DPP v Esso Australia Pty Ltd - [2004] VSC 440

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1484 of 2000

IN THE MATTER of s.85B Sentencing Act 1991 Compensation Application

DIRECTOR OF PUBLIC PROSECUTIONS

ESSO AUSTRALIA PTY LTD

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2004
DATE OF JUDGMENT:	5 November 2004
CASE MAY BE CITED AS:	DPP v Esso Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2004] VSC 440

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Crimes compensation – application by victim pursuant to s.85B Sentencing Act 1991 – psychiatric injury – post traumatic stress disorder – application consequent upon convictions for offences under ss.21 and 22 Occupational Health and Safety Act 1985 – non-applicability of Parts VB and VBA Wrongs Act 1958 - considerations applicable – Order for compensation made.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.A. Dreyfus Q.C. With Mr D. Bracken	Maurice Blackburn Cashman
For the Respondent Esso Australia Pty Ltd	Mr D.E. Curtain Q.C. With Mr S. O’Meara	Middletons

HIS HONOUR:

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.

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. 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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] VSC 440
Decision Date: 5 November 2004

CaseChat Overview and Summary

Esso Australia Pty Ltd faced a legal challenge from the Director of Public Prosecutions in relation to offences under the Occupational Health and Safety Act 1985, with the dispute being heard in the County Court of Victoria. The case involved convictions for breaches of occupational health and safety regulations which led to an incident causing significant harm to an employee. The crux of the matter was the applicability of the Wrongs Act 1958 in this context and the potential for compensation under the Sentencing Act 1991 for the victim's psychiatric injury, specifically post-traumatic stress disorder.

The primary legal issue revolved around the interpretation and application of sections 85B of the Sentencing Act 1991 and the exclusion of Parts VB and VBA of the Wrongs Act 1958 in the context of the occupational health and safety offences committed by Esso Australia. The court had to determine whether the victim was eligible for compensation under the Sentencing Act, despite the exclusion of common law remedies under the Wrongs Act for such offences. The court also needed to assess the severity of the psychiatric injury and its direct link to the offences.

The County Court examined the provisions of the Sentencing Act and the Wrongs Act and concluded that the exclusion of Parts VB and VBA did not preclude the victim's right to compensation under section 85B. The court found that the psychiatric injury suffered by the victim was a direct consequence of the offences and that the severity of the injury warranted compensation. Accordingly, the court granted the application for compensation to the victim. The court's decision emphasised the importance of recognising the full impact of corporate crimes on individuals and the need for appropriate remedies under the Sentencing Act.

The final orders of the court included the granting of compensation to the victim for the psychiatric injury suffered as a direct result of the offences. The court also directed Esso Australia Pty Ltd to pay the compensation amount determined by the court, ensuring that the victim received appropriate redress for the harm caused by the corporate negligence.

Orders