DPP v Esso Australia Pty Ltd [2004] VSC 440

2. On 28 June 2001, after a four month trial, Esso Australia Pty Ltd was found guilty by a jury on eleven counts of breaches of s.21 and s. 22 Occupational Health and Safety Act 1985. By reason of s.47(3) of that Act, each of those convictions was of an indictable offence. The convictions essentially were of failures to provide and maintain, so far as was practicable, a safe workplace and safe systems of work at Esso Australia's major gas processing facility at Longford, Victoria. On 25 September 1998, as a consequence of Esso's failure, a catastrophic rupture in plant had occurred. Explosions and fires ensued, two employees tragically were killed, eight others were seriously injured and numerous persons were caused significant trauma, pain and suffering. On 30 July 2001, I imposed fines totalling $2,000,000 upon Esso Australia for the eleven offences.

5. The circumstances of the eleven offences under the _Occupational Health and Safety Ac_t 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.

8. 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. On 19 December 2001 I ordered the payment by Esso Australia Pty Ltd of compensation to numerous victims of the rupture and explosions at Longford on 25 September 1998. On 23 June 2003 I made further orders of compensation to further victims.

11. The applicant, Mr Norman Lindsay Robertson, of Sale has applied to the Court for compensation for injury suffered by him as a result of the offences of which Esso Australia was convicted. Mr Robertson was working at the Longford plant on the day of the explosions and was directly exposed to the events of the day and their sequelae. He was working there fulltime as a maintenance contractor employed by Gladman's Truck and Bobcat Hire of Sale. He had been working in that capacity at Esso Australia's Longford plant for some nine years. At the date of the explosions (25 September 1998) Mr Robertson was 30 years of age, almost 31, having been born on 14 October 1967. He is now 37. Mr Robertson did not suffer physical injury but suffers, in circumstances to which I shall come, post traumatic stress disorder.

14. In previous judgments in s.85B compensation proceedings arising out of the Longford explosion, I set out relevant legislation and principle. Although it is undesirable to be repetitive, this is a separate judgment and accordingly I set out that material in the next three paragraphs.

17. The pivotal section in claims for compensation for pain and suffering under the Sentencing Act 1991 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:

(b) mental illness or disorder or an exacerbation of a mental illness or disorder, whether or not flowing from nervous shock; 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."

27. 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]

30. 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.

33. Esso Australia was convicted on 28 June 2001. By s.85C(1)(a) Sentencing Act 1991 an application for compensation must be made within 12 months after the offender is convicted of the offence, unless the Court on application extends the time for the making of the application (s.85D). By application filed on 11 December 2003 Mr Robertson applied pursuant to s.85D for an order granting him an extension of time for applying for compensation. At 11 December 2003 Mr Robertson was some 1½ years out of time. On 19 March 2004 I heard the application for institution of compensation proceedings out of time and I granted the application. The published reasons speak for themselves and I shall not repeat them. Esso Australia sought leave to appeal from that decision and on 30 April 2004 the Court of Appeal dismissed the application without finally determining the merits.

36. It was not until October 2004 that the substantive matter was re-listed before me. On 19 October 2004, the eve of the hearing, in a letter which would take a prize for obscurity, the solicitors for the respondent wrote to those for the applicant. :

"We write to advise you that one of the submissions to be made on behalf of our client at the hearing of your client's application before Justice Cummins tomorrow is that no compensation should be awarded to your client at all because he has not satisfied the thresholds and requirements of the Wrongs Act."

41. In an extensive submission, Mr Curtain Q.C. for the respondent submitted that the s.85B Sentencing Act 1991 claim for compensation by Mr Robertson is subject to the threshold requirements of Part VBA Wrongs Act 1958 which came into operation in May 2003 and subject to the quantum limitation provisions of Part VB Wrongs Act 1958 which came into operation in October 2002. Part VBA, headed "Thresholds in relation to recovery of damages for non-economic loss", was inserted by s.4 Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 and came into operation on 21 May 2003. Part VB, headed "Personal Injury Damages", was inserted by s.7 Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 and came into operation on 23 October 2002. If the respondent's submissions are correct, the threshold provisions of Part VBA Wrongs Act would defeat the applicant's s.85 compensation claim (at least in its present state of evidence due to the lack of notice of this point to the applicant's solicitors) and the quantum limitation provisions of Part VB Wrongs Act could affect the quantum of s.85B compensation otherwise properly to be ordered. Mr Curtain's submission was as follows.

