Kalidonis NT Pty Ltd: Hearing into workplace death of Paul Leach continues in Darwin

Counsel for a Northern Territory construction firm charged after an excavator operator died on the job has told a hearing the company could not have taken any additional precautions to prevent the death.

Kalidonis NT Pty Ltd director Theofilos Kalidonis, who is not charged personally with any criminal or work health and safety offences. Picture: File

Updated: Counsel for a Northern Territory construction firm charged with two breaches of a workplace health and safety duty after an excavator operator died on the job has told a hearing the company could not have taken any additional precautions to prevent the death.

Paul Leach, 50, died on March 20, 2020 at Maningrida, when a chain he was using to tow a disabled 36-tonne excavator snapped, recoiling into his head.

His employer, Kalidonis NT Pty Ltd, has pleaded not guilty to the two charges.

Defence counsel David Edwardson KC said the weight of evidence showed Mr Leach continued to use the excavator in ways that were against the express instructions of managing director and site manager Theofilos Kalidonis.

He took the hearing to Mr Kalidonis’ written testimony that he was “enraged by the disobedience” of Mr Leach when he and son Jeremy Leach originally got the excavator bogged on February 15, and again on March 12, when the stricken excavator was towed with chains despite expensive, custom slings being ordered from Melbourne.

Mr Edwardson said so seriously did Mr Kalidonis view the second breach, he fired Mr Leach (Jeremy Leach was fired after the first episode, on February 15), but relented and gave him “one more chance”.

Regarding the final, fatal use of the chains on March 20, Mr Edwardson said permission had been granted to push the disabled excavator using the arm of another excavator in order to position it for loading onto a Sea Swift barge, but chain use remained against Mr Kalidonis’ express instructions.

Nicholas Papas KC, representing NT WorkSafe, said it was the prosecution’s case that employers can still be held liable even if workers go against express instructions, so long as they are fulfilling a specified job within the course of their employment.

He submitted Kalidonis NT Pty Ltd could and should have done more to take reasonable precautions to manage risk, such as producing a safe work management strategy (SWMS) for positioning the disabled excavator beside the barge landing for collection.

Kalidonis’ former operations manager, Jacinta Kelly, previously gave evidence that Sea Swift had responsibility for preparing the SWMS for loading the excavator, as it was their “prescribed activity”.

Judge Ben O’Loughlin has reserved his decision.

Worker death hearing told unsafe retrieval method was canvassed

Earlier: A hearing into the workplace death of an excavator operator who was fatally struck in the head by a chain that snapped and recoiled has been told that the company’s director was discussing using chains just prior to the accident, contrary to previous evidence.

The hearing into the death of Paul Leach, 50, at Maningrida on March 20, 2020, resumed on Wednesday.

Mr Leach’s employer, Kalidonis NT Pty Ltd, has pleaded not guilty to two charges of breaching a workplace health and safety duty during its upgrade of the Maningrida barge landing.

NT WorkSafe inspector Fiona Peters told the hearing she received a flurry of calls from about 4.40pm, first from NT Police, then twice from Jacinta Kelly, Kalidonis’ former operations manager, informing her of the accident.

Ms Peters said during the third of the calls, at 5.09pm, Ms Kelly told her the incident occurred when Mr Leach, at the helm of a 30-tonne excavator, attempted to pull with chains a stricken 36-tonne excavator in order to position it for loading onto a barge.

Kalidonis NT Pty Ltd upgrading the Maningrida barge landing in January 2020, two months before worker Paul Leach lost his life. Picture: Facebook/ Kalidonis NT

According to Ms Peters’ contemporaneous notes, which she read to the court, Ms Kelly told her that her boss, Kalidonis managing director Theofilos Kalidonis, had “left prior to the incident to get chains to pull instead of push [the excavator]”.

On Tuesday, Ms Kelly told the hearing that chains had never entered the conversation.

She testified that the use of chains was against the express instructions of Mr Kalidonis, as the company had ordered expensive custom slings from Melbourne outfit Nobles in order to perform the delicate work.

Ms Kelly told the hearing Mr Leach had a history of unauthorised plant use: first on February 15, when he and son Jeremy took the 36-tonne excavator out, which got stranded and engulfed by the rising tide, and second when he used chains to retrieve the bogged excavator on March 12.

Witnesses were expected to conclude their evidence on Wednesday.

Deceased NT worker had history of unauthorised plant use, court told

Earlier: A hearing into the workplace death of an excavator operator in Maningrida in 2020 has been told that the deceased worker used the excavator without authorisation twice before the incident that led to his death.

