Esso Australia Pty Ltd v Robertson [2005] VSCA 138

CRIMINAL LAW - Sentencing - Appeal - Against compensation order - By offender convicted on presentment - Whether application for compensation a criminal proceeding - Whether leave to appeal necessary - Crimes Act 1958, ss.566 ("sentence") and 567(d); Supreme Court Act 1986, ss.17(2) and 17A(3).

JUDGMENTS AND ORDERS - Reasons for - Publication of - Not by e-mail.

1 The applicant, Esso Australia Pty Ltd[1] ("Esso"), seeks leave to appeal against the order made by a judge of the Trial Division on 5 November 2004[2], pursuant to s.85B of the Sentencing Act 1991 ("the Act"), that Esso pay the respondent, Norman Lindsay Robertson, the sum of $100,000, following its conviction, on 28 June 2001, of breaches of the Occupational Health and Safety Act 1985 which related to Esso's failure to maintain a safe workplace. Although the circumstances that led to the sustaining of these convictions, and the tragedy that engulfed them, are well documented elsewhere, they may be briefly summarised as follows.

Esso's conviction and order for compensation

2 On 25 September 1998, a catastrophic rupture and explosion occurred at the Esso gas processing plant at Longford in East Gippsland, some 220 kilometres east of Melbourne. As a result, two employees were killed and eight others were seriously injured. In addition, numerous persons endured significant pain, suffering and loss, both economic and non-economic. A Royal Commission, established by the Victorian Government, inquired into the explosion and found that Esso had caused the disaster by failing to provide adequate safety training to its workers.[3]

3 On 1 February 2000, the applicant was committed to stand trial in the County Court in respect of 21 counts of breaches of sections 21 and 22 (read with 47) of the Occupational Health and Safety Act.[4] On 7 August 2000, the Director of Public Prosecutions preferred the 21 counts in the Supreme Court of Victoria and that court ordered that the trial be heard in the Supreme Court rather than the County Court.[5] On 16 August 2000, Esso, through its authorised officer, pleaded not guilty to count 1 of the presentment. The learned trial judge did not require the company formally to plead to the other 20 counts[6]. Subsequently, the Director filed**,** by leave, a substituted eleven-count presentment that alleged various breaches of ss.21 and 22 (read with s.47) of the Occupational Health and Safety Act.

4 Section 21(1) stated that an employer should provide and maintain so far as was practicable for employees a working environment that was safe and without risks to health. By way of elaboration sub-s.(2) provided that sub-s.(1) was contravened if the employer failed in any of the several respects then specified. By sub-s.(3), amongst other things, "employee" included employees of an independent contractor and the duties of the employer under sub-ss.(1) and (2) extended to the independent contractor's employees. The obligation of an employer was further elaborated by sub-s.(4). Section 22 provided, amongst other things, that every employer should ensure so far as practicable that persons (other than employees of the employer) were not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.

5 In essence, the new counts alleged that, at Longford in the State of Victoria, Esso, being an employer, failed to provide and maintain, so far as was practicable, a working environment that was safe and without risks to health. On 28 June 2001, after a four month trial, a jury found Esso guilty on all eleven counts. After hearing a plea in mitigation made on its behalf, on 30 July 2001 his Honour convicted Esso and sentenced it by ordering it to pay fines totalling $2,000,000. In the course of his sentencing remarks, the learned sentencing judge noted the criminal nature of the offences and observed that, while Esso's senior officers had expressed "genuine" remorse for the tragic loss of life and injury that resulted from the Longford explosion, there were three matters that militated against that remorse: first, there was Esso's "litigious treatment of its employees"; secondly, there was its conduct at trial, which his Honour said involved a defence that was "one of obfuscation"; and thirdly, and significantly, there was "the lamentable failure of Esso to accept its responsibility".

6 After Esso's conviction, a number of individuals successfully applied, pursuant to s.85B of the Act, for compensation for injury that each sustained as a result of Esso's breach of the Occupational Health and Safety Act.[7] The applications were heard and determined by the judge who presided at Esso's trial. One of the applicants was the respondent, Norman Lindsay Robertson, as appears more particularly below. In the event, his Honour made a total of 35 orders for compensation and approved 18 settlements. The applicants for compensation fell into four broad categories: first, persons who were on site and who observed and were directly affected by the explosion; secondly, persons on site but not directly involved in or affected by the explosion; thirdly, members of the families of persons killed in the explosion; and fourthly, family members of persons affected indirectly by the explosion. Broadly, his Honour made uniform orders for compensation in the sums of $100,000, $75,000, $50,000 and $25,000 across the categories described.

