Doulis v State of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2011 05434

PETER (PANAGIOTIS) DOULIS	Plaintiff
V
STATE OF VICTORIA	Defendant

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATES OF HEARING:	7–10, 14–18, 21–25, 28–31 October and 11 November 2013
DATE OF JUDGMENT:	5 September 2014
CASE MAY BE CITED AS:	Doulis v State of Victoria
MEDIUM NEUTRAL CITATION:	[2014] VSC 395

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NEGLIGENCE – Workplace injury – Psychiatric injury – Duty of care – Foreseeability – Content of duty to avoid psychiatric injury to employee – Terms of employment contract

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J B Richards QC and Mr G A Worth	Slater & Gordon
For the Defendant	Mr J T Rush QC, Mr S D Martin and Mr A J Saunders	Minter Ellison

TABLE OF CONTENTS

Introduction
Mr Doulis’ case
Werribee Secondary College
Mr Doulis’ entry into the teaching profession
A teacher’s progression path
The College raises its standards
Introduction of homogeneous classes
The benefits of homogeneous classes
Mr Doulis’ manner and appearance when he commenced teaching at the College
Mr Doulis’ medical issues around the time he commenced teaching at the College
The causes of Mr Doulis’ sleeping problems
The reliability of particular witnesses

Mr Doulis’ credibility

Pornography on the school network
The Year 9 student incident
Problems with coordinators
Bullying allegations
Bullying by bursar
The hotel incident
The Club episode
Mr Doulis’ experience at Fitzroy High School and Bacchus Marsh Secondary College
Sleep issue
Conclusion on credibility issues

Mr Hatzis
Other teacher witnesses

Changes in Mr Doulis’ appearance and manner
Sick Days
Mr Doulis’ marking practices
Comparison between Mr Doulis and other teachers
Mr Doulis’ verbal complaints about his class allotments
Written evidence of Mr Doulis’ complaints concerning his class allocations
Mr Doulis in the second half of 2003
The incident of 5 September 2003
The meeting on 8 September 2003
Mr Doulis’ letter to Mr Butyn of 11 September 2003
Ms Bridget Curran
The following week: 15–19 September 2003
Mr Doulis’ manner for the rest of 2003 and 2004
Mr Butyn’s evidence about Mr Doulis’ personal problems
Mr Doulis’ financial pressures
The May 2004 fire and Mr Doulis’ departure from the College
Mr Doulis’ return to work
Fitzroy High School
Bacchus Marsh Secondary College
Dr Clare Spicer
Mr Doulis’ life after finishing teaching
The remaining medical evidence
Dr Tagkalidis
Dr Christopher Mulroney, GP

Medico-legal evidence
Dr Epstein
Dr Entwisle
Jones v Dunkel submissions
Mr Doulis’ submissions
The defendant’s submissions
Consideration of submissions
The content of the duty of care that the defendant owed to Mr Doulis
Was there a foreseeable risk of psychiatric injury to Mr Doulis?
If it was reasonably foreseeable that Mr Doulis would suffer a psychiatric illness, what was the content of the College’s duty?
Did the College breach the duty of care that it owed to Mr Doulis?
Causation
Damages
Pain and suffering
Economic loss
Future economic loss

Costs thrown away
Conclusion

HIS HONOUR:

Introduction

Mr Peter Doulis is aged 48. He has a chronic severe major depressive condition and has not worked since 2007. He has no present work capacity.

He worked as a teacher at Werribee Secondary College (“the College”) between 1998 and 2004. He later taught at Fitzroy High School and Bacchus Marsh Secondary College until July 2007. He alleges that he sustained injury in the course of employment, as a teacher by the State of Victoria between 1999 and July 2007, by being repeatedly exposed to highly stressful circumstances in his work environment which the defendant was fully aware of and failed to control adequately.

I set out a summary of the conclusions that I have reached. I find that it was reasonably foreseeable that Mr Doulis might suffer a recognised psychiatric injury because of his teaching allotment at the College and that the defendant had a duty to take reasonable care to avoid that injury occurring to him. I find that Mr Doulis informed the College of the adverse effect that his teaching allotment, particularly classes known as “low classes” and “foundation classes”,[1] was having on him. I also find that a reasonable person with the knowledge and information available to the College would have realised that there was a risk of Mr Doulis sustaining a recognisable psychiatric illness because of his teaching allotment. I find that the College, and therefore the defendant, had a duty to minimise the risk of him suffering that injury by modifying or removing his teaching of the low classes and foundation classes that he could not control or teach effectively, and by providing him with support and monitoring. I find that the defendant breached its duty on and after 11 September 2003, whilst he was a teacher at the College, by not taking those steps. I find that that breach of duty was a cause of the chronic severe major depressive condition that he now has. Mr Doulis is entitled to be awarded damages for that breach of duty.
[1]Described at paragraph [46], below.

I add, as part of the summary of my conclusions, that my findings concern the experience of one teacher out of over 100 teachers at the College and deal with events occurring more than a decade ago. The evidence at trial established that the College is now one of the finest schools in the western suburbs of Melbourne.

Mr Doulis’ case

Mr Doulis’ allegations include that the defendant:

(a) repeatedly required him to teach an unduly heavy workload of lower streamed classes and “feral” classes;

(b) failed to allocate him to higher grades of classes and Year 11 and 12 grades of classes in circumstances where the defendant knew that he was struggling with the unduly heavy workload of lower streamed classes and “feral” classes allocated to him;

(c) required and/or permitted him to teach an unduly heavy workload;

(d) failed to implement adequate return-to-work programs, in particular requiring him to undertake VCE IT classes without an adequate supporting network;

(e) required him to work in unsafe environments, in particular environments in which asbestos materials were likely to be present;

(f) failed to provide him with supportive and/or cooperative staff members upon his attempts to return to work —

all of which circumstances are said to have led to him suffering severe psychological and psychiatric injuries.

Mr Doulis alleges that these injuries were caused by the negligence of the defendant, its servants or agents.

Mr Doulis also alleges that the injuries were caused by the breach of terms implied into his contract of employment with the defendant. These terms were that he would be provided with a safe system of work, safe equipment with which to work, a safe place of work, and appropriate supervision of his work. He also relied on the Occupational Health and Safety (Issue Resolution) Regulations 1999 (Vic).[2]
[2]Exhibit (“Ex”) Z.

During final submissions, counsel for Mr Doulis stated that, if he did not succeed in negligence, then he could not succeed in contract and no separate submissions were directed to establishing a cause of action in contract. Nor were any submissions directed at reliance on the Regulations.

The trial commenced before judge and jury, but on the fifth day, the jury was discharged and the matter continued before me, hearing it alone.[3]
[3]Two previous juries had been discharged: the first because of matters revealed by a member of the jury, and the second, because of the defendant’s late discovery of documents, which is discussed later in the judgment.

Mr Doulis listed 24 particulars of negligence. By way of summary, they allege a failure to provide a safe system or place of work, exposing him to risks of injury, failing to heed his complaints and investigate or modify his stresses caused by a heavy workload of lower streamed classes, failing to provide him with higher streamed classes, failing to provide him with adequate support upon his return to work, failing to monitor the impact of his work upon his psychological and psychiatric condition and failing to remove such stressors as existed within his work environment of which the defendant was aware. The particulars also alleged negligence in relation to bullying that Mr Doulis said he had been subjected to and the defendant’s failure to respond to it.

The defendant sought particulars of the bullying allegations. Ten pages of particulars were provided. They included the following statement by way of summary:

The Plaintiff was bullied by staff and students at the Werribee Secondary College between 20 October 1999 and 4 June 2004. He was thereafter bullied during his attempts at returning to work for the Defendant. The bullying included the Plaintiff being given less preferential treatment than other teachers, rumours and gossip being spread about the Plaintiff, the Plaintiff being isolated and ostracised in the course of his employment, the Plaintiff being overworked, complaints of stress being ignored and/or inadequately responded to, threats and intimidation, victimisation, verbal taunts and abuse, being exposed to an unreasonable risk of physical injury and the Plaintiff being made to feel unnecessarily uncomfortable. The Plaintiff was exposed to a toxic, derogatory and misogynistic culture that included frequent use of derogatory and objectifying language, including in relation to female students.

The particulars alleged that from 1999 onwards, Mr Doulis became regularly ill and suffered from physical complaints caused by stress. They also alleged that from the introduction of classes based on “homogeneous streaming”,[4] Mr Doulis was treated less favourably in relation to the distribution of low classes and foundation classes and this placed undue stress on him by virtue of the discipline problems and work demands these classes posed. He alleged that he complained to the Principal and two Assistant Principals that he was being allocated a disproportionate number of these classes and this was causing him a high level of stress. Mr Doulis said that, in 1999, he was required to teach a class of unruly, unmotivated and difficult students that a senior teacher had found too difficult to handle. He alleged that, at the end of the 2000, 2001 and 2002 school years, he requested a reduction in the number of low classes and foundation classes he was to teach the following year, but he was allocated an unduly high number of them. He made complaints about those classes to an Assistant Principal. He also alleges that he reported finding pornography on the school network and that his reporting of this led to less favourable treatment in his applications for new positions and promotions at the College.
[4]Discussed at paragraph [40], and following, below.

Mr Doulis had included many of these matters in his serious injury affidavit and, later, in answers to interrogatories. In the histories given to psychiatrists and a psychologist called to give evidence, he said that he had been bullied, claimed that rumours had been spread about him, and said that he made complaints to the College over a number of years about his class allotments.

Mr Doulis’ counsel, in opening his case, focused on the effect on him of the large number of low classes and foundation classes that he was allocated and stated that he had an unbalanced workload. He referred to difficulties that Mr Doulis had experienced with particular coordinators at the College and noted an alleged incident at a hotel which led to the lessening of his relationship with one of the Assistant Principals.

The defendant, the State of Victoria, which provided and operated each of the schools at which Mr Doulis taught, denies his allegations.

In final submissions, counsel for the defendant drew attention to what was described as an attempt by Mr Doulis’ counsel to recast his case, so as to put critical emphasis on events in September 2003. The defendant submitted that Mr Doulis was “without any form of credibility,” and had attempted to besmirch the reputation of senior teachers whose honesty and reliability could not be questioned. He had enthusiastically sought to teach low classes and foundation classes.

Mr Doulis’ counsel submitted that many of the issues to which the defendant pointed were peripheral.

However, the defendant’s submission is important to the determination of this proceeding. The facts that Mr Doulis appeared to perceive that he was bullied at the College and that he believed that he complained about his class allotment long before the evidence suggests that he did, are relevant, at least to issues of his credibility, and the weight that can be given to his evidence, as I will explain later in these reasons. The matters also require consideration of the effect on the medical evidence called on his behalf when the history, on which it was based, included Mr Doulis’ account that he was bullied at the College and had complained about his class allotment for a considerable period prior to September 2003.

