DPP v Esso Australia Pty Ltd [2003] VSC 222

Supreme Court of Victoria|2003-06-23|Before: Cummins J

CRIMES COMPENSATION - applications by victims pursuant to s 85B _Sentencing A_ct 1991 - psychiatric injury - post-traumatic stress disorder - grief, pain and suffering - employee and non-employee victims - applications consequent upon convictions for offences under ss 21 and 22 Occupational Health and Safety Act 1985 - considerations applicable - orders for compensation made.

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. They are a matter of public record and I shall not here repeat them.

Numerous persons have made application in this court for compensation for injury suffered as a result of the offences of which Esso Australia was convicted.

By reason of the abolition in 1997 by s.45 Accident Compensation (Miscellaneous Amendment) Act 1997 of workers' rights to workplace injury compensation, partially restored from 20 October 1999 by s.18 Accident Compensation (Common Law and Benefits) Act 2000, none of the applicants had any civil remedy against Esso Australia for damages for workplace or compensational injury. Their only recourse was under s.85B Sentencing Act 1991, which recourse was dependent upon a necessary condition precedent being fulfilled, namely that Esso Australia be convicted of a relevant criminal offence. That condition precedent was fulfilled by the verdicts the jury returned on 28 June 2001.

In Victoria the court has long had the power to order compensation for property loss: see s.546 Crimes Act 1958, s.92 Penalties and Sentences Act 1985, and s.86 Sentencing Act 1991. In 2000, legislation was enacted enabling compensation to be provided for injury, including for pain and suffering. That was the Victims of Crime Assistance (Amendment) Act 2000. By s.21 of that Act, a new Sub-division, Sub-division 1 of Division 2 of Part 4 Sentencing Act 1991 was implemented. In the Sentencing Act 1991 as now amended Part 4 is entitled "Orders in addition to Sentence". Division 2 is entitled "Compensation". Sub-division (1) is entitled "Compensation for pain and suffering etc". The Sentencing Act 1991 by Part 4 Division 2 Sub-division (2) provides for compensation for property loss. The Sentencing Act 1991 does not provide compensation for loss of income, past present or future.

The pivotal section in claims for compensation for pain and suffering is s.85B. That section founds the court's power to order the offender to pay compensation to a person who has suffered injury as a direct result of the offence. Injury is defined by s.85A(1) as follows:

"'Injury' means (a) actual physical bodily harm; or (b) mental illness or disorder or an exacerbation of a mental illness or disorder, whether or not flowing from nervous shock; or (c) pregnancy; or (d) grief, distress or trauma or other significant adverse effect; or (e) any combination of matters referred to in paragraphs (a), (b), (c) and (d) arising from an offence - but does not include injury arising from loss of or damage to property; 'medical expenses' includes dental, optometry, physiotherapy, psychology treatment, hospital and ambulance expenses."

A number of authorities have passed upon like legislation. Each authority must be considered in the light of legislation the court was there considering. Compensation is not punishment and proceeds according to common law criteria: McDonald[1] and In Re Poore.[2] 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[3] and Braham.[4]

There are a number of incidents of s.85B compensation proceedings. 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.

There are twenty one applications for compensation pursuant to s.85B Sentencing Act 1991 presently before me. Each applicant is a victim as contemplated by s.85B in that each applicant has suffered injury (as defined by s.85A) as a direct result of the offences of which the respondent was on 28 June 2001 convicted. In the present applications before me, the injuries suffered fall within paragraphs (b) and (d) of s.85A(1). Essentially, they are for anxiety disorders, notably post traumatic stress disorder. They are not for physical injury (s 85A(1)(a)). Although, as is evident from s 85A(1), the ambit of the provisions is wide and inclusive, there is one linear requirement for the award of compensation which is fundamental to the scheme set out by the sub-division. That is that for the injury to be the subject of compensation, it must be proved to be "a direct result of the offence". That requirement is the backbone of s.85B and appears throughout that section. On general principle, however, "direct" does not mean "sole" or "exclusive". I shall return to this question in a number of individual applications presently before me.

Applications pursuant to s.85B must be made within 12 months of conviction of the offender (s.85(C)(I)(a)) unless the Court on application extends the time within which the application may be made (s 85D(1)).

