Egmont Logging Limited (ELL) was found guilty on a separate charge in the following terms: Being a PCBU having a duty to ensure, so far as is reasonably practicable, the health and safety of workers who work for the PCBU, including Steven Whare, while the workers are at work in the business or undertaking, namely tree harvesting using machine assisted felling (MAF), did fail to comply with that duty, and that failure exposed the workers to risk of death or serious injury.

The Court found it was reasonably practicable for ELL to have a:

1. Safe system of work for MAF ensuring as best it reasonably could that there was a fact specific and documented risk assessment undertaken to assess the safe retreat distance
2. System of Monitoring the MAF work.

Farman Turkington Forestry Limited (FTFL) plead guilty to a charge that: Being a PCBU having a duty to ensure, so far as is reasonably practicable, the health and safety of workers who work for the PCBU, while the workers are at work in the business or undertaking, namely tree harvesting using machine assisted felling, did fail to comply with that duty, and that failure exposed Egmont Logging Limited (ELL) harvest workers, including Stephen Whare, to risk of death or serious injury.

Particulars: It was reasonably practicable for FTFL to have:

1. Verified that ELL workers who undertook and/or supervised machine assisted felling (MAF), including Mr Whare, either held appropriate formal qualifications or had been “deemed competent” for the task (the latter being the result of a detailed and documented training/assessment process).
2. Ensured that ELL’s safe system of work for MAF included requirements for fellers to
   1. conduct and document a MAF specific risk assessment that identified applicable significant hazards, including the increase in energy due to machine use, intertwined branches, close planting, and any species-specific issues (Applicable Hazards), and
   2. determine appropriate control measures, including whether a retreat distance of more than 5 metres is necessary.