Resi Corporation v Munzer

Case [2016] SASCFC 15

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Civil)

RESI CORPORATION v MUNZER

[2016] SASCFC 15

Judgment of The Full Court

(The Honourable Justice Sulan, The Honourable Justice Stanley and The Honourable Justice Lovell)

2 March 2016

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

DAMAGES - GENERAL PRINCIPLES - EXEMPLARY, PUNITIVE AND AGGRAVATED DAMAGES

The respondent sued the appellant for injuries suffered due to exposure to asbestos. Issue raised whether the presence of pleural plaques was the cause of the respondent's chest pain. The trial Judge accepted the respondent's medical evidence. The appellant argued that the Judge failed to give sufficient and/or adequate reasons for accepting the respondent's medical experts. The appellant also challenged a number of the Judge's factual findings.

The appellant argued that the Judge's assessment of damages was manifestly excessive. The respondent cross-appealed alleging damages award manifestly inadequate.

Held per Lovell J (Sulan and Stanley JJ agreeing):

1.  The Judge gave adequate and sufficient reasons for his decision in relation to the medical evidence.

2.  Factual findings of the Judge were appropriate.

3.  Damages award was not manifestly excessive.

Appeal dismissed.

Cross-Appeal allowed.

Held per Lovell J (Sulan and Stanley JJ agreeing):

Damages assessment by the Judge was manifestly inadequate. General damages increased from $45,000 to $80,000. 

Amaba Pty Ltd v Booth [2010] NSWCA 344; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; Commissioner for Government Transport v Adamcik (1961) 106 CLR 292, applied.
State of New South Wales t/as New South Wales Department of Agriculture v Allen [2000] NSWCA 141; EMI (Australia) Ltd v Bes [1970] WCR (NSW) 114; AK v Western Australia (2008) 232 CLR 438; Mifsud v Campbell (1991) 21 NSWLR 725; Papps v Police (2000) 77 SASR 210; Keith v Gal [2013] NSWCA 339; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212; Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53; The Waterways Authority v Fitzgibbon [2005] HCA 57; Archibald v Byron Shire Council [2003] NSWCA 292; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Transport Accident Commission v Kamel [2011] VSCA 110; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33; Barnes v Department for Education and Child Development [2014] SAWCT 40, discussed.
Ewins v BHP Billiton Ltd [2005] SASC 95; BHP Billiton Ltd v Hamilton (2013) 117 SASR 329, considered.

RESI CORPORATION v MUNZER
[2016] SASCFC 15

Full Court:       Sulan, Stanley and Lovell JJ

  1. SULAN J:             I would dismiss the appeal and allow the cross-appeal. I agree with the…

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Resi Corporation v Munzer [2016] SASCFC 15
Case
[2016] SASCFC 15
Decision Date

CaseChat Overview and Summary

Resi Corporation appealed to the Full Court of the Supreme Court of South Australia against a judgment in favour of the respondent, Mr Munzer. The dispute concerned Mr Munzer's claim for damages, primarily for chest pain and psychological distress allegedly caused by his exposure to asbestos during his employment with ETSA. The trial judge had found in favour of Mr Munzer, awarding him damages.

The appeal raised several legal issues. Firstly, the Court was required to consider whether the trial judge had erred in his findings of fact, particularly concerning the credibility of the respondent and the causal link between pleural plaques and chest pain. Secondly, the appeal questioned the adequacy of the trial judge's reasons for his decision, specifically whether he had sufficiently explained his findings on these critical issues. Finally, the appeal touched upon the principles governing the award of damages, including the assessment of pain and suffering.

The Court analysed the trial judge's reasons in light of the evidence presented, which included extensive medical expert testimony. The central medical debate revolved around whether pleural plaques, by themselves, could cause chest pain, with Professor Allen and Professor Cramond opining that this was the case in approximately 50% of instances. The appellant had challenged this hypothesis, suggesting it lacked support in medical literature. The Court noted that the trial judge's reasons needed to be assessed against the complex background of the respondent's personal history, including significant trauma and pre-existing psychological issues, as well as the medical evidence concerning his asbestos-related condition. The Court considered whether the judge had adequately addressed the inconsistencies and the weight given to the expert opinions.

The Court allowed the appeal, finding that the trial judge had failed to provide adequate reasons for his findings, particularly in relation to the causal connection between the pleural plaques and the respondent's chest pain. The Court concluded that the reasons given were insufficient to enable it to understand how the judge reached his conclusion on this crucial aspect of the case. Consequently, the Court ordered that the judgment be set aside and a new trial be held.