In this case the convictions were recorded on 28 June 2001. Each of the present applications was filed in this court by written notice dated 26 June 2002. In the circumstances of this case holistically (the criminal trial and its sequelae) and of these applications (individually) I do not consider that anything turns on the matter of the date of, or delay in, the making of the applications. All these applications were filed by the same firm of solicitors, situated in Gippsland but not at Sale (the area of the explosions) and all the victims have suffered trauma. Psychiatric injury is essentially longitudinal. It has taken time for many symptoms, albeit the direct result of the offences, to stabilise and in some cases even to manifest themselves. A number of applicants bravely refused to accept the reality of their symptoms for a considerable time, determining to overcome them by strength of will and of personal determination. Unfortunately such commendable determination has not proved to be efficacious. I shall return to this matter in a number of individual applications. But I consider that no adverse conclusion ought be drawn as to the veracity of these applications from their issuance date. Counsel for the respondent does not suggest otherwise.

Turning to the applications themselves, a number of general observations need to be made. First, they all derive from injury suffered as a direct result of the eruption, explosions and inferno that occurred at Esso Australia's Longford plant on 25 September 1998. Second, the injury suffered by each applicant falls within the description contained in s.85A(1)(b), namely mental disorder or (d), namely grief, distress or trauma or other significant adverse effect. Third, there is no common pathway of manifestation of injury suffered: some applicants have expressed it, some have repressed it, some have internalised it, some have for a period denied it. That is for the simple and human reason that every person is different and deals with trauma differently. The measure of the trauma is not merely how obvious it is. Fourth, a number of applicants were not employees of Esso Australia but were the many unsung women (and in some cases, men) who have loyally provided succour and support for their husbands, wives and partners who were employees of Esso Australia on the day of the explosions. Those wives, husbands and partners have earned their recognition.

None of the applicants before me suffers from a mental illness. A considerable number suffer an anxiety disorder, which entity falls within paragraph (b) of the definition of injury in s.85A. Part of the constellation of symptoms also fall within paragraph (d), although of course they are not to be counted twice in compensation. The characterisation of disorder in The Diagnostic and Statistical Manual of Mental Disorders fourth edition (DSM IV) of the American Psychiatric Association "is conceptualised as a clinically significant behavioural or psychological syndrome or pattern" which occurs in an individual and which is associated with distress or disability and which involves dysfunction (DSM IV, xxi). The injury suffered in many cases - post-traumatic stress disorder - is a serious injury. It is an established and recognised anxiety disorder, stated by the Diagnostic and Statistical Manual of Mental Disorder (4th ed.) (DSM IV) to be:

"characterised by the re-experiencing of an extremely traumatic event accompanied by symptoms of increased arousal and by avoidance of stimuli associated with the trauma." (p. 393).

The diagnostic features of post-traumatic stress disorder are summarised in DSM IV para 309.81 as follows:

"The essential feature of Post-traumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate (Criterion A1)."

Mr Curtain Q.C., who appeared with Mr O'Meara for the respondent, helpfully summarised classificatory factors in relation to the present applications. He submitted that the present applicants continue to work (or if not employees continue to function in their respective environments), none has been hospitalised, many have not required medical or psychological treatment, and of those who have required treatment that treatment has been limited to counselling and at most antidepressant medication. Apart from the immediate aftermath of the explosions, none has been required to take time off work. He pointed out that any employee of the respondent is entitled to counselling arising from the explosions and their sequelae and that that is provided for and paid by the respondent, and that any member of the family of an employee is provided likewise by the respondent as a matter of policy. Mr Curtain in classifying the injuries of the applicants emphasised that neither he nor the respondent sought to minimise the suffering the applicants have endured, but rather wish it to be placed in a proper compensation context. Indeed Mr Curtain acknowledged that psychiatric injuries can be insidious. Mr Curtain referred to a number of determinations as to the appropriate compensation to be awarded in serious cases. I am guided by those determinations but of course each case must be determined on its facts. The subsisting guidance which is to be derived from the authorities is that on the one hand one must not be overborne with emotion and on the other hand one must not be insensitive to the realities of suffering and distress. In summary, Mr Curtain submitted that the proper compensation to be awarded here is not in the highest range.

Finally, something must be said of the personal quality of the applicants before me, and of the applicants who have previously been before me. I have been most impressed by their honesty, dignity and character. All of them are a credit to themselves, a credit to their community, and a credit to Esso Australia as an employer.