44. Mr Cutain submitted that Part VB applies to awards of "personal injury damages", that is, damages that relate to the death of or injury to a person caused by the fault of another. By s.28B "fault" includes act or omission and "damages" includes "any form of monetary compensation". Section 28C(3) provides that Part VB extends to "an award of personal injury damages even if the damages are recovered in an action for breach of contract or in any other action." By s.28C(2) several categories of awards are excluded from the operation of Part VB, including awards of damages where the fault is an intentional act done with the intention of causing death or injury or that is a sexual assault or other sexual misconduct, and awards of compensation under various Acts. Claims made under the Sentencing Act 1991 are not excluded. Section 28D provides that "A court cannot award damages to a claimant contrary to this Part." Section 28G provides the maximum amount of damages that may be awarded to a claimant for non-economic loss is $371,380, subject to the indexation formulae provided in s.28H. Section 28HA provides that in determining damages for non-economic loss, a court may refer to earlier decisions of that court or other courts for the purpose of establishing the appropriate award in the proceeding.

47. Mr Cutain submitted that Part VBA enacts thresholds that must be satisfied in order that damages for non-economic loss may be recovered. By s.28LE the claimant must have suffered "significant injury". Part VBA extends to claims for damages for non-economic loss "even if the claim is founded on breach of contract or any other cause of action" (s.28LC(4)). Non-economic loss claims mean, inter alia, claims for "pain and suffering", and injury means personal or bodily injury and includes "psychological or psychiatric injury" (s.28LB). Part VBA applies to claims for the recovery of damages for non-economic loss, except excluded claims. Claims made under the Sentencing Act 1991 are not excluded. Under s.28LE, a person is not entitled to recover damages for non-economic loss in any proceeding in respect of an injury to the person caused by the fault of another person unless the person injured has suffered "significant injury". The notion of fault is wide - "fault" is defined to include "act or omission" and fault may relate to an intentional act not excluded by s.28LC(2)(a). Section 28LF(2)(a) provides that psychiatric injury to a person is "significant injury" if the degree of impairment resulting from the injury has been assessed by an approved medical practitioner in accordance with Part VBA as satisfying the "threshold level", unless a Medical Panel has made a determination as to the threshold level under Division 5 of Part VBA. In the case of psychiatric or psychological injury, the threshold level is a permanent impairment of more than ten per cent (s.28LB).

50. Mr Curtain submitted that, as is apparent, no approved medical practitioner has assessed the applicant's degree of impairment as satisfying the threshold level. He further submitted that on the psychiatric evidence (to which I shall later come) the applicant's psychiatric impairment is not "permanent". Mr Curtain submitted that none of the material relied upon by the applicant could support a conclusion that the applicant had a degree of impairment that satisfied the threshold level of ten per cent. Such an assessment would have to be made by an approved medical practitioner in accordance with Part VBA, except in those situations in which significant injury is deemed or determined by the Court, none of which apply in the present circumstances.

53. Accordingly, Mr Curtain submitted that none of the evidence relied upon by the applicant permitted the Court to conclude that the applicant is entitled to recover compensation for non-economic loss in this application.

56. Further, Mr Curtain submitted that in the event that the applicant were to satisfy the threshold level, the maximum award would be limited pursuant to s.28G of Part VB. In determining such award the Court would be contextually constrained by the relativity of the injury of the applicant within the constellation of other grievous injury comprehended by the scheme of the Wrongs Act provisions including the limit specified in Part VB.

59. Although I was most assisted by Mr Curtain's clear submissions, I am wholly unpersuaded by them. I consider they are misconceived. The reason they are so is that, in my view, the Wrongs Act 2002 and 2003 amendments have no application to Mr Robertson's application before me. That is so at three levels: statutory, elemental and chronological.

65. In my view, a s.85B Sentencing Act 1991 compensation order is not comprehended by the s.28LE Wrongs Act category of "damages for non-economic loss". It is plain from the terms of Part VBA and of Part VB that the wider definition of `damages' in s.28B (in Part VB) is not that which is applicable in Part VBA. In Part VB the term `damages' is statutorily extended "In this Part": s.28B. In Part VBA `damages' is not defined (see s.28LB). By ordinary principles of statutory construction, the contrast is pregnant. The term `damages' in Part VBA is one which has its ordinary meaning, whereas that in Part VB (s.28B) is statutorily extended.[5] There is no good statutory reason to construe the word `damages' in s.28LE in the extended way it is defined in s.28B. By ordinary usage, the term `damages' does not include statutorily provided compensation to a victim for a criminal act.

68. Further, the burden of Mr Curtain's submission is that the Wrongs Act amendments upon which he relies implicitly repeal the provisions (Part 4 Division 2 Subdivision 1) of the Sentencing Act 1991 upon which Mr Robertson's application rests. I consider such a consequence would be wholly erroneous. Mr Dreyfus Q.C. for the applicant submitted that the purpose and effect of the Sentencing Act 1991 compensation provisions in Part 4 Division 2 Subdivision 1 is that victims who experience pain and suffering as a direct result of criminal offences be able to obtain an order for compensation for that pain and suffering. He submitted that that is a much broader concept than, and a different subject matter from, the concept of "significant injury" contained in Part VBA Wrongs Act. I agree. The victim compensation provisions are important provisions within the matrix of the application of the criminal law, which is both punitive and ameliorative. It would take a lot more than implication to defeat them. On ordinary principles, repeal by implication is not a ready conclusion.[6] The more so here, where considerations of equity and public policy militate to the proper compensation for victims of crime. Victims of crime are not to be deflected by a statutory side wind, particularly one from merely a civil source.

