Tomasevic v State of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2010 01155

MILAN TOMASEVIC	Plaintiff
v
STATE OF VICTORIA (DEPARTMENT OF EDUCATION & EARLY CHILDHOOD DEVELOPMENT formerly known as DEPARTMENT OF EDUCATION)	Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2020
DATE OF JUDGMENT:	9 July 2020
CASE MAY BE CITED AS:	Tomasevic v State of Victoria
MEDIUM NEUTRAL CITATION:	[2020] VSC 415

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ASSESSMENT OF DAMAGES – Common law damages – Workplace injury – Psychiatric injury – Liability admitted – Ongoing consequences of psychiatric injury – Whether damages reduced for the consequences of criminal conduct by the plaintiff – State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500 – Superannuation gain – Commissioner of Taxation v Scully (2000) 201 CLR 148.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	A Ingram QC and J Plunkett	Antony, Sdrinis & Co
For the Defendant	A Clements QC and K Manning	Minter Ellison

HIS HONOUR:

For 10 years to July 2000 the plaintiff, Mr Tomasevic, worked as a physical education teacher at Deer Park Secondary College (‘the school’).

In May 2000 the school principal commenced disciplinary procedures against Mr Tomasevic on the basis of what he alleged was unsatisfactory performance and serious misconduct. The principal referred to charges of sexual harassment. Despite a request by Mr Tomasevic the principal provided no particulars of the allegations, and no detail of the evidence on which they were based.

In July 2000, the principal ordered Mr Tomasevic to remove himself from the school premises and later placed him on alternate duties. In August 2000, the principal required that he attend an appointment with a psychiatrist to assess his fitness for duty on medical grounds. The principal wrote to the psychiatrist setting out detailed allegations, which were not shared with or particularised to Mr Tomasevic. Relying on the information provided to him, the psychiatrist concluded Mr Tomasevic was psychiatrically disturbed and not fit to teach. The principal then directed Mr Tomasevic to absent himself from duty immediately. He has not since returned to teaching.

The allegations on which the principal based his actions have not been proved, and in the period May to August 2000 Mr Tomasevic did not have a psychiatric disorder. However, the principal’s actions were a cause of him suffering a major depressive disorder and acute stress reaction which he subsequently developed.

The defendant, the State of Victoria, admits there was negligence by the principal, for which it is responsible, in the manner in which Mr Tomasevic was charged with serious misconduct and unsatisfactory performance, and in the principal’s instruction to the psychiatrist, and that this was a cause of Mr Tomasevic suffering psychiatric injury.

The trial proceeded as an assessment of damages. The major issue at trial was assessment of loss of earning capacity, in particular:

(a) For what periods was Mr Tomasevic’s earning capacity diminished by his injury?

(b) Does cancellation of Mr Tomasevic’s registration to work as a teacher by the Victorian Institute of Teaching in May 2013 mean his psychiatric incapacity to work as a teacher from that date was not productive of financial loss?

(c) Should a superannuation gain enjoyed by Mr Tomasevic be set off against his loss of earning capacity damages?

Background

Mr Tomasevic was born in the former Yugoslavia in 1952. He obtained a Bachelor of Physical Education at Belgrade University, undertook compulsory military service for 12 months, and later worked as a casual teacher, lifeguard and ski instructor. He married in 1984, and has a daughter born in 1985 and a son in 1986. In 1987 he migrated to Australia with his family.

Initially Mr Tomasevic worked in a factory. He studied English for 18 months, and spent time working in afterschool and school holiday programs. His teaching qualification was then accepted by the Teachers Registration Board, and on 31 July 1990 he commenced work as a physical education teacher at the school.

Mr Tomasevic said he felt over the moon about getting his job at the school. He said that although his English was not perfect and he still had an accent, he received positive feedback from parents, students and other teachers, had promotions, and was feeling very good about his job and successful and happy in Australia. He emphasised that he came to Australia to provide his children with a better future and a normal life.

He was appointed a professional development coordinator at the school in 1991, and joint key learning area (‘KLA’) manager for seven subjects in the health and physical education area in 1998. The KLA responsibilities were divided so that he was in charge of curriculum, while the other KLA manager was responsible for the budget, interschool sports and excursions. Because his co-manager obtained a position at another school Mr Tomasevic was appointed sole KLA manager for 1999.

Mr Tomasevic’s best friend at the school was another teacher in the physical education department (‘the co-teacher’). He said at an end of year school party in 1998 the co-teacher approached him and said he had used school money to buy scuba diving equipment for his private business. Mr Tomasevic said he subsequently became aware that the co-teacher had misappropriated school money, or inappropriately retained money from students and parents that should have been remitted to the school. He discussed these matters with the co-teacher, who declined to make repayment. Mr Tomasevic described being stressed by the conflict between his friendship with the co-teacher and his responsibility to ensure school funds were properly accounted for.

In early 1999 Mr Tomasevic experienced stress, anxiety and depression in relation to the situation with the co-teacher, his sole responsibility as KLA manager, and marital conflict. On 2 February 1999 his treating GP Dr Khoo made a note of anxiety problems related to family and work. Mr Tomasevic was referred by another GP clinic to psychiatrist Dr Baily, who saw him on one occasion and prescribed Zoloft, which he took only once because he suffered an adverse reaction. He was referred to a second psychiatrist, Dr Drysdale, who on 30 March 1999 noted prominent symptoms of depression resulting in Mr Tomasevic finding it difficult to cope at school. Mr Tomasevic was commenced on antidepressant Effexor 75 mg daily, following which Dr Drysdale said he made consistent progress, returned to a healthy appetite and normal sleeping pattern, felt in good spirits and was able to manage his responsibilities well. For some months, Mr Tomasevic remained on Effexor as a prophylaxis to a relapse.

Mr Tomasevic was replaced as KLA manager for term 2 in 1999, but remained at school teaching, and resumed the role as sole KLA manager for terms 3 and 4.

The marital strain related partly to what Mr Tomasevic believed was his wife’s unreasonable punishment of their children. He said in mid-1999 he reported the matter to Child Protection and, on 7 July 1999 told Dr Khoo. On the same day Dr Khoo noted Mr Tomasevic was feeling better overall in relation to his depression, and he was not taking antidepressants any more. The family issues continued in the second half of 1999, but there is no evidence that this caused a relapse of depression. He said his wife returned to Yugoslavia for three months in late 1999, and during that period he formed a new relationship with a woman who came to live with him and his children during 2000.

The school principal worked on secondment at a different school during 1999. Late in that year Mr Tomasevic reported his allegations in relation to the co-teacher to the acting principal. Mr Tomasevic was aggrieved by what he alleged was a failure by the acting principal to do anything about the allegations, and because he said he was later abused by the co-teacher for reporting the matter.

In December 1999 the acting principal reappointed Mr Tomasevic sole KLA manager for health and physical education for 2000.

In early 2000 Mr Tomasevic explored the possibility of obtaining work at a different school to reduce his commute time. In April the assistant principal at the school, who had been in that position for one and a half years, wrote Mr Tomasevic a strongly worded, positive reference recording his dedication, preparedness to take on additional responsibilities, commitment, thoroughness, honesty, trustworthiness, and the regard in which he was held by students.

By about April 2000 Mr Tomasevic’s former wife had returned from overseas, and a custody battle in relation to their children commenced. On 1 May 2000 Dr Khoo noted Mr Tomasevic reported stress and anxiety related to a court case the following day, and gave him medical certificates covering three days.

Negligence

On 17 May 2000 the principal wrote the following letter to Mr Tomasevic:

Dear Milan,
A matter of Unsatisfactory Performance and Serious Misconduct
I wish to inform you that you are not performing to the required standard as a Teacher Level 1.
Also, I need to inform you of serious misconduct charges as a member of the teaching service, under Section 45 and Part V of the Teaching Service Act, 198l.
In particular I consider your performance to be unsatisfactory and unacceptable in the following areas:
1.   Failure to attend compulsory meetings, namely morning briefings.
2.   Use of inappropriate language with other staff members
3.   Acting in a manner unbecoming your position as a member of the teaching team at Deer Park Secondary College

With regard to the serious misconduct charges.· I make particular reference to the sexual harassment charges against both female staff and a particular male staff member. Specifically your verbal comments have been most inappropriate.
The guidelines for Managing Unsatisfactory Performance, November 1998, require me to refer ·the serious misconduct charges to the Department of Education, Employment and Training’s Complaints and Investigations Unit, which I have done.
Milan, you should be aware that failure to meet the required standard of performance may lead to action by your employer under the Teaching Act 1981, Ministerial Order 141. The relevant sections of the Act/Order are attached for your information.
Milan, you are invited to explain any reasons for your unsatisfactory performance. You may have a witness present at any discussions in relation to this matter.
I have scheduled a meeting, Thursday 25^th, 11.00am, to discuss what action, if any, I intend to take.

Mr Tomasevic said before receiving this letter he had no warning of the issues raised by the principal.

Mr Tomasevic responded with letters to the principal on 25 May and 20 June 2000, seeking particulars of the allegations against him, and detailing his allegations in relation to the co-teacher. He said the principal refused to accept his letter of 25 May.

The principal wrote to him again on 23 June 2000 stating amongst other things that unless Mr Tomasevic posted a letter setting out his allegations against the co-teacher by 30 June, the principal would order him to attend with a general medical officer. Mr Tomasevic responded by letter dated 29 June, again setting out his allegations in relation to the co-teacher.