In assessing the applications before me, the two fundamental building blocks are the personal histories of the applicants and the psychiatric evidence. The personal histories have in each case been set out in full documentary form, most often supplemented by oral evidence before me. In those histories, especially in their documentary form, there is much detail, often of a personal and intimate kind. It is not necessary in this judgment to rehearse that personal and intimate material. I have regard to it and it is a matter of record. I shall refer to it categorically. The psychiatric (and, on occasion, psychological) evidence is contained in numerous reports. They contain much detail. Again, it is not necessary in this judgment to rehearse that detail, important though it is. I have regard to it and it is a matter of record. I shall refer to it categorically.

Applying those general considerations, and not repeating them in turn, I proceed to the individual applications before me. I shall take them in the order of their elicitation before the Court, which order was substantially alphabetical.

Keryn Anne Conners, chemical technician, was working in the laboratory of Esso

Australia at Longford on the day of the explosions. She was directly exposed to the disaster. In her victim impact statement she graphically details what she experienced. She was exposed to the grim facts of death and injury and to the fear and uncertainty of the missing. She did all she could to help the injured and to account for the missing. That evening she went home and fell asleep in the driveway through exhaustion. She went inside and was ill. She returned to the plant the next day out of loyalty. She suffered further by then and later being exposed daily to the aftermath of the explosions. In her statement she details the longitudinal and corrosive effect her initial and continuing experiences had on herself and her family. Her fears and apprehensions continue daily and nightly.

Mrs Conners was so oppressed she ultimately abandoned a science degree she was undertaking at the University of Melbourne (Glenormiston Campus) in which she was more than halfway through and obtaining good marks. She has abandoned recreational pursuits. She commenced to suffer hyperthyroidism and was medically treated for that.

A comprehensive report dated 3 July 2002 of Dr Edward Cole, psychiatrist, concludes that Mrs Conners suffers from a chronic post-traumatic stress disorder of moderate degree. Dr Cole states that it would have been appropriate for her to have received psychiatric treatment and she would still benefit from it. Her condition has now stabilised. Supporting the specialist evidence is a report from Mrs Conners' local medical practitioner, Dr I. Nicholson, of Sale dated 28 August 2002 and of Dr L.A. Waters of Sale dated 20 September 2002. Tests ordered by Dr Waters in October 2001 revealed hyperthyroidism and she was referred to an endocrinologist in Traralgon. In the absence of relevant specialist evidence I cannot conclude that the hyperthyroidism was a direct result of the events at Longford on 25 September 1998 or their sequelae.

Mrs Conners is now aged 47 years, having been born on 7 November 1955. In evidence before me it was plain that Mrs Conners remains a highly stressed and distressed woman, and absolutely genuine. In all the circumstances, I order that the sum of $100,000 be paid by the respondent to Mrs Conners for the pain and suffering caused to her as a direct result of the offences.

Stephen David Elston, senior mechanical equipment inspector, was working at the plant on the day of the explosions. Initially he was in the lunch room. He was exposed to the injured and to the uncertainty. His victim impact statement recounts his experiences on site in detail. He remained on site and then at the helipad until 9.30 pm. He left exhausted. He returned to the plant on 28 September 1998 (the Monday) and thereafter was exposed over time to the sequelae of the explosions.

Mr Elston thought at first that he could cope with what had happened and with what he had experienced. But over time his emotional state and personal life took a downward path. His statement sets out his unfortunate and difficult personal history in relation to his family and the substantial cessation of outdoor activities.

A comprehensive report dated 12 July 2002 of Dr Edward Cole, psychiatrist, concludes that Mr Elston suffers from a chronic post-traumatic stress disorder of moderate degree accompanied by reactive depression. Dr Cole says it would be appropriate for Mr Elston to receive psychiatric treatment at least in the form of anti-depressant medication.

Mr Elston is aged 48 years, having been born on 16 October 1954.

In evidence before me Mr Elston was a very direct, decent man.

In all the circumstances I order that the sum of $100,000 be paid by the respondent to Mr Elston for the pain and suffering caused to him as a direct result of the offences.

Mrs Linda Elston is the wife of Mr Elston. She works as a kindergarten assistant at Sale.

