Construction firm Kalidonis NT loses Supreme Court appeal after death of worker Paul Leach
Construction worker Paul Leach (right) died on a worksite in Maningrida in March 2020. (Supplied: Kimberley Leach)
In short:
Darwin construction company Kalidonis NT has lost its Supreme Court appeal over a $550,000 fine it received after the death of one its employees.
Paul Leach, 50, was fatally struck by a chain that snapped as he was trying to tow a bogged excavator on a worksite in Maningrida in 2020.
What's next?
Kalidonis NT has been ordered to also pay the legal fees of NT WorkSafe, which has welcomed the court's decision.
A Northern Territory Supreme Court judge has dismissed a construction company's bid to overturn a $550,000 fine it received after one of its employees died on a remote worksite.
Paul Leach, 50, was killed in March 2020 while trying to retrieve a bogged excavator with chains on a construction site in the remote community of Maningrida.
NT WorkSafe charged the man's employer, Kalidonis NT Pty Ltd, with industrial manslaughter — the first prosecution of its kind in the territory — but the charge was withdrawn in 2023.
Paul Leach used to work on-site with his son Jeremy. (Supplied: Kimberly Leach)
In August last year Kalidonis NT was found guilty of its other two charges of failing to comply with a health and safety duty in relation to Mr Leach’s death and later fined $550,000.
Lawyers for Kalidonis NT subsequently launched an appeal in the NT Supreme Court, arguing "no serious attempt" was made to determine whether the chains that snapped and fatally struck Mr Leach as he tried to retrieve the excavator belonged to his employer.
Justice Sonia Brownhill asked: "Why does it matter whose chains they were?"
Barrister Tim Game KC responded: "It matters because no part of the employer's system of work involves the use of chains. That's crucial."
"The problem is it's not as though the employer's system of work involved towing. It's not as though the employer has a system of work that involves chains,"he said.
Mr Game told the court Mr Leach was under "explicit instructions" at the time of the incident, and said he was told "not to do anything without authorisation" in the weeks prior to his death.
He argued Mr Leach's "deliberate disobedience must be considered" by the court.
Kalidonis NT has lost its bid to overturn a $550,000 fine it received after a workplace death. (ABC News: Pete Garnish)
"It's not that everything is absolved because of the misconduct of the deceased, it's because we say deliberate disobedience of the deceased must be considered as to whether reasonably practicable measures were taken by the appellant," Mr Game said.
NT Worksafe's lawyer Nicholas Papas KC maintained the company's conduct was at "the serious end of offending" and said the court "mustn't fall into the trap" of debating the cause of the death.
"This is all about what was done to avoid risk,"he said.
Judge Brownhill on Friday dismissed the appeal and ordered Kalidonis NT pay NT WorkSafe's legal costs, the sum of which is yet to be determined.
Judge Brownhill dismissed the appeal on Friday. (ABC News: Tiffany Parker)
In dismissing the appeal, she said the $550,000 fine was not "manifestly excessive" and "none of the grounds of appeal against conviction have been made out."
In a statement, NT Worksafe's acting work health and safety regulator Kerry Barnaart welcomed the court's decision.
"This outcome is a timely reminder for all industries that the primary duty of care under the work health and safety laws sits with the Person Conducting a Business or Undertaking (PCBUs)" she said.
"Regardless of whether you're a company; unincorporated body or association; sole trader or self-employed person, the buck stops with you when it comes to safety."