DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 I have had the advantage of reading the draft reasons prepared by Vincent, J.A. I agree with the conclusions that his Honour has reached. I would make the following observations as to the circumstances in which the Director can appeal from a compensation order made under s.85B of the Sentencing Act 1991 ("the Act").

2 Division 2 of Part 4 of the Act provides a means by which a victim of a crime may obtain compensation more quickly, efficiently and cheaply than by instituting civil proceedings against the wrongdoer. Pleadings are not required, and facts founding the claim may be proved by evidence given in the trial or at a committal, by uncontested statements of fact or by a victim impact statement. Further, the court is not limited to injury for which damages at common law may be awarded[1] nor constrained by concepts such as proximity and foresight. Consistently with the aim of providing a cheap, expeditious remedy, which builds upon a criminal proceeding, the victim has no right of appeal from an award or a refusal of compensation. If unsatisfied with the decision by the court trying the offence, a victim may bring proceedings to recover damages.[2] The only means by which a decision under Division 2 of Part 4 that is contrary to the interests of the victim can be reviewed is by an appeal by the Director of Public Prosecutions pursuant to s.567A of the Crimes Act.[3]

3 In the light of the statutory scheme, I would regard it as anomalous if the Director had an untrammelled right of appeal whenever the Director considered that a Court had erred in disposing of an application for compensation or was requested by a dissatisfied victim to appeal. In my opinion the requirement in s.567A that the Director be "satisfied that an appeal should be brought in the public interest" applies to an appeal against an order under Division 2 of Part 4.

4 That is not to say that an appeal will not be allowed because the requirement cannot be satisfied in the case of an appeal from a decision as to compensation. Notwithstanding the remarks of Winneke, P. in D.P.P. v. Gardener and Coates[4], I do not agree that in the case of such an appeal the public interest cannot be engaged in the sense contemplated in s.567A. Generally, an initial application under s.85C will not concern the public interest. An appeal, on the other hand, may raise different questions, which do affect the public interest. For example, a decision under Division 2 of Part 4 of the Act may reveal such manifest inadequacy as to render it necessary for a court of appeal to lay down principles to guide courts charged with determining applications for compensation and establish consistency in compensation awards by correcting idiosyncratic views of individual judges.[5] I do not think, however, that the public is interested in the sense required by s.567A in all appeals from orders made under Division 2 of Part 4 simply because the procedure afforded by those provisions, which enables the sentencing process to be used to compensate victims of crime, is itself in the public interest. More is required if the Director is to be satisfied that an appeal should be brought in the public interest.[6]

5 In the present case the Director may have concluded that the intervention of the Court was necessary in order to establish a point of principle, namely, the level of compensation required to address "the grief, distress or ... other significant adverse effect" directly resulting from the commission of the offence by the respondent, which killed the deceased.

6 I consider that the awards of compensation made in this case were manifestly inadequate. Accordingly, I would allow the appeal, set aside the awards of

compensation made in the court below and in lieu thereof make awards as Vincent, J.A. proposes.

7 Peter Riley was a working director of a company engaged by the respondent to perform boiler cleaning and servicing operations at a power station operated by it in the Latrobe Valley. He was, therefore, whilst performing such work, deemed to be an employee of the respondent pursuant to s.21(3) of the Occupational Health and Safety Act 1985.

8 Due to what was described by the judge in the County Court, before whom the respondent pleaded guilty to two counts of failing to provide and maintain a safe working environment, as the "continuing failure"[7] of the respondent to "observe in various ways" its statutory obligations under the Act, Mr Riley died[8] "when he was literally buried and burned beneath an inferno comprising seven cubic metres of red hot ash and burning char."

9 There is no need, in the present context, to set out in detail the circumstances relating to Mr Riley's death or to identify the "failures" of the respondent that led to it. These were addressed by his Honour who imposed fines for these breaches of the criminal law.

10 The matter came before this Court following the making by his Honour of orders for compensation in favour of two adult children of the deceased.

