Nicholas Kahotea joined the New Zealand Army in January 2006, as a Royal New Zealand Engineer. (File photo)
The New Zealand Defence Force is challenging a decision that allows a WorkSafe prosecution to proceed over the death of Lance Corporal Nicholas Kahotea during a training exercise.
Kahotea, 35, fell about eight metres from a helicopter while taking part in a counterterrorism training exercise at the army’s top SAS training facility in south Auckland in May 2019. He later died at Auckland City Hospital.
WorkSafe charged the Defence Force with failing, so far as reasonably practicable, to ensure his safety.
The Defence Force tried to stop the prosecution in the District Court, but a judge said it could proceed.
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In Wellington on Monday the Defence Force asked a High Court judge to review that decision. Justice Timothy Brewer will give his judgment later in writing.
The High Court application focused on the Chief of Defence Force making a declaration exempting a category of training from the Health and Safety at Work Act and the Defence Force maintaining the training Kahotea was taking part in was within that category of counterterrorism response.
In May 2019, the Defence Force held a counterterrorism training exercise with special operation forces from the United States Armed Forces. The exercise was to develop New Zealand’s Special Operation Forces (NZSOF) counterterrorism capability.
Kahotea, an experienced member of the SAS, was taking part in a joint exercise with the US military which involved exiting a Black Hawk helicopter at night.
He exited the helicopter during a landing drill to access the roof of a building.
“The Black Hawk helicopter made contact with the edge of a building wall ledge during a bump landing drill with one of its main landing wheels hovering in a position while troops exited on to the building or ledge from the side,” Judge Jane Lovell-Smith said in her District Court decision.
As Kahotea stepped out of the helicopter he fell about eight metres on to concrete before he tragically died in hospital, the judgment read.
Kahotea joined the Army in 2006 as a Royal New Zealand Engineer, with an initial posting to the 1st New Zealand Special Air Service Regiment as a specialist searcher in 2008.
He successfully completed NZSAS selection and was badged as an NZSAS operator in December 2014. He also served in Afghanistan.