I do not consider that a recasting of Mr Doulis’ case to concentrate on the events of September 2003, by itself, is decisive in deciding the proceeding. The recasting of Mr Doulis’ case is, of course, a factor to take into account in deciding the credibility of his case. The resolution of the proceeding still requires the consideration of Mr Doulis’ case in the form in which it was finally framed.

Werribee Secondary College

The College is, and was, a substantial school and had over 1000 students and 105 teachers, of whom 15 were Leading Teachers.

The Principal of the College was, and remains, Mr Steve Butyn, who has held that position since 1994. Prior to that he was Acting Principal, from the end of 1992, having become a teacher in 1972.

The College has three Assistant Principals, who commenced in these roles while Mr Doulis was at the College: Mr Gregory Lentini, Mr William Hatzis and Mr Kevin O’Neil. Ms Marion Ratnik, a teacher of 60 years’ experience, was an Assistant Principal between 1992 and 2002.

Mr Lentini became an Assistant Principal in 2001. He commenced teaching in 1976 and has taught at the College since 1980, particularly in the areas of science and maths.

Mr Hatzis has taught at the College since 1979 and became an Assistant Principal in 2002. Since that time, he has been responsible for timetabling. Mr Hatzis said that he had taught low maths classes for years, but not since 2000.

Mr O’Neil became Assistant Principal in 2004, and before that was acting Assistant Principal from 2002, having commenced teaching in 1983. He taught chemistry, biology and maths, but no longer teaches classes. He was not sure if he had taught low classes and foundation classes.

Mr Doulis’ case was argued on the basis that, in order for the College to have knowledge that teaching his allotment of classes might expose him to the risk of psychiatric harm, the Principal or the Assistant Principals, rather than any particular teacher, would have had to have had access to that knowledge. The defendant did not dispute that proposition. I consider that the resolution of the case requires identification of the knowledge that Mr Butyn, as Principal, and Mr Hatzis, as Assistant Principal with responsibility for timetabling and teacher class allocation, had of Mr Doulis’ condition.

I will on occasion, for the sake of convenience, refer to the Principal and Assistant Principals collectively as “the Principals”.

Mr Doulis’ entry into the teaching profession

Mr Doulis completed a teaching degree at Melbourne University. He wrote a thesis in his final year on the use of computers in school. After graduating, he could not find teaching work and entered into other employment.

He and Ms Ilja Doulis married in 1997. They have two children: a son born in July 2001 and a daughter born in June 2003.

Mr Doulis did not commence teaching until he was 32 years of age. Because of that later start, he gave evidence that he intended to continue teaching until he reached about 67.

In early 1998, he received an offer to do emergency teaching work for six weeks at the College, mainly in Information Technology (“IT”) subjects.

In 1999, the College engaged Mr Doulis under a contract, which in the first half of the year provided for 0.8 of a full time teaching load. During that year, he became a Year 8 assistant coordinator.

In March 2000, the defendant employed Mr Doulis as a permanent teacher.[5]
[5]Ex C (Plaintiff’s Court Book (“PCB”) 111).

I will next refer to some details of Mr Doulis’ contract of employment, because the content of the duty which an employer owes an employee to take reasonable care cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment.[6]
[6]Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, 53 [21].

Mr Doulis’ contract of employment included the following terms:

Duties
(1)The Teacher may be required by the Principal to carry out any or all of the duties specified in Schedule 2. In addition, the Teacher may be required by the Principal to carry out duties to professional standards other than those applying to the Teacher’s Level, as set out in Schedule 2, for any period less than six months provided that;
(a)the Teacher has the necessary skills, training and competence for those duties; and
(b)the duties are consistent with the professional responsibilities of a Teacher.

(2)If the additional duties involve work at a higher classification level a higher duties allowance shall be paid in accordance with section 40 of the Teaching Service Act 1981.
(3)The parties agree that if the Teacher is required by the Principal to carry out the duties of another position which attracts a higher remuneration for a period of more than six continuous months, a changed agreement may be negotiated.[7]
…
SCHEDULE 2
Duty Statement
Teacher Class Duty Statement
A.Role Statement
[7]Ex G (PCB 717). Mr Doulis’ pay and remuneration were also affected by the Victorian Government Schools Agreements, see the report of Cumpston Sarjeant, Ex U, but there was little reference made to the effect of those Agreements on matters other than remuneration.

A teacher assists with and directs the work of students to promote learning and improve student outcomes through: direct teaching contact with students; the provision of coherent and planned lessons and learning activities; participation in other teaching related activities and the performance of additional duties allocated by the principal in accordance with state system requirements and school council policies.
B. Typical Duties
(1)undertake direct teaching of groups of students and individual students as determined by the school principal;
(2)undertake other non-teaching supervisory duties;
(3)participate in activities such as Parent/Teacher meetings, staff meetings, camps and excursions;
(4)contribute to the development, implementation and evaluation of a curriculum area or other curriculum program within the school;
(5)participate in school decision making processes and professional development activities;
(6)undertake other classroom teaching related and organisational duties as determined by the school principal.[8]

[8]Ex G (PCB 726).

Mr Doulis undertook extra duties at the College in order to advance his career as a teacher. These involved the camp program, the advocacy program, science clubs and organisation of the Duke of Edinburgh program at the College.[9]
[9]T 282, 284–5.

A teacher’s progression path

A teacher employed by the State of Victoria obtains a pay increase each year, as he or she progresses through the levels of:[10]

(1)       Beginning Teacher;
(2)       Accomplished Teacher; and
(3)       Experienced Teacher.

[10]T 283.

There are then levels of: (4) Expert Leading Teacher; and (5) Assistant Principal — which require selection after a competitive application process. There is no automatic progression to these positions.

The College raises its standards

The evidence suggested that the College faced a number of challenges when Mr Butyn became Principal and that he introduced a number of measures to address them. He implemented and oversaw a drive to lift standards. The College introduced a school uniform and enforced student suspensions. It introduced the Victorian Certificate of Applied Learning (“VCAL”) course of studies as an alternative to the main VCE program, as VCAL helps students who intend to undertake apprenticeships. The College was the first Victorian government school to obtain certification to provide the International Baccalaureate program. The evidence demonstrates that the College’s reputation has improved considerably and it now has a waiting list of students who wish to obtain a place.

Introduction of homogeneous classes

The College also introduced homogeneous classes. The effect that Mr Doulis alleges the teaching of homogeneous classes had on him lies at the heart of this case. His case, in significant part, is that he was allocated too many difficult students in both low classes and foundation classes, which were homogeneous classes.

Mr O’Neil, who as I have stated became an Assistant Principal at the College, spent 12 months at Wyvern Community School in England, where students were grouped according to their achievement levels. He supported that system and when he returned to the College in 1999, discussions occurred about introducing a new system of allocating students to classes.

The College decided that students would be placed into homogeneous groups of similar achievement levels, based on the students’ academic performance in the previous semester.

Mr O’Neil gave the following description of the new system:

Students are placed in Homogeneous Learning Groups to better enable teachers to better meet the student’s learning needs. In a standard mixed ability (random) classroom the range of student abilities is too large for all students to be adequately cater[ed] for by the teacher.
Prior to this initiative, many students were lost, unable to cope within a more widely mixed ability class room. This is a structural response to catering to mixed abilities within the year level.
All students should undertake the same course, same texts etc so they are able to move from one group to another. To alter texts, topics, assessment tasks etc would consign students to lower educational opportunities. This initiative is not streaming … this initiative helps teachers to better educate more of their students.
Whilst the courses have the same learning outcomes, the teacher is able to present the material and activities in a manner which suits the needs of their students. Even within these groups, students will present a range of learning needs and achievements which need to be addressed.[11]

[11]Ex 12 (PCB 626).

Although Mr O’Neil did not regard the new system as streaming of students, some witnesses described the new system in that manner.

Mr O’Neil stated that, without homogeneous classes, teachers might need to prepare four different lessons in order to cater properly for the different levels of students in a class. Mr Lentini, who was also an Assistant Principal, considered that teachers tended to teach to the middle and that students at the higher and lower ends of ability became disengaged.[12]
[12]T 1382.

The homogeneous class system commenced in the second semester of 2000.[13] It operated as follows, in respect of Years 8 to 10. The lowest level was the foundation class with integration students and the low-ability students.[14] Above this was the low level, which was for students with “low” ability.[15] The next level was the medium classes. The next level was the high group, with high-ability students. Finally, there were accelerated classes, in which subjects were taught at a level above the range required for that year; for example, a Year 8 accelerated class might be taught the Year 9 syllabus of a subject.[16]
[13]T 1056.
[14]Ex EE.
[15]T 1068.
[16]T 267.

It is important to note that although there was repeated reference in the evidence to “low and foundation classes,” these are two, separate categories of classes: low classes and foundation classes.

Students could be moved between levels if their achievements justified or required it.[17]
[17]T 1110–11.

The low classes and foundation classes comprised 20 students, smaller classes enabling teachers greater scope to address student learning needs.

A foundation class included integrated students, perhaps about five, who had special needs and who had been assessed as requiring an integration aide to assist them: examples given in evidence included students suffering from ADHD and other conditions.[18] The remaining 15 students were from the lowest academic achievers.
[18]T 275.

Although students were not selected for the low classes and foundation classes because of bad behaviour, Mr Doulis’ case is that such behaviour was more prevalent in those classes.[19]
[19]T 274–5.

The evidence suggested that the homogeneous system of student allocation to classes was not practised widely, if at all, in other Victorian government schools, except in respect of particular subjects, such as mathematics.

Some teachers expressed concerns about putting all integration students into one class, and creating low classes and foundation classes. One concern was that the system was elitist.

Mr O’Neil addressed concerns about homogeneous classes in a document for teachers of “Low Classes” in January 2002, by stating:

Support for staff
Students in these classes will present challenges to any teacher.
It is important (for your own sanity) that you seek assistance and advice when you need it. In addition to the relevant Year Level Co-ordinator and your KLA leader, you should feel free to talk with other teachers about the group as a whole and individual students. Teachers who taught ‘low groups’ last year know[s] exactly what you are experiencing. People like Robyn Waters, Vicky Xevgenis, Bill Hatzis, Peter Doulis and Safia Brown have had a great deal of experience working with ‘low groups’ and would be a great source of ideas and strategies. Phil Hood and the Boys Education Committee might be another useful source of information.[20]

[20]Ex O (PCB 609).

Mr O’Neil, in evidence, said that his comment about the teachers’ “own sanity” was a “frivolous comment … to try and engender empathy with staff”.[21]
[21]T 1078–9.

In January 2004, Mr O’Neil prepared a document entitled “Teaching foundation classes at Werribee Secondary College”.[22] The document included the following statements:

Students are placed in foundation classes almost exclusively because they are at high risk of failing to complete secondary schooling. Many, but certainly not all, of these students will display poor attitudes and behaviours.
….
Understand that these students have probably been struggling at school since early primary school and many will have developed negative attitudes to school and work in general.

