Resi Corporation v Munzer - [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

SULAN J: I would dismiss the appeal and allow the cross-appeal. I agree with the reasons of Lovell J and the orders proposed.
STANLEY J: I would dismiss the appeal and allow the cross-appeal. I agree with the reasons and the orders proposed by Lovell J.
LOVELL J:
Overview
While working for the Electricity Trust of South Australia (“ETSA”) in the 1970s–1980s the respondent (Mr Munzer) was exposed to asbestos. He later developed pleural plaques in the chest; their presence is indicative of asbestos exposure. The respondent sued the State of South Australia for damages for injuries suffered, namely chest pain and its consequences, due to his exposure to asbestos whilst working for ETSA.
At trial there was a concerted attack on the credibility of the respondent by the appellant. It was not conceded that the respondent suffered any chest pain. Alternatively it was argued, if he did suffer chest pain, the pain was psychologically based and due to pre-existing psychological problems. The appellant argued that the simple presence of pleural plaques could not be the cause of chest pain.
The trial Judge found that the respondent suffered chest pain, that the pleural plaques were the cause and assessed damages on that basis. The appellant challenges a number of findings in that regard. Further, the appellant argued that the Judge failed to give adequate reasons for his findings on these issues. Also, the appellant argued that the Judge made no findings related to the question of whether the respondent had proved negligence for pure psychiatric injury. Further, the appellant challenged the Judge’s assessment of general damages, out-of-pocket expenses and exemplary damages.
The respondent cross-appealed arguing that the amount awarded by way of general damages was manifestly inadequate.
Grounds of appeal
The appellant challenged three particular findings of the Judge (grounds 1 to 3).
First, that the Judge erred in finding that “for organic reasons that damage is part of the cause of Mr Munzer’s chest pain”.[1] Secondly, that the Judge erred in finding that the respondent commenced experiencing plaque related chest pain in or about January 1998.[2] Thirdly, that the Judge erred in finding that “[t]he explanation as to how chest pain might cause some breathlessness on exertion is persuasive”.[3]
[1]    Munzer v State of South Australia [2015] SADC 18 [165].
[2]    Munzer v State of South Australia [2015] SADC 18 [179].
[3]    Munzer v State of South Australia [2015] SADC 18 [165].
Particulars relating to these grounds generally are that the findings were against the weight of the evidence and that the Judge failed to give adequate reasons for the findings.
Ground 4 alleges that the Judge should have found that the respondent had failed to prove its case on the balance of probabilities. It is in reality a “catch all” ground. These four grounds related to the “physical” medical evidence rather than the psychological and/or psychiatric evidence.
Ground 5 related to the question of whether negligence had been established for purely psychological/psychiatric injury. Ground 6 was not pursued and grounds 7 to 9 related to damages.
Given the content of the appeal grounds and the way both the trial and appeal were conducted, it is appropriate to deal more generally with the evidence before addressing the specific grounds of appeal.
Issues at trial
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.
The appellant tendered the medical records of Dr Yeung at the trial. Importantly, the medical records do not record any complaint of chest pain by the respondent until 1998. From that time on as noted by the Judge there are consistent complaints of pain in the “flanks of his chest” and the fact that he experiences breathlessness on exertion. The Judge noted that the consistency of those complaints, as recorded in Dr Yeung’s notes, was “impressive”. The notes of Dr Yeung record attendances and complaints until 2008. During this time the respondent was referred to Dr Chiu a chest physician. A series of CT scans were ordered which showed the presence of a “few small pleural plaques”. The respondent was also examined by a psychiatrist, Dr Dorrington, in 2008. Her reports were tendered. She was of the opinion that the respondent suffered 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. Her later report suggests that his dysthymia was aggravated after his attempts at gaining recognition of his chest difficulties and the discovery of asbestos related pleural plaques.
It is important here to observe that the Judge “formed a generally reasonable favourable view” of the credibility of the respondent. He did not accept all of his evidence. A review of the trial transcript shows that the respondent can be a very difficult man. As the Judge found he is “deeply emotionally troubled”. The Judge noted that at times he was evasive when answering questions that highlighted inconsistencies between what he told the doctors and what he told the Judge. However, the Judge found, and this was not generally challenged on appeal, that the respondent did not deliberately mislead the doctors or him.
The Judge stated:
... 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.[4]
[4] Munzer v State of South Australia [2015] SADC 18 [147].
