By Gaby Grammeno Contributor

An employer has failed to overturn a court’s guilty verdict and $550K fine after a worker died due to an unsafe towing system. The appeals judge said the worker’s non-compliance with directions was foreseeable. 

The worker was engaged in excavation for a Darwin construction company upgrading a barge landing at Maningrida on the Arnhem Land coast. 

In late February 2020, though the director of the company had told him not to, the worker took an excavator onto the tidal flats at low tide to dig out an access channel for a new barge ramp. The excavator failed and the tide came in, partly submerging the excavator. 

The worker then borrowed chains from a nearby workplace and used another excavator – with the knowledge of the company's site manager – to try to tow the stranded excavator with the borrowed chains. 

The chains were not designed to tolerate the resulting forces and snapped several times. 

The company director told the worker not to try towing it out again, and that he’d lose his job if he did. The director considered other options for retrieving the stranded excavator – using a crane to lift it onto a barge, or towing it with a nylon recovery strap he’d purchased.   

Despite the warning, the worker again tried to tow the excavator with a chain, but the chain snapped, recoiling and hitting the water and the excavator bucket. 

He then tried to move the excavator by pushing it with a second excavator, while the company director watched. This method also failed. 

On 20 March, he made two further attempts to tow out the excavator, and on both occasions, the chain snapped. The second time, the chain flew back and hit the worker in the head, causing his death. 

The NT WorkSafe charged the construction company with exposing a worker to the risk of death or serious injury, and the Local Court convicted the company and fined it a total of $550,000. 

The company appealed the decision, and the case was heard in the Supreme Court of the Northern Territory. 

 

In court 

The employer contended that the Local Court had failed to take account of the unchallenged evidence of the sole director of the company, that it had misapprehended the employer’s case, failed to address the measures taken by the employer and erred in finding that reasonably practicable measures would have prevented the death. 

The employer also submitted that the sentence was manifestly excessive. 

The company director claimed he’d been unaware of the deceased worker’s efforts to tow the excavator using chain, and that his actions on the day of the accident had been unexpected, unauthorised and against specific instructions. 

The regulator’s position was that recovering the excavator was extremely hazardous work. It was the employer’s duty to eliminate or minimise the risk and the employer should have known it was highly likely the towing system would fail, with consequent high shock load impact resulting in death or serious injury to anyone in the vicinity. 

The employer had witnessed the deceased worker using a dangerous towing system a week before he was killed, and should have recognised that the worker was likely to disregard explicit instructions. He should also have known cost proportionate safe towing systems were readily available. He had already purchased a suitable towing system on 8 March, but it was not yet available.  

Measures the employer could have taken in the five weeks before the fatality included ensuring workers didn’t try to tow the excavator out until a safe system was available by tagging out, locking, securing and preventing access to the excavator, tagging out the chains and removing them from service. He should have told the workers in no uncertain terms not to try towing it out, reinforcing the consequences for them if they did. 

He should also have carried out a risk assessment, developed a safe work method statement (SWMS), ensured it was adhered to, and ensured that the extraction of the excavator was supervised and work stopped if not in compliance with the SWMS. He should have been monitoring the area to ensure workers complied with the direction, and implemented effective deterrence measures and sanctions to ensure compliance. 

In reviewing the evidence, Judge Sonia Brownhill considered that ‘the deceased was clearly a worker at risk of not following directions, instructions and safety procedures’. The site manager did not report the worker’s ‘highly dangerous conduct’ to the company director or take any other steps to address it. 

‘It is a systemic failure in the workplace safety system for such conduct not to be identified, documented and reported to management so it can be dealt with,’ the Judge said. 

There was no applicable SWMS, no written rules setting out disciplinary procedures if rules were breached, and no toolbox talk explaining the dangers of towing with the chain. Workers were not given a clear and unequivocal direction that the excavator was not to be towed with chain and that anyone who did so would be fired, and the company’s monitoring and supervision were inadequate. 

The action of the deceased worker was reasonably foreseeable, given his ‘known propensity for failing to comply with instructions’, and reasonably practicable measures were not taken. 

Judge Brownhill concluded that the Local Court had been correct in its findings, and had taken relevant matters into account.  

None of the grounds of appeal against conviction were made out, nor was the appeal against the sentence. The Judge found that in all the circumstances of the case, a total fine of $550,000 was not manifestly excessive, and the appeal was dismissed. 

 

What it means for employers 

A worker’s propensity to disobey directions creates a risk that should not be ignored. 

 

Read the judgment 

Kalidonis NT Pty Ltd v Work Health Authority [2025] NTSC 28