[22]Ex FF (PCB 669).

There was evidence that Mr Butyn told staff that no teacher would teach more than two low classes or foundation classes at a time and that the workload would be spread among all the staff.[23] However, Mr Butyn denied that he had given that assurance,[24] as did Mr O’Neil.[25]
[23]T 267.
[24]T 1149.
[25]T 1067.

Each homogeneous class was taken for up to five periods a week, each of which lasted for about 48 minutes.

The benefits of homogeneous classes

Mr Butyn considered that the homogeneous classes had worked. The College has lifted the students’ ATAR and NAPLAN scores. Mr Butyn did not have any teaching allotment but said that, as Principal, he kept his eyes and ears open. He agreed that the homogeneous groups were not 100% accepted. He did not consider that a workload of 8 or 9 out of 23 periods per week of low classes and foundation classes was overly onerous. Nor did he consider that teachers required any added training, beyond training in the behaviour model used at the College, to teach homogeneous classes, as teacher training taught them to cater for different student achievement levels.[26]
[26]T 1115.

Mr O’Neil said that the new system meant that planning required for lessons was minimised and the workload thereby reduced.[27]
[27]T 1067.

Mr Hatzis stated that homogeneous classes had always existed for maths at the College, but the model was subsequently extended to other classes, for Years 8 to 10.

No training was provided to teachers to teach the low classes and foundation classes or students with specific learning disabilities.[28] However, Mr Doulis had received training to teach the accelerated classes, under the “Bright Sparks” program, which he had found to be of assistance.[29]
[28]T 276.
[29]T 276–7.

Mr Lentini said that the trial of the homogeneous groupings in 2000 went well, the form of teaching was more satisfying, and the model was extended all the way to year 10.[30]
[30]T 1381.

Mr Simon Hartley, who is the sub-school manager at the College, in charge of Years 7 and 8, stated that the foundation classes were designed to have fewer students so that the spectrum of work would be narrower and more focused around the students’ abilities.[31]
[31]T 1015–6.

The evidence of other teachers differed about the effect of homogeneous classes.

The following teachers gave evidence as part of Mr Doulis’ case: Mr John Layton, Mr Paul Unsworth, Ms Rebiye Eyiam, and Mr Geoff Rutty.

The following teachers gave evidence as part of the defendant’s case: the Principal and four Assistant Principals, Mr Hartley and Mr John Thomas.

Mr John Layton has been a teacher at the College for 28 years.[32] He taught PE, Health and VCAL to Year 12. He described the College as a “brilliant” school, where most students now behave.[33] The accelerated learning streams had had a good effect on the College.
[32]T 738.
[33]T 749.

Not all the teachers’ evidence was so positive. Mr Paul Unsworth, a teacher at the College and other schools since 1989 described the College as “a bad school”.[34]
[34]T 808.

Mr Unsworth, who took a period of stress leave from September 1999, has commenced his own serious injury application arising from his teaching. He said that, during his time at the College, his relationship with Mr Butyn deteriorated and he became disillusioned.[35] Mr Butyn said that Mr Unsworth had requested low classes and foundation classes and he was not aware of any complaint by him about them. Mr Butyn said that most classes were exhausting to teach if teachers did their work properly. Mr Butyn also said that the reasons given as to why Mr Unsworth was on stress leave were not related to student behaviour in low classes and foundation classes.[36]
[35]T 813.
[36]T 1191–5, 1245.

Ms Rebiye Eyiam has been a teacher since 1985 and commenced teaching at the College in 2001. She said that after a successful first two years of teaching at the College, things changed. Following a performance review in respect of which she sought assistance from the union, the administration ostracised her. She considered that she had been given a harder timetable than other teachers. She has commenced court proceedings against her employer, claiming compensation for alleged workplace injury.[37] She will now only communicate with the College through the regional office of the Department.
[37]Ex 28.

Mr John Thomas taught at the College between 1988 and 2007 and had taught for 40 years prior to his retirement.[38] Between 1991 and 2006, he was the computer network administrator. He was the computer coordinator between 1991 or 1992 and 2000, and professional development coordinator from 2001.[39] In the years 2000 to 2004, he taught three periods per week of low classes and foundation classes. He also taught accelerated classes.
[38]T 1168–9.
[39]T 1170.

He considered that the homogeneous class program had improved student management. In 1989, the College was rundown and had a poor reputation, but it now had the best profile of any school in the western suburbs. This was due to changes that included the introduction of homogeneous classes.

Mr Doulis’ manner and appearance when he commenced teaching at the College

There was much evidence that Mr Doulis was a bright and enthusiastic teacher when he commenced at the College. Typical of this evidence was that of Mr Peter Boyer, a key witness who gave evidence as part of Mr Doulis’ case, taught at the College between 1998 and 2004, and became, and remains, a friend of Mr Doulis. He described Mr Doulis as, initially, “very bubbly and active and seemed to be trying to advance the school”.[40] He said that Mr Doulis was full of stories of life outside school.[41]
[40]T 611.
[41]T 612.

Mr Doulis initially wanted to teach low classes and foundation classes. Mr Hartley, gave evidence of Mr Doulis telling him that he liked foundation classes and wanted to teach them. Mr Lentini and Mr Hatzis gave similar evidence.

Mr Lentini and Mr Hatzis said that they got on well with Mr Doulis. Mr Hatzis was also a social friend and used to drive him home. Mr Hatzis was Mr Doulis’ reviewer and Mr Doulis had nominated him as a referee. He said he did not drop Mr Doulis home as much after Mr Doulis moved from Williamstown to Yarraville in April 2000.[42] He attended Mr Doulis’ home on many occasions, including to celebrate the birth of his children.
[42]T 285.

Mr O’Neil stated that Mr Doulis loved working with low classes and foundation classes. Mr Doulis had visited his home in 2000.

Mr Doulis’ review of performance, prepared at the end of 2001, stated that he had: designed a curriculum course for a low group; taught six low classes and two accelerated classes; maintained clear, regular and detailed records on the progress of his students; organised school camps; coached tennis and soccer; been involved in mentoring; and enthusiastically been involved in teaching several lower level homogeneous groups which had assumed a very great significance in the development of his teaching and classroom management and philosophies.[43] Mr Doulis did not agree that the review showed that he had great interest in developing the low classes. Mr Doulis sought to distinguish between comments that he had made on the review form and those made by the Principal’s representative.
[43]Ex 5.

Mr Boyer was asked in cross-examination about Mr Doulis’ 2001 teaching review, and the suggestion that it indicated that he was enthusiastically involved in teaching low classes and foundation classes. He replied that reviews were completed with the objective of the teacher obtaining a pay increment and were not necessarily candid reports.[44]
[44]T 650, 665.

However, I accept that, at least initially, Mr Doulis was enthusiastically involved in teaching low classes and foundation classes.

Mr Doulis’ medical issues around the time he commenced teaching at the College

Mr Doulis experienced medical problems due to stress by at least 1999. At the beginning of that year, Mr Doulis was grinding his teeth and a dentist gave him a mouth guard to wear while he was sleeping. He also gained weight and was diagnosed as having a non-alcohol-related fatty liver.[45]
[45]T 285.

Two general practitioners treated Mr Doulis, while he was teaching at the College, and both were called to give evidence as part of the defendant’s case. Dr Abdul Arakji, of Newport, treated him between 1999 and 2001, and Dr Siong Wong, of Yarraville, treated him between October 2000 and June 2004. Only in June 2004 did either doctor’s records contain references to work-related stress.

Dr Arakji first consulted with Mr Doulis on 17 March 1999. At some attendances in 1999 and 2000, Mr Doulis complained of feeling tired, and he was diagnosed with bronchitis. He attended Dr Arakji on a number of occasions, mostly for minor ailments, but in August 1999 he was treated with antibiotics for an upper respiratory tract infection. His last visit was on 20 January 2001, during which he made no complaint about work-related matters. He was diagnosed as suffering from fatty liver disease.[46]
[46]T 1282.

Dr Wong first consulted with Mr Doulis on 13 October 2000, when the latter complained of a common cold. On a visit in December 2000, Dr Wong’s notes recorded him stating that he was feeling tired. Most of the attendance notes concerned viruses or colds. Mr Doulis attended Dr Wong on 3 October 2003 for a check-up and on 4 March 2004 and 15 June 2004 for coughs and colds. On 15 June 2004, Mr Doulis obtained a referral to Dr Matthew Tagkalidis, a psychiatrist, for stress/depression. That was the first reference in the general practitioners’ notes to stress or depression.[47]
[47]T 1256.

The causes of Mr Doulis’ sleeping problems

A central part of the defendant’s case that sought to explain Mr Doulis’ behaviour, which he says gave the College notice of the risk that he might develop a psychiatric illness, was that he experienced difficulty sleeping because of personal issues unrelated to his work.

Mr and Ms Doulis’ first child, a son, was born in July 2001. The baby had some problems developing regular sleeping patterns. Their second child, a daughter, was born in June 2003.

Ms Doulis said that their son’s sleeping problems were nothing out of the ordinary. When the baby was a bit older, he did not sleep through the night and, on those occasions, Ms Doulis would look after him to enable her husband to sleep, as he was working full time. In 2002, Mr Doulis slept in the home office in order to obtain uninterrupted sleep.[48]
[48]T 777.

When the baby was nine months old, Ms Doulis spent five days at the Tweddle Baby Hospital at Footscray, where midwives taught mothers about controlled crying methods for their children.[49]
[49]T 763–4.

After the Doulis’ second child was born in June 2003, Ms Doulis spent time again at Tweddle. At a later time, she spent three nights in a hired cabin at a caravan park near her home, for three nights, to introduce her daughter to the controlled crying program.

In April 2002, Mr Doulis was referred by his brother, Dr John Doulis, who was a general practitioner, to a respiratory and sleep disorders physician, Dr Michelle Caldecott.[50] The referral was in response to Mr Doulis’ sleep disordered breathing and intense snoring. Mr Doulis said that these problems arose after he gained weight during his time at the College. Mr Doulis did not inform Dr Caldecott of any work problems.[51]
[50]T 530.
[51]T 1008.

Dr Caldecott, who gave evidence as part of the defendant’s case, reported that Mr Doulis’ sleep had generally been disrupted with the recent birth of his first child and that he had a tendency to wake at least a couple of times per night. Mr Doulis told her that, in the evening, he slept between 9.00pm and 9.30pm, then woke up, returning to bed at about midnight. He woke up again at 6.30am, but felt unrefreshed. She recommended that Mr Doulis avoid his evening nap.

Dr Caldecott observed that:

This gentleman’s daytime somnolence may well be due to a degree of sleep apnoea, although sleep disruption and sleep deprivation due to a new child are current contributing factors.[52]

[52]Ex 15.

