Section 36

Being a PCBU, having a duty to ensure, so far as is reasonably practicable, that the health and safety of workers who work for the PCBU, including [victim], while workers were at work in the business or undertaking, namely while extracting rocks, did fail to comply with that duty and that failure exposed the workers to a risk of death or serious injury.

Particulars

It was reasonably practicable for SWE to have:

1. Effectively identified the risks associated with uncontrolled falling trees;
2. Had in place a safe system of work that effectively identified the risks of falling trees, including ensuring that identified at risk trees were eliminated.

Section 38

As a PCBU who managed or controls plant at a workplace, having a duty to ensure, so far as is reasonably practicable, that the plant is without risks to the health and safety of any person, including [victim], did fail to comply with that duty and that failure exposed workers to a risk of death or serious injury.

It was reasonably practicable for SWE to have:

1. Ensured that the plant, namely a ZX 330 excavator, provided to workers at the Mount Hercules Farms quarry site was safe for use, including that the plant had appropriate Operator Protective Structures, in the form of a roll-over protective structure (ROPS) and an Operator Protective Guard (OPG) to protect the operator of the plant in the event of a roll over, or falling objects impacting the cab of the plant.
2. Used plant that had appropriate Operator Protective Structures at the site.