On Monday 10 July 2000, which was the first day of term 3, the principal wrote to Mr Tomasevic in the following terms:

I write to issue a legal instruction under Section 6.9 (12) of the Schools of the Future Guide and in accordance with the instructions outlined in Managing Unsatisfactory Performance.
Milan, I require you to present yourself for an appointment with a General Medical Officer, appointed by the Department of Education Employment and Training, at a date to be finalised and passed on to you.
Until I can make the appointment I order you to remove yourself from the school premises immediately. You are not to return until I inform you after I have received a report from the General Medical Officer about your suitability and fitness to teach at Deer Park Secondary College. You will remain on the payroll during this period.
I take this action because within my duty of care as a principal I must ensure the safety and wellbeing of students and teachers in my care.
I am of the opinion that you are a danger to the students, teachers and myself. Milan, your lack of co-operation in dealing with some of my concerns has not helped this situation.
A refusal to comply with this instruction can lead to dismissal from the Teaching Service in the Department.

Late the previous evening the principal telephoned Mr Tomasevic at home to convey the contents of the letter. He has not since worked as a teacher.

The principal wrote to Mr Tomasevic on 2 August 2000 confirming arrangements for him to attend an appointment with psychiatrist, Dr Strauss, on Thursday 10 August 2000. In the letter the principal stated that pending receipt of a report from Dr Strauss Mr Tomasevic was to report for duty at the Western Metropolitan Regional Office, if Dr Strauss found him unfit for duty he may be directed to absent himself for a specified period as recommended, and that a failure to attend the medical examination would mean he would be considered absent without leave and no longer entitled to salary payments.

On 4 August 2000 the principal wrote to Dr Strauss detailing allegations including that from the beginning of 1999 Mr Tomasevic initially became withdrawn, irrational in his behaviour and very depressed; on return to school in term 2 he was extremely outspoken in an inappropriate manner; he became obsessive in his complaints against the co-teacher, harassed other staff, particularly females, and became unprofessional with students; continued his harassment of teachers, particularly junior and new teachers, during 2000; seemed to be having delusions that the school was fabricating facts to divert attention from his allegations, drifted into unreality and refused to take instructions from the principal. The principal stated he had instituted formal disciplinary and dismissal procedures against Mr Tomasevic in term 2 of 2000.

I note the following in relation to the correspondence from the principal to Dr Strauss. First, the principal was not at the school, and had no interaction with Mr Tomasevic, in 1999, yet wrote to Dr Strauss as if he had personally observed Mr Tomasevic’s behaviour in that year. Second, Mr Tomasevic was not made aware of the allegations communicated to Dr Strauss. Third, Mr Tomasevic was not made aware that he was facing dismissal procedures.

On 8 August 2000 the principal wrote to Mr Tomasevic stating, amongst other things, that he had been afforded every opportunity to respond to concerns about his performance set out in writing in the letter of 17 May 2000. This statement is clearly inaccurate. Mr Tomasevic had been given no particulars beyond the content of the letter, and no proper opportunity to test or respond to the allegations.

It is apparent from his report dated 10 August 2000 that Dr Strauss accepted what he had been told by the principal. Relying on that information he concluded that there appeared to be little evidence to back up Mr Tomasevic’s allegations of financial impropriety against the co-teacher. Dr Strauss concluded Mr Tomasevic suffered paranoia, was inappropriate and probably delusional, may have a schizophrenic or schizoaffective disorder, and while specific diagnosis was difficult there was no doubt he was psychiatrically disturbed. Dr Strauss concluded:

He is not fit to teach and he is not capable of duty of care in the work environment.
He is a man with very limited insight and he is a man whose behaviour is disturbed and certainly he should not be in a teaching situation.
I believe that your actions have been appropriate and I believe that this man needs treatment and he certainly is not fit for full time teaching duties.
I believe that on the balance of probabilities the disturbed behaviour that you have listed in your report would be well explained by the presence of a psychiatric illness in this man.

On 18 August 2000 the principal wrote to Mr Tomasevic informing him that in Dr Strauss’s opinion he was unfit for teaching duties, and directing that he absent himself from duty on sick leave effective immediately. Mr Tomasevic was not provided with a copy of Dr Strauss’s report, but it appears a copy was sent to Dr Khoo.

In September and October 2000 Mr Tomasevic was referred by Dr Khoo to four psychiatrists in order to assess his state of psychiatric health, fitness to work as a teacher and fitness to care for his children. Mr Tomasevic was seen by Dr Cheung on 4 September 2000, who noted on examination that he presented as quite settled and calm initially, but later became quite agitated when he talked about his alleged unfair treatment by the school principal; his speech was coherent and relevant without any formal thought disorder, his affect was at times intense but reactive and quite well communicated, and his thought content was preoccupied with the alleged false accusations by the principal. Dr Cheung concluded that he could not find any evidence of a psychiatric disorder.

Dr Rasalam saw Mr Tomasevic on 7 September 2000 and concluded that he could not detect any sign of depression.

Dr Cunningham saw Mr Tomasevic on 22 September 2000 and concluded that while he may have suffered a past episode of depression, he was at that time asymptomatic in regard to any psychiatric problems and had normally functioning emotions.

Mr Tomasevic attended with Dr Turecek on 25 October 2000, who concluded that he showed no depressive symptomology and that his previous depression had completely resolved.

On 20 September 2000 Mr Tomasevic completed a WorkCover claim form, and Dr Khoo provided certificates of capacity backdated to 21 August covering a period of two months. A further certificate was issued by Dr Khoo on 17 October 2000 covering the period to 20 November. Dr Khoo recorded the description of injury as stress related to a work incident. A clinical note made by Dr Khoo on 21 August records ‘Stress at work re suspension from school related to telling principal re stealing of another teacher’. Another note made later in August records ‘stresses related to work situation’. The WorkCover claim form and certificates were submitted to the defendant but were not forwarded to an insurer or processed.

The defendant concedes that Mr Tomasevic lodged a WorkCover claim with it around 20 September 2000, and was incapacitated by injury caused by the principal’s negligence in the period 21 August to 20 November 2000.

Mr Tomasevic said when he received the letter from the principal on 10 July directing him to remove himself from the school premises immediately he felt this could not happen, was wrong and did not make sense, was extremely hard to understand, and that the principal was abusing his power and would realise he was doing the wrong thing. When he was sent to the psychiatrist he felt shocked and terrible. He said he could not believe the principal’s actions would succeed because he thought justice would prevail.

At some stage after 13 July 2000 the regional principal consultant investigated the allegations made by Mr Tomasevic against the co-teacher. Interviews were conducted with the principal, the acting principal and the co-teacher. Mr Tomasevic was not involved in the investigation. A finding was made that the co-teacher inappropriately borrowed school property for personal use, but had subsequently paid for the equipment. On 30 October 2000 the acting regional director wrote to Mr Tomasevic informing him of the outcome of the investigation.

November 2000 to October 2003

Custody proceedings on foot in the Family Court between Mr Tomasevic and his former wife were listed for a hearing in about November 2000. Mr Tomasevic’s personnel file, which contained Dr Strauss’s report of 10 August, was subpoenaed to the Court and made available to him for inspection. He said he felt shocked by the content of the report which he described as fabrication, manipulation of the truth and false information that he had mental problems. Mr Tomasevic was obviously disturbed by the impact the report might have on the issue of custody of his children.

Mr Tomasevic said that after he left work on 18 August 2000 he was on sick leave until the end of December, then started receiving Centrelink benefits in early 2001. He said as time passed it became clear his career was on the line, and that what was happening was having an extraordinary impact on his future and his children’s future. He said he had a mortgage, bills to pay, and that he had to provide for his children, and when he could not do so, he gradually began to suffer severe depression with panic attacks and anxiety. He said he was disbelieving that this could happen in society, and thought a proper investigation would assist the truth to come out, and that he would get his job back very soon, but when this did not happen, gradually his depression and anxiety increased, he became suicidal and felt his life was not worth living any more. He could not provide bread and milk on the table for his children, books for their school, or a basic life, and he said his thinking became negative and panicky. He described periods where he felt half-alive, half-dead, said his hygiene was zero, that for one month he was not showering, was not eating and thought what was the point of living. He could never forget the catastrophe of loss of his career as a teacher, because it was not fair to make up a story and get rid of him, based on fantasy rather than fact, which he said was terrible. As he gave this evidence, Mr Tomasevic cried. His emotional reaction was genuine, and reflected the enormous impact on him of what had occurred.

In late 2000 Mr Tomasevic began a quest for justice which has at times dominated and consumed his life. He said the principal preferred to punish him as a whistle-blower and to protect a criminal who stole money, which did not make any sense, and he could not accept it because the reverse should be the case. He felt somehow justice did not exist because when he fought his boss, he was the one who lost his job. He said this was why he could not give up, go home and move on because it was crystal clear this was wrong, and he had to sacrifice everything to prove that and to clear his name, and also because it was in the public interest. He said he could never accept that the wrong the principal had done would win against right, that his behaviour changed as a consequence, and at times he lost his direction.

From December 2000, Mr Tomasevic wrote many letters, including to the General Manager of Schools and Regional Operations, the Director of Schools, the Police Commissioner and the Attorney-General, seeking to be reinstated as a teacher. On 16 March 2001, he attended the Conduct and Ethics Branch of the Department of Education’s premises in East Melbourne.

He agreed that in the Easter holiday of 2001 he went to the principal’s private residence. He said the purpose was to serve documents on the principal and ask him to sign them, so that the documents could be provided to the Chief Commissioner and the Attorney-General.