Before dealing with further evidence, it is necessary to consider witness credibility issues. By way of introductory observation, it is important to keep in mind that part of this case concerns evidence based on conversations and impressions of more than a decade ago. This fact makes it likely that witnesses’ memories of conversations will have faded. In this respect, the following observations are relevant:

[H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.[53]
[53]Watson v Foxman (1995) 49 NSWLR 315, 319 (McLelland CJ in Eq).

The reliability of particular witnesses

The credibility of Mr Doulis and other witnesses was attacked during the hearing and I will consider those matters now.

Mr Doulis’ credibility

The defendant attacked Mr Doulis’ credibility and the reliability of his evidence because of allegations that he had made about the conduct of particular teachers at the College which, it argued, were made to besmirch those teachers’ reputations.

The allegations were made in Mr Doulis’ serious injury affidavit, in particulars of his statement of claim, and in answers to interrogatories. Some, but not all, of the allegations were part of the opening of Mr Doulis’ case and his evidence in chief.

Mr Doulis’ counsel submitted that the credibility issues were raised during the trial largely, if not solely, by the defendant, and should be put to one side as having little bearing on his case. Counsel argued that people with a psychiatric illness may, to their own detriment, obsess about peripheral and unimportant issues. In any case, there was support for much of what Mr Doulis had said about these issues, although they were unimportant. When Mr Doulis provided particulars, he had not been capable of attending to complex matters regarding his case, because of his depressed and agitated mood state.

I will deal with each of the credibility matters in turn. There was extensive evidence relating to them, which I will not canvass in all its details, as some allegations do not have much relevance to the important issues in this proceeding. I will deal with the more serious matters first.

Pornography on the school network

Mr Doulis gave evidence that, in term 2 of 2000, he became assistant computer network manager at the College. He said that he discovered a large file of hard core pornography stored in the staff network folders. He reported it to the network manager, whose name he could not remember.[54] The manager was Mr Jelbart, but Mr Doulis said that he was not the person to whom he reported the matter.
[54]T 287–9, 416.

Mr Doulis deleted the images in accordance with what he said was the protocol.[55] He said that Mr Butyn mentioned in a staff meeting that the school computer network had been abused and referred staff to the users’ and laptop agreements. In cross-examination, Mr Doulis stated that he did not report the pornography to Mr Butyn, despite his further and better particulars stating that he had.[56]
[55]T 416, 424, 570.
[56]T 421–2.

Mr Doulis said that Mr Thomas, who was the computer coordinator, had given him access to other teachers’ folders.[57] Mr Thomas denied that he had done so.
[57]T 572.

In Mr Doulis’ serious injury affidavit, he stated that he ascertained that three future Assistant Principals were surfing internet pornography sites on the school network and leaving obscene images stored in folders on the school system. He stated that he was concerned that the availability of such material on the system breached relevant policies. He then said that, ultimately, an internet users’ agreement was circulated to staff by Mr Butyn. Subsequently, filters were installed, although stored images could still be accessed.

In Mr Doulis’ particulars, he said that in 2001 he again found pornography on the school system. However, in oral evidence he said that was not the case, stating that it occurred in 2000.[58]
[58]T 571.

Mr Doulis said that he mentioned to senior teachers, including Mr Hatzis, Mr Lentini and Mr O’Neil, that there was pornography on the computer system.[59] He said that, thereafter, he was treated like a whistle-blower and he believed his relationship with them deteriorated.[60]
[59]T 425, 575–6.
[60]T 425.

He also alleged that his reporting of the pornography caused him to receive less favourable treatment when he applied for new positions and promotions within the College. He claimed that, thereafter, he was bullied by Messrs Lentini, Hatzis and O’Neil, and allotted low classes and foundation classes by way of punishment. The Assistant Principals wanted to exclude him.[61] They still sat next to him in the staffroom, but put extra shelving on their desks,[62] although he did not know if that occurrence was related to the use of pornography.[63]
[61]T 444–5, 449–50, 580.
[62]T 445.
[63]T 448.

Mr Doulis said that much later, when he heard the three Assistant Principals discussing how to store images on CDs and pass them to each other, he ascertained that they were the people involved with the pornography. They wanted to avoid getting caught on the network and were going to instead use these CDs on their laptops.[64]
[64]T 411–2, 416, 578, 606–7.

Messrs Lentini, Hatzis and O’Neil denied these allegations.

Mr O’Neil denied swapping CDs of pornography or knowledge of teachers misusing the internet for pornography. He was unaware of Mr Doulis’ allegations concerning pornography[65] and he denied the bullying allegations.
[65]T 1067.

Mr Hatzis described as “lies” the allegations that he had surfed pornography on the internet or exchanged pornography.[66]
[66]T 1268.

Mr Lentini denied any suggestion that he had surfed the internet for pornography at the College and said that Mr Doulis had never raised such a suggestion with him.[67]
[67]T 1388–9.

Mr Hartley said that he had never been made aware of a teacher downloading pornography onto the College IT system.[68]
[68]T 1022.

Mr Butyn gave evidence that Mr Doulis never reported the presence of pornography on the College computer network and he was unaware of any incident of pornography being found on it.[69] Mr Boyer remembered some anecdotal comment about pornography being on the computer system, but was not sure if Mr Doulis had mentioned it to him at the time.[70]
[69]T 1123.
[70]T 662–3.

Mr Thomas said that Mr Doulis had no responsibility to operate as a network administrator and was not an assistant network manager.[71] Like every staff member, he had the right to access students’ folders.[72]
[71]T 1174–5.
[72]T 1175.

Mr Thomas never encountered pornography on the College computer network and would have known about it, if it were present, because he was the network administrator. The Department used effective computer filters to exclude such material.

Mr Doulis’ allegations about bullying or being treated less favourably appear to be inconsistent with his continuing social engagement with those he accused of downloading pornography. He nominated Mr Hatzis as a referee and later chose him as a reviewer. Messrs Hatzis, O’Neil and Lentini had supported him when he had a falling out with other coordinators in 1999.[73]
[73]T 471.

Mr Doulis said that his socialising with Mr O’Neil and Mr Lentini occurred before he found pornography on the College computer system.[74]
[74]T 593–5.

Photographs of the staffroom were shown to Mr Doulis in cross-examination. They did not show any extra shelving adjoining the workstations of Messrs Hatzis, Lentini or O’Neil, as he alleged had occurred. However, he said that the photographs were taken before the changes had occurred.[75]
[75]T 444–8.

Each of Mr Hatzis, Mr Lentini and Mr O’Neil denied that they had altered the setup of their desks at all, let alone for any inappropriate purpose.[76] I accept their denials.
[76]T 1265–7, 1269, 1390–2, 1063, 1066.

There is no evidence to support Mr Doulis’ allegations that Messrs Hatzis, Lentini and O’Neil were involved with accessing pornography on the computer network, or by other means or swapping pornography, or that they took any action against him as a result of his reporting of finding pornography. There was no evidence before the Court that they had engaged in such conduct.

I am not satisfied that Mr Doulis was bullied or ostracised because he stated that he had found pornography on the computer network.

The Year 9 student incident

In cross-examination, Mr Doulis was questioned about the allegation in his serious injury affidavit, that shortly after the occasion when he said he found pornography on the College computer network, Mr Hatzis was accused of inappropriately touching a Year 9 girl who left the College shortly thereafter. He stated that, “[t]o the best of my knowledge Hatzis was not punished in any way in relation to this matter.”[77]
[77]T 396, 400; Ex 1.

Mr Hatzis was cleared of the accusation, the student was suspended, and she left the College. The student had previously made false allegations against other teachers.[78]
[78]T 399.

Mr Hatzis said that he told Mr Doulis that he had been cleared.[79]
[79]T 1294, 1298.

Mr Doulis said that he was never told about the investigation of the allegation against Mr Hatzis nor of its outcome.[80] He said that he did not know why the matter was raised in his serious injury affidavit and said that his barrister had put the affidavit together.[81] He did not know that the student had been suspended, but only that she had left the College after the incident.[82] He said that the allegation had nothing to do with his claim.[83] His counsel at the trial did not press the allegation.
[80]T 397.
[81]T 398–9.
[82]T 400.
[83]T 398–9.

Nothing more need be said of this allegation other than it should never have been raised by Mr Doulis.

Problems with coordinators

There was extensive evidence of Mr Doulis’ falling out in 1999, when he was the Year 8 assistant coordinator, with three other coordinators: Ms Jan Hickson, Ms Janine Sutton and Ms Isabella Chiarello-Natoli. They shared an office. He said that he complained to Ms Hickson about the safety of a Year 7 camp, but his complaints were ignored. He said that, thereafter, he had a falling out with the three coordinators and had a very curt professional working relationship with them.[84] He described an occasion when he alleged that Ms Hickson made a personal slight against him.[85] In cross-examination, he said that the coordinators had bullied him.[86] He said that he found all his possessions dumped outside the office by the coordinators, one of whom told him that he would not be the Year 8 assistant coordinator the following year. He complained about this treatment to Mr Butyn, who informed him that the coordinators had complained about his professionalism. Mr Butyn refused to arrange a meeting or mediation with the coordinators. Mr Doulis considered this was unfair.
[84]T 264, 471–2, 964–5.
[85]T 264–5.
[86]T 471.

Mr Butyn denied that Mr Doulis had been bullied in the coordinators’ office or had requested a mediation.[87]
[87]T 602, 1120–1.

Ms Hickson, who was one of the coordinators, denied Mr Doulis’ allegations. She accepted that she did not have the same level of friendship with him as with the other coordinators.[88] Ms Hickson was not cross-examined about Mr Doulis’ allegations concerning her and the other coordinators.
[88]T 1259–60.

Mr Doulis appeared to have advanced this matter as an instance of bullying or his unfavourable treatment at the College, but it appeared to be no more than a personality clash. The allegations were not really pressed in final submissions and appear to have had no evidentiary foundation.

It is significant that Mr Doulis chose one of the coordinators, Ms Sutton, to be a referee when he applied to become a permanent teacher.

Bullying allegations

Mr Doulis said that staff engaged in gossip and innuendo about him, but he gave no detail in his evidence at trial.[89] He alleged that rumours were spread about him at a school camp in 1999.[90] In cross-examination, it was put to him that he was painting a picture of a pretty dreadful workplace and he said:

It’s what every normal workplace is. It’s the usual. I don’t think there are too many workplaces where you work that would not have rumours and innuendo within it. I mean, it’s just normal for all workplaces. It’s not specific just for Werribee Secondary College.[91]

[89]T 472, 476.

[90]T 476.

[91]T 472.

Mr Doulis gave as an instance of the bullying and intimidation the fact that, although Mr Hatzis, the Assistant Principal, advised him that his class allotment would change, he and the other Assistant Principals did not support him and ostracised him.

