Munzer v State of South Australia - [2015] SADC 18

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MUNZER v STATE OF SOUTH AUSTRALIA
[2015] SADC 18
Judgment of His Honour Judge Gilchrist
26 February 2015
TORTS - NEGLIGENCE
ASBESTOS - DUTY OF CARE - ASSESSMENT OF DAMAGES
The plaintiff was employed by ETSA for various periods between 1964 and 1990 at its Playford Power Station. The defendant conceded that during that employment the plaintiff was exposed to asbestos as a result of its negligence and that he has pleural plaques. The proceedings were issues out of time. At issue is whether the plaintiff should be granted an extension of time pursuant to s48 of the Limitation of Actions Act 1936; if the extension is granted whether the plaintiff's pleural plaques can and do cause him pain; whether any psychological conditions that he may suffer give rise to an entitlement to damages; and whether the pre-requisites for the establishment of an entitlement to exemplary damages have been met. At issue is also whether the amended Limitation of Actions Act and the amended Civil Liability Act 1936 apply.
Held: that the amended Limitation of Actions Act and the amended Civil Liability Act 1936 do not apply and that the relevant law to be applied is as it was when the cause of action arose. Held that although the plaintiff was aware that his pleural plaques were causing him mental stress prior to October 2008 it was not until he read the report of Dr Dorrington in about late October 2008 that he appreciated that he had psychiatric expert's opinion that he suffered a diagnosable psychiatric condition related to his concerns about his pleural plaques. As he issued these proceedings within 12 months of that date he has met the primary threshold for the grant of an extension of time and that it is in the interests of justice to extend time. Further held that on the balance of probabilities the plaintiff developed chest pain as a consequence of pleural plaques.
Assessment of damages: General Damages $45,000; Past out of pocket expenses $3,500; Future out of pocket expenses $17,500; Exemplary damages $20,000; Interest $9,000; making a total of $95,000.
Limitation of Actions Act 1936 s48; Civil Liability Act 1936 s33; Dust Diseases Act 2005 s9; Law Reform (Ipp Recommendations) Act 2004 (SA) Sch1, s1, referred to.
Geyer v RESI Corporation [2013] SADC 122; Mount Isa Mines Limited v Pusey (1970) 125 CLR 383; Sola Optical Australia Proprietary Limited v Mills (1987) 163 CLR 628; Barnes v Department for Education and Child Development [2014] SAWCT 40; Tame v New South Wales (2002) 211 CLR 317; Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; Badger v The Ministry of Defence [2005] EWCH 2941; BHP Billiton Limited v Parker [2012] SASCFC 73; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, considered.

MUNZER v STATE OF SOUTH AUSTRALIA
[2015] SADC 18

This is a claim for damages for personal injury.
The plaintiff, Mr John Munzer, worked for the Electricity Trust of South Australia at its Playford Power Station in Port Augusta at various times over many decades. Initially he worked there for three years from 1964, then a few months in 1969 and finally for nearly 17 years from 1973.
In the course of that employment Mr Munzer was exposed to asbestos. Sometime after his employment ended he was diagnosed as having pleural plaques. Pleural plaques are caused by asbestos exposure. They comprise of fibrous tissue that typically forms on the pleura or lining of the lungs. They reflect a reaction in response to the irritation caused by asbestos fibres that have been inhaled and which have migrated from the lung to the chest wall.
Mr Munzer contends his pleural plaques have and continue to cause him chest pain. He contends that his exposure to asbestos has caused him psychological damage. He seeks damages from the State of South Australia to compensate him for his pain and suffering and loss of enjoyment of life. He seeks damages to compensate him for his past and future medical and like expenses. He also seeks exemplary damages. He has issued these proceedings against the State of South Australia because the State has assumed the liability of ETSA.
Mr Munzer did not commence these proceedings until 10 March 2009. As such they are statute barred. In order to prosecute this action he needs to be granted an extension of time pursuant to s 48 of the Limitation of Actions Act 1936.
If the extension is granted at issue will be whether Mr Munzer’s pleural plaques can and do cause him pain; whether any psychological conditions that he may suffer give rise to an entitlement to damages; and whether the pre-requisites for the establishment of an entitlement to exemplary damages have been met.
During the course of the hearing there was evidence to the effect that Mr Munzer may have early stage asbestosis. He sought leave to amend the pleadings to prosecute an action based on that alleged loss. I refused to grant leave. I will explain my reasons for doing so in an addendum to these reasons.
The evidence
Mr Munzer’s case comprised of his oral evidence, oral evidence and reports from Dr Jonathon Phillips, psychiatrist, and Professor Roger Allen, thoracic and sleep disorders physician, various reports from Dr Dorrington, psychiatrist, a report from his general practitioner, Dr Claire Rowe, a statement of agreed evidence from Professor Tess Cramond, now retired but formerly a palliative care specialist who has particular interest in the pain caused by asbestos related diseases, and various other medical reports and other documents.
The State relied upon the oral evidence and reports of Dr Jules Begg, psychiatrist, Dr Ral Antic, chest physician, and Professor David McKenzie, an Associate Professor in Respiratory Medicine, as well as various medical records.
Mr Munzer was born on 31 October 1942. He had a very disturbed childhood and has suffered a number of sad and unfortunate experiences over the course of his life.
His father was an alcoholic and violent man who repeatedly bashed Mr Munzer’s mother. Mr Munzer would frequently have to intervene and remove his siblings from their home. On occasions he was also beaten by his father. His parents separated in 1955.
Mr Munzer later married and had three children. One child, Deanne, was born in November 1968. Some years later Mr Munzer and his wife separated. His wife began living with Mr Munzer’s father’s half-brother. In November 1973, Mr Munzer’s wife was involved in a car accident that resulted in Deanne’s death, just short of her fifth birthday. Unsurprisingly Mr Munzer has been deeply affected by her death. He plainly found it painful to speak of it in this Court, over forty years later.
Prior to Deanne’s death Mr Munzer did not drink. He had seen what alcohol had done to his own father. However following Deanne’s death he resorted to alcohol and cannabis to help him cope with his grief. He frequently drank to excess. His substance abuse resulted in a number of admissions to hospital. It clearly has been a problem for him.
Mr Munzer originally worked for ETSA as a cleaner. He then became an auxiliary plant attendant and later became a trade’s assistant. He described the ETSA plant as a terrible place that was entirely closed and full of dust. He said that he mixed white and blue asbestos. He said that he was exposed to asbestos throughout his employment with ETSA. He said that he was never warned about the risk of asbestos. He said that ineffective paper masks became available in the later 1970s and that at around that time ETSA employees were sent for chest x-rays.
In the mid-1980s Mr Munzer had a relationship with a woman. Unfortunately that relationship failed and he became depressed.
Over this period Mr Munzer was also becoming increasingly troubled by the decision to privatise ETSA.
In the late 1980s Mr Munzer had some serious issues with some members of a union that involved some of the employees at the plant. He said that he had attempted to get the union to oppose the sale of the Playford Power Station. He described an incident at a hotel. He said that some co-workers whom he described a ‘MOA white overall bosses’ brought with them a plastic penis which they attempted to place on his head so that they could photograph him and place it on a notice board at ETSA. He said that he was very offended by this and refused to return to work. He became extremely agitated and put in a claim for work related stress. ETSA denied liability and the matter was listed for a hearing by a Review Officer on 29 June 1990 in accordance with the then dispute resolution regime that existed under the Workers Rehabilitation and Compensation Act 1986. The claim was settled by agreement and a consent order was recorded providing for an overall payment of $32,000 that included a nominated amount of $50 discharging ETSA’s liability to pay common law damages. A term of the settlement provided for Mr Munzer to resign from his employment with ETSA.
Mr Munzer used the settlement funds to buy a house in Yeelanna, a very small town on the Eyre Peninsular, about 80 kilometres from Port Lincoln.