7 As we have noted, on 5 November 2004, his Honour found that Esso was liable to compensate the respondent pursuant to s.85B of the Act in respect of his injuries. In his reasons for judgment, his Honour concluded that the respondent was "directly exposed to the events of the day and their sequelae" and had "suffered injury as a direct result of the offences committed by [Esso]."[8]. His Honour went on to assess the amount of compensation at $100,000.

Publication of reasons

8 Before proceeding further we draw attention to one matter of concern. His Honour had hoped to give judgment on the s.85B application on 3 November 2004 but had not been able to complete his written reasons by the time fixed. The transcript records on a page headed "Judgment" his Honour stating:

"... I find that the threshold provisions of Part VBA Wrongs Act 1958 have no application to a claim for compensation [under s.85B of the Act]. I find that the provisions of Part VB Wrongs Act 1958 do not apply to restrict the scope of the compensation order made in this case.

... I find that Mr. Robertson has suffered injury as a direct result of the offences committed by the respondent ... The injury is post-traumatic stress disorder of mild to moderate severity. I conclude that the proper order for compensation for Mr. Robertson's injury is $100,000. I order that the respondent pay Mr. Robertson the sum of $100,000 for that compensation."

After that his Honour said that he would have his Associate e-mail his full judgment to the parties the following day after it had been completed. His Honour enquired of senior counsel for both parties whether it was necessary to sit again the following day (scil., for delivery of the full reasons). Both said that it was not. The detailed reasons bear date 5 November 2004 and the authenticated order shows the order to have been made on that date.

9 There are questions whether his Honour's statements on 3 November as recorded on the page headed "Judgment" are not in truth his reasons for judgment[9] and whether the order should have recorded the date on which it was given as 3 November 2004, being the date on which his Honour orally ordered the present applicant to pay the respondent compensation in the sum of $100,000 and ordered it to pay his costs. It would have been better if his Honour, finding himself in difficulties, had on 3 November announced that, for reasons to be published thereafter, he made the orders in question (and, if desired, that they should bear a specified date later than that day). More important, however, is the fact that the full reasons were apparently transmitted by e-mail to the parties. It must be clearly understood that the Supreme Court of Victoria, save in certain exceptional and well-known cases, sits in public for the hearing and determination of proceedings. That means that judgment is delivered in open court even if it be by the handing to the Associate of the court's written reasons and even though they may be available on the Internet very soon thereafter. Members of the public are entitled to be present in court to hear judgment being given and to obtain a copy of the reasons.[10] Other instances of the posting or e-mailing by judges of their written reasons have come to this Court's notice. Tribunals may be authorised to do that, but the practice should be entirely discountenanced for a court. The foregoing observations do not apply to the making of consent directions in busy managed lists. About any such practice we say nothing, though it might be possible for the judge to read out or hand down any such directions in open court.

Section 85B application

10 It is convenient to refer now to the principal statutory provisions pursuant to which the respondent brought his application for compensation. So far as is relevant, s.85B of the Act was in the following terms:

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;

(b) for some or all of any expenses actually incurred, or reasonably likely to be incurred, by the victim for reasonable counselling services as a direct result of the offence;

(c) for some or all of any medical expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence;

(d) for some or all of any other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence, not including any expense arising from loss of or damage to property."

Section 85C(1)(a) of the Act required an applicant to apply for compensation after the relevant conviction. Section 85D of the Act, however, empowered a court to extend the time within which the application for a compensation order might be made if it was of the opinion that it was in the interests of justice and empowered it to do so before or after the time expired and whether or not an application for an extension was made before the time expired. The respondent's s.85B application, made on 11 December 2003, was plainly out of time, so that he also applied, at the same time, for an extension of time for making the substantive application. The extension of time application, in support of which the applicant gave evidence and was cross-examined, was heard and determined in the respondent's favour on 19 March 2004.[11] Esso sought leave to appeal against that decision, but its application was refused by this Court on 30 April 2004.[12] On 20 October 2004, the respondent's application for a compensation order was heard by the learned judge, in the course of which the respondent gave further evidence and was cross-examined.