Kalidonis NT Pty Ltd has pleaded not guilty to two breaches of a workplace health and safety duty in relation to its construction of the Maningrida barge landing upgrade in 2020.

Excavator operator Paul Leach, 50, died on March 20, 2020, when he was attempting to tow an inoperative excavator using chains.

The chain snapped, recoiling and striking him fatally in the head.

On Tuesday morning, Kalidonis’ former operations manager, Jacinta Kelly, told the court that at no time had authorisation been given to use chains to tow the stranded excavator.

Kalidonis NT Pty Ltd upgrading the Maningrida barge landing in January 2020, two months before worker Paul Leach lost his life. Picture: Facebook/ Kalidonis NT

She testified that Mr Leach had a history of using plant in an unauthorised manner.

Ms Kelly said that the excavator initially became bogged on the mudflats on February 15 after Mr Leach and his son, Jeremy, a contractor, took it out to perform work despite managing director Theofilos Kalidonis instructing the night prior that no more work needed to be done.

“It broke down on mudflats. I don’t believe we ever discovered the reason why,” she said.

“The tides rise fast. It became engulfed.”

As a result, Jeremy Leach was told his services were no longer required, Ms Kelly told the court.

Ms Kelly said she then ordered custom slings from Melbourne-based Nobles at a cost of $16,000–$20,000.

According to her written statement to NT WorkSafe, shown to the court, on March 9 there were discussions between herself, Mr Kalidonis and Nikolaos Pizanias, the company’s health and safety manager, as to the best method for extracting the excavator.

Kalidonis NT Pty Ltd has pleaded not guilty to two breaches of a workplace health and safety duty. Picture: Pema Tamang Pakhrin

A safe work method statement was to be developed once the slings had arrived – on March 12, Ms Kelly said she received an email to say the slings were en route from Melbourne to Darwin – but that same day, the manager was informed they would no longer be needed.

“I had made all those arrangements, it was all in place, then I got a phone call some time that afternoon saying, hang on a minute, the excavator’s been pulled out,” she told the court.

Ms Kelly said she was informed that Mr Leach had unilaterally retrieved the bogged excavator using chains.

She said she had no knowledge of approval being given for this activity and that it was always her understanding that the slings were to be used.

Ms Kelly’s written statement to NT WorkSafe supported this testimony.

“The sudden pulling out of the excavator using unknown chains … was a complete surprise to me and was against everything that Theo [Mr Kalidonis] had organised,” she wrote.

Former Kalidonis NT Pty Ltd project manager Jacinta Kelly. Picture: Engineers Australia

“Theo said in a conversation he was planning on dealing with Paul [Mr Leach] regarding the unauthorised actions he took that afternoon [March 12].”

Ms Kelly said that on March 20, a Sea Swift Australia barge had been organised to collect the stricken excavator and other equipment.

She said it was her understanding that it had again been ordained that the sling was to be used, this time under the direction of Sea Swift, which had responsibility for the health and safety of that operation.

However, again Mr Leach ignored instructions and attempted to tow the machine with chains, this time with fatal consequences, Ms Kelly told the court.

The hearing continues.

Hearing into NT construction giant’s role in worker death

Earlier: A two-and-a-half day hearing into the workplace death of a 50-year-old man employed by one of the Territory’s largest construction firms has commenced in Darwin.

The worker, Paul Leach, was employed by Kalidonis NT Pty Ltd, on March 20, 2020, when he was tasked with using an excavator to remove another excavator that had previously been bogged in mudflats, which was to be loaded onto a barge.

The chain connecting the two machines “snapped,” with the broken chain recoiling like a missile and striking Mr Leach in the head, counsel for NT WorkSafe, Nicholas Papas KC, told the Darwin Local Court on Monday.

Kalidonis NT Pty Ltd was initially charged with industrial manslaughter, the first such time the newly-created charge had been laid against a Territory company, but in March last year, that charge was dropped.

A charge against managing director Theofilos Kalidonis of breaching a health and safety duty was also dropped, however, the same charge would be proceeded with against his company, alongside a second breach alleged to have occurred eight days prior, on March 12.

The company has pleaded not guilty to the two charges.

Mr Papas said the question for Judge Ben O’Loughlin to decide was not the “causation of death, but the causation of risk”.

“This is not a prosecution about the death, it’s about the background that led to the death,” he said.

“The case is about what systems were in place, what the accused company did, what reasonably practicable steps the company took to minimise the risk of serious injury or death.”

Witnesses to be called include Jacinta Kelly, Kalidonis’ former operations manager; barge operator Mark Page, of Sea Swift Australia; and Nikolaos Pizanias, a Kalidonis employee.

The hearing resumes on Tuesday.