Work Health Authority v Kalidonis NT Pty Ltd - [2024] NTLC 4

CITATION:	Work Health Authority v Kalidonis NT Pty Ltd [2024] NTLC 4
PARTIES:	Work Health Authority
V
Kalidonis NT Pty Ltd
TITLE OF COURT:	LOCAL COURT
JURISDICTION:	CRIMINAL
FILE NO(s):	22207913
DELIVERED ON:	23 August 2024
DELIVERED AT:	Darwin
HEARING DATE(s):	15-18 April 2024
DECISION OF:	Judge O’Loughlin
CATCHWORDS:

CRIMINAL LAW – failure to comply with health and safety duty – real and obvious risk – reasonably prac>cable – breach substan>al or signiﬁcant cause of risk of serious injury or death

Work Health and Safety (Naonal Uniform Legislaon) Act 2011 ss 18, 19, 32

Baiada Poultry Pty Ltd v R [2012] HCA 14
Cleanaway Operaons Pty Ltd v Hanel [2022] SASC 52
DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55
Grasso Consulng Engineers v SafeWork NSW [2021] NSWCCA 288
R v Commercial Industrial Construcon Group Pty Ltd [2006] VSCA 181
Whi2ens Pty Ltd v Judge Fong Lim & Anor [2021] NTSC 9
REPRESENTATION:

Complainant Counsel: N Papas KC & P Crean
Counsel Defendant: D Edwardson KC & M
Thomas

Decision category classification:	B
Decision ID number:	[2024] NTLC 4
Number of paragraphs:	80
IN THE LOCAL COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN
No. 22207913

BETWEEN:
WORK HEALTH AUTHORITY
Complainant
AND
KALIDONIS NT PTY LTD
Defendant
REASONS FOR DECISION (Delivered 23 August 2024)

JUDGE O’LOUGHLIN

Introduction

1. On 20 March 2020, Mr Paul Leach, a contractor working for the Defendant, was operating an excavator and using a chain to tow another excavator. The chain snapped and struck Mr Leach in the head, causing his death.
2. The Defendant company is charged with two counts of failing to comply with a health and safety duty.

Charges and Particulars

3. The Work Health Authority alleges the Defendant breached this duty on 12 and 20 March 2020 and thereby committed two section 32 offences by failing to comply with a health and safety duty which exposed an individual to a risk of death or serious injury, contrary to section 32 of the Work Health and Safety (National Uniform Legislation) Act 2011.
4.       The Defendant has admitted certain elements of the offences, namely that:

4.1. the Defendant was a person or entity conducting a business or undertaking;
4.2. that Mr Leach and other workers were workers within the meaning ascribed by the
Act; and
4.3. that the Defendant owed a duty to “ensure, so far as reasonably practicable, the health
and safety of the workers”.
5.       Given the above concessions, the only issues to be determined are:

5.1. Did the Defendant fail to ensure, so far as reasonably practicable, the health and safety
of the workers; and
5.2. If so, did the failure expose individuals to a risk of death or serious injury or illness.
6.       The prosecuting authority provided more than 5 pages of particulars which alleged the duty owed included:

6.1.	A duty to ensure a risk assessment was carried out each time before towing was attempted;
6.2.	Preparation of a Safe Work Systems Method Statement (SWMS) before attempting

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: [2024] NTLC 4
Decision Date: 23 August 2024

CaseChat Overview and Summary

Work Health Authority is prosecuting Kalidonis NT Pty Ltd for two counts of failing to comply with a health and safety duty, contrary to section 32 of the Work Health and Safety (National Uniform Legislation) Act 2011. The charges allege that on 12 and 20 March 2020, the Defendant failed to comply with a health and safety duty which exposed an individual to a risk of death or serious injury. The Defendant has admitted certain elements of the offences, including that it was a person or entity conducting a business or undertaking and that it owed a duty to ensure the health and safety of its workers. The court found that the Defendant failed to ensure the health and safety of its workers by not taking reasonable and practicable steps to prevent the use of chains to tow the excavator, despite knowing the chains had snapped before. The Defendant's actions were insufficient in preventing the use of chains, and it failed to provide adequate training or supervision to its workers. The court found that the Defendant's breaches were a substantial or significant cause of the risk of serious injury or death to Mr Leach and other workers. The Defendant is found guilty of both counts and the matter will be adjourned for submissions on sentence.

Orders