He told me that he first experienced chest pain in the early 1990s when he was leaning over the bonnet of a car. He said he felt soreness on the left side of his chest just below the ribs. He said that over time he experienced similar pain on the right side of his chest. He said that his left sided pain was worse. He feared that it was asbestos related. He said that he reported his pain experiences to his treating general practitioner, Dr Yeung. He was convinced that he had something wrong with his chest and that it was related to asbestos. He said that Dr Yeung kept telling him in the early 90s, ‘Mr Munzer, you haven’t got any asbestos problems. Your chest pain is caused by smoking, Mr Munzer’. He said that he requested Dr Yeung to arrange for chest x-rays. Initially they revealed nothing of concern. However, an x-ray performed on 29 April 1998 raised the possibility that Mr Munzer had asbestos related pleural disease. Mr Munzer said that over this period he brought it to Dr Yeung’s attention the fact of his ongoing chest pain every time he saw him, which he said was every three or four months.
He said that as a result of the pain he had to stop engaging in a pastime of restoring cars. He said that over this time he became increasingly breathless on exertion. He also attributes this to pleural plaques.
In October 2000 Mr Munzer’s granddaughter was killed in a car accident. About a month later his mother died and she was buried on the anniversary of his own daughter’s death. These were plainly distressing incidents.
In 2001 Mr Munzer instructed the firm of Hume, Taylor and Co solicitors, to explore the possibility of taking action on account of his pleural plaques. The solicitors notified ETSA of a potential claim by letter dated 30 July 2001. Mr Munzer understood that because he only had pleural plaques there was no point in pursuing any action.
At around this time Mr Munzer stopped using cannabis.
Over the course of his life Mr Munzer was a smoker. When first asked about it, he said he smoked between 15 and 20 cigarettes a day. He later conceded that it might have been as many as 40 a day. There are medical records that suggest that it may have been more.
He gave up smoking in 2004. He has also cut down on his alcohol consumption.
In November 2007 Mr Munzer instructed Turner Freeman following some information he had obtained from the Asbestos Victim’s Association in Port Augusta. He instructed them to investigate a possible claim for an asbestos injury.
He was referred for some independent medical examinations, one of which was with Dr Dorrington. He said that upon reading her report of 27 October 2008 he learned that the mental stress that he had been suffering from was dysthymia.
He was later referred to Professor Cramond, who examined him on 16 February 2010. He was provided with her report of 3 March 2010 wherein she expressed the opinion that Mr Munzer’s pleural plaques were causing him chest pain. He said that she had told him this during the course of his examination.
He said that he was very emotional upon reading the report because for the first time he had expert medical evidence backing up his firm conviction that asbestos was causing his chest pain.
Mr Munzer said that his pain experience is aggravated by cold weather. He described the site of the pain as being the left and right flanks of his chest in an area about the size of the palm of a hand about 45 centimetres below his collarbone.
He said that he has difficulty sleeping. He has trouble getting to sleep. He ruminates about asbestos and plaques.
He said that as a result of issues with exertion he has not painted his house.
He lives with his three dogs. He has very little social reaction with others.
When asked about how he currently feels he said:
How would you describe your general level of happiness about life at the moment?---Nothing to be happy about, for Christ sake.
But you’re not crippled, are you?---No, that’s what I’m saying earlier, I haven’t got – I’m not in a wheelchair - I'm in a wheelchair but not a cripple, but I'm not like some of the poor buggers you see - - -
Forget about the other poor buggers, what is it about your life that makes you say there’s nothing to be happy about?---Well, I can’t mix with people because I get upset and say something stupid when they sit like that - I can’t be happy about my life because there’s nothing to be happy about. They took my career away because I was the only one fighting to try and stop them privatising it.
Yes?---And stuff like that.
And what else did they take?---They’ve taken away my pleasure of being able to do my hobby or my weightlifting or my house maintenance by giving me pleural plaque chest pain that they're trying to deny. They’re trying to - - -
Do you think they’ve done anything to your future?---For my future?
Have they done anything to your future as you see it?---I haven’t got a future. I basically didn't have a future from the time I left - they kicked me out the door and with that rubbish in 1990, but since then they’ve not only taken that away from me, they’ve taken away my ability to enjoy my hobbies basically, or do my home maintenance, or grow beautiful vegetables in the garden…
During cross examination it was pointed out to Mr Munzer that in the Statement of Loss that he filed in this action he asserted that ‘Since the late 1980s, I have experienced a chronic, severe and disabling pain in my lungs’ and that the statement was unqualified. Mr Munzer agreed that the words ‘on exertion’ should have been added.
During cross examination Mr Munzer was asked to rate his pain experience out of 10. He said that it was 2 to 3 all day, every day. It was then pointed out to him that Professor Cramond had recorded that his pain experience was 8 or 9 out of 10. When asked to comment he said:
This is 2010, mate. This stuff you go through it and you look at it and then you put it away. You don't sit there and read it and digest it and memorise it and all that bullshit. That’s part of what happened. I can see 4 or 5 and that could have been what my – that’s as I imagine.
Mr Munzer was asked some questions about his assertion that his capacity to exercise had been compromised. He was taken to the records of Dr Rowe, who had been encouraging him to lose weight. It led to the following exchange:
I suggest that you told Dr Rowe that you bought the treadmill and you were able to walk on the treadmill for about an hour per day at a speed of 4.5 kilometres per hour?---Sometimes at 4.5 kilometres per hour as the time went by, and it wasn’t an hour, it was usually about 35 minutes and the hour would be in two lots. I wouldn’t do it all at once. I’d stop and come back later and do another half hour or something like that.
And later:
I suggest that from the time you bought your treadmill in early 2007 until you saw Dr Ruffin in May 2008, you were steadily increasing your exercise capacity and you were steadily becoming fitter and fitter?---Well, I was getting slightly fitter, yes, but I wasn’t able to maintain the speeds that you read out. I very quickly had to reduce it back to a manageable speed of what I'd call, walking pace because I'd run out of breath at high speed, and that's high speed for me nowadays 5.5. I don’t know what a normal healthy person’s walking pace is measured at and I don’t know what it is, but I used to try and walk faster on the treadmill than I did walking the dog, but I quickly learned that the faster I tried to go the more breathless I’d get, so I’d decrease the speed, and that’s the sort of stuff that I used to tell Dr Rowe and Dr Quigley, whenever I spoke to youse - them people, and they don’t log that on their notes, otherwise they’d have a file that big on me if they reported what I told them, the facts.
Mr Munzer was then taken to a form he completed in relation to Centrelink benefits and in particular a statement that he was then suffering from chronic incurable health problems.
It led to this exchange:
So as of September 2000, what chronic incurable mental health problems were you referring to?---Well, in 2000 I was still upset about being diddled and ripped off and had a secret report done by so-called workmates in late '89 that they wouldn’t give me a copy of. That’s what I was stressed about, more so than being ripped off money-wise, I was distressed that these rats that I worked with had a secret investigation and made comments about my character and they didn’t give me - they didn’t have the guts to give me a copy of it so I could answer back and have my say about their gutless comments.
So it was in relation to what had occurred to you?---Yes, that’s partly what it was.
But what else was it about?---It was all about losing me secured job that I was proud of on the one and two turbines - - -
I understand?---So a mixture of all that sort of stuff.
And later:
Just have a look at the first line, you say, my chronic and incurable mental health. By chronic did you mean there, severe?---I was very severely chronically, mentally upset, disturbed, whatever you want to call it, by what happened. The fact that I didn’t only lose my so-called life secure - because we got told when we first went to ETSA is, all you can do and achieve whatever you like if you're smart enough to get the top job and you'll have is for your life. The secure life until you retire, Mr Munzer. That’s the crap we got told. That’s what I’m going about. So-called life career.
When you say incurable in that same line, it was your belief in September 2000 that you would never get over these mental health issues that had been caused by what had happened to you by ETSA in the late 80s?---That partly, partly, not all. If you read it properly it’s also about my pleural plaques and radiation poisoning, coal dust, and asbestos as well. It was a combination of that.
Where in that answer do you mention pleural plaques?---I don’t know that I mentioned it.