Explosion and respondent's injury

11 Briefly stated, the circumstances of the accident and the respondent's injury were as follows. The respondent, as an employee of an independent contractor, was a maintenance worker who had been so employed by Esso for nine years before the accident. On the day of the explosion, he was working a day shift from 7.30 a.m. to 3.30 p.m. He was then aged 31 years, was married and had two young children, aged eight and two years. The respondent told his Honour that, on the morning in question, he commenced work at 7.30 a.m. by attending a "tool box meeting", the purpose of which was to allocate the day's work and alert staff to safety issues. After the meeting, the respondent and others were dispatched to do their day's work. The respondent was directed to work with three other men and dig a hole for pipe inspection. The hole they were digging was located about 30 to 50 metres from the Gas Plant 1 Control Room. In the course of the morning, the respondent noticed that there were a number of employees gathering around the vessel at Gas Plant 1, attending to a small leak. During his lunch time break, the respondent observed that the drip from the leak had turned into a stream, that the drip trays that had been placed under the leak were overflowing and that there were puddles of condensated gas on the ground. At about 12.20 p.m., the respondent heard a loud sound and felt the ground rumble and the workshed shake. He said in his victim impact statement:

"We went outside and there was a terrible roaring sound and a massive cloud of gas vapours about 200 or 300 metres up in the air. The cloud was about 100 metres long at it was swirling crazily. Following the cloud down, you could see the vapours pouring out of Gas Plant 1. When everyone realised where the gas was coming from, it was as if our feet didn't touch the ground. Everyone started running to the Gas Plant 2 turnstile exit.

As we were about 100 to 150 metres from the exit gate, the cloud caught on fire. We all stopped and hit the ground. You could feel the heat, it was burning. I felt terrified. The flames were so big that I thought the whole place was going to go up. I was particularly worried the LPG bullets that we had been working on that morning would explode as they were only 30 to 50 metres away from Gas Plant 1. I thought if that occurred we would be history. After a short time, we recommenced running for the gate. There were rescue team operators running to turn off Gas Plant 2 and Gas Plant 3 and putting on the fire pumps.

...[A] group of us decided that it was too dangerous to stay on site and started walking off down Johnson's Road. After a while we started running. We were so frightened. We ran until we couldn't run any more, and then we walked until we got our breath back. As we were going, we heard further explosions. We turned around on each occasion and saw bellowing flames and fire-balls. There was black smoke everywhere. I had never seen anything like it."

12 The respondent also described in his victim impact statement how he was affected by it. More particularly, he described arriving home shortly after the accident in a state of shock and stress, which have been continuing, and the detrimental impact on him of news of the consequences of the explosion upon others, particularly his fellow workers. He said that, after returning to work at Esso some weeks after the incident, he felt unsafe and stressed and was constantly reminded of the explosion and its consequences. He described the impact of the explosion on his health as follows:

"The stress has affected me severely. I regularly chew my nails down to nothing and sometimes I feel like I'm being paranoid, but since the explosion I know that the threat is real. Last year I ended up in hospital with an ulcer. The doctor said it was caused by the stress. For the last twelve months I have been on Pelat for ulcer treatment. I am trying to wean myself off the medication but I continue to feel unwell and anxious. The doctor has said I might have to stay on the ulcer treatment forever."

13 Tendered on the respondent's behalf at the hearing of the s.85B claim was the psychiatric report of Dr. Michael Epstein, dated 14 November 2003. In his report, Dr. Epstein set out the respondent's background and employment history and his description of the explosion and went on to summarise the respondent's (then) current condition as follows:

"His weight has dropped about 6 kilograms. His sleep pattern has improved but is still variable and he gets up during the night to make sure that gas has been turned off.

He has become very worried about the safety of his partner and children and has to telephone his partner three times per day. At times she becomes irritated by this. He finds he cannot stop talking about what happened and other people find that irritating.

He has occasional nightmares every few weeks about explosions or injuries. He has flashbacks every few weeks but ruminates about what occurred every day. He continues to be very jumpy and on edge and feels a sense of dread.

He continues to feel unmotivated and has played only one or two games of golf and has gone fishing only once this year.

He feels at times hopeless, helpless and tearful, and his self esteem and self confidence have diminished. He is bored, restless, frustrated, lonely, isolated, irritable, noise intolerant, unsociable and unmotivated.