He agreed that in May 2001 he lodged an equal opportunity complaint against the principal, the co-teacher, the school and the State of Victoria alleging race and impairment discrimination.

On 19 July 2001 without notice he attended a staff morning briefing at the school. He said he wrote ‘justice in education’ on the whiteboard, and that the principal came in, cancelled the meeting and told him to leave.

On 26 October 2001 he attended in front of the school and distributed pamphlets to parents, students and teachers. He attended again outside the school in December 2001.

During 2001, he corresponded with senior officers of the Department of Education, Employment and Training variously setting out his complaints and allegations, and responding to complaints and allegations by those officers relating to his behaviour.

In late February and early March 2002, Mr Tomasevic attended outside the school, and at another school at which the acting principal was then teaching, and was involved in interactions with the principal, the acting principal and another teacher, as a result of which he was charged with three offences each of making a threat to kill, intentionally threatening serious injury and using threatening words in a public place. Later in March 2002, interim intervention orders were made against Mr Tomasevic in favour of the principal and the acting principal. Mr Tomasevic pleaded not guilty to each criminal charge, and contested the making of final intervention orders.

Mr Tomasevic said after he was excluded from the school by the principal:

Well, this is I lost — I lost my directions in life and I lost my job, I lost my family, I lost my children, and of course I think as a resistance that this is probably have my misbehaviour, my misbehaviour from time to time, because imagine can you picture in your mind, or the judge can picture in his mind that this happening to you or to him. I have my job, I was happy, I had my family, I have — was successful job, happy in my job. Then suddenly everything was —it’s lost thanks to [the principal], and of course that’s probably would have in terms of my misbehaviour sometimes, from time to time, and this is I think that this — every psychologist I believe and psychiatrist and they told me that I mentioned to them this situation that is like natural, very natural things to a human being.

He said that if the principal had not sent him off to see Dr Strauss then excluded him from the school these things would never have happened, he would still be successful in his work, doing his teaching, having a basic life for his children and be happy with his family.

Between November 2000 and May 2002, there were 12 attendances by Mr Tomasevic on Dr Khoo, a number of which were for conditions unrelated to his employment issues. The related clinical notes read:

8 November 2000 long discussion problems with department.
No evidence of paranoid ideation on other psychiatric report.
17 November 2000 letter stating assessment by 4P [four psychiatrists] — no psychiatric disorder.
19 February 2001 long discussion re problems with education department.
Anger at process and effect on career/job.
30 March 2001 long discussion problem with education department.
8 May 2002 discussion workplace issues.
11 May 2002 letter re: statement of mental disorder rebuttal.
(see letter)
W/C 1/12 patient uncertain if claim as W/C.

On 11 May 2002 Mr Tomasevic made a second WorkCover claim, nominating the date of injury as 18 August 2000. The principal wrote to the WorkCover insurer stating he did not accept liability for the claim.

In early June 2002, Mr Tomasevic attended with Dr Khoo, who noted he was teary and depressed, and prescribed Effexor 75mg and Diazepam. In mid-June, the dose of Effexor was increased to 150mg.

On 14 June 2002 solicitors for the defendant wrote to Mr Tomasevic in relation to his equal opportunity complaint proceeding in VCAT, confirming the defendant’s understanding the matter had resolved by agreement and that it would pay him $10,000 and provide a reference from the principal. A draft reference was attached which spoke in very positive terms of Mr Tomasevic’s work as a teacher up to August 2000. Mr Tomasevic declined to resolve the proceeding, and continued his pursuit of justice.

Dr Khoo referred Mr Tomasevic to Dr Cheung for treatment, who concluded that he has been suffering from a depressive disorder in relation to his perceived experience of unfair treatment by the school principal.

Mr Tomasevic continued to attend regularly with Dr Khoo and Dr Cheung. The prescribed daily dose of Effexor was increased to 225 mg in October 2002, and 300 mg in November, which Dr Khoo said was the maximum dose. Oxazepam and Valium were prescribed for anxiety.

Dr Cheung expressed the following opinion in relation to the effect of Mr Tomasevic’s psychological condition on his behaviour:

The labelling of being ‘delusional’ when he knew that he had a factual basis for his allegations and being forced on sick leave with that label must have been a devastating and very humiliating experience for him, as he had come from a cultural background in which there is a very strong stigma attached to psychiatric illness. It was understandable for him to feel enraged, and perceive that he was being treated unfairly and unjustly.
It was thus understandable for him to want to vigorously pursue his claim of fund misappropriation by his fellow teacher to affirm that he was not ‘mad’, and that the pursuit would be accompanied by a lot of anger and resentment. It is my understanding that all the allegations of his misconduct were well circumscribed and were specifically related to this pursuit and related matters. There was no allegation of any misconduct in relation to any other matter.
I did not see him between September 2000 and July 2002, and I am not clear as to the exact time of onset of the second episode of depression. However, it is very likely that the stresses of being labelled ‘delusional’, being forced on sick leave on that basis despite the opinion of four psychiatrists attesting that he had no mental illness at the time, the lack of support, and the negative responses that he received during his ‘pursuit of justice’, were of a sufficient magnitude to have triggered off a progressive decline in his mood, with associated irritability, impairment of functioning, reasoning and impulse control. This was reflected in the progressive escalation of his alleged misconduct, culminating in the protest at school in March 2002, during which he was alleged to have made the threat to kill, which appeared to be the most serious allegation against him. Unfortunately, his eagerness to prove that he was ‘sane’ also meant that he had difficulty in accepting that he was becoming progressively more depressed from September 2000 onwards.

Dr Cheung said by the time he saw Mr Tomasevic in July 2002 he was at the late stage of a very severe and protracted depression and presented with marked loss of motivation, hopelessness, no will to live, and marked biological symptoms of depression.

In early 2003, with treatment, Mr Tomasevic’s mood and psychological health improved significantly. In April 2003 Dr Cheung wrote to Dr Khoo:

He now believed that it was very important for him to fit into Australian society as much as possible. He believed that the past had already gone and it would be pointless for him to pursue ‘justice’. He was very keen to be medically cleared so that he could resume working as a teacher.

In May 2003 Dr Cheung wrote, in relation to the criminal charges:
I believe that he was clinically depressed around the time of the alleged offence. He was also labouring under the influence of perceived injustice and discrimination against him by his principal and colleagues at that time. A criminal conviction could certainly be devastating for his emotional health as he believes that he would have absolutely no future in Australia if he were convicted. He will need ongoing psychiatric treatment in the form of supportive therapy and antidepressant treatment for his depressive disorder.

Later in May 2003, after a contested hearing, six of the nine charges relating to incidents in February and March 2002 were dismissed, and two charges of using threatening words and one charge of threat to kill were found proven (the threat offences). Mr Tomasevic was released on a bond on the condition that he continue to attend for treatment with Dr Cheung. He lodged an appeal, which he abandoned, and approximately three years later sought to reinstate. His application to appeal out of time was dismissed in the County Court of Victoria. A review of that decision in this Court was successful. He said he understood his application to appeal out of time was again dismissed in the County Court, following which he again appealed and he has heard nothing since.

In August 2003 Mr Tomasevic was reviewed for the defendant by psychiatrist Dr Smith, who concluded he was euthymic and functioning well, and was fit to do his usual work as a teacher on a full-time basis. Dr Smith recommended Mr Tomasevic continue psychiatric treatment with Dr Cheung and continue use of antidepressant medication.

Dr Cheung said it was very important to Mr Tomasevic to be able to return to work as a teacher to maintain his psychological wellbeing. He said the reason Mr Tomasevic was doing so well was his belief he could return to work, so he was hopeful and all aspects of his depression improved. His opinion in June 2003 was that Mr Tomasevic was fit to resume work as a teacher.

Mr Tomasevic resumed work in an administrative role at the North Eastern Regional Office on 7 October 2003.

In 2008 Dr Khoo prepared a backdated WorkCover certificate of capacity describing a diagnosis of depression and certifying Mr Tomasevic unfit for duties in the period 15 August 2000 to 7 October 2003. He said he did so because of a court decision accepting Mr Tomasevic’s WorkCover claim, and said in hindsight, during that time he was not capable of any duties due to chronic depression and anxiety, which he said waxed and waned, would appear to improve, then subsequently get worse again. In cross-examination, Dr Khoo agreed there was nothing in his notes in 2001 in relation to depression or incapacity for work, and whether Mr Tomasevic was incapacitated for work at that time was hard to say. He agreed that according to the notes, perhaps Mr Tomasevic was not incapacitated.

October 2003 to August 2004

Mr Tomasevic said he was not happy working in the North Eastern Regional Office because Dr Smith said he should be in an administrative position for only three weeks. However, despite the opinions of Dr Cheung and Dr Smith to the effect that he was fit for work as a teacher, Mr Tomasevic was kept in an administrative role.

Mr Tomasevic agreed that he continued to see Dr Cheung during this period, and remained free of any relapse of his depression. He said he was back on his feet living like a normal person.

In 2004 the defendant undertook an investigation and inquiry under s 45 of The Teaching Service Act 1981 (Vic),[1] the purpose of which was to terminate Mr Tomasevic’s employment on the basis that he was incapable of performing his duties on account of mental incapacity. The inquiry hearing was held in about June 2004.
[1]Since repealed (‘Teaching Service Act’).