It was pointed out to Mr Munzer that he wrote on the form in an unqualified way that he was suffering from severe breathlessness and extremely severe chest pains. He accepted that it should have been qualified with ‘on extension’. He said:
It should have, ‘On extension,’ and I didn’t put, ‘On extension.’ So what? There’s no room. You see run out of the room at the edge of the page, ‘Severe breathlessness’?
Yes?---It didn’t say, ‘On extension.’ I could have written above it or below it or whatever. It was on extension, and I've said to all of you, Dr Yeung included, on extension, I get severe breathlessness.

I suspect the reference to ‘on extension’ was meant to be ‘on exertion’.
Mr Munzer was then asked to comment on the contrast with a history recorded by Professor Cramond that he was not affected on a day-to-day basis by standing, sitting and what he wrote in the Centrelink form. It led to this exchange:
Well, what I’m trying to get at, Mr Munzer, is why you were reporting in a document to Centrelink in September 2000 that you were affected all the time by breathlessness and severe chest pain when sitting, standing and walking? Yes, well, some people might say even my moderate chest pain is severe. So I put severe. It’s severe to me, because it reminds me constantly of what’s happened to me; so I wrote ‘severe’. What’s the difference? It’s severe.
In the context of a suggestion that Mr Munzer had completed the form with a view that he wanted to ensure that Centrelink did not attempt to find him work there was this exchange:
Can you think of any reason why you didn’t somewhere in respect to question 5 insert the words ‘on exertion’?---No, I didn't put any reason why I did. You can think, mate, what you like of it, but I’m giving them the worst scenario, ‘This is what happens to me, mate. Make your own mind up. Do what you like. This is what’s going on,’ bang. And you can insinuate and make any assertions you like about it. I was getting across to Centrelink, ‘Under no circumstances will I go back to work, because I haven’t got the ability, and if you want to press the issue, I can prove that I’ve got severe chest pain under exertion,’ and crap like that. If it was followed up and they were trying rule a heavy rod and make me go back to work or do some stupid, what do you call it, rehabilitation rubbish, I wasn’t going to enter it. My mental capacity wasn’t capable of doing it, and I was letting them know, bang, ‘I’m unfit, mentally and physically unfit. Like it or lump it.’ So I used ‘extreme, severe’ or whatever. That’s what happens if I do anything - heavy work or bullshit. So I'm giving them the extreme condition, which it would be if they tried to make me go to work.
Your motivation in relation to the way you completed this document was to avoid any doubt in the mind of Centrelink that you couldn’t return to any type of work?---That I wasn't going to return to work, yes, and I've actually got another letter somewhere that maybe they – it’s a wonder you haven't got that, where I wrote on it to the manager of Centrelink in Port Lincoln, a big long one. You haven’t got that yet? Gee, haven’t you discovered that yet? You’re running around trying to find out all the bullshit under the sun from my doctors to try and denigrate me, and you won’t - and because I wrote a letter that said it’s severe; it can be severe. If I went to work, I’d be suffering severe bullshit all the time, and I’m getting across to Centrelink; yes, I accept that. If you don’t like that answer, good. If you don’t like me putting that down and saying to Centrelink, ‘I’m not going to work. If you try to make me go to work, I suffer severe breathlessness and extreme pain, chronic.’ And that was my way of saying to Centrelink, ‘You push the issue, mate, I’ll get on to my lawyers and have you in trouble, or go to some organisation and get 60 minutes or somebody to air the way Centrelink are trying to bully me,’ just like you are now. You’re trying to bully me. It’s all bullshit about stuff that I wrote to ensure to Centrelink, ‘Don’t bother trying to make me work. I’m not going to.’ That’s it, and that’s why I did it at the time. So what? What’s your point?
Amongst the documents that were tendered were Mr Munzer’s employment records. They indicate that in September 1973 Mr Munzer applied for employment with ETSA and that within that application was a notation that his marriage had broken up and that he had returned to Port Augusta so that his relatives could assist him in looking after his children. They also indicate that he took leave in November 1973 in connection with the death of his daughter.
I now turn to the medical evidence.
Dr Phillips examined Mr Munzer on 9 December 2013. On interview he found Mr Munzer to be moderately depressed and mildly paranoid. Dr Phillips made an assumption that at least some of Mr Munzer’s ‘chronic pain’ was related to the presence of asbestos related pleural plaques. Dr Phillips thought it likely that Mr Munzer would have developed psychiatric problems whether or not he was exposed to asbestos fibres at ETSA. He said that his adverse life experiences triggered a persistent depressive disorder that has been present since about 1985. In his view this has been aggravated by two factors. The first is Mr Munzer’s increasing concern about an asbestos related lung disease. The second is the interaction between psychiatric disease and pain. He suggested that he needs extensive psychotherapy.
He expressed the opinion that it was well known before the 1960s that persons exposed to deadly substances such as asbestos could suffer from psychiatric illnesses as a result of the knowledge of that exposure.
There are a number of matters of history that Dr Phillips was not aware of. Significantly, he was not aware of Mr Munzer’s confrontation with ETSA, the circumstances of his leaving ETSA, and his psychological problems arising out of this. In his report he simply records in connection with these matters that Mr Munzer did not offer him any details of his psychological problems. When asked about what impact that history might have had he said that it was a very difficult question to answer. He said that that history was important.
Dr Phillips thought the Mr Munzer had a chronic pain disorder. He said that it was rare for such a disorder to be caused only by psychological factors.
Dr Phillips thought that Mr Munzer has significant unmet treatment needs. He said that in the best of circumstances he needed 50 to 60 hours of psychotherapy conducted by a psychiatrist or clinical psychologist.
Professor Allen examined Mr Munzer on 23 May 2013. He detected tenderness bilaterally in Mr Munzer’s lower rib cage. He detected some crackles in his breathing. He conducted a lung function test that revealed a moderate to severe restrictive defect and very mild airflow obstruction. He recorded the following history:
The pain progressively became more constant and more severe and were of a dull aching quality, worse if he bends over. At times, they are sharp and he finds he cannot lift a gearbox now or dig in the garden because of pain. Cold air also makes it worse. He takes Panadeine Forte infrequently. He cannot lift heavy weights, but still walks three times a day, usually three times around the block on each occasion. He cannot walk quickly or dig a vegetable garden or do home maintenance. He rates the pain at around 3-4/10 most of the time (0 no pain, 10 unbearable). Sometimes it becomes sharp and more severe (5-6/10).
Professor Allen stated that about 50% of patients with pleural plaques experience pain and that this was a well-recognised phenomenon amongst thoracic physicians in Queensland, which is where he practices.
He described Munzer’s asbestos disease as extremely minor. He rated him at risk of developing asbestosis which warranted monitoring. He suggested a regime of regular monitoring. He thought that Mr Munzer’s chest pain was real and organically based. In his opinion the most likely explanation for how pleural plaques can cause pain is due to interference by or the effect of the plaque, in one way or another, upon the intercostal nerves and their twig like branches that run throughout the parietal pleura.
He described the pain as often worse on exertion and that it may get worse over time. He appreciated that the precise way in which pleural plaques could cause pain was not fully understood but suggested that that of itself was not a reason to reject the hypothesis. He said that any knowledge in medicine evolves against a background of conservatism.
He described Mr Munzer’s pain as a major manifestation of his pleural plaques. He said that the presence of chest pain could explain why Mr Munzer’s lung function tests had been reduced.
He is of the opinion that pleural plaques are generally more extensive than as revealed in imaging.
He thought that Mr Munzer required ongoing review of his chest, including annual chest x-rays, annual to bi-annual CT scans, six monthly reviews by a general practitioner and annual visits to a thoracic physician and that if the condition deteriorated more consultations, tests, scans and perhaps hospitalisation would be required.
