Plaintiff v Defendant

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

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

5 Mr Doulis' allegations include that the defendant:

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

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

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

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

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

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

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

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

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

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

9 The trial commenced before judge and jury, but on the fifth day, the jury was discharged and the matter continued before me, hearing it alone.[3]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

33 In March 2000, the defendant employed Mr Doulis as a permanent teacher.[5]

34 I will next refer to some details of Mr Doulis' contract of employment, because the content of the duty which an employer owes an employee to take reasonable care cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment.[6]

35 Mr Doulis' contract of employment included the following terms:

Duties

(1) The Teacher may be required by the Principal to carry out any or all of the duties specified in Schedule 2. In addition, the Teacher may be required by the Principal to carry out duties to professional standards other than those applying to the Teacher's Level, as set out in Schedule 2, for any period less than six months provided that;

(a) the Teacher has the necessary skills, training and competence for those duties; and

(b) the duties are consistent with the professional responsibilities of a Teacher.

(2) If the additional duties involve work at a higher classification level a higher duties allowance shall be paid in accordance with section 40 of the Teaching Service Act 1981.

(3) The parties agree that if the Teacher is required by the Principal to carry out the duties of another position which attracts a higher remuneration for a period of more than six continuous months, a changed agreement may be negotiated.[7]

...

SCHEDULE 2

DUTY STATEMENT

TEACHER CLASS DUTY STATEMENT

A teacher assists with and directs the work of students to promote learning and improve student outcomes through: direct teaching contact with students; the provision of coherent and planned lessons and learning activities; participation in other teaching related activities and the performance of additional duties allocated by the principal in accordance with state system requirements and school council policies.

B. Typical Duties

(1) undertake direct teaching of groups of students and individual students as determined by the school principal;

(2) undertake other non-teaching supervisory duties;

(3) participate in activities such as Parent/Teacher meetings, staff meetings, camps and excursions;

(4) contribute to the development, implementation and evaluation of a curriculum area or other curriculum program within the school;

(5) participate in school decision making processes and professional development activities;

(6) undertake other classroom teaching related and organisational duties as determined by the school principal.[8]

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

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

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

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

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

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

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

43 Mr O'Neil gave the following description of the new system:

Students are placed in Homogeneous Learning Groups to better enable teachers to better meet the student's learning needs. In a standard mixed ability (random) classroom the range of student abilities is too large for all students to be adequately cater[ed] for by the teacher.

Prior to this initiative, many students were lost, unable to cope within a more widely mixed ability class room. This is a structural response to catering to mixed abilities within the year level.

All students should undertake the same course, same texts etc so they are able to move from one group to another. To alter texts, topics, assessment tasks etc would consign students to lower educational opportunities. This initiative is not streaming ... this initiative helps teachers to better educate more of their students.

Whilst the courses have the same learning outcomes, the teacher is able to present the material and activities in a manner which suits the needs of their students. Even within these groups, students will present a range of learning needs and achievements which need to be addressed.[11]

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

45 Mr O'Neil stated that, without homogeneous classes, teachers might need to prepare four different lessons in order to cater properly for the different levels of students in a class. Mr Lentini, who was also an Assistant Principal, considered that teachers tended to teach to the middle and that students at the higher and lower ends of ability became disengaged.[12]

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

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

48 Students could be moved between levels if their achievements justified or required it.[17]

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

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

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

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

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

54 Mr O'Neil addressed concerns about homogeneous classes in a document for teachers of "Low Classes" in January 2002, by stating:

Support for staff

Students in these classes will present challenges to any teacher.

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

55 Mr O'Neil, in evidence, said that his comment about the teachers' "own sanity" was a "frivolous comment ... to try and engender empathy with staff".[21]

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

Students are placed in foundation classes almost exclusively because they are at high risk of failing to complete secondary schooling. Many, but certainly not all, of these students will display poor attitudes and behaviours.

....

Understand that these students have probably been struggling at school since early primary school and many will have developed negative attitudes to school and work in general.

57 There was evidence that Mr Butyn told staff that no teacher would teach more than two low classes or foundation classes at a time and that the workload would be spread among all the staff.[23] However, Mr Butyn denied that he had given that assurance,[24] as did Mr O'Neil.[25]

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

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

60 Mr O'Neil said that the new system meant that planning required for lessons was minimised and the workload thereby reduced.[27]

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

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

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

64 Mr Simon Hartley, who is the sub-school manager at the College, in charge of Years 7 and 8, stated that the foundation classes were designed to have fewer students so that the spectrum of work would be narrower and more focused around the students' abilities.[31]

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

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

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

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

69 Not all the teachers' evidence was so positive. Mr Paul Unsworth, a teacher at the College and other schools since 1989 described the College as "a bad school".[34]

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

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

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

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

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

74 There was much evidence that Mr Doulis was a bright and enthusiastic teacher when he commenced at the College. Typical of this evidence was that of Mr Peter Boyer, a key witness who gave evidence as part of Mr Doulis' case, taught at the College between 1998 and 2004, and became, and remains, a friend of Mr Doulis. He described Mr Doulis as, initially, "very bubbly and active and seemed to be trying to advance the school".[40] He said that Mr Doulis was full of stories of life outside school.[41]

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

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

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

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

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

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

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

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

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

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

84 Dr Wong first consulted with Mr Doulis on 13 October 2000, when the latter complained of a common cold. On a visit in December 2000, Dr Wong's notes recorded him stating that he was feeling tired. Most of the attendance notes concerned viruses or colds. Mr Doulis attended Dr Wong on 3 October 2003 for a check-up and on 4 March 2004 and 15 June 2004 for coughs and colds. On 15 June 2004, Mr Doulis obtained a referral to Dr Matthew Tagkalidis, a psychiatrist, for stress/depression. That was the first reference in the general practitioners' notes to stress or depression.[47]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

101 Mr Doulis said that Mr Thomas, who was the computer coordinator, had given him access to other teachers' folders.[57] Mr Thomas denied that he had done so.

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

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

104 Mr Doulis said that he mentioned to senior teachers, including Mr Hatzis, Mr Lentini and Mr O'Neil, that there was pornography on the computer system.[59] He said that, thereafter, he was treated like a whistle-blower and he believed his relationship with them deteriorated.[60]

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

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

107 Messrs Lentini, Hatzis and O'Neil denied these allegations.

108 Mr O'Neil denied swapping CDs of pornography or knowledge of teachers misusing the internet for pornography. He was unaware of Mr Doulis' allegations concerning pornography[65] and he denied the bullying allegations.

109 Mr Hatzis described as "lies" the allegations that he had surfed pornography on the internet or exchanged pornography.[66]

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

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

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

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

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

115 Mr Doulis' allegations about bullying or being treated less favourably appear to be inconsistent with his continuing social engagement with those he accused of downloading pornography. He nominated Mr Hatzis as a referee and later chose him as a reviewer. Messrs Hatzis, O'Neil and Lentini had supported him when he had a falling out with other coordinators in 1999.[73]

116 Mr Doulis said that his socialising with Mr O'Neil and Mr Lentini occurred before he found pornography on the College computer system.[74]

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

118 Each of Mr Hatzis, Mr Lentini and Mr O'Neil denied that they had altered the setup of their desks at all, let alone for any inappropriate purpose.[76] I accept their denials.

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

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

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

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

123 Mr Hatzis said that he told Mr Doulis that he had been cleared.[79]

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

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

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

127 Mr Butyn denied that Mr Doulis had been bullied in the coordinators' office or had requested a mediation.[87]

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

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

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

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

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

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

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

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

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

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

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

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

139 The Club incident was put in cross-examination, and concerned a bucks' night of a fellow teacher at the College, which commenced at Mr Doulis' home but then continued at a Club. Counsel for the defendant suggested that, in view of the Club episode, Mr Doulis' evidence about being upset at the visit to the hotel bar was improbable. Mr Doulis said that the Club visit had been organised by Messrs Lentini, Hatzis and O'Neil who, he said, were members and therefore able to obtain free entry for people who accompanied them.[99]

140 Mr Hatzis and Mr O'Neil denied that they had ever been members of the Club. Mr O'Neil said that Mr Doulis organised the visit to the Club.[100]

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

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

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

143 There was another issue that affects Mr Doulis' credibility, that is, that he denied that he had told workmates about his sleep problems when clearly he had done so.[104] As discussed below, the following teachers gave evidence that Mr Doulis had told them that he was having sleep problems: Mr Hartley, Mr O'Neil, Mr Thomas, Mr Hatzis and Mr Lentini.[105] Mr Boyer recalled having conversations with other teachers about Mr Doulis' sleep problems.[106]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

158 After the years 2000 to 2002, Mr Boyer found Mr Doulis to be "more stressed" and "quieter, sometimes saying almost nothing on the ride home ... a complete change of character".[116] By 2003, Mr Doulis was a changed man and was not coping. Mr Boyer thought that Mr Doulis was cracking.[117]

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

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

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

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

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

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

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

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

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

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

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

170 Mr Hatzis said that Mr Doulis' life changed midway through 2002, when he suffered sleep deprivation after the birth of his first child.[136] The sleep deprivation reoccurred in 2003, when Ms Doulis' relatives came to stay at their home for a time for his sister's wedding and he was responsible for showing them around and entertaining them.[137]

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

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

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

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

174 Mr Doulis' contract provided for 15 days of sick leave per annum.[142]

175 Mr Doulis' sick leave history was as follows. In 1999 he took 15 days 4.56 hours; in 2000, 23 days; in 2001, 17 days 6.2 hours; in 2002, 13 days 5 hours; in 2003, 14 days 2 hours and to 4 June 2004, 3.8 days.[143]

Student behaviour in low classes and foundation classes

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

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

178 The students' conduct included swearing and abusing him. One student was suspended for hurting and bullying a fellow student.[146] Another, armed with a flame thrower made out of a lighter and can of deodorant, held a student in the corridor and singed his jumper. Mr Doulis broke up the incident and took the students to the coordinator.[147] Another student was suspended for swearing at a teacher, inappropriate behaviour in class, and for writing obscenities on the board.[148] Another was suspended for repeatedly using inappropriate language. He was aggressive and threatening.[149] Another student was suspended for swearing at a teacher, splitting open another student's head and breaking a window.[150] Other students were suspended because they had accumulated a number of detentions for extremely disruptive behaviour including, in one instance, a student who had jumped on another student, causing him considerable distress. Another student was charged with harassment of a student and use of inappropriate language to teachers.

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

180 He spent a lot of time explaining proper classroom behaviour to students. Fights occurred in the classroom, students were disrespectful and they would swear at him. When he gave them detention (known as 'retention') slips, they would tear them up in front of him or throw them away. They had no regard for authority.[153]

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

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

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

184 The College had approximately 1100 students. Statistics about student suspensions were produced, as part of Mr Doulis' case, from documents discovered by the defendant. In 2002, 178 different students were suspended, some for as long as three weeks. Sixty-nine of those students were in Mr Doulis' low classes and foundation classes at some point in the period 2000 to 2004. In 2003, the equivalent figures were 151 suspensions, with 49 students in Mr Doulis' low classes and foundation classes at some point between 2000 and 2004. The equivalent figures in 2004 were 211 and 59.[159] It was not suggested that all these suspensions were for misbehaviour in Mr Doulis' classes.

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

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

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

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

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

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

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

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

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

194 Mr O'Neil considered that low classes and foundation classes did not increase a teacher's load, but he was not sure if he had taught such classes.[167] He gave evidence that the College received a three-year government grant for the years 2003 to 2006, which enabled it to reduce teacher-student ratios to 1:10 and allowed team teaching in foundation classes.[168]

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

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

197 Mr Hatzis stated that a number of the student suspensions in 2002 to 2004 were not for classroom behaviour, but for behaviour outside the classroom. There was no correlation between students' behaviour inside and outside the classroom.[171]

198 Mr Boyer described his low classes and foundation classes as the worst behaved and most difficult cohort that he had ever taught.[172] He said that if there were more than five badly behaved students in a class, then the teaching became like crowd control. He went home drained from teaching low classes and foundation classes, despite team teaching the latter. He said that one student made a death threat to him, but that he tried to downplay the incident.

199 Mr Layton also found teaching low classes and foundation classes difficult. He said that many of the students had learning or behavioural difficulties and social dysfunction. He found teaching those classes frustrating and a hard slog, although sometimes rewarding.[173] He had been threatened and students had torn up detention slips. He had been assaulted twice by low or foundation class students. He sometimes felt powerless, frustrated or angry.

200 Mr Layton had received training in the College's assertive discipline plan at the start of each year, which was a procedure to deal with and escalate responses to student disciplinary problems.[174] Mostly, the low and foundation students would not comply with assertive discipline plans. Mr Layton said that some teachers received more than their fair share of low classes.

201 Mr Unsworth gave evidence that in the years between 2002 and 2006, the percentages of his 24 teaching periods per week which were low classes and foundation classes increased from approximately 40% to 70%.[175] He described the classes as regularly uncontrollable, with instances of violence, swearing and students refusing to work. He had not been trained to teach those classes. Mr Unsworth said that the low classes and foundation classes were allocated unevenly and that only 20% to 30% of teachers taught them. The College's assertive discipline policy was not effective and students could not understand it. He tried to avoid issuing detention slips to students because they were ineffective. He felt humiliated, but he did not show it.

202 He had a very low rate of success in teaching the students of low classes and foundation classes, and considered that he received no support. Teaching those classes left him feeling emotionally drained.

203 Ms Eyiam taught a number of low classes and foundation classes. She said that she never knew what she would be dealing with when teaching these classes and she found it hard going. Many of the students had psychological and intellectual challenges and did not want to learn. They were unprepared, unmotivated, and often did not bring pens, papers or books to class. They were horrible to each other. She had not been trained to teach these types of students.

204 She said that teachers of low classes and foundation classes did not receive support. On one occasion, she tried to move fighting students from a classroom and sought the assistance of another senior male teacher, but he refused to come to her assistance. She also gave evidence that she had seen two incidents of self-harm by students in the low classes and foundation classes.

205 On one occasion, she sent a boy out of the classroom and he then locked her in it. Two to three times a week, a student verbally abused her. She was not supported by the administration. She suffered stress and anxiety and became more reclusive.

206 Ms Eyiam commenced receiving WorkCover payments in 2006 and has remained on WorkCover for seven years. She has commenced proceedings against the State of Victoria. The defendant pointed to her statement of claim, which contained 26 particulars of negligence, but none related to the low classes or foundation classes.[176]

207 Other teachers had a more favourable experience of teaching low classes and foundation classes.

208 Ms Theodora Stankovic has been a teacher for over 20 years and at the College since 2002. She said that she had taught at some "rough" schools.[177] Ms Stankovic did teach some foundation classes, either on her own or by team teaching. She saw no difference between foundation classes and other classes in respect of the difficulty in teaching them or the behaviour of the students.[178] She said that all teaching required the teachers to engage the students.

209 In 2003, semester one, Ms Stankovic taught 12 low and foundation periods a week. She loved teaching them and found it rewarding to see students grow.

210 The defendant suggested that the behaviour of the low classes and foundation classes was not as bad as Mr Doulis suggested, because he had awarded high grades to many students in those classes.[179] Mr Doulis explained that his practice was to award mostly medium and high grades to all his students. He awarded low grades rarely, because the students who he was marking were already in the low classes and foundation classes and he tried to boost their self-image by being lenient in the grades he awarded. He saw this as positive reinforcement that might lead them to change their behaviour.[180] Many students came from very difficult backgrounds and were part of single-parent families. They all had a story which explained their behaviour and he had empathy for them.[181]

211 Mr Boyer, Ms Eyiam and Mr Layton gave evidence that they adopted similar marking practices to those applied by Mr Doulis. Mr Boyer said that he tended to award grades on the basis of both behaviour and aspiration. He could not remember marking anyone as low. Ms Eyiam tried to be positive and marked each student in low classes and foundation classes on the basis of a comparison with other students in the class. Mr Layton used a similar marking practice.