He has lost interest in home maintenance and the house is starting to require painting and other chores and he cannot be bothered doing these. He has bitten back his fingernails. "

14 Dr. Epstein made the diagnosis that the respondent 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, hypervigilance, emotional withdrawal, and a sense of bleakness." Dr. Epstein further observed that the disorder has been maintained by the need of the respondent to keep working at the plant as he was unable to find other employment. He also noted that the respondent had not received ongoing psychiatric or psychological treatment but would benefit from it. Dr. Epstein proposed treatment on a weekly basis for six weeks and then every two weeks for a further six sessions and then monthly for three months. Dr. Epstein concluded:

"His Post Traumatic Stress Disorder is at the milder end of the spectrum but continues to distress him. If he was able to find work away from the gas plant his symptoms would settle more quickly but would continue to leave residual symptoms and he would continue to be more concerned about safety and security and be more hyper-vigilant."

Dr. Epstein was not required to attend to be cross-examined. In addition, the court below had before it a report, dated 25 June 2004, of Dr. Barrie Kenny, a psychiatrist who was retained by Esso. In his report, Dr. Kenny said that he had examined the respondent on 22 June 2004 concerning the psychiatric effect on him of the explosion at Longford. After describing the respondent's personal background and setting out his description of the events surrounding the explosion and its aftermath, Dr. Kenny said:

"I have no reason to doubt this man's history and accept he was attempting to give a good account of himself.

He presented in a very matter-of-fact way and I thought his presentation was very plausible indeed.

I have no evidence to consider this man had significant relevant problem [sic] until his involvement in the explosion at the Longford Gas Plant.

It was obviously a very frightening experience - and certainly the sort of experience that is likely to produce a post-traumatic stress disorder.

I note that after the explosion he decided he didn't want to work there any more and indeed left for some six weeks, until he found he could not get another job easily and so he decided to go back there and was gradually eased back into working in the same environment.

My understanding is that he does the same work that he did before right up until the explosion and that he does manage, albeit with significant symptomatology."

15 It is quite apparent from the material before his Honour that the respondent suffered from a significant post-traumatic stress disorder, arising from the explosion, which, to adopt Dr. Kenny's opinion, manifested itself in a number of ways including:

• sleep disturbance;

• weird dreams;

• being on-edge;

• startling more easily;

• feeling less secure;

• worrying for the welfare of his wife and children more;

• being less happy and outgoing; and

• worrying greatly about the work environment.

It seems, as Dr. Kenny also reported, that the post-traumatic stress disorder symptoms were being reinforced and maintained by the need for the respondent to continue to work at the Longford plant.

16 It should be mentioned for completeness that, at the hearing of the respondent's application for extension of time, he acknowledged that he had not seen a doctor for any problems relating to the consequences of the explosion apart from his treatment for an ulcer and that he had not taken time off work apart from the four week period immediately after the explosion, though he said he took a further couple of weeks leave until he "ran out of holidays". He also said that he had weaned himself off medication for an ulcer and that, since his return to work, he had only missed a few days here and there and taken "the odd sickie because I didn't want to go in". He acknowledged that the counselling he had received over a two-day period was "sufficient", but he also said that for two years or so after the explosion he suffered nightmares every night. He maintained that not only had his symptoms not improved, but that his condition had become worse.

17 Esso's essential case below was that Parts VB and VBA of the Wrongs Act 1958 established a threshold requirement for entitlement to monetary compensation, including that contemplated by s.85B of the Act, and that the respondent had failed to make it out. Hence, it was said, he was not entitled to the compensation he sought. On 5 November 2004, his Honour rejected this contention, concluding[13] that, on their proper construction, Parts VA and VB had no application to the respondent's claim for compensation pursuant to s.85B of the Act.