Bullying by bursar

Mr Doulis claimed that he had been intimidated by the College bursar, in 1999 and 2000, over a disagreement about whether parents had to pay GST on the amount charged for their children to attend school camp.[92] Again, this allegation did not amount to much. The bursar rejected Mr Doulis’ application that parents be refunded the amount of GST that they had paid in 1999 and 2000 in respect of food. Mr Doulis gave evidence that the bursar said something to him that he found to be inappropriate and that she was curt and dismissive.[93] He was intimidated by her.[94] According to Mr Doulis, the matter was resolved, parents being refunded some components of the GST that they had paid. Mr Doulis appeared to suggest that the bursar’s attitude to him somehow affected his receipt of the pay increments to which he was entitled.[95] This suggestion was not substantiated.
[92]T 472–6.
[93]T 475.
[94]T 598.
[95]T 476.

However, as the defendant put to Mr Doulis in cross-examination, the GST was not introduced until 2000. His recollection of events must therefore be inaccurate.

The hotel incident

Mr Doulis gave evidence of an incident, in the first part of 1999, that he regarded as ending his close relationship with Mr Hatzis. He said that he and Mr Hatzis were friends and Mr Hatzis would often give him a lift home as they lived near each other. One afternoon, in late 1999, while Mr Hatzis was driving Mr Doulis home, Mr Hatzis stopped at a hotel and suggested that they go inside and have a drink.[96]
[96]T 402–3, 265.

Mr Doulis said that he did not realise that it was a topless bar and, while he had a drink, he then asked Mr Hatzis to be driven home. He said that he would have preferred to have gone straight home.[97] He gave evidence that that was the only occasion on which he had been to a topless bar. However, in cross-examination he agreed that he had been to what was referred to as a “Men’s Club” (the Club), but sought to distinguish that venue as being a striptease club, rather than a topless bar.
[97]T 265–6.

Mr Hatzis’ evidence differed from Mr Doulis’. He said that he needed to have work done on his car’s exhaust, so he told Mr Doulis that he would have to drop him at the local train station, before waiting for his car to be serviced. Mr Doulis decided to stay and keep him company. Mr Hatzis said that Mr Doulis suggested that they have a coffee but, as there was no café nearby, Mr Doulis suggested that they go into the nearby hotel. The servicing of the car took about 40 minutes. Mr Hatzis said they were only in the hotel for three minutes and that the bar did not appeal to him. They both then left.[98]
[98]T 1272–3, 1342.

I did not find Mr Doulis’ evidence about this incident credible. In any event, it has little relevance to the key issues of Mr Doulis’ case, save that he attributed a deterioration in his relationship with Mr Hatzis to this incident and thereafter he no longer sought lifts home with him.

The Club episode

The Club incident was put in cross-examination, and concerned a bucks’ night of a fellow teacher at the College, which commenced at Mr Doulis’ home but then continued at a Club. Counsel for the defendant suggested that, in view of the Club episode, Mr Doulis’ evidence about being upset at the visit to the hotel bar was improbable. Mr Doulis said that the Club visit had been organised by Messrs Lentini, Hatzis and O’Neil who, he said, were members and therefore able to obtain free entry for people who accompanied them.[99]
[99]T 403.

Mr Hatzis and Mr O’Neil denied that they had ever been members of the Club. Mr O’Neil said that Mr Doulis organised the visit to the Club.[100]
[100]T 1072.

Mr Hatzis said that Mr Doulis had arranged the visit to the Club and participated actively in the events that occurred there.[101] Again, I found Mr Doulis’ evidence about this incident not credible.

Mr Doulis’ experience at Fitzroy High School and Bacchus Marsh Secondary College

[101]T 1274.

In answers to interrogatories, Mr Doulis gave instances of staff at Fitzroy High School and Bacchus Marsh Secondary College not supporting him. However, the answers that he gave were inconsistent with his evidence, which was that the only bullying that occurred after his time at the College was at Bacchus Marsh Secondary College when Ms Hickson asked him how his family was. He thought that this question was inappropriate, because of their previous relationship, and felt that it was bullying and harassment.[102] He also gave evidence of conflict with the IT technician at Bacchus Marsh. He denied that he had been bullied at Fitzroy High School.[103]

Sleep issue

[102]T 587–9.

[103]T 585.

There was another issue that affects Mr Doulis’ credibility, that is, that he denied that he had told workmates about his sleep problems when clearly he had done so.[104] As discussed below, the following teachers gave evidence that Mr Doulis had told them that he was having sleep problems: Mr Hartley, Mr O’Neil, Mr Thomas, Mr Hatzis and Mr Lentini.[105] Mr Boyer recalled having conversations with other teachers about Mr Doulis’ sleep problems.[106]
[104]T 471, 530–4, 537.
[105]T 1021–2, 1069–70, 1174, 1278–9, 1309, 1320, 1354, 1374, 1388, 1400.
[106]T 627, 652, 656.

The reason for Mr Doulis’ denial that he had told work colleagues of his sleep problems, in the face of evidence given by his own witness, was not explained. However, one explanation is that he considered that revealing his sleep problems would not assist his case.

Conclusion on credibility issues

I do not consider that any of the allegations that Mr Doulis made against the Assistant Principals was established. Two of the allegations, concerning accessing or swapping pornography and the allegation by the student against Mr Hatzis, were particularly serious allegations to make, when they were unfounded.

There was some evidence that Mr Doulis’ mental condition may have contributed to him making these allegations, but this evidence was not sufficiently definite to determine that that was the cause.[107] Dr Timothy Entwisle, a psychiatrist who gave evidence as part of the defendant’s case, referred to the possibility that Mr Doulis’ condition may have led him to misperceive, misunderstand and misjudge the situation that he found himself in at school.[108] Dr Michael Epstein, a psychologist called as part of Mr Doulis’ case, thought that Mr Doulis felt he was being exploited by his employer.[109]
[107]T 603–4, T 697, 1408; Ex T.
[108]T 1411.
[109]T 977.

On 2 July 2012, Dr Tagkalidis reported that Mr Doulis:

Was not capable of attending to any complex matters regarding his case because of his depressed and agitated mood state, very poor concentration and memory functioning, minimal energy levels, inability to motivate himself and disturbed sleep patterns.[110]

[110]Ex R (PCB 414).

I formed no view about the credibility of Mr Doulis from the manner in which he gave evidence. He gave evidence that he was taking sleeping tablets, antidepressants and antipsychotic medication during the five days that he gave evidence.[111] On two of those days, Mr Doulis’ counsel stated that Mr Doulis was not fit to continue to give evidence and the Court adjourned early.[112]
[111]T 377–8.
[112]T 370, 561.

Whatever the true reason may be for Mr Doulis making the allegations to which I have referred, the fact that he made these serious allegations throws considerable doubt on his credibility and affects the weight that can be given to his evidence on contested matters, particularly when that evidence is not supported by other evidence.

Mr Hatzis

Mr Doulis attacked Mr Hatzis’ credibility on the ground that he was an advocate for the defendant’s case and had failed to make appropriate concessions. He would not concede the difficulty in teaching low classes and foundation classes. He had wrongly claimed to have taught a number of low classes and foundation classes. The document that he created of teachers’ allotments of low classes and foundation classes for semester 1 of 2003 was a biased snapshot of teachers’ workloads. His memory of events was unreliable.

I consider that Mr Hatzis was, and remained, convinced that Mr Doulis’ problems were entirely personal and related to his sleep difficulties and not to his teaching allotment. I have concluded that a reasonable person would not have held that opinion. However, despite that conclusion, I do not consider that Mr Hatzis was attempting in any way to give untrue evidence.

Other teacher witnesses

The defendant attacked the credibility of teachers called as part of Mr Doulis’ case, in particular Mr Boyer, Mr Unsworth and Ms Eyiam. They were unhappy with aspects of the conduct of the College, at least as it affected them. I do consider that the fact that Mr Unsworth and Ms Eyiam have their own proceedings on foot and that those proceedings appear not to relate to low classes and foundation classes does lessen the weight that I can give to their evidence.

I consider the defendant’s attacks on Mr Boyer’s credibility later in these reasons, when I deal with the events that occurred in September 2003.

Changes in Mr Doulis’ appearance and manner

A number of witnesses noticed changes in Mr Doulis a few years after he commenced teaching at the College.

Ms Doulis said that when she married Mr Doulis in 1997, he was exciting to be with. He liked outdoor activities, he was outgoing and friendly, and good to be around. He was an impressive cook. Ms Doulis said that her husband was very happy and normal when he commenced teaching at the College. However, as the years passed, he spoke of bad behaviour by students. His face became drawn, he was more withdrawn and he retreated to the bedroom. Ms Doulis began to feel like a single mother, because Mr Doulis did not want to go to social functions. He became a different man and did not participate in outdoor activities with his children. He became stressed over little things and no longer found excitement in life. He broke down and cried for the first time.[113]
[113]T 766–7.

Ms Doulis said that her husband was disappointed when he did not receive the class allotment that Mr Hatzis had promised he would arrange, once he became Assistant Principal, which is a matter to which I refer below.[114]
[114]T 767.

Mr Boyer said that during 2000 and 2001, Mr Doulis changed and seemed more concerned about small things. He was no longer as bubbly as he previously had been. He became increasingly silent and appeared more stressed.[115]
[115]T 623.

After the years 2000 to 2002, Mr Boyer found Mr Doulis to be “more stressed” and “quieter, sometimes saying almost nothing on the ride home … a complete change of character”.[116] By 2003, Mr Doulis was a changed man and was not coping. Mr Boyer thought that Mr Doulis was cracking.[117]
[116]T 623.
[117]T 625–7, 631.

Mr Boyer spoke to Mr Hatzis about Mr Doulis and his need to have his workload changed. Mr Hatzis said that Mr Doulis requested that load and that he was not coping with having a young family.[118] Mr Hatzis denied that such a conversation occurred.[119]
[118]T 631.
[119]T 1353–4.

Mr Boyer said that over time it became obvious that the changes were attributable in some way to Mr Doulis’ high level of lower classes.[120] Mr Boyer suggested that Mr Doulis seek to have his load of those classes changed. Mr Doulis told him that he had done so.[121] Mr Boyer did not consider that Mr Doulis’ changed behaviour was due to his children’s sleeping problems. He said that “a much more obvious cause would be the classes that he had been allocated.”[122]
[120]T 618–9.
[121]T 618–9.
[122]T 627.

Mr Rutty, who is married to Ms Eyiam, gave similar evidence. His evidence was that he mentioned Mr Doulis’ position to Mr Hatzis, but said that Mr Hatzis had a contemptuous attitude to Mr Doulis and thought Mr Doulis was “a bit weak” and “couldn’t handle” the low classes and foundation classes.[123]
[123]T 829.

Other witnesses mentioned Mr Doulis arriving at work looking tired and dishevelled, including in 2003.[124]
[124]T 1070, 1209, 1387.

Mr Thomas, who was a friend and colleague of Mr Doulis, gave evidence that Mr Doulis told him that he was feeling stressed and worn out. Mr Doulis told him that he and his wife were having a great deal of difficulty with their children sleeping at night and he was not getting any sleep. He was up most of the night in order to assist his wife who also had to work the next day.[125] That sleeping problem occurred in 2001, 2002 and 2003.[126] He said that Mr Doulis was obviously having difficulty coming to work on a regular basis and his information technology classes needed to be filled, so he enquired about his welfare.
[125]T 1174.
[126]Ibid.