Mr Tomasevic agreed he became distressed and anxious in relation to the upcoming hearing. From May 2004 he reported significant stress, anxiety and associated physical symptoms, including abdominal pain and headaches, to Dr Khoo, and on 1 June 2004 he presented to Dr Cheung as quite distressed and anxious, and was advised to take sick leave as a precautionary measure to rest so that he could cope effectively with the stresses of the hearing. Dr Cheung gave evidence at the hearing. In a lengthy report to his then solicitors in June 2004 Dr Cheung said, in relation to Mr Tomasevic’s behaviour in 2001 and 2002:

On the basis of the considerations above, I believe that the alleged misconduct was totally out of character for him, and could not be explained on the basis of any abnormal personality traits or character difficulties. He was most likely to be labouring under the influence of a progressive decline of his mood, with increased irritability and impairment of impulse control, as his depression gradually re-emerged as a result of the severely stressful circumstances he was in. It is important to realise that increased irritability and even severely aggressive behaviour can be a symptom or the direct result of a symptom of depression.

Following the hearing, despite the evidence of Dr Cheung, a penalty decision was delivered, the effect of which was that in August 2004 Mr Tomasevic’s employment was terminated.

August 2004 to May 2013

Mr Tomasevic said he lodged an unfair dismissal claim with the Industrial Relations Commission following termination of his employment. Because he lodged the claim after the time limit he made an application to extend the period.

For about two weeks before Christmas 2004 he worked as a garbage collector. He agreed that in December 2004 he was doing pretty well in terms of his mental health, and said the doctors had recommended that he keep active to help with his depression. He agreed that in early 2005 he was busy preparing for proceedings in the Industrial Relations Commission and VCAT. He stopped work as a garbage collector because it was too hard, he was not young, and even with his improved fitness he could not do all the running.

Mr Tomasevic said his anti-discrimination case ran in VCAT for 18 days in April 2015, which he found stressful. He said he had evidence the transcript was fabricated, the judge would not provide the original transcript disc, but his application for the Tribunal to be reconstituted was refused. He agreed his mood significantly improved after the case was dismissed.

From 2005 to 2007 he applied unsuccessfully for work, including as a teacher in non-government schools, with assistance from Disability Employment Action Centre, JobCo and JobWatch. In around mid-2005 he was funded by Centrelink to complete a Certificate IV course to qualify to teach in TAFE colleges. Sometime after 2004 he was offered nightshift work at a plastics factory in West Heidelberg, but he said that was not a job for a person with teaching qualifications.

He said it did not make sense that he was looking for a job after January 2007 because he was preparing for the County Court hearing relating to the rejection of his WorkCover claim. He disagreed that he was able to work in 2007 and 2008.

Since 2001, Mr Tomasevic has been involved in many legal proceedings. Between 2005 and 2008, proceedings included the unfair dismissal claim and VCAT anti-discrimination cases to which reference has already been made, an appeal from dismissal of the anti-discrimination case which concluded with refusal of an application for special leave to the High Court, applications to extend time and to appeal in respect of the May 2003 Magistrates’ Court orders in relation to the threat offences, proceedings against Dr Strauss in the County Court, a proceeding against Dr Cheung in VCAT to obtain release of documents faxed to him by police, the County Court proceeding challenging rejection of his WorkCover claim in which he was successful, and a VCAT proceeding under the Health Records Act 2001 (Vic) against another psychiatrist.

Mr Tomasevic continued to attend regularly with Dr Cheung until February 2006. In late 2004 and early 2005 Dr Cheung wrote a number of letters to Dr Khoo stating Mr Tomasevic’s mood was euthymic and there were no biological symptoms of depression. In a letter dated 19 January 2005 he stated:

He told me that he had continued to be ‘rather well’. He was going to represent himself at the Industrial Relation Commission case appeal tomorrow and felt confident he would succeed in the appeal. He also had been rather busy preparing for his VCAT case to be held in March. He had stopped working as a garbage collector after New Year because he wanted to spend time getting ready for the case.

At consultations with Dr Khoo during the first half of 2005 Mr Tomasevic complained of stress and anxiety, and associated symptoms including severe headaches and epigastric discomfort. In mid-April Dr Cheung found Mr Tomasevic to be suffering an acute stress reaction relating to an anti-discrimination hearing in VCAT. He increased the dose of Effexor to 450 mg per day because the previous dose of 300 mg was not enough to contain Mr Tomasevic’s mental state, and added another hypnotic, Temazepam. On 30 April 2005 Dr Cheung wrote to Dr Khoo as follows:

He tells me that his mood has significantly improved after his case has been dismissed. He says that even though he had lost the battle, he believes that he will eventually ‘win the war’. I point out to him that even though he is very confident and believes he has ‘justice and truth’ on his side, he is not necessarily going to win his case. He might lose his case and he might get very disappointed, feeling that further injustice has been done to him. He reassures me that he is not preoccupied with ‘winning the case’ but he wants people to know about the truth. I then explained to him that it would be important for him to find a balance in life rather than being preoccupied with his case.

In September 2005 Dr Cheung wrote to Dr Khoo:

He tells me that he has just gone through his sex harassment appeal case in the Supreme Court last week. He feels confident that everything seems to be in his favour. He says that he now realises that justice may never be done but he still wants to fight ‘til the last breath’.

Dr Cheung said looking back it was likely Mr Tomasevic was using denial as a coping mechanism, and was trying to present as well in order not to disappoint him, and that there was a deterioration in Mr Tomasevic’s occupational functioning from the time he was found unfit to teach. He said Mr Tomasevic had some resilience because he continued taking antidepressant medication, but the dose was not enough to contain his depression and had to be increased. Dr Cheung said the stress of being found unfit to teach was rather severe or traumatic for him, and in addition he was not able to address grievances that he had with the justice system which perpetuated the issues. He said from June 2004 Mr Tomasevic’s mood declined and he progressed to a moderate to severe depressive episode.

In February 2006 Dr Cheung diagnosed Mr Tomasevic as suffering a major depressive disorder with acute stress reaction. He considered Mr Tomasevic had a grim prognosis, and said the traumatic component of his depression would have a persistent and intense negative effect in the form of anger and sadness, inability to enjoy life, hyper-arousal symptoms in terms of irritability and angry outbursts, and difficulty coping with work and meaningful work relationships. With any stressor he would decompensate, his condition would become worse and he would suffer anhedonia. Any additional stressors in life would compound his difficulties making it impossible for him to work.

In 2003, with clinical support from Dr Cheung and a return to work, Mr Tomasevic was able to redirect his focus in a more positive direction. Following termination of his employment in 2004, Mr Tomasevic’s mental health deteriorated and his thinking again became dominated by issues of justice. In early 2006 he wanted Dr Cheung to help him win his court cases, rather than merely provide treatment. In response, Dr Cheung told Mr Tomasevic his role was that of treating doctor, not legal advocate. Dr Cheung ended the treatment relationship and referred Mr Tomasevic to another psychiatrist, Professor Mullen.

At the request of a WorkCover insurer Mr Tomasevic was seen for medico-legal review by psychiatrist Dr Kwong in April 2007. Dr Kwong concluded Mr Tomasevic had fully recovered from his psychiatric illness, his mental state had remained stable since 2003, he had a current capacity for work, and that he should continue to attend with Dr Cheung every four to six weeks until he was weaned off his medication and was able to settle down in a teaching job. Strangely, the lengthy history recorded by Dr Kwong in her report stopped abruptly in October 2004. At the time of her review, Mr Tomasevic had not seen Dr Cheung for over a year.

In late 2007 and early 2008 Mr Tomasevic repeatedly telephoned a JobWatch employee, as a result of which he was charged with breach of an intervention order, use of a carriage service to harass and multiple stalking offences.

In April 2009 Mr Tomasevic was evaluated by Professor Mullen in the context of the stalking charges. It is not clear when Professor Mullen commenced to treat Mr Tomasevic, or what diagnostic conclusion he reached.

Mr Tomasevic was seen by Dr Kornan for the WorkCover insurer on 30 October 2008. Dr Kornan found Mr Tomasevic had an agitated presentation and diagnosed a mood disorder in the setting of someone with a paranoid personality disorder, whose condition appeared to have worsened over the years since 2000. He concluded that from a psychiatric viewpoint Mr Tomasevic was not able to work.

Dr Epstein saw Mr Tomasevic at the request of his solicitors on 19 August 2009, and expressed the following opinion:

Milan Tomasevic appears to have been an excellent teacher with the Department of School Education who became the victim of a series of injustices during 2000 and effectively lost his job on the basis of an opinion that he was mentally unfit to work as a teacher. He has been seeking to bring about some redress to this situation and this appears to have taken over his life. Unfortunately his pursuit of ‘justice’ to seek redress against these situations has been at the expense of his personal relationships, his work capacity, his mental health and his financial health.
From a diagnostic point of view he has developed a Major Depressive Disorder and an Obsessive Compulsive Disorder. It has been suggested that he has a delusional disorder, this may be but there certainly appears to be a sufficient basis for him to realistically regard himself as having been treated very badly. That he has been treated unjustly does not appear to be delusional. However his pursuit of ‘justice’ has become the centrepiece of his life.
He is now a man who appears to have a large, well maintained ‘Museum of Injustice’ with every exhibit carefully laid out and notated with a guided tour through the various halls containing examples of the injustices that he has experienced. This unfortunate man has been consumed by this ‘Museum’ and by his quest for redress.
His current mental state would prevent him returning to work in any capacity. He could not return to his pre-injury employment because of his mental state and also because he has lost all faith in the Department, and probably the Department would be extremely reluctant to have him back because of the nature of their disputes. It would be much better for him if his ‘Museum of Injustice’ could be destroyed so he could move on with his life.
His prognosis for improvement is poor. His condition is stable.