Leave to appeal required

18 On 17 November 2004, Esso filed a notice of application for leave to appeal against sentence, more particularly, the order for compensation. Because there was uncertainty as to whether the proceeding was criminal or civil, Esso sought to file, on the same day, a notice of appeal under s.17(2) of the Supreme Court Act 1986, but the Registrar refused to accept such filing. We consider that the Registrar was correct in adopting this course, because, in our view, the application[14] under s.85B was a criminal proceeding and not a civil notwithstanding that the Director[15] was not a party to it. The indicia that point to this conclusion include the following. First, such a proceeding is brought under the Sentencing Act and is, ordinarily, heard and determined by the judge who presided at the criminal trial, sitting in the Criminal Division of the Supreme Court. Secondly, "sentence" is defined in s.566 of the Crimes Act 1958 as including an order under Part 4 of the Sentencing Act, in which s.85B is to be found. The fact that Division 2 of that Part postdates the definition is immaterial as the latter is ambulatory. Further, the proceeding can only be brought if the respondent has been convicted of a criminal offence. Next, the application must be brought by or on behalf of a victim of that offence and the relevant injury must be the "direct result" of it. Furthermore, the legislative scheme of this part of the Sentencing Act contemplates that the relevant facts on which the application would be based will "sufficiently" appear from the material pertaining to the criminal proceeding, which includes victim impact statements, although provision is also made for adducing further evidence at the hearing of the application. Moreover, unlike the situation in civil proceedings, the Act permits the court to direct payment of compensation by instalments and prescribes that, in determining the amount of compensation to be awarded to the applicant, and the method of its payment, the court is required to take into account, to the extent that it can practicably do so, the financial circumstances of the offender and the burden that payment of the compensation will impose. Again, the fact that requires a proceeding for compensation for an incapable person to be treated as a civil proceeding for certain purposes implies that it is ordinarily not such. Finally, and importantly, of the Act recognises the distinction between the applicant's entitlement to compensation under the Act and the civil right to recover damages and preserves the latter for the benefit of the applicant. The terms of , discussed later, are insufficient to countervail against the cumulative weight of the above considerations.

19 These factors, we think, strongly point to the s.85B application having the character of a criminal, rather than a civil, proceeding. It follows that Esso must obtain leave to appeal against his Honour's order of compensation.[20] Indeed this might be said to flow sufficiently from Esso's "conviction on indictment" (which includes presentment[21]), the definition of "sentence" for the purposes of Part VI of the Crimes Act and the terms of s.567(d) of that Act.[22] No doubt the same procedure as regards leave would apply as applies in relation to leave to appeal against sentence when sought from a court of three Judges of Appeal.

Issues before Court

20 Despite the conclusion reached in the last paragraph, however, it should be noted for completeness that the two notices in question assert the same grounds on the basis of which it is contended that his Honour erred. Relevantly, the parties agreed that, essentially, the grounds raised the following issues for determination: first, whether the respondent's application for compensation was subject to the operation of Parts VB and VBA of the Wrongs Act 1958[23], and secondly, whether, in the circumstances, the award of $100,000 compensation is manifestly excessive.

Application of Wrongs Act

21 Esso's case before us was that a s.85B proceeding was subject to the limitations imposed by the new provisions of the Wrongs Act - contained in Parts VB and VBA - in terms of the threshold that had to be satisfied before such a claim for monetary compensation could be brought for a non-economic loss and in terms of the maximum that could be recovered pursuant to such a claim. Mr. Curtain, for Esso, contended that, since the respondent's claim for compensation did not meet the threshold requirement of the Wrongs Act, his claim should have been rejected by the learned primary judge. It seems plain enough that if Esso's submissions in that regard are correct the provisions of Part VBA of the Wrongs Act concerning the threshold operate to defeat the applicant's entitlement to an award of compensation under s.85B of the Act.

22 Turning first to the provisions of Part VB, s.28D provides that "A court cannot award damages to a claimant contrary to this Part." Esso emphasised that the word "damages" that is referred to in that section is defined in s.28B (for the purposes of "this Part") as including "any form of monetary compensation". It was submitted that this made it plain that "damages", for the purposes of Part VB, included an award of compensation under s.85B of the Act. Counsel argued that this conclusion is confirmed by the other provisions of the Part, more particularly s.28C(2), which excludes from the definition of "damages" awards of compensation that may be made under a number of Acts but which does not exclude s.85B awards. The inference is, said counsel, that such awards are intended to fall within the definition of "damages" in s.28B of the Wrongs Act.

23 The key, operative, provision of Part VB is s.28G, which fixes the maximum amount of "damages" that may be awarded to a claimant for non-economic loss. But, even if one were to accept Esso's argument that s.85B awards of compensation fall within Part VB, it is plain that the impugned order does not breach s.28G because it does not exceed the prescribed "ceiling" or jurisdictional limit. Nevertheless, as will be explained more fully later, Esso argued that Part VB remained relevant to its case, because, it was said, "damages" in Part VBA has the same meaning as in Part VB and, therefore, the respondent's s.85B claim had to satisfy the threshold requirement prescribed by Part VBA before he could be entitled to compensation under the Sentencing Act. More specifically, Esso argued that s.28LE in Part VBA applied to the applicant's s.85B claim. That section essentially prohibits a person from recovering "damages for non-economic loss ... in respect of an injury ... caused by the fault of another person unless the [injury] is a [significant injury]". Relevantly, "significant injury" is defined in s.28LF by reference to an assessment of the injury by an approved medical practitioner and it is common ground that no such assessment has been made of the respondent's complaints. It follows, as we have said, that, if the respondent's claim under s.85B constitutes a claim for "damages" within the meaning of , s. applies and the respondent is not entitled to an award of compensation under because he had not been "assessed" as is required by that provision.