11 Relevantly, for present purposes, s.85B of the Sentencing Act 1991 provides that:

"(1) If a court-

(a) finds a person guilty of an offence; or

(b) convicts a person of an offence -

it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of sub-section (2).

(2) A compensation order may be made up of amounts-

(a) for pain and suffering experienced by the victim as a direct result of the offence; ... ."

12 "Injury" is defined in s.85A as including:

"(b) mental illness or disorder ....; or

...

(d) grief, distress or trauma or other significant adverse effect; or

(e) any combination of matters referred to in paragraphs ... (b) ... and (d) ... ."

13 In this case, the applications were made on behalf of:

(a) Lori Riley

14 Ms Riley was, at the time of her father's death, aged 21 years. She was single, employed as an apprentice hairdresser and living at home with her parents. She enjoyed a good relationship with her 46 year old mother, who was still working, and her father, who was aged 47 or 48 years at that time. On the day of his death, she was at home with her mother when the police came to the house and informed them of what had happened. Unsurprisingly, she was deeply shocked and it took some time for her to comprehend what they were told. In her victim impact statement, which she adopted in evidence, she said:

"I needed to know everything. I needed to know what happened so that it would register in my mind. I became very frustrated and anxious with grief.

THAT I went to court every day during the prosecution to support my mother.

THAT I now find that there are constant reminders of my father. I think about him daily and become very emotional. I miss his support. I feel vulnerable in that he is not there for me to turn to.

THAT I feel a great sense of loss. It just does not seem fair that my father should have died in the way that he did. I would have liked to have had him around to help, to be with me, to share my dreams, to see me grow up, I wanted him there to be in the events of my life such as turning 21 or when I eventually marry or have children. I wanted him to be there to look after my mum and to grow old with her.

Since my father's death I have had to mature quickly and become a stronger person. I have had to take more responsibility.

I find that I don't open up to people like I used to and that I am more introverted.

I have stayed with my mother to be at home with her and support her rather than to pursue my own dreams and desires.

I now find it very hard to let new people into my life.

I miss sharing moments with my father, the laughter, the joy which is a major loss to me. I suffer from sleeplessness every now and then and find that I am constantly reminded of my father's loss.

I did not seek counselling at the time of my father's death as I felt I could not speak to strangers. I confided in my closest friends about my fears and about my grief and loss.

I have suffered enormous pain and suffering, grief and loss as a result of my father's death and I feel that I will suffer this forever."

15 Dr Edward Cole, a psychiatrist, who examined her on 9 March 2004 for the purposes of the application, expressed the opinion that -

"The manner in which she learnt of her father's death and the nature of the accident caused Ms. Riley considerable distress and certain of her symptoms would be consistent with her suffering from a post traumatic stress disorder, although she does not present with the complete clinical picture. I note that she had been very close to her father and his loss, quite apart from the manner of his death, led to her suffering feelings of grief. She is also still concerned about the effects of the accident upon her mother.

Her condition seems to have improved and she had managed to come to terms with the loss of her father, although I doubt if she could be said to have recovered completely. At the moment she might best be described as suffering from a residual adjustment disorder, accompanied by anxiety. I would regard her condition now as one of mild degree and there is no indication for psychiatric treatment, although in the beginning psychiatric treatment or psychological counselling would have been appropriate and could well have helped her come to terms with the situation more quickly.

There appear to have been no permanent ill effects upon her working capacity or upon her social and recreational life."

16 It is evident from his Honour's judgment that he accepted and acted upon the evidence of Ms Riley and the opinion of Dr Cole in his assessment of the appropriate compensation to be ordered. He fixed the amount in her case at $20,000.

and

(b) Damien Riley

17 Damien Riley was aged 22 years at the time of his father's death. He had been living and working in Melbourne for the previous five years. However he maintained good communication with his parents and sister and was in regular contact with them, returning home on almost every weekend. His victim impact statement (also adopted in evidence) contains the passage -

"My father took an active interest in my life although he didn't try to direct me. He gave me support both moral and financial. He provided someone for me to talk to and for me to discuss problems with. I relied on him. He was always there and I knew I could rely on him. He was a bit of a rock who would always be there.