212 I accept Mr Doulis' evidence that he experienced considerable difficulty in maintaining discipline in low classes and foundation classes due to frequent student misbehaviour. I make that finding based on the suspension statistics and Mr Doulis' evidence in general, although I do not accept its accuracy in respect of all the detail of the incidents that he described. His evidence gains support in particular from Mr Boyer and Mr Layton. Of course, the evidence suggested that different teachers had different experiences of the difficulties of teaching low classes and foundation classes.

Mr Doulis' allotments of low classes and foundation classes

213 Mr Doulis prepared a table showing the number of low classes or foundation classes that he taught in the years 2000 to 2004.[182] In cross-examination, it was suggested to him that the document was inaccurate and that he taught fewer low classes and foundation classes than he alleged.[183] Mr Doulis said the document was based on - and was "an accurate reflection" of - the school timetables for those years and had been prepared in 2004 with the assistance of another teacher at the College, Ms Helen Gerraty, after Mr Doulis had left the College.[184] He said that only when he undertook that preparation did he appreciate the high allotment that he had been given.

214 Ms Gerraty wrote a letter of 27 July 2004, stating her belief that homogeneous classes contributed to stressful workloads. There was no evidence that this letter was delivered to Mr Butyn or to any Assistant Principal. The letter appears to have been written in order to assist Mr Doulis in his WorkCover claim. I place no weight on it in determining the issues in this case.

215 I prefer the defendant's calculation as to the number of low classes and foundation classes that Mr Doulis taught. Mr O'Neil prepared the figures on which the defendant relied, for each year of Mr Doulis' teaching career, from the College records.[185]

216 Mr Doulis' evidence was that he taught three low classes for each of the semesters of 2000, which comprised eight periods of low classes per week. Only in the first semester of 2004 did he have the assistance of a second teacher, Ms Regina Miller, in teaching his foundation class. However, Ms Miller was also a coordinator and sometimes was unable to assist him.

217 Mr Doulis contended that he taught eight low periods in the second semester of 2000, whereas the defendant contended that Mr Doulis had not taught any such periods.[186] This disparity may have been caused by differences in understanding of when homogeneous classes were officially commenced.

218 In the first semester of 2001, Mr Doulis said that he had two low classes and foundation classes, equating to seven periods per week. The defendant asserted that Mr Doulis had three low periods per week. In the second semester, he and the defendant agreed that he had 15 periods a week of low classes.[187] One of those classes was Business Maths, for five periods a week. According to Mr Doulis, teachers called it a "feral" class, because a teacher had lost control of it.[188]

219 At the end of 2001, Mr Doulis, in making his written request for class allotments for 2002, considered that his workload was unbalanced, that he taught a majority of low classes and foundation classes, and that he wished that he could teach just the promised maximum of two classes of low and foundation.[189] He said that he submitted a request to Ms Ratnik to reduce the number of his low classes and foundation classes back to a maximum of two classes. By the end of 2001, he did not feel confident that he could teach those classes any more, as he was not able to discipline the students.[190]

220 Mr Doulis said that his allocation was not changed, and in the first semester of 2002 he contended that he taught low classes for 16 out of 22 periods, whereas the defendant contended that the figure was 10. He said that he did not have the ability to teach these classes properly. It was difficult to get through his lesson plan, because most of the class time was spent enforcing discipline.[191] Classes with high numbers of integrated students were difficult to teach, because the teacher had to attend to the matters the psychologists' reports identified as required for those students. No evidence was led concerning the role that integration aides played in foundation classes.

221 Mr Doulis gave evidence that he spoke to Mr Hatzis in the middle of 2002 about being overloaded with low classes and foundation classes and told him that he was not coping with teaching them. Mr Hatzis replied that he would be taking over Ms Ratnik's position, and that he would "get things all fixed up for you."[192] I do not accept that any conversation occurred that had the significance concerning future class allocations that Mr Doulis suggested.

222 Mr Hatzis said that Mr Doulis never told him that he was having trouble with foundation classes in any review.[193] He said that Mr Doulis had requested foundation classes.[194]

223 In the second semester of 2002, Mr Doulis said that he taught ten periods of low classes and foundation classes, whereas the defendant contended that the figure was seven. He said that his batteries had run out, he was not able to recharge them for these classes, and he could not cope with them.

224 For the first semester of 2003, Mr Doulis said that he was given two foundation periods and 11 low periods or a total of 13 periods of low classes and foundation classes a week, whereas the defendant asserted that the figure was nine. The defendant was unable to point to any other teacher that semester who taught nine periods of low classes and foundation classes alone; that is, not by team teaching,.[195]

225 Mr Hatzis produced a document,[196] which summarised the number of low classes and foundation classes that particular teachers taught in semester one in 2003. It was put to him that most of the teachers with an allocation of low classes and foundation classes higher than Mr Doulis were team teaching their foundation classes. That appeared to be the case. Mr Doulis appeared to have the highest, or near highest, allocation of low classes and foundation classes that were taught by one teacher.

226 In the second semester of 2003, the parties agreed that Mr Doulis taught nine periods of foundation classes.

227 In the first semester of 2004, Mr Doulis taught three foundation periods, team teaching with Ms Miller. As I have previously stated, Ms Miller had additional duties as coordinator. Mr Doulis said that he was devastated at his allotment of classes for 2004. He had thought that his allotment would change for the better because Mr Hatzis had been appointed Assistant Principal.

Comparison between Mr Doulis and other teachers

228 Mr Boyer stated that there were only a few teachers who had the same workload as Mr Doulis. A lot of the teachers never taught low classes and foundation classes.

229 The defendant did not point to any other teacher who had taught as many low classes and foundation classes on their own as Mr Doulis had. However, its case was that Mr Doulis wished to teach the classes on his own.[197]

230 I find that Mr Doulis' allotment of low classes and foundation classes was amongst the highest of any of the 100 teachers at the College. In the first semester of 2003, where detailed figures are available, it appears that Mr Doulis may have had the highest or second highest allotment of low classes and foundation classes taught by one teacher teaching alone.

Mr Doulis' verbal complaints about his class allotments

231 Mr Doulis claimed that he requested a lower allotment of low classes and foundation classes as early as 2000 and made similar requests in subsequent years. His requests were said to have been made to Mr O'Neil, Mr Hatzis, Ms Ratnik, Mr Lentini and Mr Hartley.[198]

232 Each of those teachers denied that such requests had been made to them and said that Mr Doulis was, certainly initially, an enthusiastic teacher of low classes and foundation classes.

233 Mr Doulis never complained to Mr O'Neil about teaching low classes and foundation classes. He became aware of Mr Doulis' complaints when Mr Butyn approached him in 2004 and asked him to check Mr Doulis' first semester 2004 allotment of low classes and foundation classes. Mr O'Neil said that if Mr Doulis had complained, the College would have changed his classes and provided him with extra support.[199]

234 Mr Hatzis denied that any complaints had been made to him or that he had received any request in 2002, concerning low classes and foundation classes for 2003. Mr Doulis always stated that he loved those classes.[200]

235 Ms Ratnik, Mr Lentini and Mr Hartley all stated that Mr Doulis had never complained to them about his allocation of low classes and foundation classes, nor requested that it be reduced.[201]

236 On the evidence, I am not satisfied that Mr Doulis made any verbal complaint concerning his allocation of low classes and foundation classes to the Principal or to any Assistant Principal, prior to a meeting on 8 September 2003, to which I refer below. I prefer the evidence of the Principal and Assistant Principals, who said that Mr Doulis made no complaints about his class allotments. I consider that it is likely that Mr Doulis incorrectly characterised as formal complaints comments that he made, and replies that he received, in informal conversations with Mr Hatzis and others.

237 The problems with Mr Doulis' credibility, which I have discussed, are an important reason for my finding on this issue.

Written evidence of Mr Doulis' complaints concerning his class allocations

238 Two categories of documents throw light on Mr Doulis' attitude to his class allotments and the manner in which he communicated that attitude to the College: his annual reviews and his class allocation requests.

239 The annual review cycle involved a few discussions each year between a teacher and his or her reviewer. Goals and professional criteria were determined and documented at the beginning of the cycle and then reviewed at least once prior to the end of the cycle, at which point the review was finalised.[202]

240 Mr Doulis' annual teaching review for the period ending 21 August 2001, signed and finalised on 10 December 2001, which was probably conducted by Mr Hatzis, stated:

Peter's vision for the further development of Information Technology has been tempered by the various limitations in physical resources and network capabilities, however he continues to be enthusiastic about the future potential. He has enthusiastically been involved in teaching several lower level homogeneous groups and this has assumed a very great significance in the development of his teaching and classroom management philosophies.

Peter has continued to demonstrate a high level of competence in each Dimension of Teaching in 2001.[203]

241 The review described Mr Doulis' goals for 2002 as:

1. To develop curriculum programs appropriate to the low level groups in several subjects.
2. Intranet teaching project.
3. Involvement with the Outdoor Ed program for which he is fully qualified.[204]

242 In December 2002, Mr Doulis' annual teaching review for the period 21 August 2001 to 21 August 2002 was finalised. The review document provided for discussion of the teacher's performance.

243 Mr Doulis' comments in the review document were:

I presumed that as a teacher gains experience the art of a secondary educator would become easier. But this year has proved to be [inversely] proportional to the above.[205]

244 Mr Doulis did not suggest in the review that he had difficulty teaching low classes and foundation classes.[206]

245 Mr Doulis' next annual teaching review, for the period 21 August 2002 to 21 August 2003, was signed and finalised in November 2003.[207] The review document was headed "Classroom Teachers Performance and Development - Experienced Teachers".

246 Mr Hatzis' comments, which were provided on behalf of the Principal, were:

Peter has made progress in meeting his goals for 2003. He has produced curriculum for the Year 10 Work Ed science class, and submitted this to the KLA leader, and he has completed the course outline for the Intranet Teaching project. Peter has maintained his involvement with the Outdoor Ed program, although family reasons have caused him to limit his involvement with overnight camps. We have discussed several areas where Peter needs to develop his knowledge in order to become more effective as a teacher and to prepare himself for future positions of responsibility.[208]

247 The review form included a section headed "Statement of Performance", in which there were both pro-forma performance statements and the teacher's own comments. The Statement of Performance section in Mr Doulis' 2002 to 2003 review included the following:

I have implemented the Discipline Plan (Cantor 2) in all my classes and I have established positive relationships [with students] ... .[209]

248 The review contained a notification that Mr Doulis had met all the required standards.

249 Class allotment requests were submitted and determined towards the end of the school year.

250 On 15 October 2003, Mr Doulis completed his request for class allotments for 2004.[210] He requested that he not be allotted foundation classes. He wrote that:

Due to the unbalanced workload in foundations [sic] classes over several years I no longer wish to teach this area, but would like to teach both VCE IT and VCE Biology Year 11 which will meet my professional development and career goals at [the College]. Thanks for your consideration.[211]

251 Mr Hatzis, who had overall charge of class allocations, said that there was no suggestion in this allotment request that Mr Doulis could not handle low classes and foundation classes. Rather, the document suggested that Mr Doulis was seeking to teach VCE subjects.[212]

252 This request notwithstanding, Mr Doulis was allotted a foundation class for three periods a week and two medium/low classes in semester one of 2004. The evidence did not establish the composition of "medium/low" classes. It was intended that he team teach his foundation class with Ms Miller, but as previously stated Mr Doulis said that she was often absent on other duties and unable to teach.

253 After each review and assessment, Mr Doulis received incremental pay increases.

254 As previously stated, in the second semester of 2003, Mr Doulis had four foundation classes, for which there were nine periods of teaching. He said that he was not coping well with the classes and was just trying to get through them as best as possible. He was very tense, unhappy, lacking in energy and unable to sleep. He was kept awake by the thought of trying to teach the foundation classes the next day. He was not doing any of the things that he previously enjoyed. He became more withdrawn and had lost confidence in teaching. His stress levels were very high. At times, he lost his composure at school.

255 An important part of Mr Doulis' case was his allegation concerning an incident that he said occurred on Friday 5 September 2003, while he was teaching a foundation class. He said that he broke up a fight between two students. One student said, "You're gone. I'm going to get you". Mr Doulis replied, "Look, I don't take threats in class to students or other - or abuse from class, fighting in class. Go to your year level coordinator and I am going to see you there at the end of class".[213]

256 Mr Doulis' evidence was that when the period ended, he walked to the year level coordinator's office, but found that the student had already left and was standing in front of the school offices. The student looked at Mr Doulis and made a throat-slitting motion. Mr Doulis took it as directed at him and said that he felt totally threatened and alone.[214] He looked around to see if anyone was there, and saw Mr Lentini. He said that he asked Mr Lentini, "Did you see that?" and Mr Lentini just shrugged his shoulders, which he took as ignoring the incident.[215]

257 Mr Doulis mentioned the incident to Mr Boyer, who recalled that Mr Doulis took it very seriously.[216]

258 In cross-examination, Mr Doulis was unable to remember whether the student said anything to him.[217] He had previously sworn in an affidavit that the student said, "I'm going to kill you," with a motion of a finger across his throat, but under cross-examination, he denied that that had occurred. Rather, he said that the sign itself meant, "I'm going to kill you". It was put to him that his particulars gave a different version of the incident and suggested that following the student's threat, he was in tears and spoke to Mr Lentini, after which a meeting was called. He denied that he had claimed that Mr Lentini witnessed the incident and said that his answers to interrogatories referred to a meeting in Mr Lentini's office on the following Monday, 8 September 2003. He denied that he asked Mr Lentini "why he didn't do anything to help" him, although he said that he raised the issue at the meeting on 8 September 2003.[218]

259 Mr Lentini denied that he saw the incident and said that it did not take place. He said that if he had seen such conduct by a student, he would have had to have been restrained.[219]

260 Mr Doulis' account was that after the incident, he broke down in tears and walked out of the school into the street. He said that he could no longer cope and felt hopeless and helpless. The incident really affected him and his reaction was the "accumulation of all the years together", meaning the years at the College.[220]

261 I am not satisfied that Mr Lentini saw the incident that Mr Doulis described. However, I accept that some incident involving a student's action towards Mr Doulis occurred and that caused Mr Doulis to become very upset.

262 On Monday 8 September 2003, when Mr Doulis returned to school, he said that he went to see Mr Lentini in his office and said, "I can't go on like this anymore, Greg. I need to talk to Steve about what's been happening."[221] He said that Mr Lentini then arranged a meeting in Mr Butyn's office, which Mr Lentini, Mr Hatzis and Mr Doulis attended.