Like many of the partners of employees of the respondent who suffered at the site, Mrs Elston has daily and nightly sought to support and give succour to her husband following the explosions of 25 September 1998. This unremitting task, although publicly unsung, is very real. On the day of the explosions she did not know if her husband and father of their children was dead or alive. Her victim impact statement summarises her experience over time since that date.

A report by Dr Edward Cole, psychiatrist, of 12 July 2002 concludes that Mrs Elston is suffering from a chronic anxiety state. Dr Cole states that her nervous disorder is mild, does not call for psychiatric treatment and is stabilised.

Mrs Elston is aged 48 years, having been born on 5 December 1954.

In all the circumstances, I order that the sum of $25,000 be paid by the respondent to Mrs Elston for the pain and suffering caused to her as a direct result of the offences.

On the day of the explosions William Hector was a control room operator at the plant at Longford. He was operating the crude plant. He was present throughout the antecedents, the explosions, and the consequences of the disaster. He was directly exposed to the injured, the missing and the desperate scene and was an active part of it. His victim impact statement sets out in graphic detail the events, their horrific character and his exposure to and involvement in them. When he got home that night he broke down through exhaustion and emotion.

Mr Hector returned to work. He continues to have graphic mental experiences from the explosions and their sequelae, of which he is constantly reminded at work.

A comprehensive report dated 18 July 2002 by Dr Edward Cole, psychiatrist, concludes that Mr Hector came to suffer from a post-traumatic stress disorder but by mid 2002 that condition had moderated to a mild anxiety state with some features of post-traumatic stress disorder. It would have been appropriate for him to have received psychiatric treatment or psychological counselling following the explosions. His condition has stabilised. A report of Dr L.A. Waters of 19 September 2002 is not of significance on this application.

Mr Hector is aged 38 years, having been born on 4 September 1964.

In evidence Mr Hector was a direct, straight witness.

In all the circumstances I order that the sum of $100,000 be paid by the respondent to Mr Hector for the pain and suffering caused to him as a direct result of the offences.

Mrs Joanne Hector is the wife of Mr William Hector. They have seven children. On the day of the explosions she and the family were at home on the farm.

Mrs Hector's victim impact statement sets out the effect on her husband of the explosions and their sequelae, and in turn that effect on her and the family. That effect has been a continuing one.

A report dated 18 July 2002 of Dr Edward Cole, psychiatrist, concludes that Mrs Hector is suffering from a mild anxiety state. There is no indication for psychiatric treatment.

Mrs Hector is aged 36 years, having been born on 24 May 1967.

In evidence Mrs Hector was a very decent, supportive person.

In all the circumstances I order that the sum of $25,000 be paid by the respondent to Mrs Hector for the pain and suffering caused to her as a direct result of the offences

Barrie David Jessep, utility operator, was working at the plant on the day of the explosions. He was directly involved with and exposed to the antecedents, events and sequelae of the explosions. His victim impact statement sets out in graphic detail the traumatic experiences of 25 September 1998. Ultimately he got home at 7.00 pm, exhausted and in shock.

It was some time before Mr Jessep was able to return to work.

Like many employees of the respondent, Mr Jessep then tried to "battle it out" (his words). But, like with many others, the psychic problem was too great. Before me in evidence it was plain that Mr Jessep was a very decent man whose nerves were shot.

A comprehensive report dated 25 June 2002 of Dr Edward Cole, psychiatrist, concludes that Mr Jessep is suffering from a chronic post-traumatic stress disorder of moderate degree accompanied by reactive depression. Psychological counselling and antidepressant medication would be appropriate.

An extensive report of Mr John Hodgson, psychologist of Traralgon, dated 27 May 2002 supports Dr Cole's report. Mr Hodgson concludes that Mr Jessep is in a "very fragile psychological state". A report of Dr Heather Hunter, medical practitioner of Sale of 7 May 2002 supports Dr Cole's conclusions also.

Mr Jessep's personal life has been adversely affected as is set out in the reports referred to in the preceding paragraph.

Mr Jessep is aged 53 years having been born on 15 November 1949.

In all the circumstances I order that the sum of $100,000 be paid by the respondent to Mr Jessep for the pain and suffering caused to him as a direct result of the offences.

Mrs Lynette Jessep is the wife of Mr Barrie Jessep. They have four children. Mrs Jessep is a residential care provider. She was in Sale on the day of the explosions.