The Judge in his reasons set out much of the evidence of the respondent including parts of his cross-examination which referred to some of his inconsistent answers. The task of cross-examining the respondent was difficult for counsel due to the nature of many of the respondent’s answers. However, the Judge clearly considered all of the submissions made by counsel about the credibility of the respondent before making his findings. Of particular importance are the Judge’s findings that the respondent “genuinely feels some pain in the flanks of his chest and that he experiences some breathlessness on exertion.” Such a finding was open to the Judge and the appellant did not seek to challenge the general credit findings made in relation to the respondent.
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.
At trial the appellant submitted that the respondent’s medical evidence on this topic was based “on an unsubstantiated hypothesis from a study propounded by Dr Allen”. Indeed the cross-examination was directed to establish that proposition. On appeal the appellant’s submissions were more nuanced but the thrust was the same. It was submitted that:
Professor Allen’s hypothesis cannot be substantiated; it has not been peer reviewed and has not been accepted within the broader scientific community. It merely represents a theory propounded by the authors of the Allen paper.
(My underlining)
Of course the position adopted by the appellant at trial, namely pleural plaques themselves do not cause pain, is a hypothesis (or theory) albeit one with support in the international arena. As the great Scottish philosopher David Hume observed centuries ago that from no finite number of observations, however large, can any unrestrictedly general conclusion be drawn that would be defensible in logic.[6] The proposition proffered by the appellant that pleural plaques do not cause pain, in this sense, has not been “proved” either.
[6] This is sometimes referred to as the “white swan” problem.
The concepts of “hypothesis” and “theory” and when or if a matter turns from being a hypothesis to a theory (or indeed whether there is any meaningful difference between the two concepts) are matters that have troubled philosophers for many years. It is not necessary in this judgment to delve into those arguments. However, given the nature of the challenge to the opinions, namely that they are based on an “unsubstantiated hypothesis”, it is necessary to briefly refer to the background and work of both medical witnesses relied on by the respondent.
Professor Allen graduated from the University of Queensland in 1975 with first class honours and completed his training as a thoracic physician in 1982. He then completed five years of research in Melbourne in relation to the disease sarcoidosis and he was awarded a PhD for his thesis in relation to that condition. The research involved both clinical and laboratory research into interstitial lung diseases and their immunology. Between 1987 and 1995 he set up an Interstitial Lung Disease and Sarcoidosis Clinic in Queensland. This involved him clinically examining a large number of patients with interstitial lung disease. He has been involved in approximately 10,000 medico-legal cases involving a wide range of occupational lung diseases and particularly asbestos related diseases. He was appointed Professor, Faculty of Health Sciences and Medicine at Bond University in 2010. Professor Allen has taught thoracic registrars and examined specialist trainees for the Royal Australasian College of Physicians examination.
Currently Professor Allen is one of the principal investigators in three research projects on asbestos lung diseases and sarcoidosis. He has published widely in his areas of expertise. In 2009 he was appointed thoracic physician to the Medical Assessment Tribunal of Queensland and in 2010 he was admitted as a member of the International Association for the Study of Pain.
He has an international reputation in his areas of expertise. His qualifications and experience were not challenged.

Professor Cramond obtained her primary medical degree in 1951 and in 1957 obtained registration as a specialist anaesthetist. In 1967 she established the Multidisciplinary Pain Centre at the Royal Brisbane Hospital and remained the director until she retired in 2009. In 2000 Professor Cramond was awarded an Honorary Fellowship with the Australian Chapter of the Faculty Palliative Care Association of Queensland and she was the inaugural recipient of the Distinguished Members Award for the Australian Pain Society. Professor Cramond developed, over the years, a particular interest in the non-cancer sequelae of asbestos exposure and pain reportedly associated with pleural plaques and pleural fibrosis. She has treated patients with such diseases, has conducted medico-legal assessments and has presented papers at local, national and international meetings, including a paper at the annual Scientific Meeting of the Australian and New Zealand College of Anaesthetists entitled ‘Pleural Plaques: Pain Presentation Pathogenesis Plan of Care’.
Her qualifications were not challenged.
It must be borne in mind that at the time of trial Professor Cramond was in ill health. An agreed statement of facts of her evidence was tendered. This included some facts and her opinions. The appellant did not have the opportunity to cross-examine Professor Cramond.
The appellant called Dr Antic and Associate Professor McKenzie to give evidence on this topic. I do not intend to set out their qualifications other than to say they are both highly qualified and experienced chest physicians. This is not a case to be decided on which party produced the doctors with the superior qualifications. It can be accepted that there was little if any difference between the four specialists in relation to their qualifications.