263 Mr Doulis' account of the meeting was that he was distraught and broke down in tears, telling the Principals that he could no longer teach the low classes and foundation classes, that he was not coping, and that he could not cope with the threats any more.[222] The student's threat was the final straw. He wanted some support and said that he had a very high workload of the low classes and foundation classes and he no longer wanted to teach them and felt that he could not do them. He had come to the end of the road. He said that they had known about his issues for years, they had discussed it and talked about it and they were well aware of his position. He said that Mr Hatzis started to have a go at him and stated that his problem was caused by his family and his lack of sleep due to the birth of his children. Mr Hatzis attacked his knowledge of his subjects. Mr Doulis said that he could not believe that his reviewer was making such an attack, when all his performance reviews were immaculate and he was teaching accelerated high classes. His knowledge of his subjects had never been questioned before.[223]

264 Mr Doulis said that Mr Butyn told Mr Hatzis to "steady on". Mr Doulis cried and left in a distraught state. He said that he was not given any hope in the meeting.[224]

265 The other participants' accounts of the meeting differed.

266 Mr Butyn had no recollection of the meeting, but said that if he had attended a meeting in September 2003 with a teacher who was distressed and blaming his teaching load, he would not have "let it ride".[225]

267 Mr Lentini recalled an afternoon towards the end of 2003 when Mr Doulis came in to his office in a rather distraught and dishevelled condition.[226] Mr Lentini said:

It was obvious that he wasn't coping and he declared that he wasn't coping with teaching at this point; he needed some help.[227]

268 Mr Lentini said that the problem was that Mr Doulis' child was not sleeping and that, as a result, Mr Doulis was not sleeping and could not function. Mr Lentini gave him some advice based on his own parental experience with a child not sleeping.[228]

269 Mr Lentini said that he believed Mr Doulis had first gone to Mr Hatzis' office, because Mr Hatzis knew, or had access to knowledge, about staff sick leave entitlements. But Mr Hatzis was not in his office, so Mr Lentini and Mr Doulis sat and talked, while they waited for him. When Mr Hatzis arrived, Mr Lentini left, because he had heard what Mr Doulis was about to tell Mr Hatzis and he considered that Mr Doulis "was in safe hands".[229]

270 Save that it was put to Mr Lentini that this meeting with Mr Doulis occurred on Monday 8 September 2003, which he could not verify and that Mr Hatzis and Mr Butyn were present when he met Mr Doulis, which he denied, he was not cross-examined about his evidence concerning the meeting with Mr Doulis.[230]

271 Mr Hatzis said that when he returned to his office, Mr Lentini brought Mr Doulis in and then went back to his office.[231]

272 Mr Hatzis said that the meeting with Mr Doulis was in late August or possibly early September 2003. Mr Doulis had come to school late and was looking for him and after he returned to his office from a meeting, Mr Lentini called Mr Doulis into Mr Hatzis' office.[232]

273 He said that Mr Doulis was distressed and told him that he had not slept for two days and that was on top of his normal poor sleeping patterns. He was distraught. He was upset about hosting and entertaining relatives who were attending his sister's wedding and being required to drive them around Melbourne. That obligation interfered with his ability to rest and sleep.[233]

274 Mr Hatzis said that, for 2003, Mr Doulis' maths classes and most of his health and human relations classes had been removed, because the faculty leaders "expressed concerns about his level of expertise in those areas".[234] Mr Hatzis' evidence was that in the meeting, Mr Doulis said that he "had been thinking about that lack of confidence". As a result, Mr Hatzis said that Mr Doulis "thought that he would probably apply for another school at the end of the year".[235] Mr Hatzis said that he told Mr Doulis that a new start might be desirable if he thought that he would be better off at a new school.[236]

275 Mr Hatzis' evidence was that Mr Doulis wanted to speak to him, because he was running out of sick leave. He was concerned that not being paid for his time off could have a significant impact on his financial situation. There were a couple of working days of that week remaining and he told Mr Doulis:

Peter, what we will do is we will ensure your pay - we'll cover the days ... We'll cover them, you'll be paid, you won't miss out. Just go home, rest, fix yourself up.[237]

276 Mr Doulis said that he taught for the rest of the day, while Mr Hatzis said that he was sent home immediately.[238]

277 Mr Hatzis asked Mr Butyn to come into the meeting and confirm that "we could do that", that is, grant the leave.[239] Mr Butyn came into the meeting and confirmed that Mr Doulis could take the time off, on pay.

278 In cross-examination, Mr Hatzis initially said that in the meeting Mr Doulis did not bring up issues concerning his classes.[240] But he was then asked about his declaration of 13 July 2004 that was prepared for proceedings brought by Mr Doulis under the Accident Compensation Act, in which he stated:

From my recollection, sometime in August 2003, Peter arrived at school in a distraught state. He initially spoke with another Assistant Principal, Greg Lentini and later I met with Peter together with Steve Butyn, the Principal. Peter stated that he was having difficulties with lack of sleep and issues relating to his classes. At that time he also mentioned he was having financial problems.[241]

279 Mr Hatzis said with reference to this statement:

I agree that that is what occurred but it wasn't about his foundation classes. It was about all his classes. He wasn't able to prepare work. He wasn't able to correct. He wasn't in a condition to - because of his sleep deprivation, he was - he was having difficulties with all his classes.[242]

280 He agreed that Mr Doulis was not coping with all his classes and said that:

He was talking about all of his classes because of his inability to prepare the work that was required for them.[243]

281 Mr Hatzis said that Mr Doulis' allotment was not changed, as the timetable was a massive project, which took several months to prepare, and that process occurred at the end of the year.

282 Mr Hatzis gave the following important evidence in cross-examination:

Counsel --- You gave evidence that Mr Doulis requested some time off but he'd exhausted his sick leave, so you let him have it as paid?

Mr Hatzis --- He didn't request time off. We insisted. We - I initially insisted and got it confirmed by the principal. He didn't want - he said he wouldn't stay at home because he had - he'd run out of his sick leave. I said to him, "Peter, you'll be paid. Just go home". He still insisted and I told him, "Well, we won't allow you to go in front - to teach your classes in, you know, your condition, without sleep. That would be negligent of us to allow you to teach your classes. So you won't be allowed to teach. Go home. You'll be paid. Just don't worry about it".

Counsel --- You sent him home because of his mental state, didn't you?

Mr Hatzis --- No. I sent him home because he was sleep deprived. He needed to be home.

Counsel --- You sent him home because he would not be permitted to take classes in his mental state, didn't you?

Mr Hatzis --- I did not send him home. It came at the end of the day. There were no classes to teach. He hadn't been at work that day.

....

Counsel --- He hadn't been at work all day?

Mr Hatzis --- No. Nor the previous day.

Counsel --- You sent him home?

Mr Hatzis --- I didn't send him home. I told ...

Counsel --- You insisted he go home?

Mr Hatzis --- I said to him there's nothing - there was no reason - he came in, we had a discussion about his condition, about the lack of - hadn't slept for two days ...

Counsel --- And the classes?

Mr Hatzis --- Well, he talked about the fact that [wasn't] able to prepare his classes - for his classes. He wasn't in - he didn't have - he wasn't in a condition to teach his classes, but all of them, not foundation. There was no - no reference to foundation.

Counsel --- And you sent him home because of his mental state?

Mr Hatzis --- No. I asked - after I reassured him that he'd be paid, I said to him that he should go home. I didn't send him home.

Counsel --- He was in no state to teach though, was he?

Mr Hatzis --- At that time in the afternoon, there were no classes to teach. We were talking about the next couple of days.

Counsel --- Was he in any state to teach the next day?

Mr Hatzis ---We - we believed that it was better for him to have a couple of days to recharge his batteries and try and get his sleep.

....

Counsel --- Do you agree that you sent him off school for two days because of his mental state?

Mr Hatzis --- We didn't send him off school. We told him to take the days off because he hadn't slept for two days and he was in no condition to teach his classes, and we would have been negligent to allow him to take the - to teach his classes. His main concern was that he wouldn't be paid, but he - if he took those days off - but we reassured him that he would be paid.

...

Counsel --- You agree that classes were discussed, you've agreed that, haven't you?

Mr Hatzis --- No, we - I agree that he was telling me that he wasn't in a condition to prepare for his classes, so we didn't discuss individual classes, we spoke about his capacity to teach classes.

Counsel --- His capacity to teach was impaired, was it not?

Mr Hatzis --- He hadn't been sleeping, indeed it was.[244]

283 Mr Doulis was absent from school, with a medical certificate, for the next two days, Tuesday and Wednesday, 9 and 10 September 2003. He said that he was in a fragile state, felt threatened,[245] was unable to teach the low classes and foundation classes, did not want to teach them, and was unwell.[246]

284 On the Wednesday, he went to see Dr Cavini, a general practitioner, from whom he obtained a referral to Ms Bridget Curran, a psychologist. He consulted Ms Curran on Friday 12 September 2003. Dr Cavini's practice was at the Flemington Premier Care Medical Centre, where Mr Doulis' brother, also a general practitioner, then practised. Dr Cavini's notes recorded in respect of Mr Doulis:

a lot of stress at work in the past three years, teacher at Werribee Secondary College. Long talk, referral [to] psychologist.[247]

Mr Doulis' letter to Mr Butyn of 11 September 2003

285 Mr Doulis said that he delivered a letter to Mr Butyn on his first day back at work, 11 September 2003. Mr Butyn denied that he received the letter.

Further to our meeting on the 8th September, I would like to clarify for you the following points:

• I am experiencing a high level of stress due to the nature of classes I have been allotted.
• I have requested a more equitable spread of foundation and low classes, both to Marion Ratnik and Bill Hatzis for over three years, but my allotment in terms of difficult classes has not materially altered.
• The majority of my classes present difficult discipline and behavioural problems and I do not consider, apart from Simon Hartley, that I have received any adequate level of support with these discipline problems from other coordinators.
• I have taken on extra duties to enhance the profile of the College and contribute to the advancement of the College.
• In light of the present level of stress I am experiencing, I am no longer able to contribute to the wider school program and will need to relinquish my involvement in the following:
  • - The Duke of Edinburgh expeditions,
  • - Coaching of tennis and volleyball,
  • - The Advocacy Program,
  • - The Science Club.
• My educational goals are to enhance my teaching experience at VCE level with a long term aim of teaching the International Baccalaureate (IB) program.

In light of my educational goals and the lack of VCE experience I've had at Werribee Secondary College, I would like your support in applying for suitable positions in other schools.[248]

287 The letter has a number of features: reference to a high level of stress; previous requests for a more equitable spread of foundation and low classes; problems in student behaviour in low classes and foundation classes and the lack of support provided; a decision to relinquish involvement in non-classroom duties, and; Mr Doulis' educational goals.

288 The evidence led in relation to later events did not reveal whether Mr Doulis did, in fact, relinquish all his non-classroom duties at the College.

289 The letter came to be written in the following way. Mr Boyer drove Mr Doulis home on 8 September 2003 and said that Mr Doulis was on the edge of tears. Mr Boyer told him to write a letter to Mr Butyn expressing his concerns and withdrawing from extra school activities, as he had spread himself too thinly.[249]

290 Mr Boyer rang Mr Doulis the evening before his return to school and suggested some "dot points" to put in the letter that he had recommended Mr Doulis write.

291 The next morning at school, Mr Doulis showed him the letter and he corrected some typographical errors contained in it. He saw Mr Doulis put the letter in Mr Butyn's pigeon hole.[250]

292 Mr Doulis differed in some of the details concerning the creation of the letter. In cross-examination he said:

I can't remember a date. Mr Boyer helped me write up the draft the night before and we came into the school, he read the draft, he made two corrections that morning which I corrected on the school computer, and we printed out the letter and we went over and put it into the pigeon hole.[251]

293 Mr Doulis said that he kept a copy of the letter with the corrections to show Mr Boyer what had been done. He said in reference to the copy that he kept:

Because that's the draft that I printed off to show him what was done, so I had it backed up and I had the draft in my hand, so he read the draft and he made the corrections and then I loaded the disk onto the school computer and I made the corrections accordingly and then printed off the letter.[252]

294 He was challenged about the authenticity of the copy of the letter that he produced in evidence. He said that he found it earlier in 2013 when going through some files, and he told his solicitors "I've got that on my USB stick."[253]

295 Mr Doulis said that the copy of the letter of 11 September 2003 that was tendered contained two handwritten corrections made by Mr Boyer.[254] He said that he had printed a copy of the draft to show to Mr Boyer, who read it and made the corrections. Mr Doulis loaded the disk - which he had brought to school and on which he had saved the draft letter - onto the school computer, made Mr Boyer's corrections and printed a copy.[255] He kept the copy on which Mr Boyer had made the corrections and it was backed up on his USB stick when he moved house. The USB stick was produced.[256] He could not recall if he had printed the letter out again.

296 Mr Doulis was asked about the affidavit of Ms Grace Wilson, a solicitor employed by his solicitors, Slater & Gordon. That affidavit stated that, after a mediation in June 2013, Mr Michael Magazanik, also a solicitor employed by Slater & Gordon, asked whether there was any way to show that the letter was written on 11 September 2003. Mr Doulis plugged his USB stick into Ms Wilson's computer and opened the letter, which had been saved as "Letter to Steve Butyn_stress".[257] Ms Doulis showed the file information to the solicitors, this information recording the date the document was created as 10 September 2003, and that it was last printed on that date at 10.24pm. It also recorded that it was last modified on 10 September 2003 at 10.30pm. It was unclear how it came to be modified after it was printed; perhaps it was saved on the floppy disk that Mr Doulis took to school. He no longer has that floppy disk.[258]

297 Ms Wilson's affidavit stated that Ms Doulis took a screenshot of this record, which Ms Wilson emailed to herself and two others at the firm.[259] She exhibited the screen shot to her affidavit.

298 Mr Doulis did not have the original of the letter with Mr Boyer's corrections on it, but only a copy. He said that he had given the original on which Mr Boyer marked his corrections to his solicitors.[260] It was called for, but not produced. He gave the draft of the letter, with the corrections, to the solicitors in 2013.

299 The file information also recorded that the document was last edited for one minute on 10 September 2003.[261] All of this was consistent with Mr Boyer's and Mr Doulis' evidence. It was put that that date and time could be changed, but there was no evidence that it had been.

300 Mr Doulis said that he put the letter in Mr Butyn's pigeon hole, because he and Mr Boyer had to attend the morning briefing. Initially, they had wanted to deliver it to Mr Butyn's office directly, prior to the briefing, but ran out of time to do so.

301 According to Mr Doulis, later that day, Mr Butyn asked him, "Did anyone help you write this letter?" and he said, "Yes, Peter Boyer". He said that Mr Butyn then walked off.[262]

302 Mr Butyn denied that he had received the letter and said that he did not recall a conversation with Mr Doulis about it. He said that that did not happen.[263] He said that if he had received the letter, he would have acted on it. He said that:

If I had received that letter I would most definitely have spoken to him about it.[264]

303 He said that he would not have forgotten about the letter:

Because this would have been a very important letter for me to take a note of.[265]

304 Mr Boyer gave evidence that the next day after the letter was delivered, Mr Butyn called him into his office and was uncharacteristically upset. He asked Mr Boyer whether he had helped Mr Doulis to write the letter.[266] Mr Boyer said that he had, that he was worried about Mr Doulis and that Mr Doulis was not well.[267] He took Mr Butyn's comments as an accusation and "so therefore it stuck in my mind".[268]

305 Mr Butyn was emphatic that he did not speak to Mr Boyer about his role in the preparation of the letter. He said that he first saw Mr Doulis' letter in July 2004 when he attended a conciliation of his WorkCover claim.[269]

306 In the next few paragraphs, I explain why I accept Mr Boyer's evidence of a conversation with Mr Butyn in which, in effect, Mr Butyn acknowledged receiving the letter. On one view, that evidence may make it likely that Mr Butyn had spoken to Mr Doulis in the terms Mr Doulis alleged. However, as previously stated, I have difficulty in accepting Mr Doulis' account of conversations, when they are contradicted by other witnesses.

307 The defendant submitted that Mr Boyer's evidence in this respect, and more generally insofar as it supported Mr Doulis' evidence, was unreliable and unreal.