24 Esso acknowledged that Part VBA does not define "damages", but argued, as we have noted, that "damages" in that Part has the same meaning as in Part VB. It was urged for Esso that the legislative intent was to ascribe the same meaning to "damages" in Part VBA as that which is set out in s.28B in Part VB. It was claimed that a number of matters point to this conclusion.

25 First, it was said, Parts VB and VBA form part of a scheme, or regime, for amendments that were enacted to achieve what is commonly referred to as "torts law reform"[25], so that it was intended that the meaning of "damages" would be the same in both Parts. Next, it was argued that, historically, there had been a close link between compensation and damages.[26] It was further claimed that the reference in s.28LC(4) - which effectively extends the operation of Part VBA to a claim for damages for non-economic loss even if the claim is founded on "breach of contract or any other cause of action" - clearly suggested that Parliament envisaged a wider meaning of the term "damages" than is ordinarily the case. It was then said that yet another provision of Part VBA that points to Parliament's intention that its provisions apply to s.85B claims is s.28LC, which excepts certain specified awards, including "compensation" under the Workers Compensation Act, yet does not except claims for compensation under the Sentencing Act. Thus, it was said, Parliament envisaged a wide meaning of "damages" for the purpose of both Parts, so that "damages" in Part VBA covered "compensation" which is awarded under s.85B of the Act. Esso contended that it could not be said from mere failure to define expressly "damages" in Part VB that Parliament intended to exempt from the operation of Part VBA of the Wrongs Act compensation orders made under s.85B for "pain and suffering".

26 The critical question for present purposes is, therefore, whether, on a proper construction of the Sentencing Act and the Wrongs Act, the impugned order for compensation amounts to recovery of "damages for non-economic loss" within the meaning of s.28LE of the Wrongs Act.

27 During the course of submissions on this issue much time was devoted to analysis of authorities, the Second Reading Speech and the Ipp report, but we consider that it is not necessary for us to immerse ourselves in such an analysis. The meaning of the words of the relevant provisions is, we think, plain. More particularly, we consider that "damages" in s.28LE of the Wrongs Act has its ordinary meaning and not the expanded meaning given to it by s.28B, as was contended for by Esso. We say this for the following reasons. First, Parliament adopted a particular definition of "damages" in Part VB but chose not to do so in the very next Part, thereby evincing the intention that a different meaning should be attributed to "damages" in Part VBA. Put another way, had the author of Part VBA intended that the term "damages" in that Part have the same meaning as provided for in Part VB, that could have been simply stated. The absence of such a definition in Part VBA is, we think, a strong indication that Parliament did not intend that to be the position. We note further that there are many other provisions of the Wrongs Act where "damages" is defined[27], indeed defined as it is in s.28B, yet, as we have said, no such definition is provided in Part VBA. In our view, that is yet another indication that Parliament did not intend "damages" in Part VBA to have the same meaning as it has in Furthermore, that certain claims are effectively excluded from the operation of by simply means that "significant injury", as defined, does not have to be established in respect of the more serious cases referred to in paragraph (a) or the claims under the transport accident legislation or the , as has been identified in paragraphs (b) to (d). But it does not follow that the exclusion of such claims from the ambit of Part VBA results in "damages" in that Part having the meaning contended for by Esso. Rather, there is no need to exclude compensation under the if it is not otherwise "damages". Next, it is plain enough that Parliament intended that should deal with a narrower range of monetary claims for damages for non-economic loss than are dealt with by That this should be so is not surprising given that the two Parts have different underlying purposes. imposes a "ceiling" or "cap" for awards of monetary compensation (other than those excluded by s.28C(2)), whereas is concerned to prohibit claims for damages for non-economic loss based on fault where the injury is not assessed as a "significant injury".

