DPP v Esso Australia Pty Ltd [2001] VSC 513

Supreme Court of Victoria|2001-12-19|Before: Cummins J

CRIMES COMPENSATION - applications by victims pursuant to s. 85B Sentencing Act 1991 - spouse and children of deceased persons - other victims - applications consequent upon convictions for offences under ss. 21 and 22 Occupational Health and Safety Act 1985 - considerations applicable - orders for compensation made.

I have ten applications before me each for compensation for injury, essentially being pain and suffering, made pursuant to s.85B Sentencing Act 1991. I proceed in accordance with the provisions of Part 4 Division 2 Subdivision 1 Sentencing Act 1991 and relevant authority which I have reviewed in Ruling No.16 (in relation to 18 other applicants in this matter) and shall not recite here.

The circumstances of the eleven offences under the Occupational Health and Safety Act 1985 and of which Esso Australia Pty Ltd has been convicted are set out in the sentence I imposed on 30 July 2001 and I shall not repeat them.

Two good men, loyal employees of Esso, Mr Peter Wilson and Mr John Lowery, were killed in the rupture, explosions and inferno that occurred at Esso's plant at Longford on 25 September 1998. Numerous employees were injured. Numerous other persons have been grievously affected. Ten persons are presently before me, each a victim, each legitimately seeking compensation.

I turn first to the daughters of Mr John Lowery. His three daughters were applicants before me: Justine Lowery, Shannon Lyons and Kelly Madalin.

Justine Lowery is now 31 years of age. She was born on 25 August 1970 and September 1998 was 28 years of age. Presently she is a mother, engaged in home duties and the rearing of young children.

Ms Lowery is the eldest of three daughters of the deceased, Mr John Lowery, Maintenance Supervisor at the Esso plant at Longford. She is now living with a partner in a Melbourne suburb and is bringing up two young children. Her situational history in relation to her father is that when she was aged 10, her parents, then in Sale, separated. Ms Lowery remained with her mother. The mother and daughters moved to Melbourne, where they remained until she was aged 16. They then returned to Sale. She completed secondary school at Sale. She then went to Longerenong Agricultural College in Horsham for two and a half years, returned to Sale and then went to Cowwarr where she was working and living at the time of the rupture. By reason of those circumstances, Ms Lowery had limited contact with her father over the years, although they related well when they did have contact.

Ms Lowery has been affected by the sudden, unexpected and horrific nature of her father's death. Now with children of her own, she feels even more keenly the loss by a child of a parent. Her children will never know their grandfather. She has suffered significantly because of the death, the funeral and its public and legal sequelae which are constant reminders to her of her loss and its circumstances.

Filed before me is a psychiatric report of Dr P. Grainger-Smith of Melbourne dated 7 April 2001 of an examination by him of her of 5 April 2001. Dr Grainger-Smith sets forth in that report Ms Lowery's pre-existing and not insignificant problems, prior to the rupture. She had a pre-existing depressive illness for which she had been on medication and she suffered from pre-existing substance abuse, namely alcohol. Both

pre-existing conditions were aggravated by the death of her father in the circumstances and sequelae.

As a consequence of the death, she suffers occasional nightmares. Dr Grainger-Smith has diagnosed her as developing post-traumatic stress disorder consequent upon the death of her father. Some symptoms of that remain, although the condition had lessened by April 2001, the time of the examination.

Dr D. Monash of Sale, in reports of 9 and 14 October 2001, stated that Ms Lowery "had had many problems", one of which was severe depression, for which medication had been prescribed, prior to the death of her father. He, like Dr Grainger-Smith, said that the death aggravated those previous conditions. He recommended counselling for at least two years, being 26 sessions at $100 each. In view of her pre-existing condition, I would consider Esso should be responsible for no more than half of that.

The second daughter of Mr Lowery is Shannon Lyons. She is now 29 years of age, having been born on 23 May 1972. She was, at the time of the rupture, 26 years of age. She is a mother also with home duties. She is separated from her husband, living in the Maffra area. She has two young daughters aged six and four. She was seven when her parents separated. She too remained with her mother, went to Melbourne, when 14 returned to Sale in Year 10, lived with her father in Year 11 for one year, left school at the end of that time and went to work, and married and later separated.

She saw her father regularly because she was in the Maffra and Sale area, apart from one period of estrangement at the time of her marriage, which marriage ultimately failed. She was at Sale at the time of the rupture.