THAT when my father died I was confused. I was in Melbourne at the time and I just wasn't sure who they were talking about or who they were. I became very worried about what happened and I was in shock. I felt a sense of guilt in that I should have been there and felt a great sense of loss and grief.

I could not get my father out of my mind. When I returned to Trafalgar I saw the effect that his death had on people close to me on, my mother, on my sister.

I am reminded every day about my father's death. I am reminded in photos, in things that he would do for me and in the support that I now miss.

THAT I feel that I have been robbed of my life with my father. I feel that I have not had the opportunity to grow older with him and to become to know him as an adult. I miss the opportunity of sharing things with him or sharing my ambitions with him. I miss his support and I miss his contribution to those people close to me.

THAT I feel that I have been robbed of a life experience.

THAT because of my father's death I had to alter my plans. I returned to live in Trafalgar so that I could assist my mother. I felt that I had to assume part of my father's role. I had to be the listener, the support the rock. Since my father's death I have suffered significantly, significant pain and suffering and angry reaction. My father's death left a tremendous hole in my life that cannot be filled and I will suffer the effects of this for the rest of my life."

18 Dr Cole expressed the opinion that Damien Riley had

"... experienced a natural sense of grief at the loss of his father, although, as he acknowledged, they had never been particularly close. The nature of his father's death also caused him distress, although his main concern appeared to be the welfare of his mother and sister who had been closer to his father than he had. At the moment I doubt if he could be said to be suffering from any well defined nervous disorder, although he is naturally concerned about his mother and her welfare, as evidenced by the fact that he has chosen to return home in an effort to support her.

There is no indication for psychiatric treatment and I would regard his condition as stabilised.

His working capacity does not seem to have suffered as a result of his reaction to his father's loss, while his social and recreational life have also not changed a great deal.

I would accept that the nature of his father's death and the circumstances in which he learnt about it caused him significant pain and suffering at the time, although he now seems to have come to terms with the situation."

19 The judge assessed the compensation to be awarded in his case at $15,000.

The Appeal

20 The Director of Public Prosecutions has appealed against each of these awards on the ground that it was manifestly inadequate in the circumstances, and has advanced, in support of this contention, the following particulars -

"In making a compensation order in favour of Damien Riley for $15,000 and in favour of Lori Riley for $20,000, the learned sentencing judge:

(a) failed to give sufficient weight to the impact of the offences committed by the respondent upon the children of the deceased party Peter Riley.

(b) failed to sufficiently take into account the quantum of compensation orders made in other comparable cases.

(c) failed to sufficiently take into account the youth of the applicants; and

(d) failed to give any or sufficient reason for ordering compensation in different quantums as between the two applicants."

21 Dr Neal S.C., who appeared on behalf of the respondent, raised the threshold question whether the Director has any right to appeal against an order for compensation made under s.85B. In my opinion, the answer to that question is - yes.

22 Section 567A of the Crimes Act 1958 confers upon the Director a right of appeal against sentence where the Director considers that "a different sentence should have been passed and is satisfied that an appeal should be brought in the public interest".

23 The term "sentence" is defined in s.566 of that Act to include any order made under Part 4 of the Sentencing Act 1991. The orders for compensation with which we are here concerned were made pursuant to s.85B which falls within Subdivision (1) of Division 2 of that Part.

24 Section 85B was enacted, as one of a number of measures designed to assist and support the victims of criminal activity, by the Victims of Crime Assistance (Amendment) Act 2000. It is clear, beyond any possibility of dispute, that it was perceived by the legislature to be in the public interest that such assistance and support should be available in the criminal process. In his second reading speech, when introducing the section, in the Legislative Assembly, the Attorney General stated -

"This bill will also amend the Sentencing Act 1991 to make recovery and reimbursement mechanisms more effective so that offenders are held financially accountable for the impact of their crimes.

