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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