I regard Dr Epstein’s opinion to be essentially consistent with that expressed by Dr Cheung, and to be an accurate assessment of the compensable injury sustained by Mr Tomasevic, and the effect of that injury on him.

In the period November 2009 to December 2013 Mr Tomasevic was treated by psychiatrist Dr Cooper, who maintained Mr Tomasevic on Valium and Effexor 450 mg daily, and diagnosed that he suffered from a chronic major depressive disorder, with fluctuations that were usually stress and circumstance related. In a report to Mr Tomasevic’s then solicitors in December 2013 Dr Cooper expressed the following opinion:

It is my opinion that stressors arising from his employment between 1999 and 2002 are the primary cause of his current psychological condition. Mr Tomasevic has sustained a deep emotional wound caused by the way he was managed out of his job. His sense of injustice, his recollection of being harassed and victimised totally dominate his psyche. There is nothing else in his background or subsequent history that explains his current predicament.

Dr Cooper said that Mr Tomasevic had no capacity for work during the period of his treatment.

In January 2011 in the Magistrates’ Court of Victoria at Melbourne Mr Tomasevic pleaded guilty to seven stalking charges and the breach of intervention order and carriage device charges (‘the stalking offences’). He was placed on a bond with a condition that he attend and follow the clinical recommendations of Dr Cooper. Mr Tomasevic agreed that he pleaded guilty to the charges on the basis that if he participated in the program with Dr Cooper, after six months the charges would be dismissed or removed from the record.

Mr Tomasevic suffered a marked relapse of symptoms in early 2013 in the context of facing hearings in a number of different proceedings to which he was a party. One of those hearings was an inquiry into his fitness to teach by the Victorian Institute of Teaching (‘the VIT’) under Division 12, Part 2.6 of the Education and Training Reform Act 2006 (Vic), which was heard on 28 February 2013. Mr Tomasevic did not attend the hearing.

May 2013 to date

On 6 May 2013 the VIT made the following determination:

Pursuant to section 2.6.46 of the Education and Training Reform Act 2006, on 28 February 2013 the Panel found the teacher guilty of serious misconduct and not fit to teach.
The Panel determined to cancel the registration of the teacher from 6 May 2013.

That determination was based on allegations related to the threat offences, The Teaching Service Act inquiry in mid-2004, and the stalking charges from late 2007 and early 2008.

Mr Tomasevic appealed the VIT determination to VCAT. In December 2019, without conducting a hearing, VCAT set aside the determination and remitted the matter for further consideration. In February 2020 the VIT decided not to take any further action in relation to the allegations of misconduct, and to delete previous findings.

In March 2014 Mr Tomasevic was referred to Dr Walton for psychiatric assessment in relation to a disability application he made to ESSSuper. Dr Walton diagnosed a chronic major depressive disorder, significant anxiety and panic disorder, which he said was at least triggered by the significant stress under which Mr Tomasevic was placed in his former workplace, and was likely perpetuated by the extended legal proceedings thereafter. Dr Walton concluded Mr Tomasevic had no capacity for retraining, met the definition of disability in the State Superannuation Act 1988 (Vic),[2] and said that was likely to have been the case from August 2004.
[2]‘State Superannuation Act’.

Since 2014 Mr Tomasevic has been treated for major depression by Dr Elliot, Dr Hyland and, most recently, Dr Hines. In 2018 Dr Hyland described the effect of injury on Mr Tomasevic in the following terms:

Following on from Milan’s work related injury and him developing the chronic and treatment resistant illness of major depression. There have been multiple and devastating losses that have occurred. He has not been able to return to work. His work previously gave him great satisfaction and pleasure and he no longer can enjoy his work despite being of an age where he was at the peak of his career and had many happy years ahead of him professionally. He is not been able to maintain his social networks and friendships and as a result has become socially isolated. He spends most of his time at home no longer engaging in sport and recreational activities. Despite having adequate treatment with antidepressant and anxiolytic medication, there has not been an improvement in his mental state. On review of his physical and psychological symptoms, he has a disturbed circadian rhythm, sleeping during the day and being awake at night. He suffers regularly from nightmares ·and flashbacks which relate back to his employment and what occurred afterwards. He reports that his previously high motivation and energy have disappeared. He has children who he would like to be more engaged with but has difficulty doing this because his depression and energy levels. He has high levels of anxiety and suffers from panic attacks.

Dr Hines, who first treated Mr Tomasevic in 2017, diagnosed depression of moderate severity, pain disorder and generalised anxiety disorder caused by the work-related injury and the complex network of consequences which had evolved over the past two decades. In April this year, he described Mr Tomasevic’s circumstances:

My impression has been that Mr. Tomasevic's condition has not improved at all since Dr. Cooper expressed his views. Since the relevant period of employment ceased, it appears to me that Mr. Tomasevic's domestic, social and recreational activities, have collapsed to the point that he lives an isolated and hermit-like life, often constrained by the fear of precipitating a panic attack by going somewhere or seeing someone, or due to what he describes as his longstanding anhedonia and sense of the pointlessness and meaninglessness of most activities. I understand that Mr Tomasevic does have limited contact with a neighbour or two, as well as his children. Much of Mr. Tomasevic's contact with other people seems to occur in the context of appointments with myself, his general practitioner, his psychologist and with staff at The Albert Road Clinic, which he has been attending on a regular basis recently for a group programme.

After seeing Mr Tomasevic again in June 2018 Dr Epstein expressed an opinion consistent with that contained in his earlier report, and diagnosed major depressive disorder, panic disorder and agoraphobia. Dr Serry, another medico-legal psychiatrist who saw Mr Tomasevic in May 2018 at the request of his solicitors, gave an opinion consistent with that of Dr Epstein.

Mr Tomasevic continues to attend for treatment on a weekly basis with Dr Khoo, Dr Hines and a psychologist. He remains on a daily dose of 300 mg of Effexor, clonazepam, Valium and medication for insomnia. He describes his life in bleak and socially impoverished terms, and says that he has no future.

Mr Tomasevic has continued his involvement in many legal proceedings, including in more recent years, matters the facts of which are unrelated to the subject matter of this case.

Witnesses

Mr Tomasevic, Dr Khoo, and Dr Cheung each gave viva voce evidence at trial.

Mr Tomasevic gave a good account of himself at times, but often presented in a manner consistent with the psychological injury from which he suffers, displaying agitation, stress, anxiety, limited insight and obsessiveness in relation to the issues of justice and his numerous legal proceedings. His answers were often circumstantial or tangential, and the history he gave was difficult to follow. However, the evidence Mr Tomasevic gave in relation to his family life in Australia, his work as a teacher, the effect on him of the principal’s actions, his descent into depression, and the emptiness and lack of pleasure in his life was credible and compelling.

Dr Khoo is a very supportive GP who appropriately deferred to experts in psychiatry, and who did not appear to have a confident appreciation of the consequences of the injury to his patient.

Dr Cheung was an impressive witness with a clear and insightful understanding of his patient, whose evidence was given in a thoughtful and considered manner. I accept Dr Cheung’s evidence.

I accept the evidence of the other treating doctors whose reports were tendered.

Dr Epstein’s reports are comprehensive, his analysis insightful and accurate, and opinions consistent with those of the treating psychiatrist to whom I have referred. He had the advantage of reviewing Mr Tomasevic in 2009 and again in 2018. I accept his evidence.

I accept the opinions of Dr Serry, Dr Walton and Dr Kornan to the extent they are consistent with the treaters and Dr Epstein.

I reject Dr Kwong. Although she saw Mr Tomasevic and prepared her report in 2007, the history she obtained and relied on stopped abruptly in 2004. Dr Kwong’s opinion that Mr Tomasevic’s mental state had remained stable since 2003, and that he had fully recovered from his psychiatric injury by 2002/2003 is inconsistent with Mr Tomasevic’s continuing fragility, the worsening symptoms in 2005 requiring an increase in the dose of Effexor and Dr Cheung’s diagnosis in 2006 of chronic major depressive disorder and acute stress reaction which had a grim prognosis.

Analysis and conclusions

Mr Tomasevic had a good record as a teacher at the school and, save for a period in early 1999 when he suffered an episode of depression, coped well with additional duties and responsibilities as KLA manager. He became depressed in early 1999 as a reaction to a number of stressors, sought appropriate treatment, and made a quick and complete recovery. In early 2000, before the events which are the subject of his claim in this proceeding, there was no reason to doubt that Mr Tomasevic would continue to pursue a successful teaching career performing additional responsibilities allocated to him.

Understandably, Mr Tomasevic suffered considerable stress related to the actions of the principal and his suspension from work in August 2000. The defendant has conceded Mr Tomasevic was incapacitated by injury caused by the principal’s negligence in the period covered by the first three certificates of capacity completed by Dr Khoo, that is 21 August to 20 November 2000. However, the defendant submits no damages should be awarded for pecuniary loss from 21 November 2000 to 10 May 2002 because Mr Tomasevic has not proved on the balance of probabilities that his psychiatric injury was a cause of incapacity for employment during that period.

For the following reasons I reject the defendant’s submission. First, the stress he experienced in response to the principal’s actions was sufficient to incapacitate Mr Tomasevic for some months. Those stressors had not resolved by November 2000. If anything, the trauma of being labelled delusional and excluded from his long-term workplace was reinforced by receiving Dr Strauss’s report in November and, from January 2001, when he had no income other than Centrelink benefits.