...

Where an offender has been found guilty of a crime, important facts about the offender's actions and liability are already before the court. This provides the court with an opportunity to assess the victim's compensation claim soon after the offender has been sentenced. This procedural economy provides victims with a speedy and low-cost option for seeking recompense from offenders without having to resort to civil proceedings.

This bill proposes to facilitate such actions by improving the process for victims to obtain compensation directly from the offender.

The new mechanism - contained in a new subdivision in part 4 of the Sentencing Act - will enable the courts to:

where it is in the interests of justice to do so, extend the time period for making a compensation application - which will now be 12 months instead of 6 months from when the offender was convicted or found guilty;

consider applications from a wider range of victims - including those suffering grief, distress, trauma or other significant adverse effect;

permit victims to be represented by any person, such as a victim support worker or advocate or a family member;

have regard to a wider range of documents and evidentiary materials, including evidence from the victim in relation to the application; and

award compensation for a wider range of matters - including medical costs and other expenses."

25 Against that background, I cannot accept the view, expressed as obiter dicta in the judgment of Winneke, P. in Gardner[9] that -

"'Section 567A of the Crimes Act provides, by contrast, that the Director may appeal against the sentence if the Director is satisfied that an appeal should be brought in the public interest. (My emphasis). Although 'sentence' is defined in s.566 to include (inter alia) any order made under Part 4 of the Sentencing Act, a Crown appeal pursuant to s.567A is not appropriate for challenging a refusal to make an order under s.86. Such an order is made to compensate a person who suffers loss or destruction of, or damage to, property. To save expense and inconvenience, the Director is empowered to make application on that person's behalf. It is a summary procedure ancillary to criminal process. In a case of any complexity, it is usually better to leave the parties to their civil remedies. Where the Director makes the application, it is made on behalf of the victims. The public interest is not engaged, or at all events not in the sense contemplated by s.567A."

26 It was made clear by the Attorney General that the use of the sentencing process to render offenders financially accountable to their victims was considered to be in the public interest and, of course, it is by no means difficult to envisage situations in which persons regarded as victims of crime would have no civil recourse of the kind to which the President adverted.[10] The right to compensation is clearly not confined by common law notions of duty of care nor are the parameters within which the provisions relating to victims' entitlements fixed by reference to any other concepts of tortious liability. There is no good reason in principle why the role of the Director of Public Prosecutions in protecting and advancing the public interest, with respect to victims' rights, and in particular those falling within Part 4, should not be regarded as encompassing the right to appeal in the event that he forms the view that the process has miscarried. In any event, if the Director was not intended to have the right to appeal in relation to orders made under this section, it would be reasonable to anticipate that there would have been some amendment to the definition of "sentence" in s.567 or some limitation to that effect specifically included in s.567A.

27 There is, in any event, no justification for imposing any restriction on the broad discretion conferred upon the Director in s.567A and certainly none that would require the Director to satisfy some externally assessable public interest test, which presumably could be the subject of challenge before any appeal against sentence could be brought or pursued. Parliament has vested in the Director a broad discretion to appeal upon being satisfied that it is in the public interest to do so. To my knowledge, it has never been suggested that that discretion has been fettered and, whilst I am unable to see any good reason why it should be, there are several obvious ones that would suggest that Parliament intended that no such challenge would be available. However, I need not pursue that aspect.

28 Accordingly, whether approached by reference to the words employed in the relevant provisions, the statutory context in which they appear or the obvious legislative intentions underlying them, the construction for which Dr Neal has contended must be rejected.

29 Turning then to the Director's assertions that the awards were manifestly inadequate in the circumstances, whilst the matters came before the Court by way of Crown appeal, they present issues of a different kind to those generally encountered in such matters, and which are more akin to those arising in an appeal against the assessment of damages made by a judge sitting alone rather than one against the claimed manifest inadequacy of a penalty imposed.

