DPP v Esso Australia Pty Ltd

[2003] VSC 232

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

In the matter of s 85B Sentencing Act 1991
  Compensation Application

No. 1484 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS

v

ESSO AUSTRALIA PTY LTD

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATES OF HEARING:	26 February 2003
DATE OF JUDGMENT:	24 June 2003
CASE MAY BE CITED AS:	DPP v Esso Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2003] VSC 232

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CRIMES COMPENSATION – application by victim pursuant to s 85B Sentencing Act 1991 – psychiatric injury – post-traumatic stress disorder – grief, pain and suffering – employee - application consequent upon convictions for offences under ss 21 and 22 Occupational Health and Safety Act 1985 – considerations applicable – order for compensation made.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Office of Public Prosecutions
For the Applicant	Mr J.D. Keenan QC with Mr G.J. Burns	Simon Parsons & Co.
For the Respondent Esso Australia Pty Ltd	Mr D.E. Curtain QC with Mr S.A. O'Meara	Middletons

HIS HONOUR:

1. In this judgment I adopt the general criteria set out in paragraphs 1-17 of the judgment in the same title, being [2003] VSC 222.

1. Martin Joseph Smith, technician, was working in that capacity at the plant at Longford on the day of the explosions.  He was directly involved in and exposed to the explosions and their sequelae including injured and missing persons.  His victim impact statement sets out in vivid detail his traumatic experiences that day.

1. Mr Martin Smith went back to the site the next day and continmually thereafter.  He was confronted with the sequelae of the explosions constantly.

1. Mr Smith's victim impact statement sets out the longitudinal deleterious effects of the explosions and their sequelae upon himself, his wife and family.  He sets out the effects on his way of life.  His wife, Mrs Kathie Smith in a statement of 30 November 2002 confirms his history.  They have two teenage children.

1. A comprehensive report of Dr Edward Cole, psychiatrist, of 16 July 2002 concludes that Mr Martin Smith suffers from a chronic post-traumatic stress disorder of moderate degree accompanied by reactive depression.  Psychiatric treatment and antidepressant medication would be appropriate.  He is unlikely ever to recover fully.  A report of Mr John Hodgson, psychologist of Traralgon of 24 January 2003 confirms Dr Cole's report.

1. Mr Martin Smith is aged 44 years, having been born on 14 November 1958.

1. In evidence before me Mr Martin Smith impressed me as a thoroughly decent, thoughtful man who plainly has been burdened and troubled by the explosions and their sequelae. 

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

1. I direct that the respondent pay Mr Martin Smith's costs of this proceeding on the same basis as of the applicants yesterday.