Dr Dorrington first saw Mr Munzer on 13 August 2008. She detected anxiety, grief and intense distress. She concluded that he was then suffering from a prolonged and distorted grief reaction to his daughter’s death and a long term dysthymic disorder as a result of the loss of his job at ETSA and the development of asbestos related lung disease. She thought that a satisfactory resolution of the litigation would assist in his recovery. She thought that the ongoing use of anti-depressants and some specific counselling would assist. In a later report she suggested that Mr Munzer’s dysthymia was aggravated after his attempts at gaining recognition of his chest difficulties and the discovery of asbestos related pleural plaques.
Professor Cramond examined Mr Munzer on 16 February 2010. She recorded a history broadly consistent with the history given by him to the other doctors who have examined Mr Munzer. She recorded a history of a complaint of chest pain that commenced in the 1990s that Mr Munzer first noticed on side of his left chest when helping a friend change an engine which he described as deep inside pain under his rib cage. She recorded that he told her that the pain became bilateral; that it has always been more severe on the left than the right; that it is long lasting and persistent with a squeezing element; that it is exacerbated by cold and excessive activity; and that he obtains relief by avoiding trigger mechanisms and avoiding exposure to cold.
The history that she was given about Mr Munzer’s mental state included the following:
He describes his mood as disillusioned and frustrated but not depressed. After his daughter was killed he had considered self destruction but the thought of the effect on the other children was enough to stop him ‘the kids kept me alive’. He has had no suicidal thoughts for years. He did need a (sic) psychiatric and psychological support at the time of the death of his daughter Deanna and when he broke up with Norma [his de facto partner].
It will be noted that this history is inconsistent with other evidence that indicates that Mr Munzer was depressed around this time.
On the basis of the history provided to her, the respiratory function tests and imaging reports that she had been provided with, and her findings on examination she came to conclusions about the appropriate diagnosis and cause of Mr Munzer’s alleged chest pain by a process of reasoning that conforms to the reasoning and conclusions expressed by Professor Allen. She also expressed an opinion about appropriate future medical treatment that is broadly consistent with Professor Allen’s opinion. Like Professor Allen, Professor Cramond is also of the opinion that pleural plaques are generally more extensive than as revealed in imaging.
On 27 January 2012 she received a copy of a report from Dr Ral Antic dated 17 November 2011 and expressed strong disagreement with the opinions he expressed, his criticism of her hypothesis and in particular his opinion that pleural plaques do not cause pain.
In light of its inability to cross-examine Professor Cramond the State was denied the opportunity of exploring with her the significance of the incorrect history she had been provided with regarding Mr Munzer’s mental state, of challenging the validity of her hypothesis as to how pleural plaques could cause pain and her process of her reasoning, and her opinion about appropriate future medical treatment.
Dr Begg first saw Mr Munzer on 9 February 2010. He said that Mr Munzer commenced the interview by focussing on his anger towards ETSA and his stress related problem in 1989.
He took a history of chronic chest pain and breathlessness attributed to asbestos plaques. He noted that Mr Munzer presented in an intense and angry manner. He agreed with Dr Dorrington that he was suffering from a dysthymic disorder. He thought that adverse life events and the stress of his previous issues with ETSA were the primary cause and the condition pre-dated the later issues that arose in connection with pleural plaques. He suggested that Mr Munzer’s chronic stress pain arose from psychological factors that originated from his dysfunctional childhood and subsequent adult losses.
He thought that Mr Munzer might be focussing and obsessing about issues concerning asbestos exposure as a mechanism to deflect his awareness of the tragic aspects of his life and his confrontation and loss of his job at ETSA. Dr Phillips accepted that this might be right.
He thought that the diagnosis of an asbestos related condition had reinforced the dysthymic disorder that was already present. Dr Dorrington expressly agreed with that proposition.
He agreed that the issues related to asbestos could contribute to an existing illness and make it worse, more pervasive, more prolonged and more difficult to treat.
He accepted that there usually is a multiplicity of causes of a psychiatric illness and that each in their own way materially contributes to the severity and duration of the illness.
He accepted that Mr Munzer is a very sad man, that his life is very impoverished and that he suffers from an illness that is causing him constant distress and which causes him to have no hope for the future.
He said that he did not find any hint of Mr Munzer malingering.
He said that he accepted that he actually feels pain.
He agreed that treatment would be very difficult.
Dr Antic first examined Mr Munzer in connection with these proceedings on 21 July 2010. On examination he did not detect any respiratory signs. He detected moderate tenderness on pressure over two anterolateral areas symmetrically left and right. He thought that a lung function capacity was within the lower limits of normal range. He noted that a CT scan of 16 February 2010 revealed a few small non-calcified pleural plaques. He stated that he did not believe that there is a causal link between chest pain and pleural plaques. He did not accept the hypothesis put forward by Professor Allen and endorsed by Professor Cramond as to how that pain might occur. He thought that in this case psychological issues were at play. He accepted that whatever may be the cause of the pain, Mr Munzer was suffering from real distress.
He thought that to subject Mr Munzer to a regime of regular monitoring would be unhelpful in that it would reinforce his belief that he was seriously ill when that was not in fact the case.
Professor McKenzie has not examined Mr Munzer. He provided an opinion based upon his review of the documentary evidence and his review of relevant literature. He was clearly of the view that the most likely explanation for Mr Munzer’s chest pain was psychological factors. He stated that in one study 70% of asbestos exposed individuals reported feelings of chest oppression with there being no difference whether or not they had pleural plaques. Like Dr Antic he did not accept the hypothesis put forward by Professor Allen and endorsed by Professor Cramond.
He broadly agreed with Dr Antic’s view that to subject Mr Munzer to a regime of regular monitoring would be unhelpful.
He accepted that Mr Munzer’s breathlessness and exercise limitation could be aggravated by a lack of fitness and atypical chest pain.
He thought that the most likely cause of Mr Munzer’s chest pain was his anxiety and depression.
The medical records tendered by the State include the records of Mr Munzer’s general practitioner, Dr Yeung. They record that on 5 August 1991 Mr Munzer told Dr Yeung that he still wanted to sue ETSA for stress.
They record that on 25 June 1992 he was very paranoid and was not mixing with anyone other than two people at Yeelanna.
They record that on 6 December 1992 he reported feeling cheated by ETSA and that he only recovered 30% of what he should have received.
They record that on 5 May 1993 he reported feeling very worried about not getting any help from anybody.
They report a consultation on 26 August 1993, a record a repeat x-ray of the chest and the following day they record that the x-ray was clear and a reference to a history of direct exposure to asbestos at the Playford Power Station.
Over the next few years there are records of numerous consultations. These is the occasional complaint of work related stress and paranoia. There are some records indicating that Mr Munzer’s alcohol consumption was discussed.
The next entry of significance is a complaint regarding his chest on 8 January 1998 a notation of bronchitis and a report the following day that he was very worried about asbestos and the fact that two former workmates had recently died.
They record an attendance on 28 April 1998, the fact of an x-ray suggesting the possibility of right sided pleural plaques and of the fact of a long discussion about asbestos.
They record an attendance in March 1999 and a complaint that his chest condition was getting worse.
They record an attendance on 9 June 1999 and a complaint of a continuous mild nagging pain in his chest helped by panadeine forte.
They record an attendance on 29 September 1999 of a complaint described as a chest condition.
They record an attendance on 7 June 2000 in connection with the completion of a form detailing relevant medical conditions described as: anxiety depressive neurosis, schizophrenic disorder and paranoia ideation, chronic obstructive airway disease and asbestosis and pleural plaques.
They record an attendance on 8 November 2000 and a report that his daughter in Queensland had been killed by a car. I suspect this should have referred to his granddaughter.
They record a report on the same day that his mother died last week a discussion about grief, a discussion about his opinions about ETSA, his stress and a report of a tight chest and pain.
They record an attendance on 11 April 2001 a report of tightness in the chest, coughing up brown thick sputum, needing to take panadeine forte for pain relief and shortness of breath on slight exertion.
They record an attendance on 29 August 2001 and a complaint of being very sore in his chest, coughing up thick coloured sputum and a finding on examination of decreased air entry but no adventitious signs.
They record an attendance on 8 May 2002 and a complaint of getting a lot of pain in his lower chest.