308 Mr Boyer did say that Mr Doulis "announced to a group of us, and most people, that he had found some inappropriate material on the school [computer] system".[270] However, unlike Mr Doulis, he did not accuse any of the Assistant Principals of placing the material on the computer system. Further, while Mr Boyer said that Mr Doulis had not complained to him about sleeping problems nor had mentioned his sleep apnoea, he agreed that after the birth of Mr Doulis' first child, there was talk, presumably at the College, that his sleep had been disrupted.[271]

309 The defendant submitted that Mr Boyer's evidence about Mr Butyn's apparent acknowledgement at the WorkCover conciliation in 2004 of having received Mr Doulis' letter was contradictory. Mr Boyer's evidence in cross-examination was that he was not aware that Mr Butyn denied receiving the letter and found it surprising that he had said that he denied that fact.[272] In re-examination, he said that he understood that at the conciliation Mr Butyn acknowledged that he received the letter.[273] In further cross-examination, pursuant to leave, he said that at the conciliation, Mr Butyn had represented that he had not seen the letter until it was produced, but that, by the end of the conciliation, he had acknowledged that he had seen it before the conciliation.[274]

310 I see nothing in these variations in Mr Boyer's evidence that affects his credibility. Mr Boyer's recollection in each of these answers was that, at some point at the conciliation, he understood Mr Butyn acknowledged he had received the letter previously. I consider it is unlikely that Mr Butyn made such an acknowledgement, but I do not consider that Mr Boyer's different understanding on this issue diminishes the credibility of his evidence about the events of 10, 11 and 12 September 2003.

311 The defendant also relied on a difference in Mr Doulis' and Mr Boyer's evidence about whether the letter, as left in Mr Butyn's pigeon hole, contained Mr Boyer's hand written corrections or already contained them in type-written form, having been corrected on the school computer, as Mr Doulis said he had done. I see no significance in the difference between these accounts. Mr Doulis' evidence was that he made the corrections to the letter and placed it in Mr Butyn's pigeon hole. It is not remarkable that Mr Boyer may not have seen him correct the letter on the computer, or have been unaware that he did so.

312 The defendant described as unbelievable Mr Boyer's evidence that Mr Butyn called him into his office and spoke to him in an uncharacteristic manner about the letter. I do not accept that submission.

313 I do not accept the defendant's more general attacks on the credibility of Mr Boyer. Mr Boyer left the College in mid-2004, because he said that he "was not comfortable with the management team" - although he had "a great deal of respect" for Mr Butyn, he considered the "management approach" of the Assistant Principals to be "too personal", based on "very strong collective opinions", and not "professionally based".[275] In 2008, he returned to New Zealand, because of his father's health. It is true that he is a friend of Mr Doulis and no doubt supports his case, as he attended Mr Doulis' WorkCover conciliation in 2004 and travelled from New Zealand to give evidence at the trial. He agreed that he had stayed in contact with Mr Doulis after both men left the College in 2004. However, his friendship and support of Mr Doulis are not sufficient reasons to reject his evidence. It is that friendship and support that caused Mr Boyer to be involved in these events. He impressed me as a witness who had a clear recollection of the events concerning Mr Doulis' letter of 11 September 2003.Mr Boyer had no apparent motive deliberately to give untrue evidence.

314 I accept as truthful Mr Boyer's evidence about the events of 10, 11 and 12 September 2003. I consider that his recollection of the preparation and delivery of the letter is more likely to be accurate than Mr Butyn's recollection. I find that he did see Mr Doulis deliver the letter to Mr Butyn's pigeon hole and that he did have the conversation with Mr Butyn, probably on 12 September 2003, in which by its terms, Mr Butyn acknowledged receiving the letter.

315 I therefore find that Mr Butyn did receive Mr Doulis' letter.

316 I do not, in any way, find that Mr Butyn was attempting to give untrue evidence. The defendant said that it was not credible that Mr Butyn would not have responded to the letter if he had received it and he had denied at the WorkCover conciliation in 2004 that he had. However, Mr Butyn, as Principal, had many duties to perform and more than 100 teachers under his general supervision. It is noteworthy that Mr Butyn lacked any memory of the meeting and discussion of 8 September 2003, although he took some part in them. This suggests that his recollection of events involving Mr Doulis has, understandably, faded. Mr Boyer is more likely to have remembered the events concerning the letter as, in all probability, it would have been very unusual for him to assist in drafting such a letter to the Principal of his school.

317 On my finding that Mr Butyn received Mr Doulis' letter, it is not possible to reach a conclusion as to why he did not respond to it. As a busy Principal, he may have left it to others to respond; for instance, Mr Hatzis, who was in charge of the timetable. Mr Butyn did say that he did not intervene in Mr Doulis' class allocation, leaving this to the Assistant Principal who attended to allotments to "see what can be done in relation to the overall timetabling and staffing".[276]

318 On Friday 12 September 2003, Mr Doulis attended Ms Curran, a psychologist, who also practised from the Flemington Premier Care Medical Centre. Ms Curran prepared a report dated 7 September 2004, in connection with a rejected WorkCover claim, containing her assessment of his psychological condition.[277]

319 Ms Curran diagnosed Mr Doulis as suffering from a major depressive disorder, which she said consisted of lowered mood over at least two weeks, reoccurring more than once.[278] She recommended that he make a WorkCover claim because returning to teaching at the College would only do him harm.

320 She recorded that Mr Doulis reported that, from 1999, he had experienced medical issues related to stress:

[H]e experienced sleep disturbance, weight gain and he was diagnosed with a fatty liver as a result of his rapid weight gain. Peter also reports that he had a mouth guard made to prevent him from grinding his teeth. Peter reports feeling exhausted and overwhelmed by both the workload and the unsupportive behaviour of other staff who worked at the school.[279]

321 When she gave evidence as part of Mr Doulis' case, Ms Curran did not know where her notes of the 2003 consultation were and was unsure how often Mr Doulis had consulted her. Her clinical notes included the entry, "the school's second term '98 stressful".[280]

322 Ms Curran said that Mr Doulis reported that he was anxious and depressed about his workload at the College, that the initial consultation had been precipitated by his meeting on 8 September 2003 with Messrs Butyn, Hatzis and Lentini, that no efforts were made by the College to resolve his workload concerns, and that the workload issues had been raised on numerous occasions during a five-year period and not acted upon.[281]

323 She understood that his stress started as early as 1998. She agreed that sleep issues can lead to anxiety and depression.

324 In re-examination, she said that the significant factors affecting Mr Doulis were in the workplace and the failure to provide enough support for him there. The information she received suggested that Mr Doulis had made efforts to have the workplace issues addressed.[282]

325 Ms Curran diagnosed Mr Doulis with a "296.35 Major Depressive Disorder", which was recurrent and in partial remission. She provided the following summary:

The current anxiety and depression that Peter is experiencing has been directly caused by factors that he was exposed to within his workplace. These factors were that Peter's workload had a higher than normal level of difficult students which continued over a number of years. Despite Peter's numerous efforts to resolve these ongoing issues with the principal and vice-principals, this remained unchanged. Peter was also subjected to problematic and unprofessional behaviour from other members of staff. This also remained unresolved over a five year period.

...

After examining the reports regarding the M.A. Sedawie investigation into Peter's claim, it appears that his claim may have been rejected on the basis that his anxiety and depression is due to difficulties that he experienced with the birth and care of his two children. It was also claimed that Peter was experiencing financial difficulties. However, these claims appear to be unfounded in light of several factors.

Firstly, many of Peter's physical symptoms associated with his stress and anxiety predate the birth of his children. This has been well documented by other health professionals that Peter has consulted in the last five years. At the times he consulted these health professionals, Peter was also consistent in communicating that he was experiencing difficulties with his heavy workload at the school.

Furthermore, there appears to be no ongoing or severe problems with his children that could account for the degree and severity of Peter's depression and anxiety. The health and development of his children has been normal. Peter also reports that his relationship with his wife is a caring and supportive one.

Peter reports that his financial status was healthy and he experienced no problems meeting his financial obligations.[283]

326 Mr Doulis was absent from school the following Monday and Tuesday, 15 and 16 September 2003, without a medical certificate. He returned to work on Wednesday 17 September 2003. His expectation was that his allotment of classes would change and that he would receive support from the College and, for that reason, he decided not to go on WorkCover. He considered that he had to give the College another chance to support him.[284]

327 He said that after the meetings that occurred the previous week he was very low and was feeling very depressed. He said that at that time he needed a break to recharge his batteries and that he did not want to teach the low classes and foundation classes.[285]

328 Mr Doulis gave evidence that, on Wednesday 17 September 2003, he told Mr Hatzis that he had been to a psychologist, who had diagnosed him with depression and anxiety due to his teaching of the low classes and foundation classes. He said that he told Mr Hatzis that the psychologist had recommended that he go on WorkCover. He gave evidence that Mr Hatzis again attacked him for not being knowledgeable in his subjects. He said that he broke down and cried, walked out of the school and into the street, and that Mr Boyer joined him there and asked him what had happened.[286]

329 Mr Hatzis denied that Mr Doulis had ever told him that he had seen a psychologist and said that he would have remembered if he had done so.[287] He was never told that a psychologist had described Mr Doulis as "depressed and anxious" as a result of teaching the low classes and foundation classes or recommended that he should go on WorkCover.[288]

330 Mr Doulis also gave evidence that, after he returned to the College, he spoke to Mr Butyn and told him what he said that he told Mr Hatzis.[289] He told Mr Butyn that he had declined to go on WorkCover because he believed that there was going to be a change at the College. Mr Butyn replied that he was sad to hear this news and would do whatever he could to support him and help him get through this tough time. Mr Doulis said that Mr Butyn's statement was a great help as he knew that he was going to get some support and he was not on his own.[290] He expected that his load of low classes and foundation classes would be removed, particularly a business maths class, and that he would be allotted other classes. However, that did not occur.[291]

331 Mr Butyn denied that any such conversation occurred.[292]

332 I am not prepared to find that such a conversation occurred between Mr Doulis and Mr Butyn. I have considerable difficulty in accepting the reliability of Mr Doulis' evidence concerning the details of conversations, unless his evidence is supported by the evidence of others.

333 Mr Boyer gave evidence that, shortly after Mr Doulis sent his letter to Mr Butyn, he approached Mr Hatzis on behalf of Mr Doulis and told him that Mr Doulis needed his teaching load changed. Mr Hatzis replied that Mr Doulis had requested that allotment. Mr Boyer then said that Mr Doulis was clearly not coping. He described Mr Hatzis as responding by going into "a standard patter" about Mr Doulis not sleeping due to his children not sleeping and that he was not coping with having a young family.[293]

334 Mr Hatzis denied that this conversation occurred.[294] I prefer Mr Boyer's evidence on this matter, as he appeared to have a more precise recollection of relevant events in September 2003 than Mr Hatzis. As previously stated, Mr Hatzis gave incomplete evidence of the statements at the meeting of 8 September 2003, until he was shown his 2004 declaration.

Mr Doulis' manner for the rest of 2003 and 2004

335 Mr Hatzis said that he did not notice Mr Doulis looking dishevelled nor that he was lacking sleep, although he was telling him that he was sleep deprived. Mr Hatzis gave the following evidence in cross-examination:

Counsel --- After that meeting in August or September of 2003 you continued to observe Mr Doulis looking dishevelled?

Mr Hatzis --- No, I didn't notice that.

Counsel --- You continued to observe him to be lacking sleep?

Mr Hatzis --- I didn't observe that. It wasn't something that was evident just looking at him. It was what he was telling - what he would tell me.

Counsel --- You continued to observe that he lacked the energy to do his job properly?

Mr Hatzis --- Not so - not in 2003 so much.

Counsel --- In 2004 you observed that?

Mr Hatzis --- In 2004 things got - probably got a bit worse, yeah.

Counsel --- He told you he was under pressure, didn't he?

Mr Hatzis --- Pressure from what?

Counsel --- If you could just answer my question, he told you he was under pressure, didn't he?

Mr Hatzis --- He had spoken about financial issues, he had spoken about sleep deprivation. If that's what - if that's what pressure means, yeah, certainly we spoke about those things.

Counsel --- I suggest it was your observation after that meeting in September of '03 that Mr Doulis lacked the energy to do his job properly?

Mr Hatzis --- Not in 2003, no.[295]

336 Mr Hatzis said that he could not recall if he "followed up" with Mr Doulis, when he returned to school in September 2003. He said:

When he came back, I knew he was back, I presumed, you know, he'd gotten his sleep and things would be better. I can't recall if I met with him.[296]

337 As previously stated, Mr Butyn agreed that, during 2003, Mr Doulis did appear to be lacking in energy, less energetic, not coping well, not sleeping well, tired and struggling to get to work. It was unclear when in 2003 Mr Butyn made these observations. It was his understanding that Mr Doulis had a large number of absences in 2003.[297]

338 When Mr Butyn was asked whether he had had Mr Doulis seen by the school psychologist, he answered that he thought he had some private medical support at that time.[298] He gave the following evidence:

Counsel --- Knowing that he got to the state where he needed private medical support for his psychological condition, I suggest to you that you should have intervened to make sure he got no more low and foundation classes there and then, shouldn't you?

Mr Butyn --- I left that up to the assistant principal to see what can be done in relation to the overall timetabling and staffing. If he was well enough to work.

Counsel --- Put him in there, put him in the class and see how he goes?

Mr Butyn --- Well, if he's well enough to work.[299]

339 As previously stated, in October 2003 Mr Doulis submitted his 2004 class allotment application to Mr Hatzis. He also sent subject requests to Ms Safia Brown and Mr Joe Portelli, who were in charge of information technology and science respectively.

340 In an email accompanying the class allotment application sent to Ms Brown and Mr Portelli on 17 October 2003, Mr Doulis stated:[300]

After having discussions with senior management and in line with my personal development to create a career pathway at W.S.C. I would prefer the following allotment in Science for 2004

Year 11 Biology

Year 10 Science

Year 7 Science

Due to my involvement and implementation of Foundation classes over the past four years I no longer wish to be involved in this area in the future and hope in light of my previous work loads that you can accommodate my request.

341 In his application submitted to Mr Hatzis on 27 October 2003, Mr Doulis wrote that he wanted to change his allotment "due to the unbalanced workload in foundation[s] classes over several years" and expressed a wish to teach Year 11 (VCE) IT and biology.[301] For convenience sake, I will again set out its terms in full:

Due to the unbalanced workload in foundation[s] classes over several years I no longer wish to teach this area, but would like to teach both VCE IT and VCE Biology Year 11 which will meet my professional development and career goals at [the College]. Thanks for your consideration.[302]

342 Mr Doulis considered that the requests in his class allotment application informed the College that he no longer wished to teach the foundation classes. He hoped that his request would be granted.

343 Mr Doulis was not allocated the classes that he requested for 2004. He was allotted foundation science 9I, Infotech (a low/medium class), and science 10G (a low/medium class). Mr Doulis said that he could not cope with those classes. He felt totally alone, hopeless and helpless and, for the first time, he seriously considered suicide.[303]

344 Mr Hatzis did not change Mr Doulis' allotment of classes for the remainder of 2003. As previously stated, he explained that the major changes to class allotments occurred at the end of the year and that the organisation of the timetable was a massive project. He said that Mr Doulis had been:

talking about all of his classes because of his inability to prepare the work that was required for them.[304]

345 Mr Hatzis said that Mr Doulis' request for different allotments for 2004,[305] and Mr Doulis' review at the end of 2003, did not suggest that he could not handle low classes and foundation classes.[306] Rather, he was seeking to teach VCE subjects. He denied that there was any bullying of teachers by means of the allotment of difficult classes.[307] Mr Hatzis said there had been no requests from Mr Doulis for particular classes for 2003 and that, when they spoke, he enjoyed taking the low classes and foundation classes.[308] If he had received a complaint from Mr Doulis, he would have addressed it.[309]

346 I am not satisfied that Mr Hatzis' reduction in Mr Doulis' low classes and foundation classes for 2004 was caused by Mr Doulis' appearance on September 2003 or that the defendant perceived that there was a risk that he would develop a psychiatric condition because of his teaching of low classes and foundation classes.