30 It must be borne in mind that an award for compensation is not made as a form of punishment, but in an endeavour to address through the payment of money, the injury and loss sustained by the applicant. It follows that broadly the principles applicable to an appeal against an assessment of damages would be those to which the Court should direct attention. Nevertheless, the fact that that injury and loss has resulted from the commission of a crime cannot be ignored. It is one thing, for example, for a person to lose through natural causes someone to whom the individual is deeply attached, another where death has resulted from civil wrongdoing, and another again where it has been brought about by criminal conduct. The grief and distress occasioned in the third situation, which often is experienced against a background of a sense of understandable outrage, may be in some situations even more acute and its impact upon the life of the individual more long lasting. In his judgment in D.P.P. v. Esso Australia Pty Ltd, Cummins, J. drew attention to what he referred to as "a number of incidents of s.85B proceedings, pointing out that -

"Compensation is not punishment and proceeds according to common law criteria: McDonald ... and In Re Poore ... . Further, it has long been held that very complex cases ought not be heard consequent upon a criminal sentence but should be heard in the civil list: Landholt ... and Braham ... .

...

First, the proceedings are under the Sentencing Act 1991, a criminal statute. The proceedings are heard in the Criminal Division by the sentencing Judge. Second, a condition precedent to the institution of s.85B proceedings is the recording of a criminal conviction. Third, the respondent to an application under s.85B is a party by reason of his, her or its character of being an offender. Fourth, the applicant has to be a victim of a crime. Fifth, there is an intimate connection between the antecedent criminal trial and the application. The documents the application proceeds upon are criminal trial documents, including committal depositions before the trial and victim impact statements after conviction: s.85F(2). Sixth, unlike ordinary civil process where the impecuniosity of the defendant is irrelevant, in s.85B applications the court may take into account the financial circumstances of the offender and the nature of the burden that the payment ordered will impose: s.85H(1). Seventh, by s.85H, the rehabilitation of the offender, always an important matter in sentencing, should not be deflected or defeated by a compensation order. Eighth, by s.85C(1)(b)(iii) a section 85B application may be made on the victim's behalf by the Director of Public Prosecutions. Ninth, s.85L preserves the applicant's right to recover civil damages separate and apart from, or in addition to, s.85B proceedings. And finally and importantly, pursuant to s.85B compensation can be awarded not only for injury constituted by 'actual physical bodily harm' (s.85A(1)(a)) but also (amongst other heads) by 'grief, distress, trauma, or other significant adverse effect'. Compensation can also be awarded for hospital, medical psychological and other expenses."[11]

31 The broad definition of "victim", inclusion of the terms "grief, distress or trauma or other significant adverse effect" within the definition of "injury" and the extension of the notion of mental illness or disorder, beyond that recognized by the common law, which is suggested in s.85A(b), indicates that Parliament intended that the focus of attention should be placed upon the actual impact upon an applicant of the commission of the offence rather than whether that impact could be the subject of an award of common law damages. It follows that whilst some assistance could be derived from a comparison of awards made in other circumstances, care must be exercised to ensure that the possible differences are not overlooked. However we have not had the benefit of argument on this aspect and what, if any, practical effect the distinction to which I have adverted could have in a given case would need to be addressed in the event that a problem arose. Whether or not I am correct in perceiving this distinction, there is at least one other respect in which a Crown appeal of the present kind differs from those normally before the Court.

32 The principle of double jeopardy could have little, if ever any, role to play in the consideration by the Court of any such appeal. It is one thing to have regard to this notion when determining whether or not the Court should intervene and increase the punishment imposed in the Court below, and a quite different matter, in a case where an inadequate order for the compensation of a victim has been made, to refuse to correct the error and make an appropriate order on the basis of some restriction created by the notion of double jeopardy.