They record an attendance on 9 July 2003 and a complaint of pain in both sides of his chest wall.
They record an attendance on 15 January 2004 and a complaint of constant pain in his bilateral lower chests and coughing up purulent sputum now and then.
They record an attendance on 20 May 2004 and a complaint that his chest symptoms were getting progressively worse, that he was short of breath on exertion and that he was about to enrol with the Asbestos disease support group.
They record an attendance on 12 October 2005 and a complaint that he had bilateral lower chest pain on cold days but was not coughing as much.
They record an attendance on 16 February 2006 and a complaint that he had constant pain on both sides of his lateral chest in the anterior lateral line with no change with his inspiration or expiration.
They record an attendance on 7 June 2006 and a complaint that he was very breathless on the slightest exertion.
They record an attendance on 18 March 2008 and a complaint that he had chronic pain at the base of the chest bilaterally that was worse in cold weather.
Dr Yeung provided two reports to Hume Taylor and Co. In a report date 12 November 2001 he stated that Mr Munzer started to worry about his lung conditions in 1993, that in January 1998 he came down with chronic bronchitis, that he had been bothered by chest pain, shortness of breath and a productive purulent cough, that two of his friends had died from asbestosis around that period and that his chest symptoms had been persistent in the last three years. He said that based on the x-rays it was not possible to make a definitive diagnosis of pulmonary asbestosis or pleural plaques.

In a report dated 28 August 2006 Dr Yeung recorded the fact of a referral to a Chest Physician, Dr Frank Chiu and of a series of CT scans. The CT scans revealed a few small pleural plaques.
The medical records tendered by the State also include a report from a Mr Max Bawden dated 5 December 1989. It included the following:
In my opinion Mr Munzer has for some months been suffering from a Depressive Disorder with Paranoid Ideation.
There was a previous episode of depression following a breakup with a former girlfriend in about 1985. …
Mr Munzer also has personality problems featuring traits of dependence, obsessionality and some paranoid features, which have no doubt arisen because of inimical early life experiences in his family of origin.
In my view the present depression should be treated, and I would suggest the use of tricyclic antidepressants, in the hope that this would ameliorate the more florid symptoms. Even though this would not alter the basic personality structure, it may enable him to function in a different environment from that obtaining at present.
After the final breakdown of his marriage, he was very pleased to be able to take up work again with E.T.S.A. In a very real sense changes in work practise and management threaten one of the major supports in his life. It is not surprising he should feel bitter, alienated and rejected. It has struck to the very heart of his self esteem.
Mr Munzer’s tendered documents included a list of documents tendered in Geyer v RESI Corporation.[1]
[1] [2013] SADC 122
The documents include an internal ETSA letter dated 10 June 1971 that reproduced extracts from material from the State Electricity Commission of Victoria that contained a statement about a growing concern that the inhalation of asbestos dust was causing lung disease and a proposed prohibition of the use of asbestos in future power stations. It reveals that ETSA’s position at that time was that the danger was over-rated and reference was made to potential industrial unrest.
They include an ETSA Departmental letter dated 17 June 1971 upon which there was a notation acknowledging that inhaled asbestos fibres or dust are likely to cause lung cancer.
They include an internal ETSA letter of 21 July 1972 that contained the following statement:
Many believe the hazards associated with asbestos inhalation to be much overrated, but the prohibiting by some authorities of its use for health reasons could easily lead to future industrial activity in this area in the Trust.
They include a document that shows that in March 1976 ETSA was still obtaining quotes for the use of sprayed asbestos at the Playford Power Station.
They include a report dated 21 July 1978 that indicates that samples of asbestos taken from the boilermaker’s workshop at the Playford Power Station and that amosite and chrysotile, both of which are types of asbestos, were present is substantial quantities.
They include an ETSA Departmental letter dated 1 October 1979 that prescribed ETSA’s policy regarding allowable asbestos dust concentrations of 2 fibres per millilitre for white and brown asbestos and 0.2 fibres per millilitre for blue asbestos and which acknowledges that asbestos dust can cause asbestosis and mesothelioma and that there have been reported cases of people developing asbestosis with short term exposure.
They include Guidelines issued in connection with the Torrens Island Power Station dated 4 January 1982 that contained a statement in connection with the health risks associated with the inhalation of asbestos dust and that there was uncertainty as to whether there was a level of exposure at which the risk of disease was zero.
The parties’ submissions
Mr Munzer submitted that it is sufficient for him to qualify for a potential extension if he can prove that a fact material to his case was not ascertained by him until after the expiration of the limitation period and that the action was instituted within 12 months after the ascertainment of that fact. In doing so he contended that the relevant test for qualifying for an extension is that which applied before the Limitation of Actions Act was amended in 2004.
He said that although he was aware that his pleural plaques were causing him mental stress he had no psychiatric expert’s opinion that he suffered a diagnosable psychiatric condition related to his concerns about his pleural plaques until he read the report of Dr Dorrington in about late October 2008. As he issued these proceedings within 12 months of that date he maintained that he met the primary threshold. As to discretion he said that given that ETSA had been put on notice of a potential claim in 2001 there was no relevant prejudice and that in the Court’s discretion the extension should be granted.
Mr Munzer went further.
He submitted that facts ascertained by him after the proceedings had been issued could also be relied upon. He submitted that he could also rely upon his later ascertainment from Professor Cramond that his pleural plaques were causing him pain and his later ascertainment upon reading Dr Phillips’ report that his mental illness was pervasive.
As to damages, Mr Munzer’s primary position is that his pleural plaques are causing him chest pain and that I should accept the evidence of Professor Allen and Professor Cramond. He said that no one doubts that he suffers from chest pain and that he has done so for more than 20 years. He said that no one had offered any other organic explanation of the cause of his chest pain. Whist he accepted that the hypothesis explaining how his pleural plaques could be causing his chest pain was not established as a scientific fact, for legal purposes I should be so satisfied.
I understood him to contend that in the alternative even if I reached the conclusion that there was no organic explanation for his chest pain he is able to rely upon a psychiatric injury as a basis for an award of damages.
Mr Munzer submitted that the amendments to the Civil Liability Act 1936 that modify the common law in relation to mental harm do not apply because they only apply prospectively. He said that I should reach that conclusion based on general principles of statutory construction. He said that absent a clearly expressed intention an amendment should not be construed as affecting accrued rights. In any event he contended that the Act itself, through its transitional provisions, makes the position clear.
In submitting that at common law a psychiatric injury might give rise to a claim for damages he referred me to the judgment of Windeyer J in Mount Isa Mines Limited v Pusey and in particular to the following:
It is, however, today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psychoneurosis or a psychosomatic illness. For that, if it be the result of a tortious act, damages may be had. It is in that consequential sense that the term ‘nervous shock’ has come into the law. In the last reported case on this topic in England - Hinz v. Berry - Lord Denning M.R. said ‘Damages are . . . recoverable for nervous shock, or, to put it in medical terms, for any recognizable psychiatric illness caused by the breach of duty by the defendant.’ (footnotes omitted)[2]
[2] (1970) 125 CLR 383 at 394
He contended that at common law, liability for damages for a psychiatric injury is not limited to cases where the injury is caused by sudden shock, or directly perceiving a distressing phenomenon or its immediate aftermath or that the affected person was a person of normal fortitude.
He submitted that it was reasonably foreseeable by ETSA that within the class of persons employed by it at the Playford Power Station there would be some who would suffer harm by a psychiatric illness as a result of their exposure to asbestos and their fear that this could result in a terminal illness.
Mr Munzer further submitted that in light of the information contained in his employment records that ETSA was aware of some of the significant stressors that he had faced in his life and that this is relevant in determining the extent of the duty that ETSA owed to him.
Mr Munzer asked me to find that his exposure to asbestos, his chest pain, the diagnosis of pleural plaques and his fear of dying as a result of an asbestos related disease has exacerbated, aggravated, entrenched and prolonged what he accepted was a pre-existing depressive disorder.