Mr Hartley said that Mr Doulis spoke of personal problems, including not getting enough sleep following the birth of his child. He was also concerned about a debt owing to the tax department arising from a business venture.[127] Mr Hartley told him, on a number of occasions, that it was essential he get sleep. Mr Doulis never told him of concerns about teaching generally, or in relation to his low classes or foundation classes.
[127]T 1021–2.

Mr Butyn gave evidence that Mr Doulis spoke about personal problems more than once in 2003. On one occasion, he needed to leave school to see his accountant about financial issues. On another occasion, a report writing day, when staff did not have to attend school, Mr Doulis came in late in the day, just as Mr Butyn was closing the school and said that he needed to leave home, where his child’s birthday party was occurring. Mr Butyn told him that it was better that he be at home, but he accepted what he said about his wish to be at the College.[128]
[128]T 1130–1.

Mr Butyn said that he observed Mr Doulis’ state in 2003, and he was apparently lacking in energy, not coping or sleeping well, tired and struggling to get to work.[129]
[129]T 1208–9.

Mr Butyn said that, if he had been informed that Mr Doulis or other teachers did not want to teach low classes or foundation classes, then he would have explored alternatives.[130]
[130]T 1128–9, 1212.

The Assistant Principals attributed Mr Doulis’ condition to lost sleep because of his new babies’ sleeping habits.

Mr O’Neil said that Mr Doulis did mention his lack of sleep on a number of occasions.[131] His first born child was not sleeping and he was up with him most nights and could not get to sleep.[132] He lent Mr and Ms Doulis a vaporiser that he had used with his own child.[133] Mr Doulis looked very tired and drawn, a little dishevelled and sometimes unshaven.[134] Mr O’Neil was never told that his condition was caused by his teaching. If he had received such a complaint, he would have made arrangements for changes to be made to his classes and arranged for extra support to be given to his classroom.[135]
[131]T 1069–70.
[132]T 1069.
[133]T 1070.
[134]Ibid.
[135]Ibid.

Mr Hatzis said that Mr Doulis’ life changed midway through 2002, when he suffered sleep deprivation after the birth of his first child.[136] The sleep deprivation reoccurred in 2003, when Ms Doulis’ relatives came to stay at their home for a time for his sister’s wedding and he was responsible for showing them around and entertaining them.[137]
[136]T 1278.
[137]T 1279, 1309.

Mr Hatzis said that Mr Doulis mentioned that he was experiencing financial problems. He said that there were times in 2003 when Mr Doulis mentioned his exhaustion. Mr Hatzis sometimes drove him home.[138] He said that Mr Doulis made him aware that he was involved in some sort of development with his siblings, that he had purchased a house a few years before and that his wife was not working. He assumed that Mr Doulis owed money on the house and he understood that the amount was several hundred thousand dollars.[139]
[138]T 1372.
[139]T 1374.

Mr Hatzis, when cross-examined about Mr Doulis’ condition in 2003, said that:

He was not struggling with his low and foundation classes, he was struggling with lack of sleep. I knew Peter very well, and we’d spoken about it often, about his — well, not about his classes, but we spoke often, we socialised, he would have told me if that was the case. He always emphasised the sleep problem.[140]

[140]T 1368.

Mr Lentini said there were other occasions, that is other than in the September 2003 meeting which is described below, when Mr Doulis told him that his first child would not sleep and that that was taking its toll, because his wife was studying and needed her sleep. There were times when he would come to school without any sleep at all “and sometimes that would extend for over 24 hours.”[141]
[141]T 1388.

Sick Days

Mr Doulis’ contract provided for 15 days of sick leave per annum.[142]
[142]Ex G; T 1352.

Mr Doulis’ sick leave history was as follows. In 1999 he took 15 days 4.56 hours; in 2000, 23 days; in 2001, 17 days 6.2 hours; in 2002, 13 days 5 hours; in 2003, 14 days 2 hours and to 4 June 2004, 3.8 days.[143]
[143]Ex 18 comprises Mr Doulis’ sick leave records and a year-by-year summary prepared by the defendant and referred to in cross-examination of the plaintiff (T 551). Counsel for the plaintiff established, during cross-examination of Mr Hatzis, that the summary was inaccurate insofar as it incorporated into its totals other, non-sick leave days, such as partner/paternity leave (T 1340–1, 1349–51). The figures in this judgment are based on the figures contained in Mr Doulis’ official records (Ex 18).

Student behaviour in low classes and foundation classes

Before considering the evidence about the behaviour of students in low classes and foundation classes, one important fact should be noted. The Court heard a range of views about the behaviour of students in these classes, but did not hear from all the teachers of those classes. It would be wrong, therefore, for the following evidence to be taken as an accurate description of the behaviour of every student who was in a low class or foundation class at the College in the years relevant to this proceeding. Also, in view of my findings about Mr Doulis’ credibility, I do not accept that each incident of student misbehaviour occurred, or occurred in the manner that he described.

Mr Doulis described the low classes and foundation classes as hard to discipline and impossible to teach.[144] He found it impossible to complete the lessons in those classes because of the conduct of some of the students.[145]
[144]T 290.
[145]T 295.

The students’ conduct included swearing and abusing him. One student was suspended for hurting and bullying a fellow student.[146] Another, armed with a flame thrower made out of a lighter and can of deodorant, held a student in the corridor and singed his jumper. Mr Doulis broke up the incident and took the students to the coordinator.[147] Another student was suspended for swearing at a teacher, inappropriate behaviour in class, and for writing obscenities on the board.[148] Another was suspended for repeatedly using inappropriate language. He was aggressive and threatening.[149] Another student was suspended for swearing at a teacher, splitting open another student’s head and breaking a window.[150] Other students were suspended because they had accumulated a number of detentions for extremely disruptive behaviour including, in one instance, a student who had jumped on another student, causing him considerable distress. Another student was charged with harassment of a student and use of inappropriate language to teachers.
[146]T 308–9.
[147]T 309.
[148]T 314–5.
[149]T 315.
[150]T 315–6.

Mr Doulis said that even before the students entered the classroom, they would be “all hyper” and “virtually crawling up the walls outside the classroom”.[151] It took him time to calm them so they could walk into the classroom. But then, the noise levels would be so high that, even if he shouted, he was not able to be heard. He had to write instructions on the whiteboard.[152]
[151]T 289.
[152]Ibid.

He spent a lot of time explaining proper classroom behaviour to students. Fights occurred in the classroom, students were disrespectful and they would swear at him. When he gave them detention (known as ‘retention’) slips, they would tear them up in front of him or throw them away. They had no regard for authority.[153]
[153]T 291–2.

Mr Doulis said that the year level coordinators were supposed to enforce detentions. However, they were swamped and not able to handle the number of detentions that were being given. He tried to follow up on the enforcement of detentions, but found it too difficult. Students did not take detentions seriously: “it was like water off a duck’s back”.[154] Students threatened him with physical abuse, and some said that they were going to get him if he kept on giving them detentions.[155]
[154]T 292.
[155]T 293.

The behaviour of students in the low classes and foundation classes contrasted with other classes that he taught, without difficulty, which contained students with a range of abilities and behaviours.[156] These other classes contained students who were positive examples for the remaining students.
[156]T 294.

Mr Doulis said that after teaching low classes and foundation classes, he would be completely exhausted, traumatised and shaking. Students in low classes and foundation classes were on occasion labelled as bad students. On one occasion, students asked him, “Why are you teaching the D for Dummies class?”.[157] Because of that attitude, students in low classes and foundation classes “were set up for failure”.[158]
[157]T 290–1.
[158]T 290.

The College had approximately 1100 students. Statistics about student suspensions were produced, as part of Mr Doulis’ case, from documents discovered by the defendant. In 2002, 178 different students were suspended, some for as long as three weeks. Sixty-nine of those students were in Mr Doulis’ low classes and foundation classes at some point in the period 2000 to 2004. In 2003, the equivalent figures were 151 suspensions, with 49 students in Mr Doulis’ low classes and foundation classes at some point between 2000 and 2004. The equivalent figures in 2004 were 211 and 59.[159] It was not suggested that all these suspensions were for misbehaviour in Mr Doulis’ classes.
[159]Submissions on behalf of the Plaintiff dated 7 November 2013 [105]–[107]; Exs HH, NN, Y.

I next refer to the evidence of Mr Butyn and the Assistant Principals concerning the teaching of low classes and foundation classes. They had not had much direct experience of teaching those classes in relevant years, because of their other duties.

Mr Butyn said that the low classes and foundation classes enabled the teacher to focus on the level that the students had reached. He said that in his earlier years he had taught foundation classes. He accepted that teaching them was a hard slog for some teachers, but it would vary from teacher to teacher.[160]
[160]T 1156–7.

However, Mr Butyn said that Mr Doulis did not ask him for a better balanced allotment of classes.[161] He said that Mr Boyer never told him that his classes were the worst behaved cohorts that he had experienced, and he did not accept the evidence of Ms Eyiam and Mr Unsworth that their stress was caused by low classes and foundation classes.[162]
[161]T 1203–4.
[162]T 1166, 1187, 1190–1, 1194.

Mr Butyn said that he was unaware that teachers were sworn at, or that students made death threats, as Mr Doulis said occurred. He agreed that a number of the students had behavioural issues. He said that if students tore up detention slips, the coordinator should have resolved such issues, and the students involved should have been suspended, initially for a day.[163]
[163]T 1160–2.

Mr Butyn attributed the high level of suspensions in the early 2000s to the College “really pressing down on” behaviour in order to send a message to students.[164] The Education Department procedures only permitted a student to be expelled when he or she had received 20 suspension days in one year.[165]
[164]T 1198.
[165]T 1242–3.

Mr Butyn stated that the disciplining of students was left up to the teacher, but where a student had behaved entirely inappropriately, it would be brought to the attention of the class coordinator. He accepted that some teachers could find the classes difficult to teach.[166]
[166]T 1165, 1243.

As previously stated, Ms Ratnik was Assistant Principal from 1992 until 2002, when she retired, at least from that role. She has continued part-time or emergency relief teaching at the College and, in 2013, was still helping to teach Year 12 English. She first worked as a teacher in 1953.

She found foundation classes good to teach and considered that they presented no greater behavioural issues than other classes.

Ms Ratnik remembered when Mr Doulis was employed by the College and described him as a confident applicant. She was involved in the allocation of teachers’ timetables in 2000. She considered that the IT classes, in which subject Mr Doulis taught, were easier than other subjects. Ms Ratnik said that Mr Doulis requested more senior classes, but could not cope with the Year 11 chemistry class that was allocated to him and it had had to be given to other teachers. He made no request about not being allocated low classes or foundation classes.