I have referred to the qualifications of the respondent’s witnesses simply to point out the quality of the opinions being expressed by all the witnesses. It may be that the appellant did not mean to use such words as “unsubstantiated” and “merely” in a pejorative way. The hypothesis being propounded by Professor Allen and Professor Cramond was based on their long clinical experience and research. It was an attempt by them to explain a possible mechanism for the occurrence of chest pain arising from the presence of pleural plaques. They had published a paper about their hypothesis in a reputable medical journal to promote discussion. Professor Allen gave evidence that his “hypothesis” was well accepted in Queensland by thoracic physicians and on other continents. He said it was accepted by the Dust Diseases Board. He did not agree when it was suggested that it “was not accepted by most thoracic physicians throughout Australia”.[7]
[7] T 382.
His evidence about the acceptance of his hypothesis in Queensland and other areas was not challenged. Counsel appropriately, in my view, accepted that assertion. What was established by the evidence of Associate Professor McKenzie was that the hypothesis was not supported in the international literature.
The question of biological plausibility of the hypothesis was also not pursued in any detail. Obviously the respondent’s witnesses were of the opinion that it had biological plausibility; Dr Antic said it did not. Associate Professor McKenzie said the hypothesis may have some biological plausibility but would not account for the type of pain suffered by the respondent. Neither party called witnesses who may have had more appropriate expertise in that area. The Judge was simply left with little by which he could decide that issue.
I mean no criticism of counsel (or indeed the parties) with these comments as in the context of this civil case such challenges, if they could be mounted, would not necessarily be a productive use of resources.
What the evidence established was that Professor Allen had proposed as he described it “a working hypothesis” to explain chest pain in the presence of pleural plaques. He clearly accepted the suggestion that it had not been scientifically proven (whatever that concept means).
It was put to him:[8]
Yes. Ultimately, professor, you do not know why it is that Mr Munzer is suffering from chest pain, apart from the application of your hypothesis. Correct?---Correct.
And you don’t know in the case of Mr Munzer whether your hypothesis stands true. In other words, whether it is something that one can apply to Mr Munzer?---No, but the word “know”; one can use the word “know” in different ways. If you know with absolute certainty, like that two and two make four, that’s a known, but we have ideas about dark matter. So we know about dark matter, but we don’t know for certain. So in clinical medicine as opposed to the argy-bargy of legal argument, we go on a working hypothesis.
Yes. Whether or not that hypothesis stands true for Mr Munzer is something that you can’t tell his Honour as a definite. Correct?---There’s no human being on the planet who can say that.
[8] T 373 line 42 – T 375 line 11.
The answers by Professor Allen are well founded. In one sense the appellant’s case, that pleural plaques do not ever cause pain, is of course “just a hypothesis”. It has not been “scientifically proven”. It may be accepted more widely, studies may support it, but that does of itself not make it proven. As Professor Allen later commented the issue has not been widely studied. Associate Professor McKenzie agreed that many of the studies were old. He relied to a large extent (as he was entitled to do) on two major literature reviews to support his opinion. His opinion was qualified to the extent that he did not suggest that the proposition “pleural plaques do not ever cause pain” was proven. His opinion was that on the balance of probabilities the respondent’s chest pain was not caused by pleural plaques and that the international literature provided substantial support for his view.[9] Dr Antic refused to accept that pleural plaques, by themselves, could ever cause pain.
[9] Appeal Book p 239.
Associate Professor McKenzie and Professor Allen agreed that often medical advances in learning are made by practitioners observing certain phenomena and associations, and then propounding a thesis, which may not initially be accepted but does so over time.
It could not be said here that the hypothesis was a “mere” hypothesis or an “unsubstantiated hypothesis” if those comments were meant in a pejorative way. It was a hypothesis that was clearly articulated, published in a reputable journal and receiving support from some in the relevant cohort of physicians albeit not necessarily universal support. It could not be said that Professor Allen (along with Professor Cramond) was putting forward a hypothesis that simply had no biological plausibility or had absolutely no support from any other member of the relevant college of their specialties. The issue could not be articulated as a “mere” hypothesis against a scientific “fact”.
Further, it must be borne in mind that proof of a fact in a civil case to the satisfaction of the fact finding tribunal on the balance of probabilities and proof of a fact for scientific purposes to the satisfaction of those expert in the particular field are different. The latter kind of proof is much more rigorous and demanding than the former.[10]
[10] State of New South Wales t/as New South Wales Department of Agriculture v Allen [2000] NSWCA 141.
As Herron CJ stated in EMI (Australia) Ltd v Bes:[11]
It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me, that no medical witness states with certainty the very issue which the judge himself has to try.[12]
[11] [1970] WCR (NSW) 114.
[12] EMI (Australia) Ltd v Bes [1970] WCR (NSW) 114, 119.
