Johnson v American Home Assurance Co [1998] HCA 14

High Court of Australia Brennan CJ McHugh, Gummow, Kirby and Hayne JJ Johnson v American Home Assurance Co [1998] HCA 14

ORDER Appeal dismissed with costs

Cur adv vult

The following written judgments were delivered: —

4 March 1998 Brennan CJ.

1. I agree with Hayne J. The appeal should be dismissed.

McHugh J.

2. I agree with the judgment of Hayne J.

Gummow J.

3. The appeal should be dismissed. I agree with the reasons of Hayne J.

Kirby J.

4. 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.

5. 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.

6. 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.