33 As Kirby, J pointed out in Hayes:

"At the heart of the suggested difference between prisoner and Crown Appeals is the notion that, in a Crown Appeal, a prisoner suffers a species of 'double jeopardy' by reason of having twice to face the prospect of sentencing and possible loss of liberty. This is the way it was ultimately put in Tait..., drawing on the remarks of Isaacs J in Whittaker.... Of course, what is involved is not a true 'double jeopardy'. If the sentence was 'wrong' in the first place, it is upon the appeal that the only 'true' sentence according to law is passed. But in a practical sense, there is a species of double jeopardy. The prisoner's liberty, pocket and reputation are put in jeopardy both before the sentencing judge and before the appellate court. ... In addition, the prisoner suffers the anxiety and stress caused by the situation of uncertainty arising from the delay in resolving his or her position."[12]

34 To my knowledge it has never been seriously contended that an award of damages in a civil case or an order for compensation made in a criminal proceeding, although manifestly inadequate must be permitted to stand because to correct the position could be perceived as the imposition of further or separate punishment.

35 The central question then to be considered is under what circumstances is the power of the Court to intervene enlivened. As Lord Wright pointed out, many years ago in an often cited passage in Davies Powell Duffryn Associated Colleries Ld[13]:

"An appellate court is always reluctant to interfere with a finding of the trial judge on any question of fact, but it is particularly reluctant to interfere with a finding on damages which differs from an ordinary of fact in that it is generally much more a matter of speculation and estimate. No doubt, this statement is truer in respect of some cases than of other. The damages in some cases may be objective and depend on definite facts and established rules of law, as, for instance, in general damages for breach of contract for the sale of goods. In these cases the finding as to amount of damages differs little from any other finding of fact, and can equally be reviewed if there is error in law or in fact. At the other end of the scale would come damages for pain and suffering or wrongs such as slander. These latter cases are almost entirely matter of impression and of common sense, and are only subject to review in very special cases.

...

Where, however, the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer, L.J. in Flint v. Lovell ... . In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or for other reasons made a wholly erroneous estimate of the damages suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency."

36 There is no and there obviously cannot be a yardstick by which the extent of personal grief or distress can be measured, and no method of conversion of a human emotion or psychological reaction to an amount of money exists. Clearly, widely differing views as to the appropriate award to be made in a given case can be held and an appellate court must be extremely reluctant to intervene in such cases.

37 That approach, would obviously be the correct one to adopt when dealing with an appeal against a compensation order made under s.85B.

38 In the present case, there has been no complaint advanced that his Honour fell into error in any specific respect and the assertions contained in the Particulars relate to the weight allegedly attributed by him to the considerations there mentioned.

39 Against this background, the issue with which this Court is confronted is whether the award made in favour of the respective appellant can be seen to be so inadequate that it falls below that available in the exercise of sound discretionary judgment.

40 Bearing in mind the caution with which the making of comparisons between the awards of compensation in other cases under the Act or awards of damages under the common law or other legislation, I have had regard in a general fashion to those to which our attention has been directed. Due, inter alia, to the difficulty of identifying the precise considerations to which the various judges had regard in the individual matters and the weight attributed to the differing relevant factors as well as the significant variations in the circumstances and awards themselves, I found this process even less useful than the comparison of sentences imposed in different or not clearly identified fact situations.

41 In the case of Lori Riley, it is apparent that the grief and distress suffered by her has been very serious indeed to the extent that she has suffered symptoms consistent with the presence of post traumatic stress disorder and was, at the time that she was seen by Dr Cole, still experiencing difficulty.

42 In my view, the severity of the impact upon Ms Riley of the fact and circumstances of her father's death is simply not reflected in the award of compensation made by his Honour.

43 I would allow the appeal by the Director in her case, set aside the award made in the Court below and substitute an award in the sum of $50,000.

44 I would, for the same reason, allow the appeal with respect to the award made in favour of Damien Riley whose situation appears to be different not in the sense that he was less deeply affected by his father's death but because he appears to have been able to cope with his grief a little better.