It was against that background that the Judge came to address the issues in this case.
Ground 2
It is convenient to deal with this ground first.
The Judge found that the respondent first complained of chest pain to Dr Yeung in or about January 1998. In doing so the Judge did not accept the evidence of the respondent that he first noticed the chest pain in 1993 and had consistently reported that fact to Dr Yeung. The notes[13] of Dr Yeung and his reports[14] were tendered but he was not called as a witness.
[13] Exhibit D25.
[14] Exhibit D12.
It is important to set out what the notes record. On 26 August 1993 the notes record an attendance by the respondent. Some history is recorded about his smoking and drinking and there is an entry about his weight. The notes record a discussion about a repeat chest x-ray. The following day it appears that the x-ray had been undertaken and it was reported as clear. There is a note with some history concerning the time the respondent worked at ETSA and his exposure to asbestos. The attendances as noted by the Judge related to his chest. Importantly, however, there is no record of the respondent complaining of chest pain.
Despite consistent attendances by the respondent the notes of Dr Yeung do not record any complaint in relation to the chest until January 1998.
In his report of 12 November 2001 Dr Yeung reported to the respondent’s then solicitors:[15]
In January 1998 he came down with symptoms of chronic bronchitis and has been bothered by chest pain, shortness of breath and productive purulent cough. Two of his friends have died from asbestosis around this period. His chest symptoms have been persistent in the last three years up to the present moment. Three further Chest X Ray films were taken.
[15] Exhibit D12.
While it is correct to note that the Judge did say that the respondent may have told Dr Yeung then of the problem having been present for three years, the report makes it clear that the only complaints of chest pain occurred after January 1998 and the Judge found that there was no chest pain between April 1993 and January 1998. The appellant alleges that the finding of the Judge is inconsistent; that he must have found the respondent lied either to the Judge or to Dr Yeung about his reports of pain to Dr Yeung. It was further submitted that the Judge placed too much weight on the notes and reports of Dr Yeung. Further, it is suggested that the Judge failed to provide adequate reasons for his finding.
I reject all of those contentions. The Judge made comprehensive findings about the credibility of the respondent as already discussed. It is important to remember that the respondent was being asked in 2014 when he first experienced pain in his chest, an event which occurred, on either party’s case, in the 1990s. The Judge had before him relatively comprehensive notes from the respondent’s general practitioner from that period of time. It is hardly surprising in those circumstances that the Judge would rely on the objective records of the general practitioner. The Judge said:[16]
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 [in] 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.
[16] Munzer v State of South Australia [2015] SADC 18 [156].
Such a finding was clearly open to the Judge; he expressed it clearly and with cogent reasons. Given his earlier findings in relation to the credibility of the respondent, and given the length of time since this matter arose it is unsurprising that the Judge did not find that the respondent lied about this matter.
The Judge made the finding that the respondent did not complain to Dr Yeung about chest pain in the period between 27 August 1993 and January 1998.[17] That finding was clearly open to the Judge. The respondent was a person who complained if he felt there was something wrong. Indeed the evidence established that he was obsessive about his complaints. The Judge noted that after January 1998 Dr Yeung’s notes record, consistently, a complaint of chest pain by the respondent. As the Judge observed the consistency of those complaints as recorded was “impressive”.[18]
[17] Munzer v State of South Australia [2015] SADC 18 [159].
[18] Munzer v State of South Australia [2015] SADC 18 [147].
In my view, it is clear that the Judge found that the respondent did not have any chest pain between August 1993 and January 1998. I reject the submission from the appellant that in some way this finding is unclear. The finding was open on the evidence and did not involve a finding that the respondent necessarily lied. There is nothing inconsistent in the Judge’s findings. I am not persuaded that the finding is incorrect.
The finding of a complaint of chest pain in January 1998 pre-dates the April 1998 chest x-ray where pleural plaques were first detected. For reasons expressed later this is a significant finding in the case.
I reject this ground of appeal.
Ground 1
The appellant complained about the finding of the Judge that on balance it is likely that “for organic reasons that damage is part of the cause of Mr Munzer’s chest pain.”
The thrust of the argument of the appellant was that the Judge failed to give adequate reasons for that finding. It was submitted that it was contrary to the way the respondent’s case was presented and further against the weight of the evidence.
Were the reasons adequate?
Heydon J in AK v Western Australia[19] stated the reasons why there is an obligation on Judges to give reasons for their decisions. First, he said, there was an obligation to give reasons as it promotes good decision making, secondly, that general acceptability of judicial decisions was promoted by the obligation to explain them and finally, that it was consistent with the idea of democratic institutional responsibility to the public that those who are trusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give an account of their reasoning by which they came to that decision.[20]
[19] (2008) 232 CLR 438.
