Company charged over Inpex worker’s death launches Supreme Court bid to have case thrown out

A COMPANY charged with negligently causing the death of Inpex worker Carl Delaney in 2017 has launched a bid in the Supreme Court to have the case thrown out.

Mourners comfort each other at Carl Delaney’s funeral in December 2017. Picture: Michael Franchi

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A COMPANY charged with negligently causing the death of Inpex worker Carl Delaney in 2017 has launched a bid in the Supreme Court to have the case thrown out.

Kawasaki Heavy Industries (KHI) and subcontractor Whittens were both charged with failing in their duty of care to Mr Delaney, after he fell from scaffolding and was engulfed by perlite insulation dust while repairing the inside of a cryogenic tank on November 27.

In September, KHI successfully argued the complaint against it was invalid, and could not be amended without significant changes that would constitute a fresh charge that would then fall outside the statute of limitations.

But in making her ruling, Local Court judge Tanya Fong Lim found while the details of the initial complaint against Whittens were “clumsily described”, that charge could be amended to “clarify” the original allegation.

“It is very clear from the particulars that the prosecution arises from the death of Delaney from his fall into the tank of perlite on 27 November, 2017,” she said.

Carl Delaney fell from scaffolding and was engulfed by perlite insulation dust while repairing the inside of a cryogenic tank at the Inpex site in Darwin on November 27. Picture: Supplied

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“It is also clear from the particulars that it is alleged there were a series of failures by Whittens, through its employees, which created a culture of not complying with safety systems (as articulated in the particulars) which in turn led to the workers – and in particular Delaney on 27 November, 2017 – being exposed to the risk of falling into the tank and dying.”

Whittens argues the charge should be dismissed as it failed to articulate any “reasonably practicable” measure Whittens could have taken to prevent the fall or to establish that it happened “as a result of the alleged breach”.

“Further, or in the alternative, the complaint is invalid because the essential legal and factual elements of the offence cannot be discerned from the particulars of the complaint which are prolix, illogical and so uninformative as to what the prosecution case is, that they cannot be regarded as a reasonably clear statement of the offence,” they read.

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Whittens also argues “it is impossible to amend an invalid charge on just terms to make it valid where the limitation period has expired”.

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