He contended that he should be entitled to substantial general damages on the basis that for over 20 years his life has been dominated by obsessive ruminations, fear and despair over asbestos related matters and that this is likely to continue for the rest of his life.
He contended that he should be entitled to substantial damages for future treatment.
Finally he submitted that he should be entitled to exemplary damages.
The State submitted that in considering the application for an extension of time, I must apply the law as amended in 2004. Under the amendments it is now much more difficult to obtain an extension of time that was previously the case. The State contended that Mr Munzer has not met the more stringent tests that the Act now prescribes.
The State accepts that Mr Munzer was exposed to asbestos in the course of his employment with ETSA. It accepts that if Mr Munzer has suffered a physical injury on account of his exposure to asbestos that ETSA owed Mr Munzer a duty of care and that it breached that duty. The State, however, contended that pleural plaques cannot cause pain. It said that if I accept that Mr Munzer has pain experiences I ought to find that they are psychologically caused. It contended that the law to be applied is as prescribed by the Civil Liability Act in its current form. As a result of amendments to that Act the common law relating to mental harm has been changed. In respect of actions that it applies to a defendant does not owe a duty to a plaintiff to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a psychiatric illness. It submitted that this more stringent test applies and that it has not been met. In the alternative, it submitted even if the common law applied, an entitlement to damages had not been established.
The State submitted that pleural plaques, of themselves do not result in an actionable claim because actual damage, in the sense of real detriment is part of the gist of an action in negligence and that is lacking here.
The State contended that in light of Mr Munzer’s extensive history of significant smoking and his pre-existing psychological problems it is doubtful that he has suffered any real loss as a result of ETSA’s admitted negligence.
It made a significant attack on his credibility. It submitted that throughout his evidence and the histories that he has provided to the doctors involved in this litigation that Mr Munzer has lied, embellished or exaggerated.
It said that the matters stated in the Centrelink form that I discussed earlier reveal that Mr Munzer would say whatever he considered necessary to achieve his desired outcome.
He said that he had deliberately been misleading about changes in his fitness and was attempting to portray a degree of unfitness that was untrue to support his claim. It said that he had deliberately downplayed the extent of his prior smoking. It incidentally also contended that Mr Munzer’s continued smoking provides a basis to reduce his entitlement to damages by reason of contributory negligence.
It said that he overstated his use of pain relieving drugs with a view to establishing the severity of his chest pain and future needs for medication.
It said that he was selective in giving a history of sleep disturbance and understated his earlier experiences of sleep disturbance.
It said that he exaggerated his pain experiences to Dr Cramond.
It submitted that I should be so concerned about his credibility that I should not make any findings based upon his evidence without independent corroboration.
It contended that in line with the evidence of Dr Antic and Professor McKenzie any award for future treatment should be modest.
It submitted that I ought not to award exemplary damages. It argued that a psychologically caused injury is not a dust disease for the purposes of the Dust Diseases Act 2005 such that that Act does not determine the issue of exemplary damages and on common law principles no award should be made.
Consideration
I commence with some observations about Mr Munzer and his evidence.
Having observed Mr Munzer give his evidence over the best part of three days, I formed a generally reasonable favourable view of his credibility. That is not to say that I accept all of his evidence. I thought at times he was evasive when answering questions that highlighted inconsistencies between what he told doctors and what he told me. I did not get the sense that he was deliberately misleading me or them. I got the very firm impression that he has an absolute conviction that he has been wronged by ETSA and that he feels very bitter about the way he perceives he was treated. I suspect that unconsciously he has under stated or over stated, as the case may be, certain matters to doctors and I have to take this into account in evaluating his and their evidence. I was also left with the very firm impression that in terms of the history he has given to me and others that much of it is the product of reconstruction and I therefore treat that evidence with caution. But, importantly, I accept that he genuinely feels some pain in the flanks of his chest and that he experiences some breathlessness on exertion. The consistency of those complaints as recorded in Dr Yeung’s notes is impressive. I also accept that he is deeply emotionally troubled.
I now turn to the extension of time point.
These proceedings should have been commenced within three years after the cause of action accrued. They were not.
In my view Mr Munzer is correct in submitting that the amendments to the Limitation of Actions Act that make it more difficult to obtain an extension of time do not apply because they only apply prospectively. In my view the transitional provisions of the amending legislation as prescribed by Sch 1, s1 of the Law Reform (Ipp Recommendations) Act 2004 (SA) expressly provide that the amendments were intended to apply only prospectively. As this cause of action is based wholly on events that occurred before the commencement of the amending Act is to be determined as if the amendments had not been enacted.
Section 48 of the Limitation of Actions Act, being the provision that enables an extension of the time limit to be granted, relevantly provided as follows:
(1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for--
(a) instituting an action; or
...
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
...
(3) This section does not--
...
(b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied--
(i) that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
(ii) that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.
The operation of s 48 of the Limitation of Actions Act was discussed by the High Court in Sola Optical Australia Proprietary Limited v Mills. It said:
Section 48(1) confers, subject to the section, a general and unfettered power upon a court to extend the time prescribed by any Act (including the Limitation of Actions Act 1936 itself) or piece of subordinate legislation for instituting an action, or for doing any act in an action or with a view to instituting an action. The wide general power so conferred is limited by sub-s. (3). That sub-section denies to a court the power to extend the time within which an action may be instituted unless it is satisfied of the existence of the circumstances set out in either par. (i) or (ii). The contrast between the matters described in par. (i) and the 1963 Act is significant. The former is not limited to material facts which relate to a cause of action and satisfy the exhaustive enumeration in s. 7 of the 1963 Act. The subject-matter of par. (i) is facts which are material to the plaintiff’s case, with no attempt to provide any definition of the categories to which such facts must conform. The reference to the plaintiff’s case supplies a broader canvas than the reference in the 1963 Act to the cause of action. Unlike the 1963 Act, there is no requirement that the material facts be of a decisive character, no reference to constructive knowledge, no obligation to have used due diligence in seeking to discover at an earlier time the facts in question, and no mention of seeking appropriate advice. The effect of the paragraph was described by Bray C.J. in Napolitano in words which we are glad to adopt:
A plaintiff may still be entitled to ask the Court to extend the time under the section, notwithstanding that he has been supinely inactive and notwithstanding that the material facts might easily have been ascertained earlier and notwithstanding that their nature is not such as to be decisive of the success of the action or even such as to have in his mind weighed down the balance in favour of litigation. All these matters, of course, are relevant to the discretion, and it seems to me that the South Australian Parliament, having made one qualifying condition, which in some cases, may not be of great significance, has left all the rest to the discretion of the court.’[3]
[3] [1987] HCA 57 at para 11; (1987) 163 CLR 628
I find that although Mr Munzer was aware that his pleural plaques were causing him mental stress prior to October 2008 it was not until he read the report of Dr Dorrington in about late October 2008 that he appreciated that he had psychiatric expert’s opinion that he suffered a diagnosable psychiatric condition related to his concerns about his pleural plaques. As he issued these proceedings within 12 months of that date he has met the primary threshold. As such it is not necessary for me to determine whether he could rely upon any other facts.
There is no suggestion that ETSA has been prejudiced beyond having to potentially meet an otherwise stale claim. In all the circumstances I find that it is in the interests of justice to extend the time.
I now turn to consider what damage Mr Munzer has suffered on account of his exposure to asbestos and his pleural plaques.
The notes of Dr Yeung are reasonably comprehensive and they reveal that Mr Munzer and he shared a reasonably open relationship. If Mr Munzer first experienced pain in his chest the early 1990s when he was leaning over the bonnet of a car and that he felt soreness on the left side of his chest just below the ribs, I expect he would have said that to Dr Yeung and that Dr Yeung would have recorded it. I think Mr Munzer must be mistaken about the date and that he must be mistaken in his recollection of his first chest pain experience.
The entries in Dr Yeung’s notes of 26 and 27 August 1993 suggest to me that it is likely that Mr Munzer complained to Dr Yeung on 26 August 1993 that he was experiencing chest pain.