Ms Lyons gave evidence before me, both of her own condition and the condition of both her sisters. She is afflicted by sadness and by anger at her father's needless and tragic death. Her marriage failed in the middle of 2001, and she believed that her father's death and the publicity consequent upon it contributed to that failure. She feels a deep and pervading loss of her father whom she loved closely.

Again, Dr P. Grainger-Smith, psychiatrist, of Melbourne, by a report of 7 April 2001, stated the results of his examination of her of 3 April 2000. He said that she felt her father's loss deeply. As a consequence of her father's death and its sequelae, Ms Lyons developed a severe gambling problem, which she did not have previously. That, she believed, was in part the way she dealt with her father's death.

Dr Grainger-Smith diagnosed Ms Lyons as mildly depressed, with reactive depression with anxiety. She may be close to also suffering from PTSD. Those conditions were brought about solely by the death of her father and its sequelae. He said that she needed counselling for that condition.

Dr Anne Miller of Sale, in a report of 22 March 2001, stated that Ms Lyons had attended upon her, Dr Miller, from 23 October 1998 for about a year on a number of occasions, as a direct consequence of her father's death. Ms Lyons was distraught, grief stricken, and that her sleep and mood were substantially affected by her father's death and its sequelae.

Dr David Monash of Sale, in a report of 24 July 2001, stated that Ms Lyons had been a patient of his for some seven years. Her health significantly deteriorated since the death of her father. She suffered from depression and needed psychological counselling. She is presently on anti-depressant medication and has been for some four months.

Ms Lyons gave evidence not only to the effect upon herself, but the effect of her father's death upon her older sister, Justine, who was quiet and introspective, and her younger sister, Kelly, who was distressed because she was so distant, living in Queensland.

The third and youngest daughter, Kelly Nadalin, now 28 years of age, was born on 11 October 1973. At the time of the rupture she was nearly 25 years of age and was living in Queensland. She is a shop assistant and resides south of Brisbane in Queensland and is separated from her husband. She, the youngest child, was five when her parents separated. She also remained with her mother, went to Melbourne, later returned with her mother to Sale and then was educated in Sale Secondary School. She lived with her father for three months when she was 15 years of age. When she was 20 she moved to Queensland, married and later separated.

She wrote to her father every two months from Queensland and three months before his death she wrote to him seeking a better relationship with him. She was in Queensland when she learned of the rupture and immediately flew to Sale. She, like the other two sisters, has been grievously afflicted by the sudden, unexpected and horrific nature of her father's death, the funeral and its sequelae, both public and legal.

Dr G. Persley, psychiatrist of Auchenflower, Queensland, by a report of 23 April 2001, spoke of Ms Madalin's sense of profound loss and her profound sense of many unresolved issues. He said that she suffered profound and complicated grief reaction and was emotionally distressed. He did not formally diagnose her beyond that. He said she would need 40 consultations with a psychologist at $160 an hour.

I have carefully considered the evidence of each of those three daughters. Each is a different person; each has a different history; each has been afflicted in their own way. Each of them shares one sad characteristic; the deprivation of the opportunity to fulfil their relationship with their father and to remedy its imperfections. Each also suffers the loss of a grandparent for their own children. I have taken into account in the case of Ms Lowery the pre-existing condition that I have stated.

In assessing all the circumstances I consider it is just and proper that each daughter receive the same amount of compensation. In the end, each has suffered significantly and each has lost her father. I order the sum of $50,000 in each instance to be paid to each of those three applicants by Esso Australia Pty Limited as compensation for their pain and suffering.

I turn next to Mr Darren Borthwick. Darren Borthwick was employed at the Esso site as a contractor on the day of the rupture. He is now 40 years of age, having been born on 25 July 1961. He was then 37 years of age. A victim impact statement has been filed by him. He was employed by Vaitech, contractors to Esso at Longford as a maintenance supervisor and was on site on Friday, 25 September 1998 and, indeed, was one of two men who first saw the leak in the relevant heat exchanger and reported it to Mr Lowery. That was the last time Mr Borthwick saw Mr Lowery alive. Mr Borthwick, as a consequence of directions given to persons on site, was removed from the rupture area and was mustered in the car park as instructed. He left the site at 2.00 p.m. and was taken home and did not return to the site until Tuesday. As a consequence of the trauma of the explosion being known to all persons in the area, Mr Borthwick threw himself into work as a refuge from trauma. He was initially employed in clearing the site and later was transferred from maintenance to construction.

