Rostolis v State of Victoria

[2021] VCC 86

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-01211

Robert Rostolis	Plaintiff
v
State of Victoria (Department of Education and Training)	Defendant

---

JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	29 January 2021
DATE OF JUDGMENT:	11 February 2021
CASE MAY BE CITED AS:	Rostolis v State of Victoria
MEDIUM NEUTRAL CITATION:	[2021] VCC 86

REASONS FOR JUDGMENT
---

Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious Injury – injury to chest wall – pain and suffering
Legislation Cited:     Workplace Injury Rehabilitation Compensation Act 2013 (Vic)

Cases Cited:Sabo v George Weston Foods [2009] VSCA 242; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Fleming v Hutchinson (1991) 66 ALJR 211; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46; TAC v Dennis [1998] 1 VR 702, 703; Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260

Judgment:                The plaintiff’s application is dismissed

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Lang	Adviceline Injury Lawyers
For the Defendant	Ms K Gladman	Minter Ellison

HER HONOUR:

1 Mr Rostolis, a 65 year-old primary school principal, seeks leave under s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) to issue common law proceedings for the recovery of damages for pain and suffering only in respect of an injury to the chest wall suffered on 18 October 2017 when he fell heavily on his left side after being attacked by a difficult student. There is no issue that he injured a number of ribs in that fall, and that he has been left with long-term symptoms of pain and restriction which constitute a permanent impairment of the function of the chest wall.

The issue

2       The only issue in this application is whether, in terms of the pain and suffering consequences of his permanent impairment of the function of the chest wall, the plaintiff has satisfied the narrative test for serious injury.

3       Mr Rostolis says that he has satisfied the narrative test for serious injury because he suffers persistent pain in the chest wall, which is aggravated by coughing, sneezing and physical activity involving the chest, and which prevents him from sleeping on his preferred left side and therefore interferes with his sleep. He is grumpy and less able to concentrate as a result of poor sleep. His sex life has suffered. He feels that he will need to retire earlier than he had planned from his current position.

4       The defendant says that because Mr Rostolis rarely takes medication for his pain, retains the capacity to work full-time in his physically and psychologically demanding position as primary school principal (a position he has held since 1995), and continues to be able to participate in recreational and domestic activities, he has failed to discharge the onus he bears to establish that the pain and suffering consequences of his permanent impairment are more than considerable when compared with other cases in the range of permanent impairments of that kind.

5       At the hearing, Mr Rostolis was the only person to give evidence. The parties tendered a Joint Court Book (“JCB”).[1] The defendant tendered extracts of videos from the school’s website showing Mr Rostolis performing with his colleagues.[2]

[1]Exhibit 1. 

[2]Ibid.

Mr Rostolis

6       In his affidavits,[3] Mr Rostolis says that the consequences of this impairment include persistent niggling rib pain, which is worse when coughing, sneezing, or moving his chest; an increase in pain over the course of the day and in colder weather; daily disturbance of sleep and an inability to sleep on his side, particularly his left side. He feels constantly tired due to his disturbed sleep and this fatigue has impacted negatively on his mood, marriage, and sexual intimacy. He is unable to play with his grandchildren for long periods and avoids rough play. He continues to play guitar, cycle, play tennis, and to attend the gym, but is more cautious when doing these activities. He can no longer stand for long periods while playing the guitar. He is unable to move freely in the shower, and experiences pain when dressing. He is restricted in the household duties he can perform. Prior to his injury, he was very social but now stays mostly at home. He continues to work full-time as a principal but sometimes goes home early due to fatigue. He feels that he will retire earlier than he had planned because of his fatigue.

[3]JCB 18-32.

7       Mr Rostolis also stated that he takes Nurofen and Voltaren as needed. He attended myotherapy with Mr Dylan Flannery regularly between 2018[4] and the outbreak of COVID-19 in March 2020 and found it helpful.

[4]JCB 46, 87-131.

8       In his oral evidence, Mr Rostalis said that he plans to resume myotherapy in due course.[5]   

[5]Transcript of Proceedings, Rostolis v Department of Education (County Court of Victoria, CI-20-01211, Judge Davis, 29 January 2021) (‘T’) 6.26-31.

9       In cross-examination, Mr Rostolis said that he has constant rib pain, worse in the morning, but better after exercise. Apart from taking Voltaren for a few days on four occasions in the past year,[6] he does not like taking pain medication and rarely takes it. He does not sleep well due to the pain and cannot sleep on his preferred left side for more than an hour before having to change sides or apply a heat pack.[7] He agreed that, despite his discomfort and fatigue, he has continued to work at a level above and beyond what would normally be required of a school principal, because that was what he has done since 1995. He remarried in 2018 and travelled to Italy for a month on a honeymoon. He and his wife have also visited Sri Lanka.

[6]T6.16-20.

[7]T31.23-29.

10      During COVID-19, he continued to conduct pre-recorded weekly assemblies. The videos were uploaded on the school’s website and shared with the students. In the videos,[8] extracts of which were shown in court, he played the guitar and danced and sang with colleagues. He agreed that in one of the extracts of those performances, he was able to perform 10 push-ups but said he struggled at the end and felt pain while doing it and afterwards.[9] He agreed that he continues to exercise and to live a full life but said that he modifies all of his exercises in terms of the length of time and the way he does them. He said that he used to play guitar in a band for three to four hours at a time but can no longer stand and play for long periods.[10] He said that sitting hurts him more because his ribs are compressed. At work, he has always walked around the school and rarely sat in his office, and this continues. He feels that because his sleep is disturbed when he turns over, he wakes up grumpy and therefore he does not think that he can maintain his energetic and positive role as principal for much longer.[11] His fatigue is largely responsible for his reduced sex life. He finds that he is slow in the morning if he has had rib pain at night. He can undertake home maintenance including mowing the lawn, but for shorter periods than prior to his injury. He has been able to drive distances and travel by plane but needs to stand and stretch regularly. He will not play football or engage in tackles.

