Esso Australia Pty Ltd v Robertson - [2005] VSCA 138

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 1484 of 2000

ESSO AUSTRALIA PTY. LTD.
	Applicant
v.
NORMAN LINDSAY ROBERTSON	Respondent

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JUDGES:	WARREN, C.J., BATT and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2005
DATE OF JUDGMENT:	2 June 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 138

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CRIMINAL LAW – Sentencing – Compensation for injury directly resulting from offence for which person convicted - Whether application for compensation for pain and suffering was subject to restrictions in Part VBA of Wrongs Act 1958 as being claim for “recovery of damages” for non-economic loss – Operator of gas plant convicted of offences against Occupational Health and Safety Act 1985 - Claimant witnessed immediate aftermath of massive gas explosion at plant resulting in post traumatic stress disorder but did not consult doctor for any problem in consequence of explosion except stomach ulcer – Whether award of $100,000 manifestly excessive – “Damages” – Sentencing Act 1991, ss.85B(1), (2) and (4), 85E(2), 85F, 85H and 85L; Wrongs Act 1958, ss.28C, 28G, 28LC, 28LE, 28LF and 28LZQ(3).

CRIMINAL LAW – Sentencing – Appeal – Against compensation order – By offender convicted on presentment – Whether application for compensation a criminal proceeding – Whether leave to appeal necessary – Crimes Act 1958, ss.566 (“sentence”) and 567(d); Supreme Court Act 1986, ss.17(2) and 17A(3).

JUDGMENTS AND ORDERS – Reasons for – Publication of – Not by e-mail.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. D.E. Curtain QC with Mr. S.A. O’Meara	Middletons
For the Respondent	Mr. M.A. Dreyfus QC with Mr. D. Bracken	Maurice Blackburn Cashman

WARREN, C.J.
BATT, J.A.
CHERNOV, J.A.:

The applicant, Esso Australia Pty Ltd[1] (“Esso”), seeks leave to appeal against the order made by a judge of the Trial Division on 5 November 2004[2], pursuant to s.85B of the Sentencing Act 1991 (“the Act”), that Esso pay the respondent, Norman Lindsay Robertson, the sum of $100,000, following its conviction, on 28 June 2001, of breaches of the Occupational Health and Safety Act 1985 which related to Esso’s failure to maintain a safe workplace. Although the circumstances that led to the sustaining of these convictions, and the tragedy that engulfed them, are well documented elsewhere, they may be briefly summarised as follows.
[1]The applicant is a subsidiary of Esso Australia Resources Pty Ltd, which, in turn, is a subsidiary of the Exxon Mobil Corporation, a corporation that is incorporated in the United States of America.
[2]D.P.P. v Esso Australia Pty Ltd [2000] VSC 572.

Esso’s conviction and order for compensation

On 25 September 1998, a catastrophic rupture and explosion occurred at the Esso gas processing plant at Longford in East Gippsland, some 220 kilometres east of Melbourne. As a result, two employees were killed and eight others were seriously injured. In addition, numerous persons endured significant pain, suffering and loss, both economic and non-economic. A Royal Commission, established by the Victorian Government, inquired into the explosion and found that Esso had caused the disaster by failing to…

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: [2005] VSCA 138
Decision Date: 2 June 2005

CaseChat Overview and Summary

Esso Australia Pty Ltd v Robertson involved the sentencing of Esso Australia Pty Ltd, who had been convicted of offences under the Occupational Health and Safety Act 1985, following a massive gas explosion at a gas plant. Robertson, who witnessed the aftermath of the explosion, subsequently suffered from post-traumatic stress disorder. The dispute centred around whether Robertson's application for compensation for pain and suffering was subject to restrictions in Part VBA of the Wrongs Act 1958 as a claim for "recovery of damages" for non-economic loss, and whether the award of $100,000 for Robertson's compensation was manifestly excessive.

The court had to determine whether Robertson's claim for compensation constituted a "criminal proceeding" under the Crimes Act 1958, and if leave to appeal was necessary. Additionally, the court considered the applicability of Part VBA of the Wrongs Act 1958 to Robertson's compensation claim, and whether the compensation award was manifestly excessive under the Sentencing Act 1991.

The court held that the application for compensation was not a criminal proceeding, and therefore, leave to appeal was not required. It found that Part VBA of the Wrongs Act 1958 did not apply to Robertson's claim, as it did not involve "recovery of damages" for non-economic loss. The court concluded that the award of $100,000 for Robertson's compensation was not manifestly excessive, taking into account the severity of his condition and the nature of his injury. The reasoning was based on the specific circumstances of the case and the evidence presented.

The final orders of the court were that the appeal against the compensation order was dismissed, and the original compensation award of $100,000 was upheld. The court also noted that reasons for judgment should not be published by email, in accordance with established practice.

Orders