347 In Mr Hatzis' declaration of 12 September 2004, he stated that in November 2003, he discussed with Mr Doulis his class allotment for 2004, and Mr Doulis was "generally pleased" with the classes that he was given.[310] However, this statement was not repeated in his evidence in chief and I therefore give it less weight than his other evidence.

348 On 5 November 2003, Mr Doulis' annual teaching review for the period 21 August 2002 to 21 August 2003 was signed and finalised.[311] It was signed by Mr Doulis and Mr Hatzis. The document contained eleven pages and set out generic standards in a "Professional Standards" column and then provided for comments, in a "Statement of Performance" column, by the reviewer and teacher. For example, the first professional standard recorded in the document was:

Demonstrate a high level of knowledge of relevant curriculum areas, student learning processes and resources, and can apply it in implementing programs which will enhance student learning.

349 The document then required the teacher to record statements of performance of that professional standard. The teacher's Statement of Performance section directed the teacher's response by listing relevant considerations for the teacher to address. For example the first consideration was:

I believe in providing a supportive and caring environment, which promotes positive student and teacher relationships and engenders a positive attitude to learning in all students.

My Assertive Discipline Plan is based on rewards linked to class average.

351 The document cannot easily be read to determine which parts of the text represent Mr Doulis' comments and which were in existence as pro-forma considerations for the teacher to address. The second Professional Standard was:

Demonstrate high-quality classroom teaching skills and successfully employ flexible and adaptive approaches and constructive strategies to allow students to reach their full potential.

Developed by teaching from a wide range of classes such as Foundation to Accelerated year [8] to [10] levels.

353 In other parts of the document, Mr Doulis pointed to his involvement in non-teaching activities at the College and his intention to continue to be involved in the Duke of Edinburgh program.

354 Mr Hatzis' comments by way of performance assessment of Mr Doulis, made as the Principal's nominee, were:

Peter has made progress in meeting his goals for 2003. He has produced curriculum for the Year 10 Work Ed science class, and submitted this to the KLA leader, and he has completed the course outline for the Intranet Teaching project. Peter has maintained his involvement with the Outdoor Ed program, although family reasons have caused him to limit his involvement with overnight camps. We have discussed several areas where Peter needs to develop his knowledge in order to become more effective as a teacher and to prepare himself for future positions of responsibility.[312]

355 Mr Hatzis then wrote "Yes" that Mr Doulis had met "all eight professional standards to have a successful performance outcome" and ticked the box that signified that Mr Doulis was awarded an increment or pay increase, which was approved from 5 November 2003.

356 It was put to Mr Doulis in cross-examination that his comments in the document suggested that he was a teacher who was in control of his class, rather than a teacher of a "feral class". He replied that his response only meant that he had implemented the discipline plan and that the document was a work performance review and not a "forum for discussing the feral classes".[313] He said that the review was to show that he had met the criteria that were set out in the professional standards and thereby to be elevated to the next incremental level.[314]

357 Mr Hatzis said that in December 2003, Mr Doulis told him that his big objective over the Christmas holidays was to develop a stable sleeping pattern for his children. Mr Hatzis said that it was a huge issue for Mr Doulis and that he said that "he didn't want to go through that again, in terms of the sleep deprivation."[315] However, Mr Doulis told him that the problem continued into 2004 and in the May first term holidays, he hired a caravan in order to get some undisturbed sleep.[316]

358 Mr Lentini said that, for the rest of 2003, he did not become aware of anything concerning Mr Doulis that caused him concern. He said that he would have been keeping an eye on Mr Doulis to ensure that he was all right, as he did with various members of staff. He said that after Mr Doulis' time off in September 2003, "things seemed to be much better".[317]

359 Mr Doulis said that by the end of January 2004, that is the start of the school year, he was not functioning, he just survived each period, and he was not teaching well. He received some assistance in teaching the foundation class, 9I science, from Ms Miller, although she had other teaching responsibilities and he was often left alone with that class.

360 He said that he regularly broke down and cried before classes. His classes were out of control. He had a young family to support and he did the best he could. He felt it was futile to approach Mr Butyn or Mr Hatzis, as his concerns "fell on deaf ears".[318]

361 In the first half of 2004, Mr Boyer continued to drive Mr Doulis home. He described Mr Doulis as increasingly withdrawn and occasionally tearful.[319]

362 Mr Boyer presumed that Mr Doulis' behaviour was due to his workload. He said that there were many discussions amongst senior management and other staff about Mr Doulis' inability to cope with the pressures of being a parent, but he did not observe that to be the case.[320]

363 Mr Boyer had experienced parenting issues with his children, but he never remembered discussing such issues with Mr Doulis.[321] However, he was aware that Mr Doulis had sleep problems,[322] and his understanding was that Mr Doulis had "removed himself" to a caravan because of them.[323]

364 Mr Butyn said that at one point, it appears to have been in early 2004, he had a quick chat to Mr Doulis because he was arriving at school late and therefore other teaching arrangements had to be made for his classes. Mr Doulis sent him, by way of explanation, a newspaper article about the trains running on time only 80 per cent of the time.[324]

365 Ms Eyiam said that, at the time Mr Doulis stopped work, he seemed anxious and not what he used to be. She spoke with Mr Hatzis about Mr Doulis, when he visited her home in around 2002, about the time of the birth of Mr Doulis' second child. Mr Hatzis described Mr Doulis as weak for complaining about his classes and expressed the belief that his problems stemmed from the birth of his child. Ms Eyiam replied that that suggestion was ridiculous.[325] Mr Rutty described a similar conversation that he said he had with Mr Hatzis.[326] Mr Hatzis denied any such conversation took place.[327]

366 Mr Doulis appears to have experienced sleep difficulties in 2004 because, after leaving the College, he consulted Dr Caldecott again. She prepared a second report dated 20 September 2004.[328] She took a history of Mr Doulis which recorded work stressors and a psycho physiologic insomnia. She noted that he had received a diagnosis of major depression and comorbid anxiety in June 2004. She described a "vicious cycle", in which people with work stressors that affect their sleep develop panic and anxiety purely related to their sleep.[329] She recorded that Mr Doulis related this condition to:

[I]ncreasing difficulty coping with special needs students in his position as a teacher, unresolved work conflict and tense work conditions.[330]

367 Dr Caldecott said the problems, presumably Mr Doulis' work problems, were so profound in 2004 that she would have expected some inkling or mention of them in her first appointment with Mr Doulis in 2002.[331]

Mr Butyn's evidence about Mr Doulis' personal problems

368 Mr Butyn said that Mr Doulis did not mention to him the stress of the low classes and foundation classes, although he had lots of opportunities to do so.[332] He said that Mr Doulis had significant issues in his personal life and his condition was not due to the low classes and foundation classes. In fact, he had requested those classes.[333]

369 If Mr Doulis had made a complaint about his low classes and foundation classes, the College would have looked at alternatives and may have changed his classes.[334]

370 Mr Doulis agreed that Mr Butyn had supported him and that he had a good relationship with him.[335] His first complaint to Mr Butyn about low classes and foundation classes was in September 2003.[336]

371 Mr Butyn mentioned two matters that he considered were instances of Mr Doulis experiencing pressures in his private life.

372 In 2003 or 2004, Mr Doulis came to Mr Butyn's office and requested permission to leave school as soon as the students were dismissed, because he needed to urgently see his accountant or financial planner about a financial issue. He was quite distressed and Mr Butyn gave permission without any hesitation.[337]

373 The other incident occurred late on the afternoon of a report writing day, when staff were not expected to come to school. Mr Butyn saw Mr Doulis walk through the front door. They were about to pack up for the day and he asked Mr Doulis what he was doing. Mr Doulis told him that it was his child's birthday and that a family celebration was occurring at home, but that he felt that he could not be there. Mr Butyn told him that it was probably better for him to be at home with his family, but accepted what Mr Doulis had said and allowed him to follow his own course.[338]

374 As previously mentioned, Mr Hatzis said that Mr Doulis had made him aware that he was involved in a property development with his siblings and had bought a house a few years previously.[339]

375 In cross-examination, Mr Doulis was asked about his financial affairs and his involvement with the Doulis Property Trust and Votz Holdings Pty Ltd. He claimed to have little understanding of the activities of those entities.[340] He resigned from the Trust in March 2012. He believed that his wife and children were beneficiaries and that he also may have been a beneficiary. He was uncertain if there were irregular accounting practices in the Trust, although an accountant had told him that there were. The Trust built two townhouses in Prahran at a cost of $880,000, with borrowings of $1.5 million. The Trust had a debt of over $600,000. Mr Doulis said that he was not worried by the debt, because his brother was repaying it and he was earning well over half a million US dollars in his work overseas.[341]

376 Ms Doulis was asked about the Trust, her husband's involvement with it and the terms on which they lived at the Prahran property in 2011. She said that Mr Doulis and his brother were not close and that Mr Doulis had tried to extract himself from the Trust activities.[342] Ms Doulis said that Mr Doulis' brother had set up the Trust, that she had no involvement with it and was not a beneficiary, and that Mr Doulis was no longer involved with it. The house in Prahran was Trust property. She had heard that the Trust borrowed $1.5 million from the ANZ Bank. The borrower was Mr Doulis' brother, so the loan was not a cause of concern to them personally. Mr Doulis held a Power of Attorney for his brother. She was aware that her husband was concerned that there might be some irregular accounting practices in the Trust.[343]

377 I do not consider that there is any evidence of substance that the financial pressures that Mr Doulis experienced contributed to the development of his psychiatric condition. That was also the conclusion of the psychiatrist and psychologists to whose evidence I refer below.

The May 2004 fire and Mr Doulis' departure from the College

378 Mr Doulis gave evidence that, by May 2004, he had run out of sick leave and when he was absent from school he was not paid. In fact, this was not the case as he still had sick leave available. He said that he was avoiding teaching "the classes" as much as possible.[344]

379 On 13 May 2004, a large fire occurred in the trade wing of the College. The laboratory was damaged and nine classrooms were destroyed. The roof was built in the 1950s and Mr Doulis and other staff believed that it contained asbestos. After the fire, a circular was sent to staff about the danger of asbestos.[345]

380 On 31 May 2004, when Mr Doulis was to teach a foundation class with Ms Miller, he found the area near the classroom taped off with a sign stating "Danger Asbestos". The classroom had some debris on the floor. Mr Doulis said that when, at his suggestion, Ms Miller complained that they had been put in an unsafe classroom, Mr Lentini told him to clean the classroom. Mr Lentini brought cleaning equipment to the classroom and instructed them to line the chairs up and wipe everything down.[346] Mr Doulis declined to do that and moved the class to a spare classroom.[347] He felt that they had been put in an unsafe environment.

381 The evidence established that there was no asbestos in the classrooms after the fire. Mr Butyn, Mr O'Neil and Mr Lentini said the College was clear of any asbestos. Mr Lentini said that Mr Doulis had mistakenly taken his class into one of the science classrooms that still had some debris in it.[348]

382 Mr Butyn referred to a certificate of analysis[349] that showed that there was no asbestos present.[350] However, he agreed that some staff might have perceived that there was and that that could have been a disturbing experience for them.[351]

383 Mr Doulis described the incident as the straw that broke the camel's back and he felt that he could not teach his classes. He was unable to contact Mr Butyn. At the end of the week, on Friday 4 June 2004, he had an argument in the staffroom with Mr Lentini about the incident and told him: "That's it for me. I'm not coming back here. I'm gone. I've had it."[352]

384 After that, Mr Doulis returned to the College only once, on the evening of 8 June 2004, in order to record grades that he had given his students.[353]

385 On 8 June 2004, Mr Doulis commenced attending Dr Percy Rogers, a general practitioner, also at the Flemington Premier Care Medical Centre.[354] In a report of 27 August 2009, Dr Rogers recorded that, on Mr Doulis' first visit, he stated that he had been having severe problems at work:

He outlined some of the problems on that occasion, the problems arose partly from the streaming of classes where he felt he had been given the very difficult classes and he remained teaching these classes instead of rotating to the easier classes to discipline.[355]

386 Mr Doulis raised a number of issues relating to bullying at work by Mr Hatzis, who he felt had denigrated him by questioning his professional skills. He also referred to a number of allegations concerning his private life that had been made against him which were untrue and which he found objectionable.[356]

387 Dr Rogers referred Mr Doulis to a psychiatrist, Dr Tagkalidis. Mr Doulis first attended Dr Tagkalidis on that day, 8 June 2004. I refer to Dr Tagkalidis' evidence below.

388 Dr Rogers reported that Mr Doulis' condition did not improve very greatly and even when, in late 2004, he stopped taking antidepressants it made very little difference and he was still having trouble with his sleeping.[357]

389 In April 2005, Mr Doulis was referred to a Professor Armstrong, who was a Professor of Psychology, but there was no evidence of the treatment that he provided.[358]

390 In 2005, Dr Tagkalidis suggested that Mr Doulis attempt to return to work. He did not feel ready, but decided to attempt a return to work, as he wanted to teach. He taught at Fitzroy High School for the third term of 2005, but found that he could not cope. He was too badly damaged from his experience at the College to be able to teach properly and could not get into the team teaching that was in practice at Fitzroy.[359]

391 Dr Rogers recorded that in October 2005, while Mr Doulis was teaching at Fitzroy High School, he complained of experiencing heart palpitations, occurring particularly while he was at work.[360]

392 In 2006, the opportunity arose for Mr Doulis to teach VCE classes at Bacchus Marsh Secondary College, initially for 0.4 of a week and later for up to 0.8 of a week, teaching Years 10, 11 and 12 IT. Teaching VCE was one of his goals, so he decided to accept the opportunity. He found the teaching difficult, because he had not taught those classes previously and a lot of preparation work was required. His laptop computer was not compatible with the computer network at Bacchus Marsh. As a result, he could not access the network and he had to do all his class preparation work at school, on a school computer. Conflicts occurred between Mr Doulis and the network technician. In March 2006, Mr Doulis broke down in tears at school.[361] He also broke down while travelling home, following a suicide on the train line during which Mr Doulis said he "felt the knock of a head hitting the bottom of the train".[362]

393 At the end of 2006, Ms Hickson, who as previously mentioned had been a teacher at the College, was appointed Vice Principal at Bacchus Marsh Secondary College. Mr Doulis was unsuccessful in obtaining a transfer to another school.[363]

394 In 2007, Mr Doulis continued teaching at Bacchus March. However, he was involved in a further heated argument with the computer network technician because students were not able to log on to the computer network to access their work. He said that the technician abused him in front of teachers and students, saying that he did not know what he was talking about.

395 Mr Doulis said that that abuse really affected him.[364] He said that he felt drained, found it difficult to sleep and took sleeping tablets. He had a breakdown on the first day of term 3 of 2007 and cried. He knew he could no longer teach and told the teachers that. He said that he was highly emotional and not coping.[365]

396 The parties did not submit that Mr Doulis' teaching experiences at Fitzroy or Bacchus Marsh were a primary cause of his development of his psychiatric condition.