Mr O’Neil considered that low classes and foundation classes did not increase a teacher’s load, but he was not sure if he had taught such classes.[167] He gave evidence that the College received a three-year government grant for the years 2003 to 2006, which enabled it to reduce teacher-student ratios to 1:10 and allowed team teaching in foundation classes.[168]
[167]T 1056–7, 1067–8, 1096–7.
[168]T 1057, 1073, 1085–6, 1098, 1270, 1342.

Mr Hatzis strongly disputed that students in low classes and foundation classes could be described as “feral”. He said it was not difficult to discipline the low classes and foundation classes. He said that Mr Unsworth had requested to teach them and that Ms Eyiam had told him that they were the nicest classes she had taught.[169]
[169]T 1356–7.

Mr Hatzis said there was nothing exceptional about the student behaviour in low classes and foundation classes.[170] He did not agree that there were greater difficulties teaching low classes and foundation classes. The behaviour and the academic ability of the low classes and foundation classes were part of the spectrum of student behaviour with which teachers were required to deal.
[170]T 1277.

Mr Doulis found that he could not cope with teaching those classes.

Prior to September 2003, the College did not have notice of his mental illness or disorder due to teaching the low classes and foundation classes.

Mr Doulis had complained at work, including to the Assistant Principals, about his sleeping problems, particularly after the birth of his children. He had also mentioned matters that suggested he had some financial issues. In 2002 and 2003, he often appeared tired and dishevelled at work and no longer presented as the enthusiastic teacher he had initially been.

In the meeting on 8 September 2003, Mr Doulis was in a distraught state and told Mr Lentini and Mr Hatzis that he could not cope with all his classes. He complained of lack of sleep. Mr Hatzis considered that, given Mr Doulis' state, the College would be negligent in allowing him to teach and that he needed to obtain some sleep.

Mr Butyn attended at least part of that meeting.

Mr Butyn left to the Assistant Principals the question of any adjustment to Mr Doulis’ class allotments. Mr Hatzis had control of the allotment of classes.

The College allowed Mr Doulis paid sick leave in order to obtain some sleep.

Mr Doulis told Mr Butyn, in his letter of 11 September 2003, that he was suffering a high level of stress due to the nature of classes that he had been allotted. He found it necessary to give up his non-teaching duties at the College. The letter was an important step taken by Mr Doulis to bring his condition to the attention of Mr Butyn as the Principal of the College.

On 12 September 2003, Ms Curran, a psychologist, diagnosed Mr Doulis as having a major depressive condition and recommended that he go on WorkCover leave. He did not take that advice and did not tell the Principals of the diagnosis or the advice.

After Mr Doulis returned to work in September 2003, Mr Boyer informed Mr Hatzis that Mr Doulis needed his teaching load changed and was clearly not coping.

The College did not reduce Mr Doulis’ number of low classes and foundation classes for the remainder of 2003.

After Mr Doulis returned to work, the College did not put in place any formal monitoring of him, nor enquired about his condition.

Mr Doulis did not make further complaints to Mr Butyn after September 2003 but attempted to continue with his teaching.

In Mr Doulis’ request for subject allotments for 2004, which was made the next month, October 2003, he sought an allotment of subjects that did not include low classes and foundation classes.

In late 2003 and in 2004, Mr Doulis looked tired and dishevelled at work.

Mr Doulis took less sick leave in the first months of 2004 than in previous years but in those months he was suffering from depression.

I return to the statements I have previously made about the lack of credibility that affects much of Mr Doulis’ evidence when it is not supported by other evidence that I able to accept. Each of the findings of fact that I have made in the preceding paragraphs is supported by evidence other than that of Mr Doulis. I therefore consider that Mr Doulis’ case is able to be assessed by reference to those findings of fact.

Based on those findings, I consider that a reasonable person in the position of the Principal and Assistant Principals, who attended the meeting on 8 September 2003 and received the letter of 11 September 2003, would have realised that Mr Doulis was at risk, which was a significant risk, of sustaining a recognisable psychiatric injury, because of the difficulties that he was experiencing in teaching low classes and foundation classes.

That risk was reasonably foreseeable to the Principals.

I have reached that conclusion for a combination of the following reasons and factors.

First, I do not consider that a reasonable person who attended the meeting and received the letter would have attributed Mr Doulis’ condition just to lack of sleep caused by personal issues. Problems in private life can affect the ability of an employee to perform duties at work and particularly challenging duties at work can exacerbate private problems. In circumstances in which Mr Doulis was saying that he could not teach all his classes, Mr Butyn and Mr Hatzis should have concluded that there was a real risk that his teaching allotment of low classes and foundation classes would cause him to suffer a psychiatric illness. Attributing his condition solely to private problems was not a reasonable response by the Principals. Mr Doulis’ condition in the meeting of 8 September 2003, and the contents of the letter of 11 September 2003, did not support a view that the only significant causes of his condition were sleep difficulties and other personal problems.

Mr Doulis had a very high level of low classes and foundation classes that were difficult to control.

Mr Doulis’ tired and dishevelled appearance suggested that he was not coping with his teaching duties.

Mr Doulis’ distraught condition in the meeting of 8 September 2003 indicated that he was at risk of psychiatric breakdown. At that point he was not in a condition to teach.

Mr Doulis’ letter of 11 September 2003 advised Mr Butyn that he was experiencing very high stress of such a degree that he was abandoning his non- teaching duties.

Mr Boyer informed Mr Hatzis of the difficulties that Mr Doulis was encountering with his teaching load.

The factors that I have set out have, of course, to be assessed in the context of the Principals’ knowledge that Mr Doulis suffered from sleep problems. But, I consider that a reasonable person with their knowledge would have recognised that his condition was also work-related.

The combined notice and knowledge gained by Mr Butyn, as Principal of the College, and Mr Hatzis, as Assistant Principal in charge of the timetable, were sufficient to give the College notice of the risk that Mr Doulis might develop a psychiatric condition because of his teaching allotment.

I consider that Mr Doulis’ statements in the meeting of 8 September 2003 and in the letter of 11 September 2003, when taken together with the other factors that I have mentioned, were sufficient to bring his condition to the attention of Mr Butyn and Mr Hatzis. Mr Hatzis did not see the letter of 11 September 2003, but he was present at the meeting of 8 September 2003.

If it was reasonably foreseeable that Mr Doulis would suffer a psychiatric illness, what was the content of the College’s duty?

Mr Doulis bears the onus of establishing that, in the circumstances, the College was obliged to take steps to reduce or minimise the risk of him suffering a recognised psychiatric injury. I consider that he has established that the College’s duty did extend to taking steps to minimise the risk to him of psychiatric injury.

Keane JA in Hegarty v Queensland Ambulance Service[448] stated:

The area of debate in the present case concerned the extent to which the defendant was duty-bound to ensure that its superior officers should intervene with individual ambulance officers in relation to possible signs of deterioration in their mental health. The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer’s duty in this respect, must be acknowledged as important considerations. The dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. Issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating the plaintiff’s problems.

[448][2007] QCA 366 [43].

In my opinion, a reasonable person, with the knowledge available to Mr Butyn and Mr Hatzis in September 2003, would have modified Mr Doulis’ duties, by removing or lessening his low classes and foundation classes, providing him with support and directing that he take any sick leave that he required. A reasonable person would also have monitored his condition when he returned to work and enquired from time to time about his well-being. Such enquiries would probably have revealed that he continued to have great difficulty controlling and teaching the low classes and foundation classes.

The College’s actions, in permitting Mr Doulis to have some days off for sleep, might have formed part of an appropriate response to the College’s duty of care, if it had been combined with the other actions that I have mentioned, when Mr Doulis returned to work. But that did not occur and the College did not act on the basis that Mr Doulis had any work-related problem.

Mr Doulis had raised his work difficulties with the College and I therefore do not see any barrier to reaching these conclusions, because of the private and personal nature of psychological illnesses.

Nor is there a need for some external standard against which to determine if Mr Doulis’ work was unduly onerous, in circumstances where a reasonable person would have perceived that there was a risk that Mr Doulis would develop a recognised psychiatric illness.

Nor do I see any issue about whether the interventions would have been appropriate or would have ameliorated Mr Doulis’ condition. I consider the medical evidence that relates to the likely effectiveness of steps that could have been taken in September 2003 to address Mr Doulis’ condition when I deal with the question of causation. However, the steps that I have stated that the College should have taken in satisfying its duty of care to Mr Doulis were a matter of common sense. Particularly Mr O’Neil and, to some extent, Mr Butyn, recognised that in their evidence. They said that if they had known of the effect of Mr Doulis’ low classes and foundation classes on his mental health, they would have changed or reviewed his allotment (Mr O’Neil), or looked at some alternatives, if that was possible (Mr Butyn).[449]
[449]T 1070, 1212–13.

I do not consider that a reasonable person would have relied on Mr Doulis to fix the problem himself by the measures that he proposed, of lessening his non-teaching duties or seeking to teach elsewhere. The latter suggestion appears to have been principally made by Mr Doulis with the aim of achieving his educational goals. The fact that Mr Doulis would write in the terms contained in the letter of 11 September 2003 to his Principal, demonstrated the seriousness of his situation.

Did the College breach the duty of care that it owed to Mr Doulis?

I consider that the College did breach the duty of care that it owed to Mr Doulis in September 2003, and thereafter whilst he worked at the College. It did not lessen his low classes and foundation classes until 2004, and then not completely, and it did not monitor him or otherwise support him after his return to work.

The College Principals directed that Mr Doulis take two days of sick leave, but on his return they did not monitor him or speak with him about his medical condition or well-being. Nor did they put in place any support measures for him.

The requirement that Mr Doulis take two days of sick leave to gain some sleep was not done to alleviate the risk that he might suffer a psychiatric illness.

The College did reduce his low classes and foundation classes in 2004, but he still experienced considerable difficulty in teaching that allotment.

Causation

I consider that Mr Doulis has established that the College’s breach of duty was a cause of his chronic severe major depressive condition.

Dr Tagkalidis received, and took into account, a history that Mr Doulis provided, which I have not accepted as accurate. This included that Mr Doulis had been complaining about his class allotments for a number of years, that he had been bullied by an Assistant Principal, and that rumours had been spread at the College about his relationship with his wife. Ms Curran and Dr Epstein also received a history along those lines.

However, I accept Dr Tagkalidis’ evidence that, if Mr Doulis’ condition had been addressed in September 2003, his condition may not have reached the point that it has. Dr Tagkalidis identified Mr Doulis’ teaching allotment as a major cause of his depressive condition.

The fact that Mr Doulis had other stresses in his personal life does not reduce the effect of Dr Tagkalidis’ finding that he suffered a depressive condition in September 2003 that was exacerbated by the failure to address it. Ms Curran diagnosed Mr Doulis as suffering from a significant depressive condition in September 2003.