It will be recalled that Dr Yeung wrote in a report that that in January 1998 Mr Munzer had chronic bronchitis, that he had been bothered by chest pain, shortness of breath and a productive purulent cough, that two of his friends had died from asbestosis around that period and that his chest symptoms had been persistent in the last three years.
I reject Mr Munzer’s evidence that from 1993 onwards he reported chest pain to Dr Yeung every three to four months. I think it unlikely that Dr Yeung would make no record of that in his notes for the period between 1993 to1998. Given that there is no record of a complaint of chest pain in Dr Yeung’s medical records in that three year period prior to January 1998 I think it is more probable than not that Mr Munzer told Dr Yeung in January 1998 that he had chest symptoms for three years prior, rather that Dr Yeung recalling that Mr Munzer had been complaining to him of persistent chest pain in the three year period prior to January 1998. I find that Mr Munzer did not complain to Dr Yeung about chest pain in the period between 27 August 1993 and January 1998.
This is a significant finding. On 27 August 1993 Mr Munzer spoke to Dr Yeung about a history of direct exposure to asbestos at the Playford Power Station. If Mr Munzer’s chest pain was solely the product of his mind this lapse of time between then and January 1998 in reporting chest pain is surprising, especially given that over the supervening period Mr Munzer not infrequently complained to Dr Yeung about work related stress and paranoia. And on at least one occasion in that period he spoke to Dr Yeung of having nightmares about ETSA. I would have expected that if his chest pain was solely the product of his ruminations over his exposure to asbestos Mr Munzer would have continuously complained about it to Dr Yeung. The absence of a report of such pain in Dr Yeung’s records indicates that he did not.
I also think it is of some significance that when Mr Munzer complained to Dr Yeung in January 1998 about chest pain there had not yet been a definite diagnosis of pleural plaques. I appreciate that Dr Yeung’s notes of the consultation contain the word ‘bronchitis’ and that at around that time Mr Munzer had reported that two friends had died from asbestosis and he was clearly worried about his own exposure to asbestos.
But both of these matters are inconsistent with the hypothesis that underpins part of the State’s case, which as I understand it, is that Mr Munzer’s chest pain is a no more than a psychological product of his knowledge that he has been exposed to asbestos that was later compounded by his knowledge that he has pleural plaques.
None of the doctors who gave oral evidence doubted that Mr Munzer’s chest pain was real. Although for the reasons discussed above I think it is unlikely that the level of pain is as great as Mr Munzer told others, as I said earlier, importantly I accept that he genuinely feels some pain in the flanks of his chest and that he experiences some breathlessness on exertion.
There was no disagreement by the relevant medical experts that the entry of asbestos fibres into the lungs and the consequential development of pleural plaques is physical damage.
Whilst the position is far from certain, on balance I think it is likely that for organic reasons that damage is part of the cause of Mr Munzer’s chest pain. The explanation as to how chest pain might cause some breathlessness on exertion is persuasive.
The fact that I am unable to be certain of the precise organic process that would explain how Mr Munzer’s pleural plaques are causing him chest pain is not determinative of the issue before me. I repeat what I said in Barnes v Department for Education and Child Development. In that case, having made the observation that a scientist might say that without a rational scientific explanation as to the process by which a particular event might occur there is no scientific proof, I then went on the say:
But that is not the standard by which legal causation is determined. In contrast to the scientific method, proof of causation in law is a question of fact that has to be resolved as a matter of common sense. Moreover, ‘[t]he civil standard of proof, on the balance of probabilities, permits a yawning gap between complete understanding and sufficient understanding.’ Thus, the fact that the biological processes by which these events might be causally connected might not be properly understood is not decisive.
In Dingley v The Chief Constable, Strathclyde Police Lord Prosser highlighted the difference between the degree of satisfaction required to meet a scientist’s notion of proof as against that of a court. He said, with the scientist in mind, that ‘[m]ere marginal probability will not much interest him. But it must satisfy a court.’[4](footnotes omitted)
[4] [2014] SAWCT 40 at paras 92-3
There is no doubt that psychological factors are amplifying Mr Munzer’s pain experiences. There is no doubt that the fact of his pleural plaques and the fact that they are causing some physical symptoms are contributing to his already significantly compromised mental state. There is also no doubt that his fear and apprehension about the potential consequences of his asbestos exposure is contributing to his depressive state.
This then raises the issue as to whether liability in respect of this is to be determined on common law principles or by reference to s 33 of the Civil Liability Act. As I noted earlier, that section limits the circumstances as to when in respect of mental harm a duty of care is owed by a defendant to a plaintiff.
As with his submission in respect of the amendments to the Limitation of Actions Act, in my view Mr Munzer is correct in submitting that that the Civil Liability Act does not apply because the amendment only applies prospectively.[5]
[5] See: Sch 1, s1 of the Law Reform (Ipp Recommendations) Act 2004 (SA)
On common law principles the amplification of pain experiences on account of psychological factors and the suffering of a recognised psychiatric illness consequent upon a physical injury that has been caused by the negligence of another give rise to an entitlement to damages.
However, not all of Mr Munzer’s psychiatric problems are attributable to his pain experiences consequent upon him having pleural plaques.
Some are caused by his anxiety about what he regards as the impending doom that awaits his. Much is due to the combination of factors that were in existence prior to him developing pleural plaques.
In respect of the first of these it is necessary to determine whether it is compensable. Not all emotional distress arising from tortious action sound in damages. As Gummow and Kirby JJ observed in Tame v New South Wales:
…the central inquiry…is whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.[6]
[6] [2002] HCA 35 at para 201; 211 CLR 317
In this case it was, in my view, ETSA should have foreseen that to expose its employees to asbestos might cause some of them to suffer a psychiatric illness.
As for the second, I refer to the judgment of Ipp JA in Seltsam Pty Limited v Ghaleb where he said:
Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.
Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.
Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.[7]
[7] [2005] NSWCA 208 at paras 105-9
I accept as a matter of principle the fact of cigarette smoking can provide a basis to reduce damages on account of contributory negligence. For example, in Badger v The Ministry of Defence,[8] Burnton J, sitting in the English Queens Bench Division, reduced a widow’s claim for damages by 20% to reflect the increased likelihood that the deceased would contract lung cancer as a result of his exposure to asbestos. He found that by the mid-1970s a reasonable prudent person with the knowledge that the deceased then had would have stopped smoking and that by continuing to smoke the deceased had increased his risk of contracting lung cancer and it therefore constituted contributory negligence.
[8] [2005] EWHC 2941
The difficulty that I have with the State’s submission on this issue is that there is no evidence that suggests that Mr Munzer’s continued smoking has caused or contributed to the fact of his pleural plaques or to the pain that his pleural plaques are causing him.
That is not to say that Mr Munzer’s long history of cigarette smoking is irrelevant. In conformity with Seltsam Pty Limited v Ghaleb appropriate allowance must be made for the contingency that it may be and in the future might be contributing to Mr Munzer’s chest pain and shortness of breath. In assessing damages that I now turn to discuss I have taken this into account.
For reasons explained earlier I do not accept Mr Munzer’s evidence that he has been experiencing plaque related chest pain since 1993. I find that he commenced experiencing plaque related chest pain in or about January 1998.
Thus, I have before me a 72 year old man who has been experiencing what I find to be moderate pain in his chest and some breathlessness on exertion in varying degrees since 1998 as a result of pleural plaques. I accept that these experiences sometimes interfere with his sleep. I accept that they compromise his activities. I take into account that other factors may also be causing interference with his sleep and might be compromising his activities.
It is plain from the report of Mr Bawden that at least since December 1989 Mr Munzer was suffering depression. His isolated life at Yeelanna pre-dated his pleural plaques injury. His life was already impoverished. That said it is now worse than it was.
It is plain from Mr Munzer’s evidence that he continues to be distressed by the circumstances leading up to and resulting in the termination of his employment with ETSA. He is not to be compensated in this action for any psychological damage that those matters have caused.