71. Further and in any event, the Wrongs Act amendments of 2002 and 2003 come too late. Sections 28F, 28G and 28H of Part VB do not apply to an award of damages "in proceedings commenced in a court before the commencement day" (viz. 23 October 2002): s.28L(2)(a). Part VBA does not apply to an award of damages for non-economic loss in a proceeding commenced in a court before 1 October 2003 (s.28LZQ(3)). The present proceedings before this Court commenced by presentment filed on 7 August 2000. Those proceedings were the curial process of Esso Australia Pty Ltd being brought before this Court for adjudication of criminal charges of a substantial nature. The proceedings are not merely this s.85B compensation application. It is but a part of the proceedings. Neither Part VB nor Part VBA here applies.

74. Accordingly and for the above reasons, I reject the submissions upon behalf of the respondent and made at the fifty-ninth minute of the eleventh hour, that the 2002 and 2003 Wrongs Act amendments have application to the s.85B compensation proceedings of Mr Robertson and defeat them or constrict them in any way.

77. I turn to Mr Robertson's s.85B claim for compensation. Filed in support of his claim is a statutory declaration made by him on 3 November 2003 (titled Victim Impact Statement) and which is the main source of historical material in the matter. Mr Robertson also swore an affidavit on 8 December 2003 in support of the extension of time application. Mr Robertson gave evidence before me on 20 October 2004, and also on the application for extension of time on 19 March 2004.

80. As I have said, Mr Robertson at the date of the explosions (25 September 1998) was almost 31 years of age. He was born and raised in Sale and was educated to the end of Year Ten at Sale Technical School. He resides in Sale with his partner and their two children, a boy now aged nine and a girl aged three. Mr Robertson had worked fulltime at Esso Australia's Longford plant as a maintenance contractor employed by Gladman's Bobcat Hire of Sale for some 9 years prior to the explosions and was working there in that capacity on the day of the explosions.

83. On Friday, 25 September 1998 Mr Robertson commenced work at the plant at 7.30 am. During the morning he with others was digging a hole for a pipe inspection, some 30 to 50 metres from the Gas Plant One control room. Shortly after noon he took his lunch break. During the break he walked past Gas Plant One and observed the large amount of condensate on the ground and the leaking vessel. He noticed Mr Peter Wilson and Mr John Lowery examining the flows of condensate. Mr Robertson was in the canteen at 12.20 pm when the first of the explosions occurred. He and others ran outside, heard a terrible roaring sound and saw massive clouds of gas vapours pouring from Gas Plant One. As he and others ran, the clouds caught fire. He could feel the burning heat as he hit the ground. He knew the LPG bullets were only a few metres away from Gas Plant One and that if they exploded he and the personnel were "history". He regained his feet and ran to the emergency assembly area. He saw the flames, fireballs and black smoke and heard the explosions. He saw the chaos. At 1.45 pm he left the site and hitchhiked into Sale. He arrived home at 2.30 pm. He "just knew" people had been killed. It was "a sickening feeling".

86. Mr Robertson knew personally and well many of the injured persons. He knew the deceased persons, Mr Peter Wilson and Mr John Lowery.

89. During the following week Mr Robertson was sent to counselling. As part of counselling he was taken back to Gas Plant One. It was "horrific".

92. Mr Robertson "felt sick about the thought of going back to work" at the plant. He started looking for a new job, but could not find one. Because of financial need he returned in November 1998 to working at the plant. After some time he "started to get some confidence back" but "always felt unsafe". If minor incidents occurred he became very stressed. All around were reminders of the tragedy; even when digging a hole he would find shrapnel from the explosions. He found the stress "unbearable". His personality has changed from a happy person to a "nervous wreck". His partner and children are affected by his change and they worry for him as well. He tries to put on a "brave face" but has failed to do so. Mr Robertson lost his employment with Gladman's in August 2004 and is currently unemployed.

95. The quotations in the previous paragraphs are taken from Mr Robertson's statutory declaration of 3 November 2003.

98. Similar material in briefer compass is contained in paragraph 3 of Mr Robertson's affidavit of 8 December 2003 in support of the extension of time application. Although on that application senior counsel for the respondent emphasised the apparent difference between paragraph 6 of that affidavit ("something inside of me snapped that day") and the longitudinal development of Mr Robertson's symptoms, before me on the substantive application that suggested difference was not pursued - perhaps understandably, in the light of Dr Kenny's observations as to the bona fides of the applicant cited in paragraph 33 below. In cross-examination before me on 19 March 2004 Mr Robertson said he had "just been bottling it up".