In her victim impact statement, Mrs Jessep details the ongoing effects on her husband of the explosions and their sequelae. He was "a changed person". She sets out the effects in turn upon her and the support she was sought to provide him.

A report dated 25 June 2002 of Dr Edward Cole, psychiatrist, concludes that Mrs Jessep suffers from a chronic anxiety state of mild to moderate degree. She does not require medication. A report dated 25 June 2002 of Mr John Hodgson, psychologist, of Traralgon supports that of Dr Cole and says that Mrs Jessep requires ongoing psychological support which she has begun to receive.

Mrs Jessep is aged 53 years, having been born on 19 April 1950.

In all the circumstances I order that the sum of $25,000 be paid by the respondent to Mrs Jessep for the pain and suffering caused to her as a direct result of the offences.

Angela Eileen Jones, senior secretary employed by the respondent at the plant, was secretary to the plant superintendent, Mr Peter Wilson, who died in the explosions on 25 September 1998. She was working in her office with Mr Wilson on the day. She had been his secretary for 12½ years. She was working closely with him on the day until he left the office shortly prior to his death. Mr Wilson was like a father to Mrs Jones.

Mrs Jones in her victim impact statement sets out in graphic details the events of the day. She was directly exposed to the horror of the disaster and was at the epicentre of organisation to seek to contain and limit its effects. Ultimately she got home after midnight, and returned to the site less than six hours later. It became apparent that Mr Wilson and Mr Lowery were deceased.

Mrs Jones sets out the traumatic sequelae of the explosions at the plant and in their interpersonal consequences. Again, she was at the centre of consequential organisational matters.

A comprehensive report of Dr Edward Cole, psychiatrist, dated 3 July 2002 concludes that Mrs Jones suffers from a chronic post-traumatic stress disorder of mild to moderate degree accompanied by reactive depression. She has received psychological counselling and antidepressant medication. It is likely that her condition will gradually improve but it is doubtful she will ever recover completely. A report of Dr John Bergin, medical practitioner of 11 September 2002 supports the conclusions of Dr Cole except that Dr Bergin considers that Mrs Jones' progress is excellent. A report of Ms Jan Saville, therapeutic counsellor, of Sale of 6 September 2000 generally supports Dr Cole.

A report of Mr John Reeves, psychologist, of Morwell of 20 February 2003 supports Dr Cole.

Mrs Jones is 40 years of age, having been born on 9 October 1962.

In evidence before me it was plain that Mrs Jones, understandably, remains highly stressed. She is afflicted not only by the trauma of the disaster at Longford generally, but particularly by the special and close relationship she had with the deceased Mr Wilson and has with his family. In all the circumstances I order that the sum of $150,000 be paid by the respondent to Mrs Jones for pain and suffering caused to her as a direct result of the offences.

Stuart Alan Jones is the husband of Mrs Angela Jones. He is a police officer stationed at Sale. They have two children.

In his victim impact statement, Mr Jones sets out the effect upon his wife and in turn upon him and the family of the explosions of 25 July 1998. He provided care and support for his wife on a continuing basis. The strain of the effect of the trauma on Mrs Jones had a deleterious effect on the family situation.

A report of Dr Edward Cole, psychiatrist, of 3 July 2002 concludes that Mr Jones suffers from a chronic anxiety state of mild degree. He does not require psychiatric treatment, apart from joining his wife in counselling. A report of Ms Jan Saville, therapeutic counsellor, of Sale of 9 September 2002 supports Dr Cole and says that Mr Jones suffered a major depressive episode.

Mr Jones is aged 35 years, having been born on 4 January 1968.

In all the circumstances I order that the sum of $25,000 be paid by the respondent to Mr Jones for the pain and suffering caused to him as a direct result of the offences.

Andrew Peter Knight, maintenance fitter, employed by Work Hire, was working at the site on the day of the explosions. He had just left the exchanger area when an exchanger exploded. His victim impact statement describes in graphic detail the events which followed. He was exposed directly to the trauma of the events. As a contractor he was then removed from the immediate area of the events. He got home at 6.00 pm.

In the period after 25 September 1998 he was exposed to the sequelae of the explosions, including the circumstance that he initially thought he had been working on the very exchanger which exploded and killed two men. His police statements set out in vivid detail the circumstances of the day. His victim impact statement sets out his continuing stresses and their effects upon him.