[8]Exhibit 1.

[9]T16.24; T27.1-2.

[10]T17.23-25.

[11]T30.20-30.

11      In addition to attending myotherapy, from which he obtained some benefit, he has followed recommendations to swim and lift weights to try to strengthen his chest muscles.[12]

[12]T26.20.

Expert evidence

12      There were no issues raised concerning the medical evidence, which can be briefly summarised in the following terms. When he fell on 18 October 2017, Mr Rostolis suffered fractures to four ribs (ribs 9, 10, 11 and 12).[13] The fractures at ribs 9, 11 and 12 progressively healed, but there is non-union of the tenth rib on the left side.

[13]JCB 38-41, 136-139.

13      Mr Rostolis consulted two orthopaedic surgeons. The first of these, Mr Saeed Asadollahi, reported on 22 August 2018 that the plaintiff complained of “niggling pain in the left chest wall”, which “interferes with his night sleeps”, but was able to “exercise and work with no problems”.[14]

[14]JCB 44-45.

14      A second opinion was then sought from Mr Phillip Antippa, who reported that  Mr Rostolis “is not taking much in the way of pain medications”…“finds his pain is difficult to control sometimes and very occasionally waking from sleep”, but is “otherwise fit and well and enjoys his work”.[15] Mr Antippa noted that Mr Rostolis obtains “significant relief with myotherapy treatments”,[16] which indicated that “most if not all of his pain is due to muscle spasm”, “coming from the soft tissue and not from the bone”.[17] For this reason, Mr Antippa concluded that surgery was not indicated as it may make the situation worse, and no further consultations were needed. He encouraged Mr Rostolis to undertake a rigorous exercise regime, including swimming, aimed at strengthening his upper body musculature.

[15]JCB 86.

[16]Ibid.

[17]Ibid.

15      Mr Rostolis saw Dr David Elder, occupational physician, on 2 September 2019 for an impairment assessment.[18] He told Dr Elder that his main problem was sleep disturbance because of his inability to sleep on his preferred left side. He also complained of “left sided constant niggling chest wall pain”,[19] exacerbated by activity, coughing or sneezing and “any significant chest movement”.[20] He had become “more grumpy and intolerant”[21] and was intending to retire sooner because of his chest wall dysfunction. He reported being able to swim and attend the gym. He reported being able to perform household maintenance, but not for as long as prior to his injury.

[18]JCB 47-50.

[19]JCB 48.

[20]Ibid.

[21]Ibid.

16      Mr Rostolis was examined by Mr Michael Dooley on 28 October 2020.[22] Mr Dooley diagnosed residual post traumatic pain in the chest wall, which was worse at night and after physical activity, and indicated that there was no effective treatment for this condition. Mr Dooley recommended that Mr Rostolis sensibly modify his activities and take anti-inflammatory medication as required.

[22]JCB 54-57.

Legal principles

17 In order to make out the serious injury within paragraph (a) of the definition in s 325(1) of the Act, the plaintiff must establish that he has suffered a permanent impairment or loss of a body function, and that the consequences to him in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[23] The court must consider the impairment of a body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[24]

[23]Workplace Injury Rehabilitation and Compensation Act2013 (Vic) s 325(2)(c).

[24]Sabo v George Weston Foods [2009] VSCA 242, 66; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, 42 (Ashley J).

18      On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[25]

[25]Fleming v Hutchinson (1991) 66 ALJR 211.

19      The “pain and suffering consequence” of an injury encompasses the plaintiff’s experience of pain and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. The intensity and frequency of the pain must be assessed in the light of the plaintiff’s evidence (which may be affected by the court’s assessment of the plaintiff’s credibility), the treatment received, the medical evidence, and the objective evidence about the disabling effect of pain.[26]

[26]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, 9-12; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 45-47 (Tate JA).

20      Generally, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[27]

[27]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199] (Dodds-Streeton JA).

21      Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[28] 

[28]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, 16; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46.

22      Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[29] Each case has to be determined in the light of its own facts.[30] 

[29]Transport Accident Commission v Dennis [1998] 1 VR 702, 703 (Callinan J).

[30]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.

23      In determining the application, the whole of the evidence is to be considered, and a successful return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering, particularly where the alternative employment found by a worker has not had the effect of reducing his symptoms.[31] Overall, the court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he has lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.[32]

[31]Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 79 (Tate JA); Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.

[32]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, 27; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 95.

Findings and reasons

24      I found Mr Rostolis to be a straightforward witness, whose evidence concerning the pain and suffering sequelae of his impairment is consistent with what he has told his treating and examining specialists. I therefore accept his evidence.

25      I acknowledge that the pain and suffering consequences of his chest wall dysfunction are considerable, in that they involve persistent pain, particularly with activity, and at night, interference with sleep, some interference with enjoyment of life (including his ability to play guitar for long periods, and to engage in sexual relations), and interference in the proposed timing of his retirement (in the sense of being likely to bring it forward). They also require him to modify the length of time he plays guitar or exercises or does home maintenance. I accept that he has on occasions had to leave work early due to his injury-related fatigue symptoms.

26      On the other hand, however, Mr Rostolis takes little or no medication for his pain, is able to care for himself, exercise, work full-time in his occupation largely without taking whole days off, perform household maintenance, play music, dance and sing. When viewed in the context of what he has retained, I am not satisfied that the pain and suffering consequences of his impairment are more than considerable when compared with other cases in the range of permanent impairments of the chest wall.

Conclusion

27      It follows that the application for leave to issue common law proceedings is dismissed. I reserve the question of costs.