101. Mr Robertson gave evidence before me twice and was cross-examined on both occasions. He impressed me as a truthful witness and decent man. Without the benefit of psychiatric opinion, a lay person hearing and observing Mr Robertson as a witness would say his nerves were shot.

104. Tendered on Mr Robertson's behalf was a report dated 14 November 2003 of Dr Michael Epstein, psychiatrist. Dr Epstein examined Mr Robertson on 10 November 2003. In a comprehensive and thorough report Dr Epstein reviewed the history of stress, nightmares and flashbacks of Mr Robertson and his then (November 2003) condition. Dr Epstein concluded that since the explosions Mr Robertson has had

"symptoms of a Post Traumatic Stress Disorder characterised by recurrent intrusive thoughts about the explosion, distress with reminders of it, increased concerns with regard to his own safety and security and that of his family, hyper vigilance, emotional withdrawal, and a sense of bleakness."

Dr Epstein stated that Mr Robertson has not received any psychiatric or psychological treatment but that he would benefit from such treatment. It should be regular and over a period of some eight months. Dr Epstein stated that Mr Robertson's symptoms would settle more quickly if he found work away from the Longford plant but that he would continue to have residual symptoms. Dr Epstein characterised Mr Robertson's post traumatic stress disorder as "at the milder end of the spectrum".

109. The respondent had Mr Robertson psychiatrically examined by Dr Barrie Kenny on 22 June 2004. Dr Kenny made a report thereof dated 25 June 2005. Before me the report was tendered by senior counsel on behalf of Mr Robertson. Dr Kenny, like Dr Epstein, found that Mr Robertson suffered post traumatic stress disorder. Dr Kenny said that that finding was "quite clear". Dr Kenny considered that Mr Robertson's presentation was bona fide. Dr Kenny said that rather than seek treatment, it would be better for Mr Robertson to seek alternative employment and that Mr Robertson's symptoms "are being reinforced and maintained by the need for him to continue to work at the same place." Dr Kenny assessed the post traumatic stress disorder of Mr Robertson consequent upon the explosions as "mild to moderately severe" and that it was "significant". Dr Kenny also commented that

"... my view is that his reluctance and unwillingness to put in a claim is in fact a statement of his strength and his bona fides. So I consider that the delay is a measure of his bona fides, rather than is it a statement of opportunism that he puts in a claim at this stage."

(It should be noted that the respondent, in opposing on 19 March 2004 before me the applicant's application for extension of time, did not have this report, which was made on 25 June 2004).

116. Mr Robertson had no psychiatric history before the explosions.

119. Mr Curtain QC for the respondent correctly submitted that the applicant has not lost work time because of the accident except for the immediate aftermath of the explosions, that he has not any physical injury and that he has not consulted or been treated by a medical practitioner (either general or specialist including psychiatric) on account of his condition. Dr Kenny, however, the psychiatrist retained by the respondent, observed:

"Now I note that this man has not sought treatment, has not missed time from work. Then, I argue that these are statements of his strengths and his decisions to try and keep going as long as he can/could."

123. 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 Disorders (4th ed) (DSM IV-TR-2000) 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 429).

The diagnostic features of post-traumatic stress disorder are summarised in DSM IV-TR 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). "

I have no doubt that Mr Robertson's unfortunate condition is genuine. I hope it will ameliorate over time, and I assess it on that basis. Mr Robertson ceased working at the Longford plant three months ago.

130. Applying the principles of law I have cited above and on the evidence before me I conclude that the applicant Mr Robertson has suffered injury as a direct result of the offences committed by the respondent and of which it was convicted on 28 June 2001. The injury is post traumatic stress disorder of mild to moderate severity. I consider the proper order for compensation for Mr Robertson's injury is $100,000.

133. I order that as compensation pursuant to s.85B Sentencing Act 1991 the respondent pay to Mr Robertson the sum of $100,000.

136. Further I order that the respondent pay the applicant's costs of these proceedings including the reserved costs of the March 2004 proceedings.

[1] (1979) 1 N.S.W.L.R. 451.

[2] (1973) 6 S.A.S.R. 308.

[3] (1992) 63 A.Crim.R. 200.

[4] [1977] VicRp 11; (1977) V.R. 104.

[5] Scott v Commercial Hotel Merbein Pty Ltd [1930] VicLawRp 4; (1930) VLR 25 at 30 per Irvine CJ. Reference to Hansard (which is unnecessary) does not suggest otherwise.

[6] Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 at 17 per Gaudron J.