[20] AK v Western Australia (2008) 232 CLR 438 [89].
Thus the duty to give reasons is a necessary incident of the judicial process. Failure to provide sufficient or adequate reasons can promote a sense of grievance and may deny the fact and the appearance of justice having been done.[21] Failure to give adequate reasons is an error of law.[22]
[21] Mifsud v Campbell (1991) 21 NSWLR 725, 728.
[22] Papps v Police (2000) 77 SASR 210.
Of more recent times there have been many decisions on the question of the adequacy of judicial reasons. Many cases turn upon the facts in issue in the particular case. However, a number of general principles relating to the duty to give adequate or proper reasons may be extracted from the cases:
1.“The extent and content of reasons will depend upon the particular case under consideration and the matters in issue”.[23] While a judge is not obliged to spell out every detail of the process of reasoning to a finding it is essential to expose the reasons for resolving a point critical to the contest between the parties.[24]
2.A court when considering the decision under appeal should not be left to speculate from collateral observations as to the basis of a particular finding.[25]
3.A trial judge has a duty to refer to material evidence and make findings about material issues in the case.[26] It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another and assert that having seen and heard the witnesses he or she prefers or believes the evidence of one and not the other. In other words, a bald statement of an ultimate conclusion may not be sufficient.[27] A trial judge is required to engage with the issues canvassed and to explain why one expert is accepted over the other.[28]
4.It will ordinarily be sufficient if by his or her reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he or her has acted.[29]
5.Reasons for decision are to be read fairly and in the context of the manner in which the trial was conducted. Reasons may appear by necessary inference from what is stated expressly.[30]
6.It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. The function of the appellate court is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of the judicial power.[31]
[23] Keith v Gal [2013] NSWCA 339 [110].
[24] Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 [40].
[25] Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53.
[26] The Waterways Authority v Fitzgibbon [2005] HCA 57.
[27] Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53.
[28] Archibald v Byron Shire Council [2003] NSWCA 292.
[29] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
[30] Transport Accident Commission v Kamel [2011] VSCA 110; Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53.
[31] Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 [48].
It is important in this case to read the Judge’s reasons in their entirety and in the context of the manner in which the cases were presented at trial.
The Judge summarised the evidence of the witnesses. He did not do so by slavishly setting out their evidence. His summary is concise and he deals with their evidence in relation to the issues he had to decide. There was no complaint on appeal as to the accuracy of the Judge’s summaries (apart from one matter dealt with later in these reasons).
As mentioned previously he dealt extensively with the evidence of the respondent and the criticisms made by the appellant of that evidence. The Judge also concisely summarised the arguments of the parties. Again he did not slavishly set out the arguments but distilled their essence.
The Judge then turned to consider the issues to be decided. The first matter he decided was the issue of when the respondent first complained to Dr Yeung about chest pain. He made the finding that there was no complaint of any chest pain to Dr Yeung between 27 August 1993 and January 1998. This was the finding challenged in ground 2 of this appeal and I have dealt with the criticisms of that finding.
As the Judge observed this “is a significant finding”.[32] The Judge found that the respondent spoke to Dr Yeung on 27 August 1993 about the fact that he had been directly exposed to asbestos at the Playford Power Station. The Judge stated that if the chest pain of the respondent was “solely the product of his mind” then the lapse in mentioning it to Dr Yeung until January 1998 was “surprising”. This was particularly so given the proclivity of the respondent to complain. The Judge noted that in this period of time the respondent often complained to Dr Yeung about “work related stress”. The Judge specifically found:
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.[33]
[32] Munzer v State of South Australia [2015] SADC 18 [160].
[33] Munzer v State of South Australia [2015] SADC 18 [160].
The Judge further found that it was “of some significance” that when the respondent complained to Dr Yeung in January 1998 about chest pain there had not yet been a definite diagnosis of “pleural plaques”.[34] Such a finding was clearly open on the evidence.
[34] Munzer v State of South Australia [2015] SADC 18 [161].

The Judge observed that:
… 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 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.[35]
[35] Munzer v State of South Australia [2015] SADC 18 [162].
As the Judge found none of the doctors who gave oral evidence doubted that the chest pain of the respondent was real. The Judge found that “he genuinely feels some pain in the flanks of his chest and that he experiences some breathlessness on exertion”.[36]
[36] Munzer v State of South Australia [2015] SADC 18 [163].
It was against that background that the Judge considered the issue that had arisen between the “physical” doctors.
