DPP v Esso Australia Pty Ltd

[2001] VSC 296

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No.1484 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS

v

ESSO AUSTRALIA PTY LTD

R U L I N G  No. 14

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	30 May 2001
CASE MAY BE CITED AS:	DPP v Esso Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2001] VSC 296

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Criminal law – charge under s.22 Occupational Health and Safety Act 1985 – exposure to risks to health or safety of persons other than employees – application for directed acquittal – application refused.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	R. Richter QC with N. Clelland	Office of Public Prosecutions
For the Accused	M. Titshall QC with M. Hennessy	Middletons Moore & Bevins

R U L I N GNo. 14

HIS HONOUR:

1. The submission that I have just had the misfortune to hear is both wrong in law and callous in character.  Senior counsel for Esso, doubtless on instructions of his client, seeks a judicial direction to the jury to acquit Esso on Count 11, which charges that Esso failed to ensure so far as was practicable the safety of persons other than its employees after the rupture of G.P.905 and the consequent explosions at Longford on 25 September 1998.

1. In order to tender care and succour and protection to Esso's personnel and property, decent Australians - police, ambulance and fire personnel - attended at Esso's plant on the afternoon of the 25 September 1998 and put their lives and safety at risk.  There is an amplitude of evidence in this case, demonstrated by the fact that no submission has been made that counts 1 to 10 lack evidence, capable in law of sustaining a conclusion that Esso failed to provide and maintain so far as was practicable a safe workplace in the various terms of counts 1 to 10.  Yet it is submitted that when decent men came to help, they were not at risk.  They were not at risk, even though two were knocked from their feet by an explosion at 1.40 p.m.- flames from which can be seen in exhibit 46 and exhibit 47(2) - of the most hazardous kind.  They were not at risk when, having been blown over, they "could see the rolling flame coming at us. ... It was almost like a BLEVE.  You could see it expanding and coming at you."  (Plant supervisor Mr W.M. Visser:  T.2650.  BLEVE is an acronym for boiling liquid expanding vapour explosion.)  They were not at risk when the brave Operations Officer of the CFA and Acting Risk Manager for Gippsland, Mr M.L. Jones, rushed to the scene to tender care and protection to Esso's personnel and property, saw two of his men knocked off their feet in the blast and felt the whole plant rock and shake.  They were not at risk when the plant supervisor said he could not guarantee the integrity of the facility and felt that the plant should be evacuated.  They were not at risk when a five kilometre exclusion zone, apparently for no reason, was established around the plant by a joint decision of CFA Operations Officers Jones and Langridge, after advice from Esso's plant supervisor Mr Visser to evacuate the plant.  They were not at risk when this brave man Mr Jones asked for volunteers to fly in a helicopter over the site of the fire and Esso's brave employees volunteered to do it.  And they were not at risk when they flew near four 200,000 litre accumulators of LPG and propane cylinders to assess their safety when a fire was raging nearby.  It is true that they were not blown out of the sky.  It is true that the helpers on the ground, unlike Esso employees, were not killed.  It is true that the helpers on the ground, unlike Esso employees, were not scarred and burnt and lost their ears in the fire.  But that does not mean that they were not exposed to the risk of precisely that, as they were knocked off their feet and the expanding and rolling flame came towards them, in a gas plant which was rocking and shaking from violent trauma.  Risk means the likelihood of injury or illness arising from exposure to a hazard.  Risk is precisely what those non-employed persons were exposed to.

1. Section 22 provides:

"Every employer .... shall ensure so far as is practicable that persons (other than employees ....) are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer ...."

1. Count 11 charges that Esso failed to ensure so far as was practicable the safety of persons other than its employees after the rupture of GP 905 and the consequent explosions.  The explosions and raging inferno that had already killed two people and burnt others, and which can be seen on exhibits 46 and 47.2, directly arose from the conduct of Esso's undertaking.  They directly arose because there is evidence capable in law of supporting the conclusion that the conduct by Esso of its undertaking at Longford conspicuously failed to observe the standards laid down by law under the Occupational Health and Safety Act 1985 and its failure in that undertaking directly led to the rupture which led to the fire and which could have led to those decent Australians being killed and burnt just like Esso's employees were.  So the criterion of "arising from the conduct of the undertaking" is directly satisfied.

1. The suggested strict liability of the section, contended for in a reducio ad absurdum submission by Mr Titshall, is unfounded in law. The section is not one of strict liability. Section 22 requires employers to ensure "so far as is practicable" that persons are not exposed to risks to their health or safety. Thus, the hollow submission that the CFA, itself, would be in breach of s. 21 if it sent its workers on errands of mercy falls to the ground. Section 22 does not impose a duty incapable of discharge. The duty was preeminently capable of discharge. If the conduct by Esso of its Longford undertaking had not involved that which as a matter of law is capable of being found - the failure to maintain so far as was practicable a safe workplace - and did not involve direct risk from that conduct, s. 22 would not apply. But those legal criteria are amply capable in law of being satisfied on the evidence here.

1. Accordingly I rule that there is a case to answer on count 11 laid under s. 22.

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