Second, I accept Mr Tomasevic’s evidence set out in paragraph [38] above as to the effect the principal’s actions had on him.

Third, I accept Dr Cheung’s evidence that the principal’s actions triggered a progressive decline in Mr Tomasevic’s mood from September 2000, and that when he saw him in July 2002, Mr Tomasevic was at the late stage of a severe and protracted depression.

Fourth, Dr Cheung related the change in Mr Tomasevic’s behaviour and his pursuit of justice to his deteriorating psychological condition. I conclude those behaviours, which began in late 2000, were a symptom or sequelae of Mr Tomasevic’s deteriorating mental condition.

I accept that Mr Tomasevic’s earning capacity was diminished by his developing depression from November 2000.

Next, the defendant submitted, for the following reasons, that there should be no award of damages for pecuniary loss for the period from August 2003 to November 2008. First, in July and August 2003, Dr Khoo, Dr Cheung and Dr Smith provided opinions that Mr Tomasevic was fit to return to work.

Second, he resumed work for the defendant in October 2003, and only ceased work in August 2004 because his employment was terminated following the Teaching Service Act inquiry. During this period, Dr Cheung stated on a number of occasions that Mr Tomasevic was in remission and fit to teach.

Third, no weight should be given to backdated certificates of incapacity completed by Dr Khoo, which were not supported by contemporaneous clinical notes or other evidence.

Fourth, Mr Tomasevic was able to engage in garbage collecting work in December 2004, and only ceased work because it was physically too hard for him at his age, and in part to prepare for his upcoming cases.

Fifth, he gave no evidence of psychiatric incapacity in this period.

Sixth, Mr Tomasevic was registered with JobCo from August 2004, and at least in the period August 2006 to January 2007 was applying for teaching jobs.

Seventh, it is apparent from payment summaries attached to the report of forensic accountant Mr Wallace that Mr Tomasevic earned income from a number of short-term jobs in the period November 2004 to November 2007, which demonstrates some capacity for employment, and is inconsistent with total incapacity for employment during the period.

Finally, in the opinion of Dr Kwong, Mr Tomasevic had recovered from his depressive illness, suffered a mild adjustment disorder with anxiety, and was fit in May 2007 to undertake his pre-injury duties.

For the following reasons, I reject the defendant’s submission. First, the contemporaneous evidence, particularly around the time of the return to work in 2003 and 2004, should be understood in the context of Mr Tomasevic’s strong desire to return to work as a teacher, his determination not to ‘disappoint’ Dr Cheung, and him using denial as a coping mechanism.

Second, during the period under consideration Mr Tomasevic required ongoing supportive treatment from Dr Cheung, Dr Khoo, other psychiatrists, and by way of high dose prescriptions of antidepressant and antianxiety medication.

Third, Dr Khoo’s notes record periods of increased stress and anxiety, and associated physical symptoms such as headaches, abdominal pains and reflux in response to stressors such as the Teaching Service Act inquiry, termination of his employment, and legal proceedings in which Mr Tomasevic was engaged from 2005 to 2008. In mid-2004 he was given time off work by Dr Khoo because he was not coping. In April 2005 it was necessary to increase the dose of Effexor to 450mg daily. This evidence supports the conclusion that while at times his depression appeared to be in remission, symptoms quickly re-emerged when Mr Tomasevic was under stress.

Fourth, following termination of his employment, as a symptom/sequelae of his deteriorating mental state, Mr Tomasevic again became dominated by the pursuit of justice in many different proceedings.

Fifth, I accept the evidence of Dr Cheung set out in paragraphs [75] and [76] above, and the consistent evidence of Dr Epstein set out in paragraph [82]. I conclude that throughout and beyond the period of Dr Cheung’s treatment, Mr Tomasevic was suffering a major depressive disorder with acute stress reaction, and an obsessive compulsive disorder, and that by February 2006 his prognosis was grim. At times Mr Tomasevic displayed few symptoms, but his coping capacity was significantly impaired such that he would decompensate when under stress.

I conclude the work performed by Mr Tomasevic for the defendant from October 2003 to August 2004, and the short periods of work in subsequent years of which the garbage collecting was one example, represent the limit of Mr Tomasevic’s capacity. The major depressive disorder and acute stress reaction from which Mr Tomasevic continued to suffer throughout this period diminished his earning capacity and was productive of financial loss.

Finally, the defendant submitted, that for the following reasons, no damages should be awarded for pecuniary loss from the date on which the VIT cancelled Mr Tomasevic’s registration because, irrespective of his psychiatric incapacity for work, he could not possibly have worked as a teacher in Victoria in any event. First, from the date of cancellation his registration as a teacher in May 2013, Mr Tomasevic was not entitled to teach in any school in Victoria unless granted permission by the VIT.

Second, the consent of VIT to an order by VCAT setting aside the May 2013 decision was not because of any acceptance that the decision was wrong, but rather was a pragmatic solution to Mr Tomasevic’s application for review in circumstances where it was unlikely he could ever return to teaching in any event.

Third, notwithstanding the VCAT decision in 2019, the fact remains that while his registration as a teacher was cancelled, from May 2013 to December 2019, Mr Tomasevic could not possibly have worked as a teacher. In other words, during that period, incapacity for work was not productive of financial loss.

Fourth, applying the principles referred to in State Rail Authority of New South Wales v Wiegold,[3] the Court should not require the defendant to pay damages to the plaintiff for pecuniary loss in a period during which that loss was a consequence of his commission of multiple indictable offences which led to the cancellation of his registration as a teacher. The psychiatric evidence falls well short of establishing that Mr Tomasevic’s criminal conduct was not based on voluntary and rational decisions by him. It is totally unrealistic, and contrary to public policy, to regard his commission of multiple indictable offences as being caused by psychiatric injury resulting from the defendant’s negligence. The plaintiff ought to bear the consequences of his own criminal conduct.
[3](1991) 25 NSWLR 500 (‘Wiegold’).

Mr Tomasevic submitted the defendant’s contention is wrong for the following reasons. First, the evidence establishes that he had entirely lost any earning capacity years before the VIT determination. In those circumstances, the determination does not deprive him of an award of damages.

Second, following findings of guilt for the threat offences in May 2003 and the stalking offences in January 2011, no conviction was recorded, and on each occasion Mr Tomasevic was ordered to continue psychiatric treatment. It should be inferred in those circumstances that the court acting on each occasion viewed his psychiatric condition as implicated to a significant degree in the commission of the offences. Further, the plaintiff’s psychiatric condition is implicated in the behaviour on which the VIT determination appears to be founded. Unlike the circumstances in Wiegold, here Mr Tomasevic’s actions do not speak of a rational and voluntary decision to engage in the criminal activity, but rather a psychiatrically disturbed mind caused by the defendant’s negligence.

Third, unlike Wiegold, the criminal sanctions imposed on Mr Tomasevic caused no direct financial consequence. Awarding the plaintiff damages for pecuniary loss after May 2013 would not give rise to an impermissible inconsistency between the criminal and civil law.

Fourth, the law should be applied with a due sense of proportionality.[4] A finding that Mr Tomasevic was disentitled to claim damages for loss of earnings from May 2013 because of criminal acts in respect of which no conviction was recorded would be grossly disproportionate to the severity of the crimes involved.
[4]Patel v Mirza [2017] AC 467, 499-500 (Lord Toulson JSC).

Finally, the plaintiff submitted the defendant’s contentions do not take account of the fact that Mr Tomasevic contested the VIT decision in VCAT, and that in February 2020 the VIT reversed its decision by deleting allegations of misconduct against him.

The respondent in Wiegold suffered serious injury to his neck at work which caused a continuing and severe incapacity, and the trial judge found he was induced into the criminal enterprise of cultivating marijuana by impecuniosity which resulted from the accident and his injuries. The respondent pleaded guilty to the criminal charges and served a period of imprisonment. He had continued in light duties work with the appellant until he was dismissed because he was in gaol and unable to attend work. The trial judge concluded Mr Wiegold was not entitled to recover lost wages during the period of imprisonment, but otherwise assessed economic loss on the basis that, if he had not been injured, he would still have been employed by the appellants. On appeal, Samuels JA, with whom Handley JA agreed (Kirby P dissenting) concluded[5]:

If the plaintiff has been convicted and sentenced for a crime, it means that the criminal law has taken him to be responsible for his actions, and has imposed an appropriate penalty. He or she should therefore bear the consequences of the punishment, both direct and indirect.
…
If one cannot get “direct” compensation for the non-economic or economic loss resulting from imprisonment, one should not be able to receive “indirect” compensation for lost earning capacity after imprisonment by treating the fact of imprisonment as irrelevant to the assessment of economic loss.

[5]Wiegold (n 3) 514, 515.

Mr Tomasevic’s psychological condition does not alter the fact that he was held responsible for his actions in the criminal proceedings. He is not entitled to recover damages in this proceeding for losses resulting directly or indirectly from findings that he was guilty of the threat offences and the stalking offences. Given that a number of offences were indictable and punishable by imprisonment, no issue of proportionality arises.

The findings of guilt and penalties imposed in the criminal proceeding did not directly interfere with Mr Tomasevic’s earning capacity or cause him financial loss. The defendant relies on what it submits is an indirect consequence, that is the VIT determination to cancel Mr Tomasevic’s teacher registration.