Before turning to the evidence of Professor Allen it is important to observe that the Judge found that, contrary to the appellant’s case, the respondent was generally a credible witness. He made a specific finding as to when the respondent complained to Dr Yeung about chest pain. This was the subject of ground 2 of this appeal. This finding was inconsistent with the underlying propositions of the appellant’s case namely that any pain he was suffering could be accounted for on a “psychological” basis. The Judge’s reasons need to be seen in that context namely the respondent genuinely suffered chest pain and that the chest pain could not be accounted for by “psychological” reasons. In effect that was a rejection, to some extent at least, of the evidence of Dr Antic and Associate Professor McKenzie who agreed his pain was genuine but psychologically based.
The fact that the respondent complained of chest pain before he received the x-ray result in April 1998 noting the development of pleural plaques, made it more unlikely that “psychological” factors alone could account for the pain.
The Judge found:[37]
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.
[37] Munzer v State of South Australia [2015] SADC 18 [164]-[165].
It can be seen that the Judge found that the development of pleural plaques is physical damage. He then found that for “organic” reasons the damage causes, in part, the respondent’s chest pain. Clearly, psychological factors, as the Judge found later, were amplifying the respondent’s pain experiences.[38]
[38] Munzer v State of South Australia [2015] SADC 18 [167].
The Judge then discussed the issue of legal causation as opposed to the “scientific” method by reference to the case of Barnes v Department for Education and Child Development.[39] The Judge found that the civil onus of proof permitted “a yawning gap between complete understanding and sufficient understanding”.[40] The fact that the biological processes by which the events might be causally connected may not be properly understood is not decisive.
[39] [2014] SAWCT 40.
[40] Amaba Pty Ltd v Booth [2010] NSWCA 344 [116].
The Judge was entitled to take that view.[41]
[41] 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; EMI (Australia) Ltd v Bes [1970] WCR (NSW) 114, 119.
The attack by the appellant at trial, as mentioned, was that the respondent’s case, in relation to the “physical” medical evidence was based on a “mere” hypothesis which was “unsubstantiated”. I have already dealt with those matters. The opinion of Professor Allen was, as he described, a working hypothesis in the absence of an alternative, organic, explanation for the respondent’s chest pain.
It was well open on the evidence of Professor Allen, as supported by Professor Cramond for the Judge to accept the working hypothesis as an explanation for the respondent’s chest pain. It is correct to say that the Judge’s reasoning went no further than I have indicated. However, as the case was run before him, it is difficult to see what else he could say. The evidence of the specialists was diametrically opposed. The effect of the evidence of Professor Allen and Professor Cramond was that there was a plausible biological explanation for the pain to be experienced by the appellant. Dr Antic said it was not biologically plausible and Associate Professor McKenzie said the mechanism postulated was a reasonably possible one to cause some pain but not the type experienced by the respondent.
The Judge resolved the issue by finding that the respondent was genuine and that the timing of his complaints was inconsistent with the appellant’s case namely, that psychological factors could account for the pain. The only question that then remained was whether the opinions of Professor Allen and Professor Cramond satisfied him on the balance of probabilities that there was an “organic” basis. He was so satisfied and there was abundant evidence to enable him to make such a finding.
The Judge failed to mention the report of Dr Weidmann. The report of Dr Weidmann, a neurosurgeon, was evidence of exclusion only. He excluded a neurological condition arising from the spine as a cause of chest pain. Professor Allen relied on his report in his opinion. The failure by the Judge to mention it is of no consequence.
In my view, on a fair reading of the Judge’s reasons, the broad outline and constituent facts of the reasoning on which he has acted can be seen. A fair reading of the Judge’s reasons exposes his reasoning process in a way that the losing party can understand.
In my view the Judge’s reasoning was appropriate. There was evidence on which he could properly make such a finding. In my view the finding was correct.
I reject this ground of appeal.
Ground 3
The appellant complained that the Judge erred in finding that “the explanation as to how chest pain might cause some breathlessness on exertion is persuasive”.
The appellant complains that there was no explanation by the Judge for this finding. That is correct. It is likely that it is a reference by the Judge to an earlier section of his summary of the evidence of Professor Allen where he said “the presence of chest pain could explain why Mr Munzer’s lung function tests had been reduced.”[42] Professor Allen in his report stated:[43]
The wildcard in his investigations is his abnormal lung function, which is unexpected in the sense that his asbestos pleural disease is fairly minor and not enough to cause a significant restrictive ventilatory defect. The clinical wildcard is the presence of clubbing which one sees in severe asbestosis and lung cancer. There was no radiographic evidence of asbestosis and the complex lung function tests done in my laboratory could still be reduced by chest pain; although, his peak-flow is quite sharp, indicating that he tried hard to blow out as fast and as hard as he could. His DLCO in my laboratory was 17.99 units compared to 20.30 units on 30 May 2008, which may mean that there has been a real deterioration in diffusing capacity since then, i.e. that the basal crackles that I can hear are the early manifestation of asbestosis, which one might reasonably expect to occur in a patient who had significant exposure to asbestos in power plants as long as he.