As a consequence of his experience and his knowledge, he has been adversely affected in his marriage which suffered and remains fragile. He is depressed. He was adversely affected in his employment and in the sequelae of the rupture, including the Royal Commission, and ultimately he left the area in October 1999 and after a period of unemployment, is now working in South Australia for himself and also as a contractor of Vaitech in Adelaide. He is a highly motivated man who now runs his own home maintenance business.

A psychiatrist, Dr Caplan of Clayton by a report of 3 October, of an examination of him of 2 October 2001, stated that Mr Borthwick suffers intrusive thoughts, depression and anxiety. He probably developed post-traumatic stress disorder, which gradually subsided. He remains psychologically vulnerable. He requires counselling. A substantial amount of counselling was anticipated by Dr Caplan, some 39 sessions at $215 a session, but given Mr Borthwick's substantial motivation, I would not expect such an extensive course of counselling would be necessary. However, Mr Borthwick has been significantly affected by his experience and has suffered grief and reaction and psychiatric consequences and was on site on the day.

In the circumstances, I order that the sum of $100,000 be paid to Mr Borthwick for his pain and suffering consequent upon the events of 25 September 1998.

Next, Mr Martin Jackson. Mr Martin Jackson is 38 years of age. He was born on 12 January 1963. He was then 35 years of age. At the time of the rupture, he was on site at Gas Plant One on Friday 25 September 1998. He was four months into training as an operator on Gas Plant One. He is now employed by Esso at Longford as a trainee Operations Technician One.

Mr Jackson gave evidence before me, as well as filing a statutory declaration of 1 October 2001.

Medical reports have been filed on his behalf of Dr Lloyd Waters of Sale, of 26 July 2001, of Dr Bruce Johnson of Sale, of 4 October 2001, Mr John Reeves of Warragul, a psychologist, of 11 April 2001 and 25 July 2001 and of Dr E. Cole of Melbourne, a psychiatrist, of 11 September 2001.

Mr Jackson's case is significantly different from Mr Borthwick's in two respects. The first is their present situation. Mr Borthwick has operationally and geographically moved on, although he is still psychically pursued by the events of 25 September 1998. Mr Jackson remains working at Longford and as he put it, "seeing Longford every day is like being involved in a fatal car collision and having the wreck of the car parked on your front doorstep permanently."

This year in the trial of Esso Australia Pty Ltd I have seen some very impressive persons - particularly Mr Jim Ward, Mr Bill Visser, Mr Heath Brew. Mr Martin Jackson likewise is a most impressive person. He gave evidence before me on this application and I was able to assess him.

On Friday 25 September 1998 Mr Jackson acted truly heroically. He twice went into the inferno to help others and to fight the fire and its causes. He was struck by a wall of vapour. He acted selflessly and at significant and great risk to himself. Later he was awarded a personal bravery medal by the Governor General on 14 February 2000 and on that day also was part of a group citation for bravery in extraordinary circumstances.

As a consequence of his actions on the day, he suffered physically to his breathing for a period of time, but the very significant injury that he has suffered is psychiatric. As a result of the reports which I have referred to, it is clear that Mr Jackson suffered chronic PTSD, although of moderate degree. It had significantly deleterious consequences for him: nightmares of visions of flame, trauma, grief, excessive drinking, irritability, nervousness, panic and intolerance. He has been significantly afflicted by his experiences on that day, heroic as they were at the time and significant and consequential thereafter.

I order that Mr Jackson be paid compensation in the sum of $200,000 for his injuries, pain and suffering.

His wife, Sue-Ellen Jackson, now 38 years of age, was born on 8 August 1963. At the time of the rupture she was 35 years of age. She is a kindergarten teacher with a tertiary degree. The Jacksons have two children, a boy aged ten and a girl aged seven.

Mrs Jackson is one of many unsung women who have loyally provided succour and support to their husbands and partners who were employees at Esso on the day of the rupture, explosions and inferno.

She has sought to cope with and guide the children through her husband's anxiety and depression that I have recited. That guiding, that solace, that patience, that tolerance, that sustenance, has had a deleterious effect upon her. I have read the statutory declaration of hers of 1 October 2001 and the report of the psychologist, Mr John Reeves, of 17 August 2001. She has suffered anxiety and depression. She could see the mushroom cloud on the day. She has tried to guide her husband and children through the sequelae of the rupture, explosions and inferno ever since, with a very substantial burden and suffering that has caused her privately and publicly. I order that she be paid the sum of $50,000 compensation for her pain and suffering.

Finally, I turn to the family of the late Peter Wilson, Plant Superintendent, who died on the day of the rupture, explosions and inferno. They are a close and loving family.