The VIT determination relied on allegations as to Mr Tomasevic’s behaviour in the period 1998 to 2004, including the allegations made by the principal against Mr Tomasevic in respect of his behaviours in 1999 and 2000, and many of the interactions between Mr Tomasevic and Departmental staff which occurred in 2000, 2001 and 2002, and which were the subject of the Teaching Services Act inquiry and adverse findings. Further, in relation to the threat offences and the stalking offences, the VIT considered matters and made findings which extended beyond the criminality reflected by the evidence which established the elements of the offences and the penalties which were imposed.

It appears that the VIT panel accepted that Mr Tomasevic’s behaviour and performance in 1999 and 2000 justified suspension of his employment, and that his reaction was not in any way acceptable, justified or explained by his psychological injury. In those respects the VIT findings are inconsistent with the admission of liability in this proceeding and conclusions I have reached about the nature and the consequences of injury suffered by Mr Tomasevic. In other respects the VIT findings relate to matters which were not the subject of evidence at trial.

Mr Tomasevic appealed the VIT determination to VCAT, and was ultimately successful. The evidence does not make out the inference that the setting aside of the VIT determination involved a pragmatic solution to resolve the VCAT review. In Raad v VM & KTP Holdings Pty Ltd,[6] Davies J rejected the defendant’s submission that the plaintiff should not be entitled to recover loss of wages during a period when his migration status made it illegal for him to work in circumstances where there had been a later correction to his status which made work legal.
[6][2016] NSWSC 888.

Further, I note that the VIT determination did not destroy Mr Tomasevic’s earning capacity. Prior to injury he was an industrious person. Absent injury it is likely that, had his registration as a teacher been cancelled, Mr Tomasevic would have sought or obtained alternative employment.

In the circumstances it cannot be concluded that the findings of guilt and penalties imposed in relation to the threat offences and the stalking offences were the cause of a determination by VIT to cancel Mr Tomasevic’s teacher registration, or that deregistration would have totally destroyed Mr Tomasevic’s earning capacity. However I conclude that account should be taken of the risk to employment as a teacher caused by the criminal acts for which Mr Tomasevic is responsible by reducing damages which would flow from incapacity to work as a teacher in the period May 2013 to March 2017 by 25%.

Superannuation

In opening at trial counsel for Mr Tomasevic stated pecuniary damages should include a loss of superannuation benefits consequent on injury, but that the actual claim could not be particularised until documents were received from the relevant fund.

During the trial the parties became aware that Mr Tomasevic was a New Scheme member of the fund governed by Part 7 of the State Superannuation Act. Forensic accountants Mr Allen and Mr Wallace agreed that the superannuation retirement benefit to which Mr Tomasevic would have been entitled had he continued to work to age 65 was a little over $380,000.

However, it also became apparent after the parties obtained access to documents produced on subpoena by ESSSuper that the benefits actually received to date and likely to be received in future are greater than the but for injury retirement benefit. This caused Mr Tomasevic to formally withdraw any claim for damages for loss of superannuation benefits. The defendant then submitted that the superannuation gain enjoyed by Mr Tomasevic should be set off against his loss of earning capacity damages.

Before analysing the defendant’s submission I will set out briefly the relevant background and evidence.

Mr Tomasevic became a New Scheme member at around the time he commenced employment at the school.

The New Scheme is a defined benefit scheme. The retirement benefit is a percentage of final average salary for each year of service. The percentage of final average salary payable depends on the rate at which the member has contributed to the fund during the period of employment. It appears Mr Tomasevic started making contributions to the fund in about 1998, and was paying at the highest rate in order to catch up and maximise his retirement benefit.

Initially, after Mr Tomasevic’s employment was terminated in 2004, he was treated by ESSSuper as having resigned from his employment, and on that basis was entitled to a refund of contributions split into two amounts which totalled $13,857.35, and a benefit of $86,950.07 payable at age 55.

In 2014 ESSSuper approved Mr Tomasevic’s application for disability retirement backdated to be effective from the date on which he ceased work in August 2004. The backdated payment was reduced to reflect the resignation benefits previously paid to him in stages between 2005 and 2007. Significant interest adjustments were made by ESSSuper on account of early payments made as part of the resignation benefits, and on the backdated payment made in 2014. Disregarding interest, at the time his disability retirement was approved, Mr Tomasevic’s entitlement was to fortnightly payments commencing at a rate of $644.68 in August 2004, increasing to a rate of $821.06 in 2014. The total entitlement to March 2014 was approximately $175,000.

Evidence was given by forensic accounts Mr Allen and Mr Wallace. In his second report, Mr Wallace set out the actual disability payments received by Mr Tomasevic from 7 March 2014 to 7 March 2017, the total of which is $66,652.

Subject to the provisions of the State Superannuation Act Mr Tomasevic has a continuing entitlement to payment of disability benefits from the fund. In the same report Mr Wallace calculated the value of those payments from 8 March 2017 to life expectancy at $289,096.

On the basis of these calculations the total of the disability payments received by Mr Tomasevic to date, and expected to be received in future, is about $530,000, which exceeds the value of his but for injury retirement benefit by approximately $150,000.

Mr Allen calculated the superannuation gain at $269,000, but said this figure included payments of and allowances for interest.

Mr Wallace initially calculated the superannuation gain at approximately $89,000. In a final note he said that this calculation did not take account of the resignation benefits of approximately $100,000 actually paid to Mr Tomasevic up to 2007, and when those amounts were included and brought to present value his calculation did not materially differ from Mr Allen’s.

It is not clear to me that interest paid or attributed by ESSSuper on various payments should be brought into account in the way that was done by the forensic accountants, or that past payments which have been made should be present valued on the 6% life tables as was done. If a present valuing approach was to be adopted there would need to be some interest allowed, on the basis that Mr Tomasevic would, but for injury, have received a retirement benefit of $380,000 in March 2017.

Taking account of all of these matters I conclude, to the extent that it is necessary or relevant to do so, that the superannuation gain is approximately $150,000.

The defendant relies on the judgment of McHugh J in Medlin v State Government Insurance Commission[7] in support of its submission that the superannuation gain enjoyed by Mr Tomasevic should be offset against his loss of earning capacity damages. The compensable injuries suffered by the appellant in Medlin were a cause of his early retirement from work as a lecturer. Commenting on the effect of the appellant’s early retirement McHugh J said:

As a result, he is financially worse off although, by reason of his pension and early lump sum payments, not to the extent of his annual salary. I see nothing unreasonable in his early retirement even when the defendant’s interests are taken into account. Moreover, the defendant is entitled to have credited against the loss of salary any benefit to the plaintiff arising from the accelerated payments of his pension and lump sum entitlements.[8]

The comments made by McHugh J were dicta, and were made without reference to previous relevant authorities.

[7](1995) 182 CLR 1 (‘Medlin’).

[8]Ibid 23.

If Mr Tomasevic were proceeding with a claim for damages for loss of a superannuation retirement benefit the payments actually received would be set off against the amount which has been lost. No doubt that is why Mr Tomasevic withdrew his claim for superannuation once it became known what amounts have been and will be paid to him from the New Scheme fund.

However, the position is different in relation to damages for loss of earning capacity. In the High Court case Commissioner of Taxation v Scully,[9] discussing this issue by reference to the authorities, the majority said:
[9](2000) 201 CLR 148, 168-70 (‘Scully’) (citations omitted).

31.Moreover, ordinarily, it is not the purpose of superannuation schemes to compensate for personal injury, although that may sometimes be the effect of certain payments. This point is recognised in the principle that damages for loss of earning capacity in personal injury claims are not to be reduced by payments received pursuant to a superannuation scheme. In Watson v Ramsay, Brereton J said:
“A superannuation scheme of the type involved here is therefore, to my mind, completely analogous to a policy of accident or sickness insurance taken out in the employee’s favour with his employer instead of with an insurer. Whether paid by him wholly, or paid for partly by him and partly by his employer, it is none the less to my mind provided in consideration of his service to his employer; and where superannuation becomes payable [before] the normal retiring age, it is not payable in recognition of any injury which may have caused such retirement, or in order to alleviate any loss of earnings, thereby occasioned, or as a discretionary payment or act of grace; it is payable simply and solely because the employee has by his work bought his entitlement to it; if it were not paid, and he sued for it, the fact that he had recovered damages for his injury from his employer or anyone else could not conceivably be pleaded in bar in that action.”

32.His Honour’s reference to insurance is almost certainly a reference to the decision in Bradburn v Great Western Railway Co, where Pigott B stated:
“The plaintiff is entitled to recover the damages caused to him by the negligence of the defendants, and there is no reason or justice in setting off what the plaintiff has entitled himself to under a contract with third persons, by which he has bargained for the payment of a sum of money in the event of an accident happening to him. He does not receive that sum of money because of the accident, but because he has made a contract providing for the contingency; an accident must occur to entitle him to it, but it is not the accident, but his contract, which is the cause of his receiving it.”

33.Both these statements of principle were specifically approved by Windeyer J in The National Insurance Co of New Zealand Ltd v Espagne where his Honour rejected causation as the means for distinguishing between collateral benefits which should be set off against damages for personal injury and those which should not be set off against damages. His Honour said:
“In assessing damages for personal injuries, benefits that a plaintiff has received or is to receive from any source other than the defendant are not to be regarded as mitigating his loss, if ... they were received or are to be received by him as a result of a contract he had made before the loss occurred and by the express or implied terms of that contract they were to be provided notwithstanding any rights of action he might have ... [This] description covers accident insurances and also many forms of pensions and similar benefits provided by employers ... [T]he decisive consideration is, not whether the benefit was received in consequence of, or as a result of the injury, but what was its character: and that is determined ... by what under his contract the plaintiff had paid for ... The test is by purpose rather than by cause.”