397 Dr Clare Spicer, Educational Consultant and Deakin University Lecturer, was called as part of Mr Doulis' case.[366] She is the unit chair in education psychology and conducts a private consultancy. She teaches eight units including interpersonal development, which teaches how to communicate effectively with students and fellow staff. Her evidence relied heavily on the accuracy of Mr Doulis' instructions and, of course, she had no direct knowledge of the information the College received. Her teaching experience in government schools was limited to casual relief work, for two years, at the start of her teaching degree.

398 She said it was unsatisfactory that there was no training for teachers to conduct the low classes and foundation classes. She contrasted that with her experience at Billanook College, where she had conducted three or four classes of transitional students. She said statistics showed that 7% of teachers burnt out in the course of their career.

399 She said that there were three steps that a school could take to assist teachers teaching difficult classes. They were:

(3) Arranging for the teacher to see a doctor and obtain a mental health plan.

400 She said that the low class and foundation class teaching load given to Mr Doulis was incredibly high, demanding and daunting. Teachers needed to have a balanced class load allotment. She said it was completely unsatisfactory if, after the teacher had approached the Principals to have the workload altered, that did not occur.

401 She said that, on Mr Doulis' account of his meeting in September 2003 with the Principal, that the Principal should have relieved him and placed another teacher in his place.

402 She said that Mr Doulis' letter of 11 September 2003 was significant, particularly because he was proposing to relinquish other duties. It was highly negligent to have him continue with his existing class levels.

403 She referred to Mr Doulis' application for class allotments and said that he should not have been allocated further challenging classes. She said that that amounted to workplace bullying.

404 In cross-examination, Dr Spicer agreed that she had limited experience teaching in government schools. She agreed that there was a problem of availability in funds to provide professional training, but she said that the $265 per teacher for professional development, which the College had available, was adequate.[367]

405 She had not been provided with information about whether Mr Doulis enjoyed teaching low classes and foundation classes. She said that she had received no details of student behaviour in the classes. She agreed that her assessment of the Principal's behaviour was based on Mr Doulis' instructions.

406 I do not consider that Dr Spicer's evidence, as I have summarised it above, greatly assisted Mr Doulis' case. Her evidence was based, in substantial measure, on Mr Doulis' instructions. Parts of her evidence were directed at, and expressed in terms that entered, areas which are for the Court to determine. This case turns significantly on what a reasonable person, in the position of the College authorities, would have known. Dr Spicer's evidence could not be determinative of that issue.

407 In October 2007, Dr Rogers referred Mr Doulis to Dr David Morrell, psychologist, for stress counselling. Mr Doulis commenced seeing Dr Morrell about 10 times a year and received some therapies that he found to be beneficial.[368]

408 In 2008, Dr Rogers noted that Mr Doulis still complained of chest pains.[369]

409 In August 2008, Mr Doulis was hospitalised at the Albert Road Clinic for nine days.

410 In August 2009, Dr Rogers expressed the opinion that Mr Doulis was:

a very alert and intelligent person who was [a]ffected by his experience at the Werribee State College and was personally [a]ffected by the attitude of those in authority and the behaviour which in my opinion did amount to bullying. I would support his claim for stress leave and his claim that he suffered an adverse reaction as a result of his experiences at Werribee state college under the authority of the Principal and vice Principal.[370]

411 Mr Doulis was again hospitalised in September 2010, after an episode of suicidal ideation, which involved planning to drive off the Westgate Bridge. In September 2012, he was hospitalised at the Mercy Hospital and then the Maroondah Psychiatric Clinic. On discharge, he was put on a new combination of medicines.

412 Generally, Mr Doulis commences his day by getting up to make the children breakfast and lunch and then he returns to bed. He gets up again, makes lunch for himself, then watches TV until the children come home at 3.45 pm, when he makes them a snack. He finds decision-making difficult and, when things are bad, it is difficult for him to make the children breakfast and lunch and he stays in bed, or watches television.[371]

413 His relationship with his wife has come under stress, due to his depression. He does not have the capacity to work and is uneasy going outside the house. He has suicidal thoughts. He now regrets he did not go on WorkCover and he feels bad that his wife has to do all the work.

414 He has been on a couple of family trips overseas, but found them difficult.

415 Ms Doulis gave evidence that, after her husband gave up work, he became withdrawn. He would talk about Mr Hatzis and Mr Lentini and "how he was expecting things and how it didn't happen".[372]

416 She said that her husband's return to work at Fitzroy High School took its toll. He had lost his energy and found it hard to cope and deal with day-to-day life.[373]

417 Ms Doulis said that since her husband stopped working, he has not been an active father. He is not social and his circle of friends has whittled down. It worries her that he finds no joy in anything. He is not the father he could have been. He sits on the couch and watches television. He has no "pizzazz" and has limited scope to deal with decisions.[374]

418 She wondered if she should stay in the marriage, but decided to do so because her husband was a good man. They travelled to the Netherlands at Easter 2007, but he coped badly and returned home after a family reunion had occurred. They went to Bali in 2010. She has since been overseas without him, because she doubts he can cope with the quick changes of environment and people such travel involves.[375]

419 Ms Doulis obtained a diploma of education, returned to the workforce, and now works as a school teacher.

420 In describing relevant events in the previous paragraphs of this judgment, I have already referred to the evidence of Ms Curran, the psychologist, of three general practitioners, Drs Cavini, Arakji and Wong, and to the notes of Dr Morrell. I will next refer to the remaining medical evidence, commencing with Mr Doulis' treating psychiatrist, Dr Tagkalidis.

421 Dr Tagkalidis is a psychiatrist who has been in practice for 11 years. Mr Doulis has seen him weekly or fortnightly since June 2004, with a few exceptions.

422 In June 2004, Dr Tagkalidis diagnosed Mr Doulis with a major depressive episode with concomitant anxiety and suicidal ideation, which had begun that month and was of a severe nature.[376]

423 He considered that Mr Doulis had had another period of acute illness in September 2003 and:

he has continued to be chronically suffering from a low grade depressive illness since then, which has led on to the current acute episode.[377]

424 In his report of 9 July 2004, Dr Tagkalidis stated:

The patient describes having difficult classes over a lengthy period in the school. He also describes unsupportive interactions with several staff, and great distress at more recent rumours regarding his relationship with his wife (whom I have verified is very caring and with whom the patient has a mutually supportive and caring relationship). It is understandable to me that the length of time in this job has gradually worn his personal resources and that the illness has gradually emerged in this unsupportive work environment.

As such I think it is clear that the depressive illness would not have occurred in a work environment where such a difficult workload, lack of support and distressing rumours were absent. The difficult nature of the classes given to the patient over a long period have clearly contributed to his presentation.[378]

425 Dr Tagkalidis stated that Mr Doulis had no hereditary risks and his lifestyle had not contributed to his illness.

426 In February 2006, when Mr Doulis commenced teaching at Bacchus Marsh, he had recovered well from his original depressive illness, but he began to relapse into a major depressive illness.[379]

[I]n retrospect, his ability to cope with any significant stressor, particularly in the workplace, was very compromised over those 2002/2003/2004 years and ... this has played out ever since then basically and significantly contributed. There is no question about that.[380]

428 Dr Tagkalidis said, in cross-examination, that Mr Doulis' difficult classes were the major cause of his depressive disorder. If it was not for the workplace stresses, he would not have become significantly depressed.[381] He described Mr Doulis as having been a chronic suicide risk since 2004 and that risk had escalated in the year prior to trial.[382]

429 In a report of 13 August 2009, Dr Tagkalidis diagnosed Mr Doulis as having a Chronic Depressive Disorder. He stated:

One part of the inappropriate workplace conditions included the excessively burdensome nature of the classes he taught over a prolonged period. The other significant workplace stressor related to rumours and innuendo about his relationship with his wife (totally unfounded and false as repeatedly evidenced by myself when consulting with the couple) and with other women (also totally false in my opinion).[383]

430 In his most recent report of 14 September 2013, Dr Tagkalidis expressed the opinion that Mr Doulis had a Chronic Severe Major Depressive Disorder, which had deteriorated in severity since the end of 2011.[384] He had had serious suicidal ideation with severe agitation for months on end, punctuated with partial and time limited improvements, various treatments in the last 18 months including supportive psychotherapeutic treatment. His more recent deterioration had occurred when he dropped out of treatment with Dr Tagkalidis for approximately 6 to 7 weeks, starting in mid-November 2011. He has remained severely depressed since that time.

431 Mr Doulis was greatly distressed at the rumours that were spread concerning his wife.[385] He also became tremendously agitated whenever there was any contact with the legal or WorkCover processes.[386]

432 Dr Tagkalidis expressed the opinion that, if the College had acted in September 2003 to lighten Mr Doulis' workplace stresses, he would not have become significantly depressed. In response to the solicitor's question:

In your opinion, would Mr Doulis' injury have been avoided if his concerns had been addressed during the second half of 2003 and his load of foundation and low classes had been removed or significantly reduced, including for the 2004 school year?

Yes. When he first presented to me on 08/06/2004, I noted in my initial assessment notes "'98 Werribee 2* College (1300 students) - streamed school à 'stacked on' foundation classes - worked hard - work home" and in the subsequent many months we had many discussions in our weekly session about this very same issue as the primary reason for him being under such excess stress, and he reiterated many times in this period that he had repeatedly informed the school management that he needed help and to change the mix of his classes. As such, there is no doubt whatsoever in my opinion that the nature of these classes was a primary cause of his deterioration into the chronic Major Depressive Disorder.

In my opinion it is highly likely that his chronic depressive state would have been avoided if his initial concerns were appropriately addressed. The trajectory of his emotional state would have been altered in the early stages and this would almost certainly have led to a substantial improvement.[387]

No, I didn't say for years. I said I don't think he said that he had complained for years. I think it got to the point where he was so exhausted and basically decompensated that he started to. Up until that point he tried hard to keep going is my understanding.[388]

435 On my findings, Mr Doulis misinformed Dr Tagkalidis that he had repeatedly informed the school management, for some time prior to September 2003, that he needed help and wanted to change the mix of his classes.[389] There is also no evidence on which I could find that College staff had spread rumours regarding Mr Doulis' relationship with his wife, which was a concern that Mr Doulis had raised with Dr Tagkalidis.[390]

436 My findings are that Mr Doulis only informed the College management of his difficulties with low classes and foundation classes in September 2003. In considering the opinions expressed by Dr Tagkalidis and other medical witnesses, I have taken into account that the history Mr Doulis gave them contains matters not established in evidence.

437 The fact that Mr Doulis gave medical practitioners an incorrect history does affect the credibility of Mr Doulis' evidence, where it is not supported by other credible evidence.

438 However, the fact that Dr Tagkalidis received a history that, in part, is not supported by my findings does not mean that his opinion about the connection between Mr Doulis' work and psychiatric condition is irrelevant. Nor does it mean that his opinion may not support Mr Doulis' case as framed in final submissions. Dr Tagkalidis did express the opinion that I have set out as to the likely effect on Mr Doulis' condition of the College failing to address his concerns in September 2003.

439 Dr Tagkalidis and the other doctors expressed the opinion that Mr Doulis' workload and class allotments were a cause of his mental illness. It is true that they also identified other workplace causes. But an overall reading of their reports and consideration of their oral evidence suggests that they regarded the allotment of difficult classes as a significant cause of his condition.

440 It was put to Dr Tagkalidis, in cross-examination, that none of his reports mentioned the quite significant sleep disturbances and related personal problems that Mr Doulis experienced. However, he responded that he had referred to the fact that Mr Doulis experienced "moderate sleep apnoea 20 to 30 per cent".[391] Dr Tagkalidis was cross-examined about Dr Caldecott's report of April 2002 and Mr Doulis' history of sleep apnoea, chronic sleep disorder, teeth grinding and fatty liver.[392] Counsel for the defendant submitted that Dr Tagkalidis had been improperly shown Dr Caldecott's report, which had become evidence in the proceeding. It was not apparent that that action had affected Dr Tagkalidis' evidence. Dr Tagkalidis considered that Mr Doulis' sleep problems, by themselves, would not have caused his major depression and that his workplace was, by far, the most significant factor in stressing Mr Doulis and contributing to his depressive illness.[393] Sleep disorders do not necessarily lead to depression. Mr Doulis' key problem at the moment was the litigation, which was his significant focus.

As such I think it is clear that the depressive illness would not have occurred in a work environment where such a difficult workload, lack of support and distressing rumours were absent. The difficult nature of the classes given to the patient over a long period have clearly contributed to his presentation.[394]

442 Dr Tagkalidis agreed that he was heavily reliant, in making his assessment, on the history provided to him. Lifestyle matters at home would be significant. Mr Doulis talked of his young children, but Dr Tagkalidis did not consider them to be significant stresses. The focus was on the workplace. However, he agreed that Mr Doulis' difficulties in sleeping and his financial problems could be causes of stress.

443 He considered that Mr Doulis was likely to deteriorate substantially during the course of the court case, which he finds extremely agitating and which heightened his risk of suicide. He emphasised that there is a serious self-harm and suicide risk.

444 Dr Tagkalidis stated that, upon Mr Doulis' account to him, he was also incapacitated in many areas of simple daily functioning. He struggles to make his children's school meals, no longer cooks for the family, which he previously found an enjoyable pastime, and has no capacity for socialising. His depressive state has caused very significant damage to his family relationships and his wife has struggled to manage her workload and the care of their children as a result of his dysfunctional state. It has been Mr Doulis' genuine good fortune that his wife and children continue to display loving care towards him and that has been a significant protective factor in ensuring that he has not suicided.[395]

445 Dr Tagkalidis considers that Mr Doulis has no capacity for suitable employment and is highly unlikely to return to any form of employment in the foreseeable future. Mr Doulis is unable to concentrate and Dr Tagkalidis observed him in his office typing at extremely slow rates when Dr Tagkalidis asked him to address important issues on his computer. He will require ongoing care, indefinitely.

446 Mr Doulis was keen to return to work in 2005 and 2006, but Dr Tagkalidis thought that was premature.[396] He started at Fitzroy High School in July 2005 with part-time work, experiencing good initial success, with incremental increases in the length of work. He was planning to increase his work to approximately 80 per cent of full time equivalent hours, starting in September 2005. He was unable to sustain this work increase and began to relapse into the depressive illness. He ceased work in late September 2005, with many of the depressive phenomena re-emerging. Part of the cause of the relapse was an "overly aggressive increase in work hours". Dr Tagkalidis said that he was not completely happy to approve the increase in work hours, but Mr Doulis preferred it in order to fast-track his re-entry into full time work at the start of 2006.[397] Mr Doulis was very keen to return to work and, in retrospect, Dr Tagkalidis considered that Mr Doulis wanted to please him by being a success in his return to work program.[398]

447 Dr Tagkalidis said that Mr Doulis had a strong desire to continue teaching. In the initial period at Bacchus Marsh, he was able to settle into a rhythm of work which was beneficial to his health and he was again able to enjoy his teaching experience. At that point, he had recovered well from his initial depressive illness but came into conflict with an IT staff member about the technical support he received to teach his VCE IT classes. He felt very threatened in the presence of the staff member and considered that the Principal dismissed his requests for support and for the resolution of the conflict. He relapsed into a major depressive illness and stopped work in late July 2007.[399] He has not worked since.