[42] Munzer v State of South Australia [2015] SADC 18 [57].
[43] Professor Allen’s report dated 11 June 2013 [29].
In my view, the Judge did not adequately explain his finding. Having found that the pleural plaques caused the respondent pain the question of how that pain affected breathlessness was relevant to the question of damages. The questions are therefore whether there was evidence at trial to sustain the finding and whether the finding was correct.
The appellant complains further that such a finding was against the weight of the evidence.
It is important to note that the Judge made a finding that chest pain might cause some breathlessness (my underlining). He does not purport to find that the presence of pleural plaques themselves causes breathlessness. Nor does he purport to find that the pain from the pleural plaques was the only cause or even a significant cause of the breathlessness.
The respondent complained of pain on exertion and he did so consistently. The Judge accepted his evidence about that. There really was little or no dispute on the medical evidence.
Associate Professor McKenzie was of the opinion that the respondent’s pulmonary function tests were essentially normal. He accepted that there was a small reduction in lung capacity but thought that could be accounted for by “normal variability” or the respondent’s obesity. While not accepting that pleural plaques cause chest pain, Associate Professor McKenzie did concede that his breathlessness may be aggravated by his lack of fitness and atypical chest pain.
Dr Antic was of the opinion that the lung function tests were normal.
Professor Allen considered the minor nature of his pleural plaques could not cause a restrictive ventilatory defect. However, he did state that pain was the major manifestation of his pleural plaques.
It was accepted at trial that the respondent was overweight, had formally been a heavy smoker and that asthma could not be ruled out as a potential cause of breathlessness. The entirety of the Judge’s reasons, reveal that he was aware of all of those factors, particularly when he came to assess damages.
The finding of the Judge indicates that he considered the role of the chest pain suffered by the respondent to play only a minor role in his breathlessness.
The appellant submitted that there was no evidence to support a finding that the respondent’s pleural plaques were causing any pulmonary impairment and breathlessness on exertion. The respondent submitted that taking into account “the respondent’s complaints, the medical evidence on both sides and common sense” it was open to find that a person suffering chest pain that is real “might” suffer “some” breathlessness on exertion.
I agree with the respondent’s submission. In my view, there was evidence on which the Judge could make such a limited finding.
While I agree that the Judge did not adequately explain his finding, on review of the evidence such a finding was open to him and I am satisfied it is correct.
I would therefore dismiss ground 3.
Ground 4
The appellant complains that the Judge erred in finding that the respondent had proved his case that the pain and breathlessness on exertion were caused by pleural plaques.
As part of dealing with the first three grounds of appeal I have read the transcript of the trial and had regard to the exhibits. I do not intend to repeat the matters referred to in the first three grounds of appeal.
Having reviewed the evidence at the trial, I am satisfied that there was evidence on which the trial Judge could rely on to find the respondent’s case proved on the balance of probabilities. I am not persuaded that the finding is incorrect.
I would dismiss this ground of appeal.
Ground 5
The appellant did not press ground 5 if it was unsuccessful on grounds 1 to 4. Strictly speaking it is unnecessary for me to deal with it. However, I will comment on the matter briefly.
The appellant admitted negligence for any physical injury found proved. It did not admit liability for purely psychiatric injury. The appellant admitted that it owed a duty but argued that the respondent had failed to adduce any evidence to prove breach of duty for purely psychiatric injury and so he was unable to establish negligence. The appellant articulated the point before the Judge. The Judge, although he found against the appellant on the question of foreseeability,[44] did not deal with the question as to what measures a reasonable employer should have taken to avoid the foreseeable injury. The Judge found that the psychiatric problems were as a consequence of that physical injury.
[44] Munzer v State of South Australia [2015] SADC 18 [174].
Whilst in some cases evidence establishing a breach of duty to prevent a physical injury may be different to that establishing a breach of duty preventing psychiatric injury, it is difficult to see how on the facts of this case, such a difference would arise. However, the point was taken and I agree with the appellant that the only evidence given by the respondent related to the provision of inadequate face masks. No further evidence was given. This evidence could not establish negligence for purely psychiatric injury. The matter was not decided by the Judge.