34.Similarly, Dixon CJ stated:
“[T]here may be advantages which accrue to the injured plaintiff, whether as a result of legislation or of contract or of benevolence, which have an additional characteristic. It may be true that they are conferred because he is intended to enjoy them in the events which have happened. Yet they have this distinguishing characteristic, namely they are conferred on him not only independently of the existence in him of a right of redress against others but so that they may be enjoyed by him although he may enforce that right: they are the product of a disposition in his favour intended for his enjoyment and not provided in relief of any liability in others fully to compensate him.”

35.Fullagar J agreed with the reasons of the Chief Justice and those of Windeyer J. These two statements of principle have since been expressly approved in this Court and in the House of Lords.

The principle clearly stated in Scully is that loss of earning capacity damages are not reduced by payments from a superannuation scheme.

The authorities do not support the defendant’s contention that there is a relevant distinction between payment of an insurance benefit attached to a superannuation fund, and disability benefits paid pursuant to a statutory provision in relation to a defined benefit fund. In any event, it is clear from s 54 of the State Superannuation Act, which governs the disability benefits paid to Mr Tomasevic, that the amount of the benefit is in part dependent on contributions made to the fund by the member. To that extent the disability benefit is in the nature of insurance.

I conclude that Mr Tomasevic’s loss of earning capacity damages are not reduced by the disability superannuation benefits he has or will in future receive.

Pain and suffering

The defendant’s negligence is a cause of the chronic major depressive disorder with associated stress reaction, anxiety, panic attacks and compulsive behaviours from which Mr Tomasevic has suffered for almost two decades. He continues to require very regular treatment with prescription of medication at high dosages. His prognosis for recovery is poor.

The defendant submitted $350,000 should be awarded for damages for pain and suffering and loss of enjoyment of life. On instruction, counsel for Mr Tomasevic submitted the appropriate figure was $600,000.

The defendant submitted an award of damages higher than $350,000 is not justified for the following reasons:

(a)although serious, Mr Tomasevic’s psychiatric condition has not been of the severity that it has resulted in hospital admission and inpatient treatment;
(b)Mr Tomasevic’s condition has not been continuously severe, but has waxed and waned. It was less severe in the period from November 2000 to May 2002 when he was not prescribed psychiatric medication, and did not receive psychiatric or psychological treatment; for about two years from early 2003 when, with treatment, his mood was euthymic, there was an absence of biological symptoms of depression and he was able to, and did work; from 2013 to 2017 when his condition improved with treatment from psychologist Laura Kennan, he completed a computer course over three months, found he could socialise and attended a chess club a few times; and during the last six months when he has been helped by a prescription of medicinal cannabis;
(c)some aspects of the plaintiff’s negative experiences since August 2000 have resulted wholly or partially from his commission of criminal offences; and
(d)since August 2000, Mr Tomasevic has retained the capacity to be actively involved in litigating a large number of cases, some of which have nothing to do with events at the school in 2000. Frequently Mr Tomasevic has represented himself in those cases.

I accept Mr Tomasevic has not been treated as an inpatient. However, I note that in 2013 Dr Cooper strongly recommended a period of inpatient treatment, but Mr Tomasevic refused. In April 2013 Dr Cooper wrote to Dr Khoo in the following terms:

As you are probably aware Milan is in the middle of a severe depressive relapse that dates to December. I have attempted to adjust his medications (lowering Effexor XR dose, adding Seroquel) without success. He has lost 20 kilograms, struggles to get out of bed and is not eating. He almost seems resigned to death. This situation has been exacerbated by further legal setbacks causing him to feel hopeless and nihilistic. He does not have active suicidal intent.
I have strongly recommended Milan be hospitalised for treatment of his depression (I suggested the Professional Unit at Albert Road Clinic) but he has refused. He has also refused referral to the CAT team saying that his son has taken leave from university and is attempting to look after him.

Further, the evidence establishes that Mr Tomasevic suffers a severe and intractable condition which has not improved despite constant treatment and high dose prescription of medication for many years.

While Mr Tomasevic’s symptoms have varied in severity over the years, I do not accept that from November 2000 to May 2002 and again from early 2003 to early 2005 he was relatively untroubled by his psychological condition. I have concluded that in those periods, apart from work he was able to perform on return to work with the defendant and during the brief period of garbage collecting, Mr Tomasevic was incapacitated by his psychological condition. For much of the periods in question his life was dominated by his obsessional pursuit of justice, which is itself a symptom or sequelae of his psychological injury. I have accepted Mr Tomasevic’s evidence in relation to his descent into depression when the consequences of the principal’s actions became apparent to him, and Dr Cheung’s evidence that the extent of Mr Tomasevic’s symptoms, and the consequences he experienced, were at times masked by denial and a desire not to disappoint and, I conclude, by his very strong desire to return to teaching work.

Any modest gains in the period 2013 to 2017, and more recently, should be measured against and understood in the context of the psychiatric evidence which I have accepted.

I agree, consistent with the authority of Wiegold, that Mr Tomasevic is not entitled to be compensated for negative experiences associated with the criminal offences.

I have accepted the opinions of Dr Cheung and Dr Epstein, both of whom make a causal connection between Mr Tomasevic’s psychological injury and his obsessive involvement in legal proceedings. While in more recent years his quest for justice has extended beyond matters relating to events at the school in 2000, the principal’s acts in managing Mr Tomasevic out of his employment at the school remain a cause of his obsessive behaviour. Mr Tomasevic’s obsession comes at very considerable cost to him, and he has often found it difficult or impossible to engage in proceedings because of his psychological ill-health. For example, in March 2013 Dr Cooper provided a medical certificate which included:

It is my opinion that Mr Tomasevic is currently too unwell to attend court tomorrow. He has been suffering from a severe relapse of depression in recent weeks that has become aggravated by severe anxiety in the last 24 hours. This setback appears to have been caused by him receiving notice that his solicitors have withdrawn their representation of him.
He is currently crippled by panic attacks, anxiety, depression, weakness and he is preoccupied with his own death. I have recently increased his medication treatment and over the next 24 hours will need to decide whether he needs to be hospitalised. I doubt he will be able to present in a coherent manner in a courtroom.

I conclude that Mr Tomasevic’s involvement in numerous proceedings over the last two decades is a consequence of his injury and has caused him significant detriment.

I award Mr Tomasevic damages for pain and suffering in the sum of $425,000.

Pecuniary damages

I have concluded that Mr Tomasevic’s earning capacity has been diminished by the injury caused by the defendant’s negligence since August 2000. I accept Mr Tomasevic’s case that diminution of earning capacity was productive of financial loss to age 65 in March 2017, when but for the injury he was likely to have retired.

Mr Allen and Mr Wallace largely agree on the proper assessment of loss to age 65 years. The difference between Mr Allen’s figure of $735,000 and Mr Wallace’s figure of $723,000 appears to be due to their treatment of the allowance paid for the KLA position, and the amount of unidentified payments received by Mr Tomasevic.

A summary of pay history from June 1996 to August 2000 attached to Mr Wallace’s first report shows that the KLA allowance was not paid over the summer vacation period. On that basis, Mr Wallace treated the allowance as being paid for 44 weeks each year.

Mr Allen concluded that lump sum payments received early in the 1999 and 2000 school years represented a back payment of the KLA allowance covering the summer holiday period. For the following reasons I do not accept this conclusion. First, it is not borne out by the amounts paid. In 1999/2000 the allowance was $77 per fortnight. No allowance was paid in the four fortnights from 30 December to 10 February. An amount of $307 was paid on 24 February. On Mr Allen’s conclusion, that amount should cover five fortnights, and therefore should have been $385. Second, Mr Wallace does not ignore the one-off payment of $307 on 24 February 2000, but treats it as one of the unidentified.

On the second issue, Mr Allen calculated Mr Tomasevic’s loss on the basis that he received approximately $1,500 in unidentified payments in the final 12 months of his employment, and that the unidentified payments would have continued at that rate. Mr Wallace calculated the unidentified payments as averaging around $800 per annum in the years 1997 to 2000, then estimated the ongoing level of payments at $1,000 per annum in order to place greater weight on the more recent years in the period.

Mr Tomasevic’s pay history shows the following unidentified payments:

(a)$0 in the year 1996;
(b)$937 in the year 1997;
(c)$333 in the year 1998;
(d)$855 in the year 1999;
(e)$1,073 in the year 2000; and
(f)$692 in the period 1 July 2000 to 24 August 2000.

These amounts include lump sums paid early in the 1999 and 2000 years which Mr Allen had assumed to be back payment of the KLA allowance. I conclude, on the basis of these figures, that Mr Wallace’s calculation represents a fair approach to the assessment of loss in relation to the unidentified payments.

According to Mr Wallace’s calculation, pecuniary loss from work as a teacher in the period May 2013 to March 2017 was approximately $220,000. For reasons already stated I reduce that figure by 25% to $165,000.

I will award damages for pecuniary loss of $668,000.

Conclusion

The total award of damages to Mr Tomasevic is $1,093,000. I will hear from the parties in relation to any interest payable on those damages, costs and any consequential orders.

[2020] VSC 415

9 July 2020