A comprehensive report of Dr Edward Cole, psychiatrist, of 12 July 2002 concludes that Mr Knight suffers from a chronic post-traumatic stress disorder of moderate degree accompanied by reactive depression. He has received psychological counselling and it would be appropriate for him to receive antidepressant medication. His condition is stabilised. A lengthy psychological report of Mr John Hodgson of Traralgon of 6 May 2002 supports Dr Cole, as does a psychological report of Mr Garry Lawlor of Traralgon of 2 December 2002.

Mr Knight is aged 34 years, having been born on 13 September 1968. In evidence Mr Knight appeared a genuinely apprehensive person. In all the circumstances I order that the sum of $100,000 be paid by the respondent to Mr Knight for the pain and suffering caused to him as a direct result of the offences.

Mrs Tania Knight is the wife of Mr Andrew Knight. They have four children. On 25 September 1998 she was at home in Longford with the children.

Mrs Knight's victim impact statement sets out the effect upon her and the family of her husband's deteriorating condition following the events of 25 September 1998. It "got to rock bottom". She persisted at it as did Mr Knight and they hope to work through the problems.

A report of Dr Edward Cole, psychiatrist, of 12 July 2002 concludes that Mrs Knight suffers from a chronic anxiety state and reactive depression of moderate degree. Her condition is stabilised. A report of Mr John Hodgson, psychologist, of Traralgon of 6 My 2002 supports Dr Cole, as does that of Mr Garry Lawlor, psychologist of Traralgon of 2 December 2002.

Mrs Knight is 34 years of age, having been born on 5 September 1968.

In all the circumstances I order that the sum of $25,000 be paid by the respondent to Mrs Knight for the pain and suffering caused to her as a direct result of the offences.

Vicki Ann Miller, an integration aide, was married to Robert Miller, an employee of the respondent who was at Longford on 25 September 1998. She and her husband married on 10 August 1974. They separated on 11 February 2002. They have three children, twin boys and a younger daughter Jenelle, now 21 years of age.

In her victim impact statement Mrs Miller sets out the effects of the explosions and their sequela on her husband and the consequential deleterious effects on her and the family. She sought to provide support and succour to her husband but despite her efforts it was to no avail. They both were seriously afflicted by the incidents of 25 September 1998 and ultimately after the relationship deteriorated they separated.

Mrs Miller suffered considerable psychological pain as the result of the explosions and their effect on her husband. A comprehensive report of Dr Edward Cole, psychiatrist, of 19 July 2002 concludes that she suffered an anxiety state and reactive depression of moderate degree and she has had considerable pain and suffering. A report of Dr Michael Baker, medical practitioner, of Maffra of 7 October 2002 states that she was suffering depression as a result of the explosions. A report of Ms Jeanette Gibson, psychologist, of Sale of 21 August 2001 confirming the report of Dr Cole and sets out the high level of anxiety suffered by Mrs Miller. A letter of Mr Des Sinnot of 7 October 2002 sets out supporting detail. I except from those reports, and I do not include compensation for, the unfortunate separation of Mr and Mrs Miller, as I would need a more thoroughgoing evidentiary presentation than is possible or appropriate in a s.85B proceeding to conclude affirmatively that the separation was a direct result of the explosions. That is no reflection upon Mrs Miller's veracity. She impressed me as a wholly honest, decent, distressed person.

Mrs Miller is now 46 years of age, having been born on 18 January 1957.

Mrs Miller has suffered an especially harmful consequence of the explosions. In all the circumstances I order that the sum of $50,000 be paid by the respondent to Mrs Miller for the pain and suffering caused to her as a direct result of the offences.

Jenelle Cherie Miller is the daughter and youngest child of Mr Robert and Mrs Vicki Miller. She is 21 years of age, having been born on 26 September 1981. She is a graduate in Arts and Criminal Justice Administration from R.M.I.T. (Bundoora Campus). At the time of the explosions she was a student at Maffra Secondary College in Year 11.

Ms Miller in her victim impact statement sets out the personal history of the family since the explosions on 25 September 1998. She has been afflicted by the unhappy circumstances which flowed to the family from the explosions. She presented to the court a moving poem she had written to her father, which eloquently states her inner feelings. Ms Miller was a most impressive young woman.

A report of Dr Edward Cole, psychiatrist, of 19 July 2002 concludes that Ms Miller suffers from a mild anxiety state. She does not require psychiatric treatment.