I have taken into account that Mr Doulis had other pressures in his life, some of which were, as he perceived, the result of conduct of teachers at the College.

While there can never be certainty, it is probable that the monitoring of Mr Doulis by senior College staff in the period September 2003 to May 2004 would have assisted in avoiding the development of his current recognised psychiatric illness. I also consider that, had Mr Doulis’ workload of low classes and foundation classes been reduced, and if he had been supported in his teaching duties, then it is probable that his psychiatric condition would not have deteriorated to his current chronic severe major depressive condition.

There is necessarily some uncertainty about the effectiveness of the measures that I have found the College should have taken. On one view, Mr Doulis would have developed his chronic severe major psychiatric illness regardless of any steps taken by the College. However, taking into account the evidence of Dr Tagkalidis, I consider that it is probable that if the measures that I have mentioned had been taken, then he would not have developed that condition.

I have taken into account that Mr Doulis may not have been suitable for a teaching career. He encountered difficulties in dealing with staff at two other schools after he left the College, but by then he had developed a depressive condition.

I have also considered the significance of Ms Curran’s opinion that Mr Doulis already had a major depressive condition in September 2003. However, the fact that he was able to resume teaching in 2005 suggests that in September 2003 it was not too late to take steps that would have avoided him developing his current chronic severe major depressive condition.

Mr Doulis is therefore entitled to damages.

I repeat that Mr Doulis did not pursue or establish any claim for breach of contract or in reliance on the Regulations.

Damages
Pain and suffering

The first issue is the amount of damages that Mr Doulis is entitled to receive for pain and suffering and loss of enjoyment of life. His counsel pointed to the contrast between his former life, in which he was an active, outdoor, bubbly person, and his present life, in which he was said to be a shell of his former self, with suicidal thoughts. His regular medication and treatment is of limited assistance. He cannot participate fully in his family life and this places great strain on his wife. He can barely cope with the most basic tasks at home. He cannot make decisions and is in a state of permanent fatigue. Ms Doulis’ evidence supported that account of his present condition.

The defendant submitted that Mr Doulis’ claims about his level of disability should be treated with caution. It was suggested that his condition will improve once the litigation has ceased. Reliance was also placed on the fact that he did not enjoy unblemished health when he started working for the defendant.

I consider that the first point to take into account is that Mr Doulis has suffered a serious mental disturbance of which the defendant’s conduct was a cause.[450]
[450]Willett v State of Victoria [2013] VSCA 76.

I have previously set out the severity of Mr Doulis’ illness. I am satisfied that the impact of his illness has been very significant. I accept the description of Mr Doulis’ current life that his counsel summarised and the difficulties that it presents to him. The contrast with his previous outgoing life is marked.

I award Mr Doulis damages for pain and suffering and loss of enjoyment of life in the sum of $300,000.

Economic loss

Mr Doulis’ past economic loss was agreed to be $446,433, consisting of $371,618 for past earnings and $74,815 for past superannuation. It was not suggested that those damages should be discounted.

His Fox v Wood damages were agreed at $22,661.

Future economic loss

Mr Doulis’ case was that he proposed to teach to the age of 67 and that his future loss should be calculated on the basis that, during his career, he would have reached the level of Assistant Principal or Leading Teacher.

The evidence was that the number of Assistant Principals and Leading Teachers was limited and they were chosen after application and consideration on merit. In June 2004, Mr Doulis’ salary was at the level of Experienced Teacher, increment 2–2.

Mr Doulis relied on calculations made by Cumpston Sarjeant. Mr David Heath, an actuary, gave evidence about these calculations. Dr Spicer considered that the assumptions made about Mr Doulis’ career progression were “a little slow”.[451] These assumptions included that he would have become a Leading Teacher LT–1 in August 2012. Dr Spicer gave evidence about the usual progression of teachers up the ladder of promotion and said it was reasonably automatic, until they reached the position of Leading Teacher.[452] She agreed that appointment to the positions of Leading Teacher and Assistant Principal, would require selection after a competitive application process decided on merit.
[451]T 911.
[452]T 910–14.

She said that teacher promotion to the level of Experienced Teacher is pretty much automatic, but promotion thereafter to Leading Teacher or Assistant Principal was dependent on a position being available.

The defendant submitted that there was no evidence, other than Mr Doulis’ statement, to support his claim that he would work beyond the age of 65. His teaching career had been relatively short, making it impossible to draw any safe inference as to his likely degree of progression. He was having difficulty in his working relationships with colleagues, and was struggling with his duties more generally.

While the calculations will necessarily involve some speculation, I consider that Mr Doulis’ future loss should be assessed on the assumption that he would have advanced to the level of Leading Teacher LT–1 in 2012, that is nine years after the events of September 2003. I proceed on the basis that Mr Doulis would have retired at 65.

The next issue is the appropriate discount that should be applied for the vicissitudes of life.

Mr Doulis submitted that, if future economic loss was calculated on the assumption that he advanced only to the level of Leading Teacher, which he said was a conservative approach, then a 10 per cent reduction should be applied for vicissitudes of life, because his advancement was the main factor of uncertainty.

The defendant submitted that the appropriate discount rate was 25 per cent, having regard to the real possibility that Mr Doulis’ condition would improve and that he would regain a capacity for work. The defendant also submitted that the end of the litigation may bring this about.

The defendant submitted that the higher discount rate should be applied because Mr Doulis’ condition was an aggravation of a pre-existing vulnerability, which might have been triggered by some other stressor. There is also the evidence that in September 2003, when the defendant’s breach of duty occurred, Mr Doulis had already suffered a significant depressive condition.

It was not suggested by the defendant that any allowance, by way of reduction, should be made for Mr Doulis’ pre-existing health problems, but it was contended that his claimed level of pre-injury activity should be treated with a high level of scepticism.[453]
[453]Defendant’s final submission [1.6].

I accept the defendant’s submissions that a higher discount rate should apply than in the ordinary case. The matters that the defendant has referred to justify that conclusion. Mr Doulis’ teaching career was by no means certain to proceed by way of steady progress. There is also the possibility that he may obtain further employment.

The relevant legal principles relating to vicissitudes were considered by Osborn and Beach JJA in Smith v Gellibrand Support Services Inc.[454] Their Honours referred with approval to statements in Seltsam Pty Ltd v Ghaleb[455] by Ipp JA (with whom Mason P agreed), which included the following:

(a)In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.
(b)The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.
(c)The court must form an estimate of the likelihood of the possibility of alleged future events occurring.
(d)These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.
…

[454][2013] VSCA 368 cf Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.

[455][2005] NSWCA 208 [103].

Because of the uncertainties concerning Mr Doulis’ future and the possibility that he would have been unable to continue teaching regardless of the defendant’s breach of duty, I consider that a 35 per cent discount for vicissitudes should be adopted.[456] I do not consider that I am bound to adopt a discount percentage for vicissitudes within the range suggested by the parties, as the appropriate figure depends on my assessment of the evidence.
[456]Higher rates than usual can be applied in appropriate cases: see Acir v Frosster Pty Ltd [2009] VSC 454 [273] and Perry and Bell v Australian Rail Track Corporation Ltd [2013] NSWSC 714 [217].

I will hear the parties as to the result of the calculation of future economic loss.

Costs thrown away

Mr Doulis made the following submissions in support of an order for the costs thrown away by adjournments caused by the defendant’s late discovery of documents.

The trial in this matter commenced on 7 October 2013. The costs of that day were dealt with by an order that Mr Doulis would receive costs pursuant to a certificate under the Appeals Costs Act 1998 (Vic), after it was necessary to discharge the jury empanelled that day. A further jury was empanelled on Tuesday 8 October 2013 and heard an opening and the beginning of Mr Doulis’ evidence. On the morning of 9 October 2013, Mr Doulis’ counsel were informed that a large number of further discovered documents by the defendant was to be delivered. The proceeding was adjourned until 10 October 2013, with orders requiring the defendant to provide the further discovery to Mr Doulis.

Late on the afternoon of Wednesday 9 October 2013, some 1,100 further pages of discovered documents were provided by the defendant to Mr Doulis.

The volume of the newly discovered documents made it impossible to re-start the trial until Monday 14 October 2013. The nature and importance of the material made it impossible to continue the trial before the jury that had been empanelled on Tuesday 8 October 2013. An adjournment was granted to Monday 14 October 2013, and an order that the trial be recommenced was made. Mr Doulis’ counsel and solicitors spent the remainder of Thursday 10 October 2013, most of Friday 11 October 2013, and much of that weekend considering the newly discovered documents.

The adjournment on Wednesday 9 October 2013, and the further adjournment on Thursday 10 October 2013, were caused by the late discovery. Mr Doulis sought the the costs thrown away by reason of the late discovery being the costs of Tuesday 8 October 2013, Wednesday 9 October 2013, Thursday 10 October 2013 and Friday 11 October 2013.

Two affidavits were filed in connection with the Mr Doulis’ application for costs thrown away: an affidavit by Mr Butyn on behalf of the defendant and an affidavit by Mr Magazanik on behalf of Mr Doulis. In the affidavit of Mr Butyn sworn 11 October 2013, Mr Butyn states that “[i]t did not occur to me that documents relating to individual behaviour assessments of students would be relevant”. The plaintiff submitted that the behaviour of students within the low classes and foundation classes had been a central issue in the proceeding. Mr Butyn acknowledged that:

[i]n hindsight, as the plaintiff is alleging he was given ‘feral’ students to teach, student assessments could be perceived to have been considered relevant and I believe that had I turned my mind to this I would have provided and or discussed such documents with the solicitors acting on behalf of the defendant.

Mr Magazanik’s affidavit described correspondence with the defendant’s solicitors about the adequacy of its discovery.

The defendant submitted that this was a very big case in terms of the number of documents extending over a period of time that had to be and were discovered. The late production of the additional documents was an understandable problem in a case of complexity involving wide ranging allegations. Mr Butyn had made considerable endeavours to assemble the documents required for discovery. The significance of the documents discovered late was not immediately obvious. The failure to provide discovery was not a default that should warrant a costs order against a party, but rather should be regarded as an unfortunate incident of litigation.

The defendant also submitted that, if costs were to be awarded to the plaintiff against it, they should only be the costs of the Thursday and Friday of the first week of the trial.

I consider that the plaintiff’s costs of the four days of the first week from Tuesday 8 October 2013 to Friday 11 October 2013, inclusive, should be paid by the defendant. The defendant failed to provide discovery of a large number of discoverable documents relating to Mr Doulis’ marking practices that were discoverable. That was always an issue on which discovery was required. That failure disrupted the use that could be made of those four days, and led to the discharge of a jury.

Conclusion

I will hear counsel about the form of the orders that should be made, about the appropriate figure for future economic loss calculated in accordance with my findings, about any reduction in damages required by the provisions of the Accident Compensation Act 1985 (Vic), about interest and about costs, save in respect of the order for costs thrown away that I have indicated that I will make.

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[2014] VSC 395

5 September 2014