I simply make this point. The appellant called psychiatric evidence at trial in answer to the respondent’s experts. As matters transpired at trial there was very little difference between the psychiatric experts. Had the respondent led evidence in answer to the appellant’s point on liability, and proved negligence for pure psychiatric injury, the award of damages would most likely have been the same whether the Court accepted the appellant’s experts or the respondent’s experts.
Ground 6
This ground was withdrawn.
Grounds 7 and 8 and the cross-appeal
It is convenient to deal with these grounds together.
The Judge awarded the respondent general damages in the sum of $45,000. The appellant complains that the award is manifestly excessive; the respondent claims the award is manifestly inadequate. The appellant complains also that out-of-pocket expenses awarded by the Judge were manifestly excessive.
To a large extent the appellant’s argument on the question of damages was dependent upon success in overturning most if not all of the Judge’s findings complained of in grounds 1, 2 and 3 of the Amended Notice of Appeal. As discussed those findings stand.
In relation to the credibility of the respondent the Judge found:[45]
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.
[45] Munzer v State of South Australia [2015] SADC 18 [147].
Later he stated:[46]
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.
[46] Munzer v State of South Australia [2015] SADC 18 [163].
In relation to damages the Judge stated:[47]
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.
[47] Munzer v State of South Australia [2015] SADC 18 [180]-[185].
During the course of submissions the parties made reference to a number of interstate authorities regarding an appropriate award for general damages for pain and suffering. In Ewins v BHP Billiton Ltd[48] the Court accepted that an award of damages must be made having regard to the general level of damages awarded in this State. While there is no general principle that the level of awards of damages should be consistent between jurisdictions particularly given differences in wage levels and cost of services, there should be some consistency in awards of general damages for pain, suffering and loss of amenities.[49] Caution must be exercised using those authorities where there is no appeal from a first instance decision. I have had regard to the authorities referred to bearing these comments in mind.
[48] [2005] SASC 95.
[49] BHP Billiton Ltd v Hamilton (2013) 117 SASR 329 [112] and [317].
In reaching his decision on damages the Judge recognised that appropriate allowances needed to be made for the respondent’s pre-existing psychological problems. He also recognised that he had to make an allowance for the fact that the respondent was a smoker and that this may be contributing to his chest pain and shortness of breath. Clearly, some allowance needed to be made to take into account the fact the Judge did not accept all of the evidence of the respondent.
The pain and suffering of the respondent as a result of the presence of pleural plaques has been significant since 1998. He has suffered the problem of chest pain for around 17 years. It has contributed significantly to his impoverished life. It is clear that he needs ongoing assistance to manage any strenuous activities. His psychological problems amplify the pain experience. The physical injury has to an extent exacerbated his pre-existing psychological problems.
The Judge did not come to a concluded view as to which psychiatrist he preferred. Generally the evidence of the psychiatrists was consistent as to the effect of the problems on the respondent. They all considered him to be suffering genuine pain. The evidence of Dr Begg, called on behalf of the appellant, was in the end, favourable to the respondent albeit with a different diagnosis.
As discussed there were a number of negative contingencies that impacted on the award of damages and the Judge correctly identified them.

Given that the respondent has had ongoing problems for 17 years and that they are likely to continue until his death the award of damages is in my view so low as to be outside the discretionary range of damages available. I find that the award of general damages was manifestly inadequate. It follows obviously that I would dismiss the appellant’s ground alleging the award was manifestly excessive.
I would allow the cross-appeal. I would set aside the award of general damages. I would award the sum of $80,000. I would attribute $50,000 to the past and $30,000 to the future. Interest on the past award must therefore be varied. I would award $16,000 by way of interest.
In relation to the awards for past and future out-of-pocket expenses the appellant’s submissions were based on the assumption that the award for general damages was manifestly excessive. That ground has been rejected.
In my view, there was ample evidence that substantiates the Judge’s findings and awards with regard to the past and future out-of-pocket expenses. I would dismiss this aspect of the appeal.
Ground 9
This relates to the award of exemplary damages. The appellant conceded that if this Court dismissed grounds 1 to 4 then ground 9 was not pressed. I would in those circumstances dismiss ground 9.
Orders
Grounds 1 to 9 are dismissed. The cross-appeal is allowed. The assessment of damages of $95,000 is set aside. The Court assesses damages as follows:

General damages $80, 000

Past out-of-pocket expenses $3,500

Future out-of-pocket expenses $17,500

Exemplary damages $20,000

Interest $16,000

Total $137,000

General damages	$80, 000
Past out-of-pocket expenses	$3,500
Future out-of-pocket expenses	$17,500
Exemplary damages	$20,000
Interest	$16,000
Total	$137,000