Lance Corporal Nicholas Kahotea died during a May 2019 counter-terrorism training exercise at an Army special operations training centre in Ardmore, South Auckland.
The 35-year-old was flown to Auckland City Hospital where he died.
Justice Timothy Brewer discharged the New Zealand Defence Force in a brief hearing at the Auckland High Court this morning.
He acknowledged Kahotea’s whānau and the loss of their beloved family member, who was an “elite soldier”.
“He died trying to protect us... we should all be grateful for his service,” the judge said. “I certainly am.”
“[The Armed Forces] exist to do dangerous things in dangerous environments, in New Zealand and overseas. They need to train to do those dangerous things,” the judge said in a written decision on December 20.
“As should be obvious, a safety-focused statute such as the HSWA cannot apply entirely to the Armed Forces.”
WorkSafe had earlier charged the New Zealand Defence Force [NZDF] for failing to ensure Kahotea’s health and safety under the Act.
The NZDF applied to the District Court for the charge to be dismissed, but it was declined in 2021.
It then sought a judicial review last September, once again to dismiss the charge in the current proceeding - concluded this morning with Justice Brewer’s discharge of the Army in open court.
Kahotea joined the Army in 2006 as an engineer, climbing the ranks to become a New Zealand Special Air Service (SAS) operator eight years later.
He is remembered by family and friends as a treasured son, brother, partner and father.
“He was an outstanding soldier and a top bloke,” Chief of Army Major General Boswell said in a social media post informing the public of his death in 2019.
