what this orthotic looks like, I referred to it as partly liquid.  I stand corrected on that.  It is not partly liquid.  It is the heel, indeed - that is the damaged heel that is, in effect, liquefied.  There is nothing left of it.  It is just liquefied.

The eye cases to which your Honours have been referred, in my respectful submission, are of little assistance really here.  You take the case concerning the cataract.  If it were the case here that surgical intervention could restore use to this foot, that would be quite a different question.  It may be that if surgical intervention could in a given case of a damaged foot restore some use to it, then possibly it could be said that the cover did not apply.  So where you have got the possibility of removing the cataract, there is no permanency, that was the way that that case ran.

So far as the other cases are concerned, where the use of a lens or something of that nature could be employed for the purpose of enabling clear vision, the point in those cases were there had not been loss of the sight.  It was the facility to see which was the issue there, had there been loss of use of sight, and if the underlying sight is still there, it is just the correction of the blurred vision and so forth by the use of glasses, well, that is quite a different situation from here.  We are not talking about the loss of the capacity to achieve locomotion.  We are talking about the loss of the use of the foot, quite a different issue.

My learned friend referred several times to the question of the appellant here achieving locomotion merely with a thong.  That really is understating the position.  This was achieving locomotion with great difficulty, as the court below said, albeit with considerable pain, with the use of a thong and a special insert and the question of whether there was any residual use of the foot as a foot is one which, in our submission, ought to go back.  At page 40 of the appeal book there is reference - it is not directly on the issue before this Court, but there is reference to the reports of Mr Easton, the specialist orthopaedic surgeon, who referred at line 10 in his report to his having “100% loss of foot and ankle joint function” and between 20 and 25:

His foot was extremely hypersensitive, and therefore my assessment as per the schedule would place loss of function of that limb, ie foot, at 100%.”

Now, there is then reference to the video evidence and so on.  The point I simply make is that this is not some light trifling problem that can be corrected merely by the use of a thong.  This is a deep‑seated problem of extreme damage to the foot where all the specialists have suggested that the proper course to take is amputation and what is left there is a liquefied, in effect, heel, a stiffened toe, but an ability to achieve locomotion if orthotics or aids are used.  The question then is one of construction of the policy and may I refer your Honours in that respect to one of the authorities on our list of cases.  It is No 11, Legal & General Insurance Australia Limited v Eather (1986) 6 NSWLR 390 and at page 394 your Honour Justice Kirby referred to the approach to construction at just below B, this is the second paragraph:

where there is doubt as to the meaning of a policy particularly in respect of terms contained in standard printed forms proffered by the insurer to the insured, courts, if not otherwise able to resolve the ambiguity, will construe the policy contra proferentem.  This principle is grounded in the substantially superior position enjoyed

by the insurer to specify, and where necessary amend, the standard terms on which it offers indemnity to its insured.

KIRBY J:   It is nice of you and wise to cite my old authority, but I think that since then this Court has passed on this question and has made the emphasis on the fact that the primary duty of the court is always to construe the policy.

MR McCUSKER:   I accept that, your Honour.

KIRBY J:   In a sense this is a last resort tactic, if you cannot actually find the meaning in the words of the policy.

McHUGH J:   In addition, that was a dissenting judgment, if I remember correctly, after all these years.

KIRBY J:   Justice McHugh never forgets those things.

MR McCUSKER:   The only point we make about that, your Honour, is that this policy - the insurer contends that, in effect, total loss of use of a foot should be interpreted to mean taking into consideration aids, orthotics, mechanical devices.  We say that is an unwarranted addition to the policy and even if it were open to take that approach, there is an alternative approach and that is you simply focus - the proper approach is to focus on the foot.  If there were those two views open, then the latter view should be taken.  May it please your Honours.

BRENNAN CJ:   Thank you, Mr McCusker.  The Court will consider its decision in this matter.

AT 12.30 PM THE MATTER WAS ADJOURNED