I must also take into account the evidence of Dr Phillips where he spoke of the likelihood that Mr Munzer would have developed psychiatric problems whether or not he was exposed to asbestos fibres at ETSA. I accept that evidence. In all the circumstances of this case that opinion accords with common sense.
That said, the evidence establishes that Mr Munzer’s pain experiences on account of his pleural plaques and his ruminations about his exposure to asbestos and the potential consequences of that exposure have, at least since 1998, resulted in him experiencing psychological problems over and above those that previously existed.
Taking all of these matters into account I consider an appropriate assessment for general damages to be $45,000 of which I attribute $30,000 to past loss. I allow $9,000 for interest.
Mr Munzer claims $6,836.82 on account of past out of pocket expenses. This consists of medications, the labour cost of mechanical work on his motor vehicle and the repayment to Medicare Australia. Much of these do not relate to expenses in connection with actionable damage. I take a broad axe and allow $3,500.
Mr Munzer contended that the Court should award damages based on the premise that he requires ongoing psychiatric treatment, pain relief medication and monitoring of potential chest problems undertaken by a general practitioner and a specialist.
In assessing this head of damage I must take into account Mr Munzer’s inability to access a psychiatrist and the fact that much of his need to see a psychiatrist relates to matters unrelated to the tortiously inflicted damage. On the issue of monitoring his chest I generally prefer the evidence of Professor Allen. I think some ongoing review by a chest physician in this case is appropriate. Taking all of these matters into account I allow $15,000.
Mr Munzer contended that I should allow other out of pocket expenses to reflect his inability to undertake strenuous home maintenance, domestic and handyman duties. I have reservations as to how much strenuous home maintenance, domestic and handyman duties Mr Munzer would have undertaken had he not suffered the tortiously inflicted damage. I allow $2,500.
In light of my conclusion as to the nature of damage suffered by Mr Munzer he clearly has suffered a dust disease for the purposes of the Dust Diseases Act. Section 9(2) of that Act provides:
The Court should make an award of exemplary damages in each case against a defendant if it is satisfied that the defendant-
(a) knew that the injured person was at risk of exposure to asbestos dust, or carried on a prescribed industrial or commercial process that resulted in the injured person's exposure to asbestos dust; and
(b) knew, at the time of the injured person's exposure to asbestos dust that exposure to asbestos dust could result in a dust disease.
In BHP Billiton Limited v Parker Doyle CJ and White J commented upon this provision as follows:
We consider that the effect of s 9(2) is to establish conditions which are sufficient for an award of exemplary damages in a dust diseases action, and to indicate that if those circumstances exist, an award should usually be made. That is to say, if the defendant is in the category identified in sub-par (a) and had the knowledge to which sub-par (b) refers, the Court ought, absent some sufficient countervailing consideration, make an award of exemplary damages. It is no longer necessary that a defendant’s conduct be characterised as reprehensible before an award is made (although if a defendant’s conduct is reprehensible, that would be relevant to both the exercise of the discretion and to the assessment of the amount to be awarded). Section 9(2) should be understood as substituting the statutory criteria for the common law criteria; not as adding to those criteria. There will be circumstances in which, despite the use of the word “should”, the Court may exercise the discretion not to make an award, but those circumstances will be outside the norm.
This has the effect that an award of exemplary damages may be made against a defendant in respect of a breach of duty occurring many years previously, who no longer has any involvement with asbestos, whose conduct does not in the eye of the common law warrant punishment, and in respect of whom notions of deterrence are of no or limited weight. That however is the legislative intention. There is no indication that s 9(2) is not to apply in such circumstances and, indeed, they are the circumstances which are likely to exist in many, if not most, dust diseases actions.
It should be kept in mind that many dust diseases do not become manifest for many years after the injured person’s exposure to asbestos. The evidence in this action indicated that periods of 15 to 30 years are common. In these circumstances it is almost inevitable that some defendants will have ceased business altogether, or changed their practices, or ceased any use of asbestos. Nevertheless, s 9(2) contemplates that an award of exemplary damages should be the norm.[9]
[9] [2012] SASCFC 73 at paras 232-4
In Geyer v RESI Corporation, a case concerning the same employer at the same plant, this Court found as follows:
The defendant has admitted that by the early 1970s it was aware of the risks of asbestos. Well before 1973 ETSA had started to remove asbestos from its power station and was having suppliers tender for work with thermal insulation that was free of asbestos.
It would not have taken these measures unless it knew that asbestos dust could result in a dust disease. In light of my finding that as the plaintiff’s career continued with ETSA in his various supervisory roles, he continued to work in the boiler shop in a hands-on role and the clear evidence that the boiler shop contained asbestos dust it must follow that the defendant knew that whilst the plaintiff was working in the boiler shop, at least from 1973 onwards, that he was exposed to asbestos dust and that as a result he was at risk of contracting a dust disease.
Whilst the defendant is to be given some credit for taking measures to attempt to ameliorate the potential dangers to the plaintiff it plainly did not go far enough. They were certainly not enough to militate against an award of exemplary damages.
Consistent with the approach taken by this court in Van Soest v BHP Billiton Ltd (No 2) I think an award of $20,000 under this head of damage is appropriate.[10] (footnote omitted)
[10] [2013] SADC 122 at 358-360
In my view the evidence clearly establishes that Mr Munzer was at risk of exposure to asbestos dust and that ETSA knew, at a time when Mr Munzer was so exposed, that that exposure could result in a dust disease. I see no reason to exercise the discretion not to make an award, nor do I see any reason to depart from the amount of exemplary damages determined as appropriate in Van Soest and Geyer.
In summary I award as follows:
General damages   $45,000
Past out of pocket expenses           $3,500
Future out of pocket expenses     $17,500
Exemplary damages  $20,000
Interest  $9,000
Total  $95,000
There will be judgment for Mr Munzer in the sum of $95,000. I shall hear the parties as to costs.
Finally I note that Mr Munzer seeks an order that he may claim further damages should he develop any of the following conditions: asbestosis; lung cancer; mesothelioma; asbestos induced carcinoma; and any other asbestos related condition. As explained in the addendum I have refused leave to amend to allow in this action a claim for damages for asbestosis. In assessing damages I have assumed that Mr Munzer will not develop that disease, lung cancer, mesothelioma, asbestos induced carcinoma or any other asbestos related condition other than those described herein. It follows that in accordance with s 9(1) of the Dust Diseases Act[11] if at a later date Mr Munzer does develop any of these conditions he may claim further damages.
[11] Section 9(1) of the Dust Diseases Act 2005 provides that “If it is proved or admitted in a dust disease action that an injured person may, at some time in the future, develop another dust disease wholly or partly as a result of the breach of duty giving rise to the cause of action, the Court may
(a) award, in the first instance, damages for the dust disease assessed on the assumption that the injured person will not develop another dust disease; and
(b) award damages at a future date if the injured person does develop another dust disease.”
Addendum
Part way during the trial Mr Munzer sought leave to amend the pleadings to allege that he was suffering from asbestosis.

The diagnosis of asbestosis was to some degree speculative. The State contended that it had prepared its case on the premise that Mr Munzer was alleging that he had pleural plaques and that it would be prejudiced in meeting a case based on asbestosis if its experts did not have a proper opportunity to consider the matter, including the possibility of further scans and examinations. That further investigation may have revealed that in respect of an allegation of asbestosis that Mr Munzer had failed to discharge his onus. As such the State’s request to pause and consider its position was entirely reasonable.
It is clear as a result of the judgment of the High Court in Aon Risk Services Australia Ltd v Australian National University[12] that significant amendments are not there for the taking.
[12] [2009] HCA 27; (2009) 239 CLR 175
The only way I could cure the prejudice that the State might suffer would be to adjourn the proceedings. I was not prepared to countenance that. These proceedings were issued over five and a half years ago. They need finality. Moreover, because of the provisional nature of an award of damages in respect of a dust disease, as explained in the main judgment, if Mr Munzer later clearly develops asbestosis he is not prevented by this judgment from prosecuting that action then. For these reasons I refused leave to amend.