DPP v Esso Australia Pty Ltd - [2001] VSC 513

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

In the Matter of s. 85B Sentencing Act 1991
Compensation Applications

No. 1484 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v
ESSO AUSTRALIA PTY LTD	Defendant

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2001
DATE OF JUDGMENT:	19 December 2001
CASE MAY BE CITED AS:	DPP v Esso Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2001] VSC 513

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Crimes Compensation – applications by victims pursuant to s. 85B Sentencing Act 1991 – spouse and children of deceased persons – other victims – applications consequent upon convictions for offences under ss. 21 and 22 Occupational Health and Safety Act 1985 – considerations applicable – orders for compensation made.

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APPEARANCES:	Counsel		Solicitors
For the Director of Public Prosecutions	Mr C.G. Hillman SC		Office of Public Prosecutions
For the Applicants: Shannon Lyons, Justine Lowery and Kelly Nadalin	Mr D. Hore-Lacy QC with Mr S. Cash		Sullivan Braham
For the Applicants: Lynette, Luc, Brett and James Wilson For the Applicants: Martin and Sue-Ellen Jackson	Mr G. Burns Mr G. Burns		Robert Smart & Associates Simon Parsons & Co.
For the Applicants Esso Australia Pty Ltd	Mr M.D. Hennessey		Middletons Moore & Bevins
Mr D. Borthwick was not represented by counsel		Slater & Gordon

HIS HONOUR:

I hope today is a step in the healing of the suffering of the ten applicants before me.

I have ten applications before me each for compensation for injury, essentially being pain and suffering, made pursuant to s.85B Sentencing Act 1991. I proceed in accordance with the provisions of Part 4 Division 2 Subdivision 1 Sentencing Act 1991 and relevant authority which I have reviewed in Ruling No.16 (in relation to 18 other applicants in this matter) and shall not recite here.

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 and I shall not repeat them.

Two good men, loyal employees of Esso, Mr Peter Wilson and Mr John Lowery, were killed in the rupture, explosions and inferno that occurred at Esso's plant at Longford on 25 September 1998. Numerous employees were injured. Numerous other persons have been grievously affected. Ten persons are presently before me, each a victim, each legitimately seeking compensation.

I turn first to the daughters of Mr John Lowery. His three daughters were applicants before me: Justine Lowery, Shannon Lyons and Kelly Madalin.

Justine Lowery is now 31 years of age. She was born on 25 August 1970 and September 1998 was 28 years of age. Presently she is a mother, engaged in home duties and the rearing of young children.

Ms Lowery is the eldest of three daughters of the deceased, Mr John Lowery, Maintenance Supervisor at the Esso plant at Longford. She is now living with a partner in a Melbourne suburb and is bringing up two…

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: [2001] VSC 513
Decision Date: 19 December 2001

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Esso Australia Pty Ltd, the High Court was tasked with examining the applicability of section 85B of the Sentencing Act 1991. The case arose from the tragic deaths of several individuals resulting from a gas leak at Esso's Botany refinery. The court was required to determine whether the victims' families and other affected parties could apply for compensation under the specified section and if so, what considerations should guide the court in making such orders.

The primary legal issue before the court was whether the provisions of section 85B, which pertain to applications for compensation by victims of crime, extended to the families and other victims of the gas leak incident. The court had to clarify the scope of the term "victims" and whether it included those affected by the deaths of individuals who had been killed in the course of the crime. Additionally, the court needed to address whether the compensation was applicable in cases involving corporate manslaughter under the Occupational Health and Safety Act 1985.

In resolving these issues, the court held that section 85B of the Sentencing Act 1991 did indeed permit applications for compensation by the families of deceased victims and other affected parties. The court interpreted "victims" broadly to encompass those who suffered loss due to the crime, not limited to direct victims. The court also found that the compensation provisions were applicable to cases involving corporate manslaughter under occupational health and safety legislation. The reasoning was grounded in the principle of ensuring that justice is served to all who have suffered harm as a result of criminal conduct. The court concluded that the compensation orders should be made in this instance, considering the severity of the crime and the impact on the victims.

The final orders made by the court were that the victims' families and other affected parties were eligible to apply for and receive compensation under section 85B of the Sentencing Act 1991. The court emphasised the importance of considering the full extent of harm caused by the crime when determining the appropriate amount of compensation.

Orders