I apply the same exclusory criteria to the application of Ms Miller as I did to that of Mrs Miller in relation to the unfortunate separation of her parents.

In all the circumstances I order that the sum of $25,000 be paid by the respondent to Ms Jenelle Miller for the pain and suffering caused to her as a direct result of the offences.

Bruce Leonard Robinson, safety coordinator, was a temporary supervisor at the plant at Longford on 25 September 1998. He was a directly exposed to the traumatic events which occurred on that day. His police statements set out in vivid detail his experiences including of the severely injured. His victim impact statement sets out the deleterious consequences to him of the explosions and their sequelae. He, as with others directly and immediately present, has suffered nightmares, flashbacks and suicidal ideation. His victim impact statement sets out the longitudinal effects of what occurred on 25 September 1998.

A comprehensive report of Dr Edward Cole, psychiatrist, of 27 June 2002 concludes that Mr Robinson suffers from a chronic post-traumatic stress disorder of moderate degree accompanied by reactive depression. He has received psychological counselling (not only for this matter) and had antidepressant medication. His condition has stabilised. A medical report of Dr L.A. Waters of Sale at 12 February 2002 and psychological reports of Mr John Hodgson of Traralgon of 6 May 2002 and of Mr Garry Lawlor of Traralgon of 6 May 2002 support Dr Cole. A report of Mr Jay Renelson of Sale of 6 June 2002 does likewise.

Mr Robinson is aged 37 years, having been born on 3 May 1966.

Mr Robinson has had other difficulties in his life, which are not a result (direct or otherwise) of the events of 25 September 1998. In evidence before me Mr Robertson appeared a troubled man.

In all the circumstances, in relation to the consequences which are a direct result of the offences, I order that the sum of $100,000 be paid by the respondent to Mr Robinson for his pain and suffering.

Michael John Shepard, senior operations adviser, was present in that position at the plant at Longford on 25 September 1998. He was present at the heat exchanger when it exploded. He was blown off his feet and rendered unconscious. When he regained consciousness he crawled away rather than stand up. Ultimately he was dragged into the control room. His hat and some clothing had been blown away. He suffered numerous cuts and abrasions as well as burns. He suffered hearing damage. He was directly exposed to the trauma of the explosions and their numerous sequelae. He was later removed by ambulance to the Sale Hospital.

Mr Shepard's victim impact statement sets out in details his personal odyssey since 25 September 1998. The deleterious effects upon his life are stated. In order to cope, he moved his work premises to Melbourne. By reason of his senior position, he suffered substantial alienation. He is now back at Longford.

A comprehensive report of Dr Edward Cole, psychiatrist, of 12 July 2002 concludes that Mr Shepard suffers from a chronic post-traumatic stress disorder of moderate degree. His condition is stabilised. It would have been appropriate for him to have received psychiatric treatment.

Mr Shepard is 63 years of age, having been born on 1 August 1939.

In evidence Mr Shepard was a quiet, dignified man who plainly has suffered very considerably on and since 25 September 1998. The fact that he has internalised it and said little about it does not lessen his suffering. In all the circumstances I order that the sum of $150,000 be paid by the respondent to Mr Shepard for the pain and suffering caused to him as a direct result of the offences.

Mrs Elizabeth Shepard is the wife of Mr Michael Shepard. She conducts a hairdressing business in Maffra. She was at her work on the day of the explosion.

The victim impact statement of Mrs Shepard states the personal difficulty she and her husband have undergone since the explosions. They have done their best to cope, without professional assistance.

A report of Dr Edward Cole, psychiatrist, of 12 July 2002 concludes that Mrs Shepard does not suffer from any defined emotional order. In evidence before me Mrs Shepard impressed me as a stoic person, who has loyally supported her husband through their difficulties since 1998.

In all the circumstances I order that the sum of $20,000 be paid by the respondent to Mrs Shepard for the pain and suffering caused to her as a direct result of the offences.

Mr John Smith, maintenance planner, was at the plant on 25 September 1998 in that capacity. He directly experienced the trauma which occurred on the site, including injured persons. When he got home that evening he was exhausted and in shock. He returned to work the next day which he found particularly stressful. Over the next days he attended work. On Saturday, 17 October 1998 he had a day off, went to Golden Beach, and unfortunately suffered a heart attack. He was transferred to Melbourne and treated at St Vincent's Hospital by Mr George Leitl.