Orders

Orders of the court

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Background

Background to the litigation

It is important to observe that there were two main issues at trial. The first was the credibility of the respondent. The respondent was subjected to a vigorous but fair attack on his credibility. The second issue revolved around the question of whether pleural plaques, by themselves, could cause chest pain. This was almost entirely an issue addressed by the specialist physicians. While there was a subsidiary issue relating to the respondent’s ongoing psychological issues, this issue largely fell away after the psychiatrists gave their evidence at trial. The reasons of the Judge need to be assessed against the background of the issues at trial.Respondent’s background The background of the respondent was important in the case and it is therefore necessary to set out in some detail the background facts. Much of his early background was not disputed; what was in dispute was the role his background played in relation to his current problems. The respondent is currently 73 years of age. His father was a violent alcoholic who frequently beat his wife. The respondent also suffered beatings at the hands of his father; he frequently intervened to protect his mother. His parents separated in 1955. He had an unhappy childhood. The respondent later married and had three children. The marriage unfortunately did not last and the respondent and his wife eventually divorced. His ex-wife cohabited with the half-brother of the respondent’s father. In November 1973 his ex-wife was involved in a car accident that resulted in the death of his daughter. Clearly this affected the respondent and continues to do so. Following her death he resorted to alcohol and cannabis to help him cope with his grief and the abuse of these substances resulted in a number of admissions to hospital. Initially the respondent worked for ETSA as a cleaner. Later he became a trade assistant where he was exposed to asbestos. He gave evidence that he was never warned about the risk of being exposed to asbestos. He said ineffective masks were made available in the 1970s. During his time at ETSA the relationship he had failed and he became depressed. In the 1980s the respondent became troubled by the decision to privatise ETSA. Eventually he became so agitated that he put in a claim for work-related stress. This claim was eventually settled and he received a payment of $32,000 provided he resigned. With the funds from the settlement the respondent bought a house in Yeelanna a small town about 80 kilometres from Port Lincoln. He continues to reside there. Tragically in 2000 his granddaughter was killed in a motor vehicle accident. For many years he has suffered from psychological problems due to his tragic background. The respondent stated that he first experienced chest pain in the early 1990s when leaning over the bonnet of a car. At that time his general practitioner was Dr Yeung. The respondent gave evidence that he complained of chest pain every time he saw Dr Yeung which was approximately every three to four months. He said that Dr Yeung kept telling him that he did not have any “asbestos problems” and that his chest pain was caused by smoking. He requested Dr Yeung to arrange chest x-rays which showed no abnormality. An x-ray performed on 29 April 1998 raised the possibility for the first time that the respondent had an asbestos related pleural disease.

Evidence

Evidence Before The Court

Ground 2 refers to an inconsistency in a specific finding and I deal with that later in these reasons.Medical evidence For the purpose of the trial the respondent was examined by Professor Allen, a chest physician, Professor Cramond, a pain specialist and Dr Phillips, a psychiatrist. Professor Cramond was unable to give evidence at the trial but an agreed statement of facts regarding her evidence was tendered.[5][5] Exhibit P29. The Judge took into account that disadvantage particularly where there was “inconsistent” history given to Professor Cramond. The appellant called Dr Antic, a chest physician, Dr Begg, a psychiatrist, and Associate Professor McKenzie. Associate Professor McKenzie had not examined the respondent but performed a literature search on the question of chest pain and its relationship to pleural plaques. He gave an opinion in relation to his research and also on the issue of the respondent’s chest pain based on the other reports. At trial there was little or no dispute about the fact that the respondent had quite severe and long standing psychological problems. There was general agreement between the psychiatrists as to the fact that the respondent was obsessed by his problems and ruminated about them constantly. That included his obsession about his asbestos related condition. All psychiatrists concluded that he was genuinely experiencing pain and was constantly distressed. Dr Phillips thought that the respondent suffered from a chronic pain disorder. He stated that it would be rare for such a disorder to be caused only by psychological factors. Dr Begg considered that the respondent suffered from a dysthymic disorder and that the diagnosis of an asbestos related condition had aggravated the disorder. Dr Dorrington agreed with that opinion. The main issue on the physical medical evidence (which has also been described as the organic medical evidence) was the opinion of Professor Allen, supported by Professor Cramond that the chest pain suffered by the respondent was, to some extent at least, caused by the pleural plaques themselves. The presence of the pleural plaques was not in dispute. The opinions, as one would expect, of Professor Allen and Professor Cramond were based on their clinical experience and training. It was suggested by the appellant during the trial that their opinions were based simply on a “hypothesis” and the “hypothesis” was not supported by reputable medical literature on the topic nor by other medical specialists practicing in the area. The hypothesis of Professor Allen and Professor Cramond was that in about 50 per cent of cases pleural plaques themselves cause pain. Some time was spent at the trial in debating an article co-authored by Professor Allen and Professor Cramond (amongst others) that had been published in the medical journal Pain Medicine in 2012. The paper was an original research article entitled ‘A Retrospective Study of Chest Pain in Benign Asbestos Pleural Disease’. A copy of this paper was annexed to his medical report. The article reflected the views of both witnesses on the question at trial. The issue at trial was of course his opinion on the facts of the case but his article was an important piece of information.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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