448 Dr Tagkalidis considered that Mr Doulis' ability to cope with stresses in the workplace had been compromised between 2002 and 2004 and he stated that the consequence of that occurrence "has played out ever since then basically and significantly contributed" to his inability to return to work.[400]

449 He said that Mr Doulis has suffered from elements of post-traumatic stress disorder, although that has gradually petered out and is now of minor significance.[401]

450 Mr Doulis has been on about 10 different medications for his depression. At the time of trial, he was prescribed the antidepressant dothiepin 200mg nightly, the "novel" antidepressant agent N-Acetyl Cysteine 1000mg twice daily, the hypnotic Imovane 15-22.5 mg nightly and the major tranquilliser/antipsychotic Risperidone 2mg nightly.[402]

451 Mr Doulis has had difficulty tolerating antidepressant medications and he does have some liver impairment. For a time, Mr Doulis stopped taking his medication because he found that it turned him into a "zombie".[403]

452 He is now less agitated and less likely to act out suicidal ideas. He has had supporting therapies, including being referred for Transcranial Magnetic Stimulation. Electro Convulsive Therapy was considered, but neither Mr Doulis nor his wife were keen to pursue it and Dr Tagkalidis considered that it was not "imminently required".[404]

453 Dr Christopher Mulroney has been Mr Doulis' general practitioner since 2011 and Mr Doulis visits him once a month. Dr Mulroney has a particular specialty in psychiatry.

454 Dr Mulroney diagnosed Mr Doulis as suffering from major depression. Mr Doulis' condition has worsened and Dr Mulroney's diagnosis now is of intractable depression of a severe nature.[405] He considers Mr Doulis' prognosis as being poor, because of the gamut of treatments he has received. He has considered cranial magnetic stimulation, but that would be the end of the line in respect of treatment.

455 He considers Mr Doulis is totally unfit for employment, although some improvement may occur when the litigation is completed. He agreed that Mr Doulis' home environment could be a factor in his condition, but that Mr Doulis' "absolute focus" had been on the workplace.[406] He stated that, in 2012, Mr Doulis had provided a history to him that he avoided social contact and spent most of his time lying in bed ruminating over the problems that surrounded him. He had become disengaged from life.

456 Dr Michael Epstein, a psychologist, provided three reports concerning Mr Doulis, one in each of 2011, 2012 and 2013.[407] He had seen Mr Doulis for medico-legal purposes at the request of Mr Doulis' solicitors.

457 In his most recent report, of 2 July 2013, Dr Epstein expressed the opinion that Mr Doulis continued to have a major depressive disorder and panic attacks with some agoraphobia. His mental state appeared to have occurred in the context of his work situation, that led to him finally ceasing work in July 2007. Since then, his capacity for coping had remained limited. As a consequence of his psychiatric condition, he was unable to resume his pre-injury duties or any suitable employment and his quality of life has diminished markedly, affecting his work capacity, his relationships and his recreational enjoyment.[408] His capacity for employment is nil.

458 Mr Doulis told Dr Epstein that on a number of occasions he had complained to the Principal and "Vice-Principal" about the number of his difficult classes and requested a reduction, but he was given more because other teachers were reluctant to take them on.[409] He felt that he was being exploited.[410] The asbestos incident was the final straw.[411] His sleep problems may have been due to fatigue caused by teaching the difficult classes.[412]

459 Dr Epstein reported, on 2 July 2013, that Mr Doulis stated:

that during 2003 he had asked repeatedly that he be given less difficult classes to teach, on two occasions in writing, but nothing had changed.[413]

460 Dr Epstein said that if, following Mr Doulis' requests, his more difficult classes had been given to others or been reduced, it is more likely than not that his capacity for coping would not have broken down in 2004.[414]

461 Dr Epstein stated that Mr Doulis' workload was a significant factor and he did not think that the other factors were significant.[415]

462 Dr Epstein expressed the opinion that sleep disturbance is a very characteristic symptom of depression and is a manifestation that the person is not coping.[416] Lethargy and fatigue are significant markers of depression.[417] But by itself, a sleep disorder was not, over time, going to lead to a major depressive disorder.[418] Nor would worries over financial issues.[419] He considered that a condition of depression could become a major depressive disorder if the person was frustrated and their concerns were not dealt with.

463 Dr Epstein said that the stress of litigation could lead to a worsening of Mr Doulis' condition.

464 Dr Timothy Entwisle, who is a psychiatrist, has seen Mr Doulis on about four occasions on behalf of the defendant.

465 He stressed the importance of a history and agreed that if matters that were part of the history that Mr Doulis had provided were called into question - for instance, that teachers had spread rumours about him, the problems with the coordinators and the pornography issues and that he had been given difficult classes as a way of getting back at him - then it would call into question the link between his alleged experiences at the school and his symptoms. It would raise questions about whether Mr Doulis was misperceiving his environment and he would wonder about his veracity.[420]

466 Dr Entwisle said that it was difficult to know what had led to Mr Doulis' breakdown. However, he said that the condition did occur initially while Mr Doulis was at the College and attempts to rehabilitate him at Fitzroy and Bacchus Marsh had been unsuccessful.[421]

467 Dr Entwisle said that teachers who are having problems managing their classes and "who are unwell or are simply not coping with the general experience of teaching" often perceive that their "problems are very much magnified".[422] A number of other teachers could cope with stress-related situations. Some people who suffer stress can recover after a break and appropriate treatment, others go on to develop psychiatric illnesses.[423] When stress is shown at work, some steps should be taken to address it.[424]

468 Dr Entwisle said that it was unusual for one, single stressor, like lack of sleep, to result in the kind of illness that Mr Doulis has developed.[425] He said that sleep deprivation for two years could possibly lead to a psychiatric condition.[426]

469 He said that major depressive illness could be linked to factors relating to a person's own personality and that:

[o]ther teachers who are experienced and/or able to manage these things take them as read, so not caring, being rude, getting into scuffles and so on are seen as the kind of normal gamut, particularly in some of the schools, for instance in the western suburbs in particular, I've see a lot of - so it comes back I think to what we were talking about before, and that is the perception of the person involved, and that perception can be altered by a number of factors.[427]

470 Dr Entwisle said that it would be appropriate to monitor a distraught teacher, otherwise the teacher could suffer stress burnout.[428] He said that safeguarding the health of teachers is a big part of the modern school environment.[429] Giving a teacher in Mr Doulis' position time off from duties was exactly what you would expect a school to do in such circumstances.[430]

471 Both parties submitted that Jones v Dunkel[431] inferences should be drawn against the other for their failure to call particular witnesses whose evidence it was said would not assist the particular party's case. The plaintiff relied on the following statement of the reach of the rule, given in Kuhl v Zurich Financial Services Australia Ltd[432] by Heydon, Crennan and Bell JJ:

The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue.

472 Mr Doulis pointed to the failure to call Ms Miller, Ms Chiarello-Natoli and any teacher who taught more low classes or foundation classes than he did. He also pointed to the defendant's failure to ask Mr Butyn whether he had been told of Ms Curran's diagnosis or to ask Ms Ratnik whether Mr Doulis had requested an allotment of low classes and foundation classes.

473 The defendant pointed to the failure of Mr Doulis to call six teachers, all of whom the plaintiff had said would be in a position to give evidence that would or may assist his case. The defendant said that it had only proposed to call Ms Miller in respect of the asbestos incident and had not done so once it was proved that there was no asbestos present.

474 I have decided the case principally on the extent of the knowledge of the College Principal and Assistant Principals of the risk of psychiatric illness to Mr Doulis because of his teaching allotments. The evidence of the teacher witnesses, referred to in support of the Jones v Dunkel submission, would only be relevant to the extent that it concerned or elaborated on the inherent risk caused by teaching a high number of low classes and foundation classes. However, the experience of teaching low classes and foundation classes may vary from teacher to teacher and no one teacher's evidence would be conclusive. As I have mentioned, the defendant did provide statistical evidence of the number of low classes and foundation classes that teachers were allotted in the first semester of 2003.

475 I am not satisfied that the submission by Mr Doulis' counsel - that a Jones v Dunkel inference should be drawn because counsel for the defendant did not ask Mr Butyn about his knowledge of Mr Doulis' diagnosis or Ms Ratnik about Mr Doulis' class allocation requests - has been established. Mr Butyn was asked whether Mr Doulis told him of the psychologist's diagnosis and Ms Ratnik did say that Mr Doulis did not request a change of his teaching allotment. There was evidence that Mr Doulis was initially enthusiastic to teach low classes and foundation classes.

476 In those circumstances, I do not consider that Jones v Dunkel inferences should be drawn against either party.

477 Mr Doulis' case is that the combination of the nature and number of the low classes and foundation classes allocated to him, the signs that he was giving of great stress, and his complaints, imposed on the defendant a duty to prevent or reduce, so far as possible, the risk of recognisable psychiatric injury posed to him. The defendant breached that duty.

478 His case is that "[t]he critical events in this matter are those surrounding September 2003.''[433]

479 The defendant was on notice that a risk of a recognisable psychiatric injury to Mr Doulis from teaching the low classes and foundation classes was not far-fetched or fanciful. From mid-2003 until early 2004, there was a clearly foreseeable risk of Mr Doulis suffering a recognisable psychiatric injury from teaching the low classes and foundation classes. The College knew, at least by September 2003, that Mr Doulis' classes were causing him distress, that he was not coping with them and was unwell, and that he considered that he had an inequitable load of low classes and foundation classes.

480 In the months leading up to the 8 September 2003 meeting, Mr Doulis' appearance had been noticeably deteriorating.

481 Mr Doulis submitted that the defendant did not provide training to him in teaching low classes and foundation classes and there was no formal system of mentoring. The College failed in its duties in tort and contract by failing to provide sufficient training, failing to have a formal system for mentoring and monitoring including after the September 2003 meeting, failing to ensure that staff received a balanced allotment and did not receive an unfair load of low classes and foundation classes, failing to provide any form of assistance to Mr Doulis for the remainder of 2003, and failing to lighten his teaching load.

482 The evidence overwhelmingly established that teaching low classes and foundation classes could be exceptionally difficult, stressful and at times traumatic to teach because of the difficult attitudes and behaviour of many of the students. The Principal and Assistant Principals knew, or should have known, about the difficulty, stress and trauma associated with teaching low classes and foundation classes. That was Mr Doulis' experience of teaching them. He found them hard to discipline and impossible to teach.

483 Mr Doulis taught more low classes and foundation classes alone than any other teacher at the College. Many students in these classes were suspended for poor behaviour.

484 Mr Doulis' case was that, by the end of 2002, he was not able to cope with his difficult classes, was becoming more withdrawn, and was suffering high anxiety.

485 Most of the Principals had not taught low classes and foundation classes. But they conceded that they were seen as being hard to teach and other teachers' evidence supported that view.

486 The defendant knew, by September 2003, that Mr Doulis was distraught, was in no condition to teach, was not coping and was unwell. He had to be sent home because he was not in a condition to teach. But nothing was done to assist him. After the meeting of 8 September 2003, the College did not monitor or mentor Mr Doulis.

487 In that meeting, Mr Doulis, who was in a tearful and distraught state, complained of his difficulties with his load of low classes and foundation classes. He was upset about being short of sick leave.

488 Mr Butyn received the letter of 11 September 2003, but did not respond to it, other than asking Mr Boyer if he had assisted Mr Doulis in drafting it.

489 Even if the Court did not accept Mr Doulis' evidence that he delivered the letter to Mr Butyn, the Principal and Assistant Principals still saw Mr Doulis in a distraught condition on 8 September 2003 and should have realised that he was at risk of psychiatric illness.

490 On 12 September 2003, Mr Doulis consulted Ms Curran, a psychologist, and complained about his difficult classes. She informed him that he was suffering depression and anxiety and should go on WorkCover leave.

491 Mr Doulis returned to work and told Mr Hatzis and Mr Butyn that he had been diagnosed as suffering from depression and anxiety.

492 The Court should not attach great weight to Mr Hatzis' evidence, as he in effect gave evidence as an advocate for the defendant: for instance, when being cross-examined about the suspension rates of students in low classes and foundation classes, he would not concede a correlation between a student's behaviour outside and inside class.

493 The College did not respond to Mr Doulis after he complained about his condition. His teaching load of low classes and foundation classes was not lightened. In the remaining months of 2003 and in 2004, not one of Mr Butyn, Mr Hatzis, Mr O'Neil or Mr Lentini monitored him or checked on how his teaching was proceeding. Mr Doulis requested that he not be given a foundation class in 2004 and that request should have been granted.

494 Mr Doulis felt totally alone and helpless and began thinking about killing himself. Other teachers confirmed that he was in a poor state. The asbestos incident following the fire in May 2004 was the last straw. He left the College in June 2004 with doctors diagnosing that he suffered from acute depression. He has twice returned to work in 2005 and 2006, relapsing on both occasions.

495 Mr Doulis contends that he can succeed even if there are difficulties with his credibility, because his evidence about key events is supported by documentary evidence and the evidence of other witnesses. His demeanour as a witness supported his credibility. The attacks on his credibility were based on peripheral matters.

496 The law imposes a duty to take reasonable care to avoid reasonably foreseeable psychiatric injury, as defined as a recognisable psychiatric illness, to a particular employee. The nature of Mr Doulis' work was stressful and the College knew of his deteriorating mental health. Stress burnout is a known condition that affects teachers. The College had the requisite knowledge to require it to take reasonable care to reduce or eliminate the risk of reasonably foreseeable, recognisable psychiatric illness to Mr Doulis.

497 The risk of Mr Doulis sustaining recognisable psychiatric illness was reasonably foreseeable both because of the nature of the work that he undertook, as the defendant knew, and because of his breakdown in his capacity for coping, his stress and his mental deterioration. The risk of that occurring was not far-fetched or fanciful; from mid-2003 until early 2004 it was reasonably foreseeable.

498 The Principals should have met with Mr Doulis and provided him with assistance before he returned to teaching duties in the last months of 2003.

499 Mr O'Neil said that, if he had had knowledge of Mr Doulis' dishevelled appearance and complaints about tiredness being caused by teaching, he would have spoken with the Principal and arranged for changes in his class allocation. Mr Butyn's and Dr Spicer's evidence is relevant in this regard and supports Mr Doulis' case.

500 The defendant breached the duty of care that it owed to Mr Doulis. It had allotted him a high load of low classes and foundation classes over a number of years, had provided him with little training for these classes, and took little or no action in response to his pleas for a more balanced class allotment.

501 The defendant's clear knowledge that Mr Doulis was not coping with his classes obviated any need to refer to an external standard.

502 Mr Doulis has established that the defendant's breach of duty was a cause of his psychiatric injury. The evidence established that the requirement that Mr Doulis teach low classes and foundation classes over a number of years was a significant factor in the development of his mental illness. Mr Doulis' psychiatric illness could not be wholly explained by matters external to his employment. His sleep problems were short-lived and Dr Caldecott's evidence concerned matters prior to Mr Doulis' breakdown. The lay evidence of causes of psychiatric injury external to Mr Doulis' work amounted to little, particularly against a background of Mr Lentini and Mr Hatzis admitting that they knew that Mr Doulis was struggling with his classes in September 2003.

503 Dr Tagkalidis was emphatic that Mr Doulis' employment at the College had been, and remains, a significant contributing factor to his psychiatric illness. The evidence of Ms Curran, Dr Epstein and Dr Entwisle supported that opinion. Mr Doulis' employment at the College in general, and his load of low classes and foundation classes specifically, remains a cause of his mental illness.

504 The defendant submitted that all schools have difficult students and public schools have an obligation to manage them and teach them as best they can with the resources available. A teacher will have to teach some difficult students. The College's homogeneous classes and streaming of students were working. The standard of the College had increased.