Mr Smith's victim impact statement sets out the deleterious effect upon his personal life and that of his family of the events of 25 September 1998. He states in detail the mental and emotional consequences of the events at Longford.

A comprehensive report of Dr Edward Cole, psychiatrist dated 16 July 2002 concludes that Mr Smith suffers from a chronic post-traumatic stress disorder of moderate degree accompanied by reactive depression. He has received psychological counselling and has had antidepressant medication. His condition has stabilised. A report of Dr C.D. O'Kane of Sale (undated) supports Dr Cole, as does a report of Mr John Hodgson, psychologist of Traralgon of 25 May 2002.

On the medical evidence before me, I cannot conclude that Mr Smith's heart attack, although closely following the explosions and his work efforts thereafter, was a direct result of the offences. The reports of Dr Cole and Dr O'Kane are inconclusive on this matter and the treating cardiac practitioner Mr Leitl was not called nor was a report from him produced.

Mr Smith is aged 51 years having been born on 6 November 1951.

In all the circumstances I order that the sum of $100,000 be paid by the respondent to Mr John Smith for the pain and suffering caused to him as a direct result of the offences.

Mrs Pamela Smith is the wife of Mr John Smith. They have two children. On the day of the explosions she was at home in Stratford.

Mrs Smith's victim impact statement sets out the personally difficult times she and her husband have endured as a consequence of the explosions. For reasons I stated in relation to her husband, I put aside for purposes of s.85B compensation his unfortunate heart attach and its sequelae. I also for that purpose also put aside her own illnesses. I am not satisfied on the report of Dr A.J. Goble of Heidelberg of 20 February 2003 that Mrs Smith's thyroiditis is a direct result of the offences.

A report of Dr Edward Cole, psychiatrist, of 17 July 2002 concludes that Mrs Pamela Smith suffers from a chronic anxiety state.

In all the circumstances I order that the sum of $25,000 be paid by the respondent to Mrs Pamela Smith for the pain and suffering caused to her as a direct result of the offences.

John Robert Stone, equipment inspector, was at the plant in that capacity on 25 September 1998. He was directly exposed to the trauma of the explosions and their sequelae.

Mr Stone's victim impact statement sets out in detail the events and his experiences. He got home, exhausted, at midnight. His statement also sets out the longitudinal deleterious effects upon him and his family of the explosions and their sequelae.

A comprehensive report of Dr Edward Cole, psychiatrist of 19 July 2002 concludes that Mr Stone is suffering from a chronic post traumatic stress disorder of mild to moderate degree accompanied by reactive depression. It would be appropriate for him to receive psychiatric treatment and he should take antidepressant medication. A medical report by Dr S.J. Williams of Sale of 9 September 2002 supports Dr Cole, as do psychological reports of Mr John Hodgson of Traralgon of 14 July 2002 and of Mr Garry Lawler of Traralgon of 28 November 2002.

Mr Stone is aged 50 years, having been born on 10 October 1952.

Mr Stone impressed me in evidence as a very decent man who has suffered and continues to suffer considerably.

In all the circumstances I order that the sum of $100,000 be paid by the respondent to Mr Stone for the pain and suffering caused to him as a direct result of the offences.

Nicole Leanne Watson, nurse, of Sale is the wife of Mr Jason Watson, operations technician employed by the respondent and whose s.85B application has been settled. Mrs Watson was at work in Sale on the day of the explosions. Mr and Mrs Watson have two young children.

Mrs Watson's victim impact statement sets out the deleterious effect upon her husband, herself and the family of the explosions and their sequelae.

A report of Dr Edward Cole, psychiatrist dated 3 July 2002 concludes that Mrs Watson suffers from a chronic anxiety state and reactive depression of mild to moderate degree. It would be appropriate for her to receive psychiatric treatment or psychological counselling. She remains very apprehensive.

In all the circumstances I order that the sum of $25,000 be paid by the respondent to Mrs Watson for the pain and suffering caused to her as a direct result of the offences.

I order that the costs of each applicant in these proceedings be paid by the respondent. In the absence of agreement between the parties as to costs, costs are to be taxed on a party and party basis.

Health and Safety Act 1985

At a glance

Court

Decision date

Before

Source

Judgment (134 paragraphs)

Parties

Legislation Cited (1)