I turn first to the three boys, children of Mr Wilson, now men. The eldest of the three, James Wilson, now 30 years of age, was born 18 March 1971 and at the time of the rupture was 27 years of age. He is a professional musician who resides in Melbourne. He was in Melbourne at the time of the rupture and drove straight to Sale. He gave evidence before me. He was a most impressive man. He has suffered significant shock, grief and loss. There has been no farewell to his father, who died in unexpected, sudden and horrific circumstances. Mr Wilson bravely helped the family through the funeral and its sequelae, both public and personal, and has been left with a deep sense of loss and of anger at his father's tragic and unnecessary death.

The second son, Brett Wilson, now 28 years of age, was born on 14 April 1973. At the time of the rupture, explosions and inferno he was 25 years of age. He is a Property Manager residing in Melbourne. Mr Brett Wilson also gave evidence before me and was a most impressive man. A statutory declaration of 26 July 2001 was filed on his behalf, and a psychological report of 8 July 2001 of Mr J. Hodgson. Mr Brett Wilson, who was seen on a number of occasions in 1969 by Mr Hodgson, suffered from a chronic adjustment disorder, with anxiety and depression. As a consequence of the trauma which he suffered, and continued to suffer because of his father's tragic death, his marriage failed, and it had a significant effect upon his employment also. Like his older brother and his younger brother, he has suffered grievously at his father's loss. The shock of the horrific, unexpected and sudden nature of the death, its sequelae both public and personal, the funeral, the lack of farewell, and the continuing loss and anger at the death all have taken their toll on Mr Brett Wilson.

Finally, the youngest of the three sons, Luc Wilson, now 25 years of age, was born on 3 January 1976 and was 22 years of age at the time of the rupture. He was working at Longford on the day, but was not directly involved in the rupture, explosions and inferno. He remains at Esso's plant at Longford as a Trades Assistant, in fact with a contract engineering company working there. A statutory declaration was filed on his behalf of 26 July 2001. Evidence again given by Mr Luc Wilson before me. Again a most impressive man. Like his two elder brothers, he has suffered grievously from the sudden, horrific and unexpected loss of his father, and its public and private sequelae.

He is residing with his mother and assisting her through her period of difficulty, which will continue.

Like with the three daughters of Mr Lowery, I have considered carefully the three sons of Mr Wilson. Each is different. Each has suffered differently. Each is grievously afflicted by the loss of the years of close and loving relationship they legitimately looked forward to with their father. Theirs was a close and loving family. They now see their mother struggling bravely and suffering. Overtly, it may appear that Brett has suffered the most, but I think in truth each has suffered the same. I think the quiet suffering of the eldest and the youngest is longitudinal, and so is the suffering of Brett. In the end I consider each should be treated the same. Each will continue to suffer from the tragic loss of their father, and for the visible effect upon their mother that they regularly see. Although no formal psychological diagnosis has been made of the eldest and the youngest of the sons, it is quite apparent that both suffer significant anxiety and depression and, like the middle brother, have significant psychological sequelae, and will continue to have them.

In each of the cases I order payment of compensation, the amount of compensation to James at $75,000, Brett at $75,000 and Luc at $75,000 for their pain and suffering.

Finally I turn to the widow of Peter Wilson, Mrs Lynette Wilson. She is a brave and impressive woman. She again gave evidence before me. There is a statutory declaration declared by her on 5 June 2001 and a perceptive and comprehensive psychological report of Dr John Hodgson of 2 April 2001.

At the time of her husband's death she was 50 years of age. She was born on 20 May 1948. She is now 53 years of age. She was living with her husband on a farm on the outskirts of Sale at the time. She has had a deep and continuing grief and loss. Characteristically of Mrs Wilson she has bravely tried to face it, but she continues to suffer significantly. Psychologically she suffers a chronic adjustment disorder, a known classification under DSM4 at 309.28 and depression and anxiety. These are very substantial and will be permanent effects. She may need substantial counselling in the future, but has not yet received any. She is a person who has spent her life devoted to her husband and her children and she was one of the twin towers of strength in the family, together with her husband. For a woman who was such a tower of strength, it is a measure of the suffering that she has undergone that she has contemplated suicide.

In relation to Mrs Lynette Wilson, for the grief and suffering she has undergone and will undergo I order the amount of compensation of $300,000.

As a consequence of the ten applications, the amount of compensation ordered is $1,025,000. I order that Esso Australia Pty. Limited pay the costs of each of the applications.

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Judgment (53 paragraphs)

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