45 In his case, I would increase the sum awarded to $35,000.

46 I agree with Buchanan and Vincent, JJ.A. that s.567A of the Crimes Act 1958 allows the Director of Public Prosecutions to appeal against a compensation order made under Sentencing Act 1991 s.85B. This is clear from the definition of "sentence" in s.566 of the Crimes Act, which refers to an order made under Part 4 of the Sentencing Act. Section 85B is included in Part 4. I can see no reason for reading down the plain meaning of this provision.

47 I agree with Vincent, J.A. that s.567A gives the Director a broad discretion to appeal against an order for compensation, if he or she is satisfied that it is in the public interest to do so. The reference to "public interest" in s.567A applies to the Director's exercise of the discretion conferred by the section, but does not require the Director to satisfy this court that the appeal is in the public interest[14]. In my view s.567A cannot be interpreted so as to impose more restrictive requirements in relation to appeals against compensation orders under s.85B than those which apply to the other orders included within the definition of "sentence" in Crimes Act 1958 s.566. However the court's power to set aside a compensation order is limited by the principles which govern appeals against discretionary decisions.

48 Although an order under s.85B is made in addition to sentence, its purpose is to compensate victims of criminal offences. Because of the compensatory purpose of

the provision the principles relating to appeals against orders for general damages are relevant. Appellate courts are reluctant to overturn an award of general damages made at trial whether by jury or judge, on the grounds that it is manifestly excessive or inadequate. In Royal Dental Hospital of Melbourne v. Akbulut[15], Winneke, P. commented -

"It certainly will not interfere merely because it would have awarded a different figure. If it cannot be shown that the judge has acted upon any error of principle or misapprehension of relevant facts, an appellate court will only interfere with his or her assessment if it is satisfied that he or she has made a wholly erroneous estimate of the damages suffered.[16]"

In my view it is this requirement which limits the appellate court's power to set aside a decision about compensation under s.85B, rather than the public interest requirement in s.567A.

49 The Director submits that the trail judge erred by failing to give sufficient weight to the loss suffered by Mr Riley's son and daughter. The learned trial judge did not refer to any general principles which apply in assessing compensation for the death of a relative under s.85B. This is not surprising. Solatium does not exist as a head of damages at common law and common law damages for pain and suffering provide an incomplete analogy to the compensation awarded in this case, because at common law such damages are only awarded when a person has also suffered a physical or psychiatric injury.

50 In my view the factors which should be taken into account in assessing damages for grief or trauma under s.85B include the following:

• the effect on the applicant on hearing of the events causing loss;

• the closeness of the relationship between the person seeking compensation and the person who has been killed;

• the extent of grief and psychological suffering experienced as a result of the loss.

51 In cases where the primary victim is injured, rather than killed, and a relative seeks compensation for grief, distress or other trauma, it may also be appropriate to take account of changes to family life which occur as a result of the injury which has been suffered by the primary victim. For example this could include grief caused by marriage breakdown or family conflict arising from the depression or anger which the primary victim experiences as a result of his or her injury[17].

52 Despite his failure to refer explicitly to the factors taken into account, the trial judge considered the viva voce evidence of the applicants as to their grief at the loss of their father and the psychological reports on the affect which the death of their father had had on his children. For this reason I am unable to find that his Honour acted upon any error of principle or misapprehension of relevant facts.

53 Was his Honour's estimate of the compensation which should have been paid to the children of the deceased man wholly erroneous? As Vincent, J.A. points out in his judgment, awards made under other systems provide only limited assistance in assessing the amount which should be awarded for solatium in the circumstances of a particular case. The Victorian victims of crime assistance scheme places a statutory limit of $50,000 on compensation to an individual who is related to a primary victim of violent crime for losses which include distress caused by the death of the primary victim,[18] but this limit applies to compensation for criminal injuries which are paid by the state, on the basis that it has some obligation to compensate people injured as the result of criminal acts, rather than by the person who caused the harm.[19]

54 A number of awards have been made under s.85B in cases in which the victim was an adult child who seeks compensation for the death of their parent. Where injuries have been caused by breach of occupational health and safety requirements there have been a number of orders for payment of sums in excess of $35,000 to relatives of deceased victims.[20] I have also had regard to an internal data base kept in the Office of Public Prosecutions, on awards under s.85B, which was produced at trial.