28 Further, there is no policy reason underpinning Part VBA that suggests it was introduced to overcome difficulties or problems that have been created by the operation of s.85B of the Act. The Parliamentary debates do not suggest that the provisions of the Sentencing Act with which we are concerned have produced any mischief which the new provisions of the Wrongs Act sought to address. Moreover, the policy underlying s.85B of the Act, and its associated provisions, is materially different from that on which Part VBA is based. The Sentencing Act was first amended by the Victims of Crime Assistance Act 1996, and then by the Victims of Crime Assistance (Amendment) Act 2000, to ensure that criminal courts could order compensation to be paid for injuries resulting from crimes. The provisions set out a simple process whereby victims of crime may seek compensation without being drawn into the difficulties, expense, delay and processes of civil litigation. Prior to the legislation, the criminal courts had no such power[28] and the common law required victims to seek redress from an offender personally under civil law.[29]

29 Perhaps the strongest argument in favour of Esso's position is to be found in the fact that the sole component of a compensation order mentioned in s.85B(2) (apart from certain specified expenses), namely, an amount for "pain and suffering", is a paradigm component of a civil judgment for damages. It might be argued that, therefore, "damages" includes criminal compensation. But as we have pointed out in the course of discussing whether a s.85B proceeding is to be characterised as a "criminal proceeding", that section and its related provisions (including ss.85B(4), 85H and 85L) recognise that such a proceeding for compensation is different from a civil proceeding for damages dealt with under Part VBA. The former is not a species of the latter.

30 In the circumstances, we are satisfied that his Honour did not err in concluding that a s.85B claim does not fall within the ambit of Part VBA. It is therefore unnecessary to determine whether, in any event, his Honour's award of compensation was, as the respondent contended, excluded from the operation of Part VBA by the transitional s.28LZQ(3).

Amount of compensation

31 We now turn to consider whether the impugned award of compensation is manifestly excessive. It was urged for Esso that the award was beyond a sound discretionary judgment[30] and that it did not reflect an assessment of the injury made in accordance with relevant authorities. It was further criticised on the basis that no, or insufficient, weight was attached by the judge to the facts that the respondent lost very little work time, except immediately after the explosion, that he had not suffered physical injury and that he did not consult a medical practitioner in relation to his condition. Having considered the evidence of the respondent and the medical evidence, however, it appears clear to us that his Honour had available to him sufficient evidence to substantiate an award of compensation of the amount ordered.

32 It was submitted by Esso that Part VB of the Wrongs Act was, at least, indicative of a "cap" or maximum amount of compensation and that the award of $100,000 was, therefore, beyond the range. The award was further criticised on the basis that it was made arbitrarily when considered in the context of the total of 35 awards made by his Honour in relation to the victims of the explosion and the amounts thereby awarded, namely, $100,000, $75,000, $50,000 and $25,000. Essentially it was put that there was no sound or logical basis for the awards in these cases and, in particular, in this matter. In this context, the Court was provided with a table setting out the awards made below, the considerations applied and the nature of the injuries suffered by each applicant for compensation. We consider, however, that Esso's submissions in that regard are also misconceived. The fact that a compensation or damages "cap" is contained in legislation does not demonstrate or act as a measure as to manifest excessiveness, as was explained in H. v. Crimes Compensation Tribunal[31]. It was said in that case that an award of compensation[32] was to be made on the basis that the prescribed pecuniary limit represented a jurisdictional limit only and did not reflect the top of a graduated scale. In any event, the award in the present case does not approach the maximum amount of damages that could be awarded. Indeed, it was less than one-third of that maximum as was recognised by Ashley, J. in Eccles v. Taylor.[33] In conducting an assessment for the purpose of determining the amount to be awarded as compensation, the court does not assume the limit fixed by statute to be an appropriate amount for a "worst case" and then award "a proportionately lesser sum for anything but that worst case".[34]

33 In any event, as this Court has observed on other occasions[35], where the amount ordered by a court below is not outside the range available to the judge, an appellate court will be reluctant to disturb the order and impose a different amount. In the circumstances and upon a close consideration of the evidence before the judge below, we are satisfied that the award of compensation in the sum of $100,000 was within the range open to his Honour.

Conclusion

34 It follows that, in our view, leave to appeal against his Honour's order of 5 November 2004 should be refused.[36] We also consider that, subject to our hearing counsel, Esso should pay the respondent's costs of and incidental to this application.

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[1] The applicant is a subsidiary of Esso Australia Resources Pty Ltd, which, in turn, is a subsidiary of the Exxon Mobil Corporation, a corporation that is incorporated in the United States of America.

