Sedger v Centennial Springvale Pty Limited

[2022] NSWDC 710

District Court

New South Wales

Medium Neutral Citation:	Sedger v Centennial Springvale Pty Limited [2022] NSWDC 710
Hearing dates:	23 June 2022
Date of orders:	23 June 2022
Decision date:	23 June 2022
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I approve the redemption.
Catchwords:	COMPENSATION – SPECIAL STATUTORY COMPENSATION – COAL MINERS – REDEMPTION – Whether defendant might be liable to pay for surgery to Plaintiff’s hips.
Legislation Cited:	Nil.
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff – Owen John Sedger Defendant – Centennial Springvale Pty Limited
Representation:	Counsel: Plaintiff- Benson, D. Defendant – McMahon, S. Solicitors: Plaintiff – Slater and Gordon Defendant – Sparke Helmore Lawyers
File Number(s):	2022/00162087
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: This is a redemption application in the sum of $130,000. I was concerned about the adequacy of the sum, but my concerns are now assuaged. The history recorded by Dr Peter Giblin is this:

"He injured his left hip when he slipped and fell in 2010 and he reported that injury.

He favoured his left side and by 2012 he noticed that he had similar symptoms of stiffness and pain in his right hip.

His right hip had a total hip replacement on 19 May 2016 and his left hip had a total hip replacement on 14 August 2016. He was off work for several months, eventually getting back to his job."

2. Dr Giblin goes on to diagnose a 40% loss of efficient use of the Plaintiff's right leg at or above the knee, taking into account all symptoms in his right leg, and a 30% loss of efficient use in his left leg, at or above the knee, taking into account all symptoms in the left leg as a whole.

3. His diagnosis appears to have assumed that the left hip injury and the consequential favouring of the right hip led to the hip conditions which led to the total hip replacements. In other words, he appears to accept that they were compensable.

4. The problem with this argument is this; in the first analysis, if the Plaintiff injured his left hip and developed symptoms and, as a consequence of favouring his left hip, he put more strain on his right hip, one would expect that the left hip would be replaced before the right hip, but that has not occurred.

5. One would think if he injured the left hip, that the left hip would be more advanced, as far as osteoarthritis is concerned, than the right hip. That also has not occurred.

6. The left hip injury was reported on 16 June 2010 as a left hip strain. There does not appear to have been much time taken after work as a result of that left hip strain.

7. An X-ray of the left hip made on 10 August 2010 said this:

"The hip joint space demonstrates marked joint space narrowing superiorly with sclerosis and subchondral cystic change. No fracture line or avulsion injury.”

The radiologist, Dr Kapoor, concluded that there was “moderately severe focal left hip [osteoarthritis] superiorly."

8. Such radiological appearances would not result from an injury on 16 June 2010. For any reactive bony change to occur following an injury, about six months would be needed. That would expire before anything was shown on plain x-ray. The x-ray appearances made on 10 August 2010, suggest a longstanding condition.

9. X-rays of both hips were taken on 29 November 2013. They are reported in this fashion:

"There are moderate degenerative changes in both hip joints, characterised by asymmetric joint space narrowing, (particularly along superolateral aspects on both sides) and osteophytosis. The degree of degenerative change in the left hip is similar to 10/08/2010. No pelvic fracture is visible."

10. Accordingly, one can see that, as at 29 November 2013, both the right and the left hips were in the same condition and that there had been no change since the event of 16 June 2010 and since the x-ray of 10 August 2010 and, therefore, it would appear that the left hip strain had caused no aggravation, et cetera, of the left hip problem.

11. On 1 September 2014, the Plaintiff's general practitioner wrote to Dr Michael Solomon, a specialist at the Prince of Wales Hospital, concerning the Plaintiff's bilateral osteoarthritis of his hips. That refers to longstanding stiffness in the left hip and a more recent onset of difficulty in the right hip. The general practitioner had previously been advised by another specialist, Dr Loefler, that he thought some symptoms in the Plaintiff's lower limbs were coming from his hips and recommended bilateral hip replacements.

12. On this occasion, Dr Solomon thought that the problem was more likely in the low back, rather than the hips. However, the Plaintiff was sent back to see Dr Solomon in 2016 and, by that stage, the Plaintiff's symptoms in the right hip were more severe than the symptoms in the left hip and Dr Solomon then proceeded to carry out total hip replacement on the right hip at the Prince of Wales Hospital on 4 July 2016 and later carried out surgery on the left hip at the Prince of Wales Hospital on 4 August 2016, that is, there was a delay of a month between the two total hip replacements.

13. Dr Solomon does not suggest that the need for any hip surgery resulted from any compensable injury, nor does the Plaintiff's general practitioner. I have been told by the Plaintiff himself that he did not claim that the condition of his hips was caused by his having been hurt at work and his surgery was paid for by his private health insurer.

14. In the circumstances, I am persuaded that the Plaintiff's minor left sided hip strain on 16 June 2010 was not the cause of any ongoing symptoms in his left hip and was certainly not the cause of the need for bilateral total hip replacements in 2016.

15. In the circumstances, the sum proposed for redemption is reasonable. I approve the redemption. By consent, orders in accordance with short minutes of order which I have initialled and placed with the papers.

Decision last updated: 06 March 2023