55 The data base shows that awards of compensation for pain and suffering and mental distress made to people who had suffered direct harm as the result of violent offences such as sexual assault and intentional infliction of injury were often under $20,000. However this may in part reflect the statutory requirement to take account of the financial circumstances of the offender and the nature of the burden that will be imposed by the obligation to make the payment.[21]

56 In this case it was not submitted that Energy Brix's capacity to pay should have been taken into account. Comparison with other orders which have been made under s.85B in the context of industrial accidents persuades me that the orders for compensation in this case fall below the level of award that could be made in the exercise of a sound discretionary judgment.

57 For the above reasons I agree with Buchanan and Vincent, JJ.A. that the awards of compensation to Ms Lori Riley and Mr Damien Riley should be set aside and that they should receive compensation as indicated in the judgment of Vincent, J.A.

[1] An expansive definition of "injury" is contained in s.85A.

[2] Section 85L.

[3] The appeal may be limited to an appeal against the amount of an award unless a refusal to award any compensation meets the description of an "order made under Part 3 ... of the Sentencing Act 1991."

[4] [2004] VSCA 119 at [29].

[5] Cf. Griffiths v. R. [1977] HCA 44; (1977) 137 CLR 293 at 310 per Barwick, C.J.

[6] It is another question whether the exercise of the Director's discretion can be judicially reviewed. I doubt that it can be, although it is not necessary to answer the question in this case.

[7] Sentence T122.

[8] Sentence T122.

[9] D.P.P. v. Brian Lindsay Gardner and Michael Albert Coates [2004] VSCA 119 at [29].

[10] The broad definition of "victim" in the Sentencing Act reads:

" 'victim', in relation to an offence, means a person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender;".

[11] [2003] VSC 367 at [6] and [7].

[12] R. v. Michael John Hayes (1987) 29 A.Crim.R. 452 at 468-469.

[13] [1942] A.C. 601 at 616-617. I need not refer to the numerous cases in which this approach has been considered and followed.

[14] I agree with Buchanan, J.A. that the question of whether the decision of the Director is susceptible to judicial review remains open. It may be that the appeal process would be considered to be part of the prosecution process. If so, it is not judicially reviewable, see Maxwell v. R. (1995-1996) 184 CLR 501.

[15] [2002] VSCA 88.

[16] Ibid at [16].

[17] Similar considerations governed an award of $100,000 to the wife of a seriously injured worker, and $50,000 to the sons of the same seriously injured worker in the case of Multiplex Constructions (Vic) Pty Ltd v. Mark William Watkins (County Court of Victoria, 21 November 2003). Similarly in various cases surrounding the Longford Gas Explosions, awards to the children and spouses of seriously injured or killed workers varied between $20,000 and $300,000; refer D.P.P. v. Esso Australia Pty Ltd [2003] VSC 222; D.P.P. v. Esso Australia Pty Ltd [2003] VSC 367 and D.P.P. v. Esso Australia Pty Ltd [2001] VSC 513.

[18] Victims of Crime Assistance Act 1996 ss.11-13.

[19] I. Freckelton, Criminal Injuries Compensation: Law, Policy and Practice, Chapter 2. For a discussion of the inconsistencies which may occur between awards, refer ibid at xv.

[20] See for example Multiplex Constructions Pty Ltd v. Mark William Watkins (County Court of Victoria, 21 November 2003), in which the wife of a deceased worker received $180,000, and the sons of the same worker each received $60,000_;_ see also D.P.P. v. Esso Australia Pty Ltd [2001] VSC 513 in which the three adult daughters of a deceased worker were awarded $50,000 each; the three adult sons of another deceased worker awarded $75,000 each, and the wife of a deceased worker received $300,000.

[21] Sentencing Act 1991 s. 85H(1).