505 Mr Doulis was a dishonest witness and his evidence was charred by his lack of honesty. His evidence was tainted. The Court should not accept a number of alleged facts upon which he relied. Many of his witnesses were unreliable, including those teachers who had their own agendas and were bringing their own claims against the State. Mr Doulis had deliberately attempted to damage the reputation of teachers, particularly Mr Hatzis, Mr O'Neil and Mr Lentini. He had failed to make out the serious allegations directed against fellow teachers in his answers to interrogatories and particulars. This was apparent in his bullying allegations, the claims about teachers' possession of pornography and their ostracism of him, the hotel incident, the "Men's Club" incident, and his raising of the student's unfounded allegation against the Assistant Principal.

506 The allegations of bullying were contradicted by evidence of the continuing social contact between Mr Doulis and those he accused of downloading pornography. He chose Mr Hatzis as a referee and reviewer.

507 The Court should not accept Mr Doulis' allegation that a student made a death threat to him on 5 September 2003. Nor should the Court accept that Mr Doulis sent the letter of 11 September 2003 to Mr Butyn. The Court should not accept Mr Boyer's supporting evidence. In the meeting of 8 September 2003, Mr Doulis' concern was about not having sufficient sleep.

508 There was little evidence called to corroborate the allegation that low classes and foundation classes were difficult to teach and Mr Doulis had been enthusiastic about teaching these classes.

509 Mr Doulis' account of his concern that he had been exposed to asbestos, after the fire at the College in May 2004, was inherently improbable.

510 Mr Doulis lied in giving evidence that he did not tell fellow teachers about his sleep problems.[434] He saw Dr Caldecott because of his sleep problems and Mr Boyer was aware of them. The 2003 teaching review gave "family reasons" for not being involved in the extra activities mentioned and this was a reference to sleep problems.

511 Mr Doulis did not have an unfair allocation of low classes and foundation classes. Students were not allocated to low classes and foundation classes for behavioural reasons. Streaming of students was not novel; for example, it was used in maths classes.

512 The Court should not accept that Mr Doulis made complaints to the Principals about his teaching allotment, because there is no evidence that he did. His comments made in the performance and development assessment for 2003 were not a complaint, but a statement of his wish to teach other classes.

513 Mr Doulis has not established the allegations in his statement of claim. For example, he alleged that he was repeatedly exposed to highly stressful circumstances in his work environment, including repeatedly being exposed to teaching an unduly heavy workload of lower streamed classes and "feral" classes. In fact, Mr Doulis sought these classes and did little team teaching, because he was teaching IT subjects. He was enthusiastic about teaching these classes.

514 Mr Doulis gave Dr Tagkalidis a false history of his mental condition, and doctors' opinions are reliant on the accuracy of the history that they receive. Mr Doulis told Dr Tagkalidis that he had been making complaints to the College since 1999, but that was not the case. He did not tell Dr Tagkalidis of his personal and financial problems.

515 He told Ms Curran, Dr Cavini and Dr Rogers about the fact that he had had concerns since 1999, but he never conveyed those concerns to the Principals.

516 Mr Doulis was distraught because of personal problems concerning his lack of sleep and financial issues. By April 2002, he suffered from chronic bruxism and severe sleep disturbance. The family Trust, of which he was a beneficiary, had borrowed $1.5 million and owed $620,000. He complained of these problems to other teachers, but he did not tell his treating doctors and psychiatrists about them.

517 The College responded to Mr Doulis' needs in the meeting of 8 September 2003. He was given time off to get some sleep and, later in the year, his request for a reduction in low classes and foundation classes for 2004 was granted.

518 Mr Doulis gave no signs that he might be at risk of psychiatric illness when he returned to work, and his taking of sick leave days reduced. He told Mr Hatzis, at the end of 2003, that he was going to recharge his batteries. Mr Doulis did not inform his general practitioners of work stress.

The content of the duty of care that the defendant owed to Mr Doulis

519 In Koehler v Cerebos (Australia) Ltd, McHugh, Gummow, Hayne and Heydon JJ stated:

The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and, of course, any applicable statutory provisions ... Consideration of those obligations will reveal a number of questions that bear upon whether ... an employer's duty of care to take reasonable care to avoid psychiatric injury requires the employer to modify the work to be performed by an employee.

...

What is important is that questions of the content of the duty of care, and what satisfaction of that duty may require, are not to be examined without considering the other obligations which exist between the parties.[435]

520 The authorities decided since the decision in Koehler[436] pay particular attention to whether the employee has given signs of distress to the employer that might indicate risk of psychiatric illness. The risk must be perceptible and a response of the employer must have been required to the perceived risk.

521 For instance, in the recent Victorian Court of Appeal decision, Larner v George Weston Foods Ltd,[437] an employee was unsuccessful in a psychiatric illness claim, as the Court accepted the trial judge's findings that the employee did not give any indication of being vulnerable to psychiatric injury and that there was no reason for the employer to have appreciated that he was at risk of psychiatric illness in performing his duties.

522 Hindsight is not to be used in determining the content of the duty of care.

523 Work stress is not, by itself, an indicator that an employee is at risk of a psychiatric injury. In Taylor v Haileybury,[438] in which the plaintiff also was a teacher, Beach J stated:

Teaching, like other professions, is clearly a busy profession. As was said by a number of the witnesses, teachers (busy professionals with occupations of considerable responsibility) often complain about workloads. Undoubtedly, the same might be said of members of any profession. The short point is that while one might always be capable of constructing a case with hindsight about what might or might not have constituted a risk of excessive stress and/or a risk to mental health, nothing in the evidence in this case leads me to conclude that there was any basis, during the course of the plaintiff's employment, for the defendant to suspect that the plaintiff's mental health was at risk as a result of his workload.

524 Keane JA in Hegarty v Queensland Ambulance Service[439] stated:

It must be said immediately that, while an employer owes the same duty to exercise reasonable care for the mental health of an employee as it owes for the employee's physical well-being, special difficulties may attend the proof of cases of negligent infliction of psychiatric injury. In such cases, the risk of injury may be less apparent than in cases of physical injury. Whether a risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension. Whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works.

525 In Hardy v Mikropul Australia Pty Ltd,[440] J Forrest J stated:

In addition to it being necessary to establish that the injury was reasonably foreseeable, the court [in Koehler] held that [the] following factors are relevant in determining the content and scope of the duty of care of the employer:

• the contract of employment;
• the nature and extent of the employee's work;
• any signs from the employee concerned (for example, in the form of express warnings or the implicit warning that may come from frequent or prolonged absences that are uncharacteristic); and
• an assumption that the employee taking on the employment is capable of doing the job.

The court also concluded that insistence upon the performance of a contract of employment could not amount to a breach of the duty of care owed by the employer. Indeed, it was irrelevant that the employee's workload may have exceeded the industry standard.

526 In Larner v George Weston Foods Ltd,[441] the Victorian Court of Appeal stated:

The Court [in Koehler] emphatically repudiated the view that there is 'only one question' to ask where an employee claims damages from an employer for negligently inflicted psychiatric injury, namely, 'whether this kind of harm to this particular employee was reasonably foreseeable', stating: 'That proposition should be rejected'.[442] The initial question must lie in determining the content of the duty of care and the kinds of steps required of an employer in the particular circumstances of the case, informed, in particular, by the terms of the contract of employment.

The factors that are most likely to be relevant in determining the content of the duty of care, and what is required of an employer to satisfy the duty of care it owes, include both the nature and extent of the work being done by the particular employee; 'and the signs from the employee concerned - whether in the form of express warnings or the implicit warning that may come from frequent or prolonged absences that are uncharacteristic'.[443]

An employee's agreement to perform those very duties which are later found to be a cause of psychiatric injury may be of considerable significance in determining whether an employer has breached its duty of care. As the High Court said:

An employer may not be liable for psychiatric injury to an employee brought about by the employee's performance of the duties originally stipulated in the contract of employment. In such a case, notions of "overwork", "excessive work" or the like have meaning only if they appeal to some external standard ... Insistence upon performance of a contract cannot be in breach of a duty of care.[444]

An employer's obligations under a contract are not to be read subject to a duty to excuse performance if performance is injurious to psychological health, nor to be qualified by hindsight. In the absence of warning signs, an employer can assume that someone who enters into a contract of employment believes himself or herself to be capable of performing its duties:

[S]eeking to read an employer's obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties. First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle. Secondly, seeking to qualify the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle. The obligations of the parties are fixed at the time of the contract unless and until they are varied.[445]

Was there a foreseeable risk of psychiatric injury to Mr Doulis?

The central inquiry remains whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.[446]

528 In this case, the question is whether a reasonable employer, in the position of the State of Victoria acting through the Principals of the College, particularly Mr Butyn and Mr Hatzis would, at the relevant time, September 2003, have foreseen that there was a risk of Mr Doulis suffering a recognised psychiatric injury because of his class allotment.

529 I will now state, or restate, my findings of fact that are relevant to the question of the knowledge of the College, or a reasonable employer in the position of the College, about Mr Doulis' work commitments and environment and the risk of him suffering a work-related psychiatric injury.[447]

530 Mr Doulis' contract of employment obliged him to teach classes as directed by the College Principal, with the possible qualification that the classes were at his level. The defendant was entitled to assume that Mr Doulis could perform his obligations under the contract.

531 Mr Doulis had only had six or seven years' experience as a teacher and he received no training and little mentoring to assist him in teaching low classes and foundation classes.

532 Mr Doulis had, at least initially, been an enthusiastic teacher of low classes and foundation classes. However, he had lost his enthusiasm for those classes by the end of 2002.

533 Mr Doulis had a high number of challenging low classes and foundation classes. In the first semester of 2003, he had the highest, or near highest, number of low classes and foundation classes, which were taught by one teacher, of any of the 100 teachers at the College, as contrasted with foundation classes that were team-taught. In the second semester of 2003, he taught nine periods of low classes and foundation classes each week.

534 Mr Doulis' high allocation of low classes and foundation classes may have been due to his initial enthusiasm to teach those classes. However, after the first years of teaching them, Mr Doulis found them extremely difficult to control and teach and his enthusiasm waned.

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

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

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

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

539 Mr Butyn attended at least part of that meeting.

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

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

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

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

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

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

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

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

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

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

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

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

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

553 That risk was reasonably foreseeable to the Principals.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

570 Nor do I see any issue about whether the interventions would have been appropriate or would have ameliorated Mr Doulis' condition. I consider the medical evidence that relates to the likely effectiveness of steps that could have been taken in September 2003 to address Mr Doulis' condition when I deal with the question of causation. However, the steps that I have stated that the College should have taken in satisfying its duty of care to Mr Doulis were a matter of common sense. Particularly Mr O'Neil and, to some extent, Mr Butyn, recognised that in their evidence. They said that if they had known of the effect of Mr Doulis' low classes and foundation classes on his mental health, they would have changed or reviewed his allotment (Mr O'Neil), or looked at some alternatives, if that was possible (Mr Butyn).[449]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

589 I consider that the first point to take into account is that Mr Doulis has suffered a serious mental disturbance of which the defendant's conduct was a cause.[450]

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

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

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

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

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

596 Mr Doulis relied on calculations made by Cumpston Sarjeant. Mr David Heath, an actuary, gave evidence about these calculations. Dr Spicer considered that the assumptions made about Mr Doulis' career progression were "a little slow".[451] These assumptions included that he would have become a Leading Teacher LT-1 in August 2012. Dr Spicer gave evidence about the usual progression of teachers up the ladder of promotion and said it was reasonably automatic, until they reached the position of Leading Teacher.[452] She agreed that appointment to the positions of Leading Teacher and Assistant Principal, would require selection after a competitive application process decided on merit.

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

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

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

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

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

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

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

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

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

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

(a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.

(b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.

(c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring.

(d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.

...

607 Because of the uncertainties concerning Mr Doulis' future and the possibility that he would have been unable to continue teaching regardless of the defendant's breach of duty, I consider that a 35 per cent discount for vicissitudes should be adopted.[456] I do not consider that I am bound to adopt a discount percentage for vicissitudes within the range suggested by the parties, as the appropriate figure depends on my assessment of the evidence.

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

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

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

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

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

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

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

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

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

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

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

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

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

[1] Described at paragraph [46], below.

[3] Two previous juries had been discharged: the first because of matters revealed by a member of the jury, and the second, because of the defendant's late discovery of documents, which is discussed later in the judgment.

[4] Discussed at paragraph [40], and following, below.

[5] Ex C (Plaintiff's Court Book ("PCB") 111).

[6] Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, 53 [21].

[7] Ex G (PCB 717). Mr Doulis' pay and remuneration were also affected by the Victorian Government Schools Agreements, see the report of Cumpston Sarjeant, Ex U, but there was little reference made to the effect of those Agreements on matters other than remuneration.

[53] Watson v Foxman (1995) 49 NSWLR 315, 319 (McLelland CJ in Eq).

[76] T 1265-7, 1269, 1390-2, 1063, 1066.

[105] T 1021-2, 1069-70, 1174, 1278-9, 1309, 1320, 1354, 1374, 1388, 1400.

[143] Ex 18 comprises Mr Doulis' sick leave records and a year-by-year summary prepared by the defendant and referred to in cross-examination of the plaintiff (T 551). Counsel for the plaintiff established, during cross-examination of Mr Hatzis, that the summary was inaccurate insofar as it incorporated into its totals other, non-sick leave days, such as partner/paternity leave (T 1340-1, 1349-51). The figures in this judgment are based on the figures contained in Mr Doulis' official records (Ex 18).

[159] Submissions on behalf of the Plaintiff dated 7 November 2013 [105]-[107]; Exs HH, NN, Y.

[168] T 1057, 1073, 1085-6, 1098, 1270, 1342.

[182] Ex D (PCB 623a-623c) and discussed at T 273.

[186] The defendant's calculations were contained in Ex 13 and 33 (the latter for semester 1, 2003).

[189] T 297. The 2001 request document for the year 2002 was not in evidence.

[198] T 295, 297-9, 324-6, 331, 340, 415, 509, 552, 598.

[205] Ex 31 (PCB 742); T 1035-6, 1050.

[261] Ms Wilson's affidavit states that the document was last modified on 11 September 2003. However, the screen shot exhibited to her affidavit shows that this occurred on 10 September 2003.

[269] T 1209, 1239-40; see also Ex 26.

[310] Ex KK declaration of 12 September 2004.

[366] Her report and related materials are Ex V (PCB 264-376).

[405] T 868-9, see also T 384 (Mr Doulis).

[431] [1959] HCA 8; (1959) 101 CLR 298.

[432] [2011] HCA 11; (2011) 243 CLR 361, 384.

[433] Plaintiff's written submissions [14]-[15].

[435] (2005) 222 CLR 44, 53-54 [21]-[22].

[437] [2014] VSCA 62 [211]-[212], cf other recent authority Swan v Monash Law Book Co-Operative [2013] VSC 326 and AZ v The Age (No 1) [2013] VSC 335.

[438] [2013] VSC 58 [109].

[439] [2007] QCA 366 [41].

[440] [2010] VSC 42 [218]-[219].

[441] [2014] VSCA 62 [204]-[207].

[442] The quotations are from Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, 54 [23].

[445] The passage quoted is from Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, 57-58 [36] (emphasis in original).

[446] (2005) 222 CLR 44, 57 [33].

[447] Hardy v Mikropul Australia Pty Ltd [2010] VSC 42 [228].

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

[450] Willett v State of Victoria [2013] VSCA 76.

[453] Defendant's final submission [1.6].

[454] [2013] VSCA 368 cf Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

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

[456] Higher rates than usual can be applied in appropriate cases: see Acir v Frosster Pty Ltd [2009] VSC 454 [273] and Perry and Bell v Australian Rail Track Corporation Ltd [2013] NSWSC 714 [217].