[2] D.P.P. v Esso Australia Pty Ltd [2000] VSC 572.

[3] Report of the Longford Royal Commission, The Esso Longford Gas Plant Accident (1999).

[4] D.P.P. v Esso Australia Pty Ltd [2000] VSC 572.

[5] D.P.P. v Esso Australia Pty Ltd [2000] VSC 572.

[6] D.P.P. v. Esso Australia Pty Ltd [2001] VSC 101.

[7] These include a group of 18 applicants for whom confidential settlements were approved on 3 October 2001: Director of Public Prosecutions v Esso Australia Pty Ltd [2001] VSC 401; compensation orders made with respect to 10 applicants on 19 December 2001: Director of Public Prosecutions v Esso Australia Pty Ltd [2001] VSC 513; compensation orders made with respect to 21 applicants on 23 June 2003: Director of Public Prosecutions v Esso Australia Pty Ltd [2003] VSC 222; compensation orders made with respect to one applicant on 24 June 2003: Director of Public Prosecutions v Esso Australia Pty Ltd [2003] VSC 232; and compensation orders made with respect to two applicants on 30 September 2003: Director of Public Prosecutions v Esso Australia Pty Ltd [2003] VSC 367.

[8] D.P.P. v Esso Australia Pty Ltd [2004] VSC 440 at [4] and [37].

[9] Compare Fletcher Constructions Australia Ltd. v. Lines Macfarlane & Marshall Pty. Ltd. [2001] VSCA 167; (2001) 4 V.R. 28.

[10] Fletcher Constructions at 41-42[35].

[11] Robertson v. Esso Australia Pty. Ltd. [2004] VSC 101.

[12] Esso Australia Pty. Ltd. v. Robertson [2004] VSCA 79. The order for extension of time, effectively nunc pro tunc, was not challenged before us as a step in challenging the compensation order.

[13] At [17].

[14] The Act also speaks of "a proceeding on an application for compensation", as in s.85E(1) and (2).

[15] Who replaced the informant, Victorian WorkCover Authority, when presentment for indictable offences was made.

[16] Section 85F(2)(d).

[17] Section 85G.

[18] Section 85B(4).

[19] Section 85H.

[20] See definition of "sentence" in s.566 of the Crimes Act and s.567(d) of that Act.

[21] See s.566 of the Crimes Act.

[22] If the present respondent had been dissatisfied with his award he could not have applied for leave to appeal under Part VI of the Crimes Act as he had not been convicted on indictment. Presumably he would have had to appeal pursuant to s.17(2) of the Supreme Court Act 1986 and Order 64 of Chapter I of the Rules, though s.17A(3) would require consideration.

[23] Section 138B of the Accident Compensation Act 1985, which prohibits compensation under s.85B of the Act, did not apply to this case.

[24] Nor had waiver of the requirement of assessment been obtained or sought under Division 4 of Part VBA.

[25] There was agreement between the parties that the provisions resulted from a series of law reforms enacted as a consequence of the "Ipp reforms": Commonwealth of Australia, Review of the Law of Negligence (2002) ("the Ipp Report"). Reliance was placed on Kingston v. Keprose Pty Ltd (1987) 11 N.S.W.L.R. 404, 421-424 and Newcastle City Council v. GIO General Insurance [1997] HCA 53; (1997) 191 C.L.R. 85, 113.

[26] Reference was made to McGregor on Damages, 15th ed. p.3.; Luntz, H., Assessment of Damages for Personal Injury and Death, 4th ed., para 1.14.

[27] Part IVAA, s.24AE; Part VC, s.28M; Part X, s.43; Part XI, s.67; Part XII, s.79.

[28] See Fox, R. and Freiberg, A., Sentencing: State and Federal Law in Victoria (2nd ed., 1999) 454.

[29] Ibid.

[30] Davies v. Powell Duffryn Associated Collieries Limited [1942] A.C. 601, 616 to 617.

[31] [1997] 1 V.R. 608.

[32] Under the Criminal Injuries Compensation Act 1983, s.18.

[33] [1995] VicRp 68; [1995] 2 V.R. 482 at 493.

[34] Ibid.

[35] See, for example, C.S.R. Readymix (Australia) Pty Ltd v. Payne [1998] 2 V.R. 505 at 508.

[36] This makes it unnecessary to consider the operation of s.568(4) of the Crimes Act in the present context.