Challenges to findings of fact
28The challenged findings are principally based on the evidence of Mr Mill, Waco's general manager, and Mr MacAskill, its nominated site supervisor, and the content of the revised SWMS prepared on 11 May 2006.
29The major reason for Mr Mill's initial decision to terminate BTSS' involvement was because of its poor safety record. Following discussions with the union and WorkCover, Mr Mill decided that "for the remainder of the Wentworth Park job a Waco employee would be on-site at all times to oversee the dismantling of the scaffold": [40]. That involved a change to the position which applied before that time. That position was that Waco supervisors would "only sometimes" visit the site which, in Mr Mill's words, involved "dropping in from time to time between other jobs".
30The instruction Mr Mills gave to Mr Geoffrey, the Sydney branch manager, after 5 May 2006 was that one of Waco's project managers should be present at all times until the scaffold was dismantled. That project manager was to "supervise the dismantling of the scaffold from a safe position away from the scaffold [and to] ensure as far as possible that the revised SWMS is followed and to look out for any obvious safety concerns".
31Mr Geoffrey spoke to Mr MacAskill, the site supervisor, and told him that the union and WorkCover had become involved and were not happy with BTSS' safety record and the work method statement used on the job at Wentworth Park. Mr MacAskill's evidence was that Mr Geoffrey said:
"Waco Kwikform will have to take over all responsibilities for the work method and supervision of workers on Bradley Tracey's jobs to ensure that the jobs could be completed."
Mr MacAskill also gave evidence that either Mr Geoffrey or a Mr Steel, the Waco sales manager, said to him that "close supervision of the Wentworth Park job will be taken over by Waco" and:
"You, or someone else when you cannot be there, must put yourselves in a position where you are in full view of all men on the scaffold while they are working. You and Waco supervisors are to enforce the work method statement. You have to ensure that all workers are using their harnesses at all times and if any worker is not wearing a harness, you must tell them that they are to get off the scaffold."
32Mr MacAskill's evidence was that the revised SWMS "came about" as a result of discussions with "the union and then WorkCover". The first version was prepared and signed by Mr Pade, Waco's occupational health and safety manager, and dated 11 May 2006. It related specifically to the activity of dismantling the second stage of the scaffold which was expected to commence on 12 May and conclude by 26 May 2006. It required that the scaffolders responsible for moving decks from one bay down to the next level wear safety harnesses which were to be attached "to adjacent standard by approved double lanyard". (That would mean that at any point in time the scaffolder would have at least one lanyard attached to a standard). The revised SWMS also drew a distinction between the task of moving "top deck down to next lift of transoms" (Ref. 5.0) and the task of moving "top deck down to next lift of ledgers" (Ref. 5.1).
33Each of these activities was said to involve the risk of "falling from scaffold" which had the potential to "kill or permanently disable". The first (Ref. 5.0) describes the task of moving the top deck of steel boards down to the next level assuming modular transoms have been used at that level. In that case the "lift" down to the next level was to be undertaken by moving the top deck of metal boards down. The second (Ref. 5.1) describes the same task, the difference being that it assumes that cylindrical ledgers have been used as transoms. In that case the statement provides that a "timber deck" should be completed at each lift "along one full run of scaffold". Each of these descriptions of the relevant activities assumes by the references to "transoms" and "ledgers" and to "one full run of bays" or "one full run of scaffold" that one of the alternatives being addressed involved the use of two ledgers instead of two transoms along a full run of bays. Neither alternative addresses the possibility of the use of only one ledger instead of a modular transom and then only in one bay rather than in a full run of bays.
34That revised SWMS was submitted to Axis and returned by it to Waco on 11 May 2006 with handwritten amendments. The amendments were minor but made clear that the personal protective equipment to be worn by the scaffolders included the "safety harness" with double lanyard described in the revised SWMS. The final version incorporated the amendments made by Axis. At an early morning meeting of the BTSS employees on 12 May 2006 (described in Waco documentation as a "Tool Box Talk") those employees were informed that all work to be performed by BTSS "must be in accordance with revised SWMS". Whereas the earlier records of these meetings identified as the relevant "supervisor" an employee of BTSS, the persons named as supervisor in the agenda for this meeting were Mr Tracey and Mr Semke, the nominated Waco site supervisor for that day. Although it appears that Mr Semke was not present at the meeting, he signed the agenda and a copy of the revised SWMS to acknowledge that he had read and understood its contents. At that meeting each of those employees also signed a copy of the revised SWMS to confirm each had "discussed and agreed with the controls and my responsibilities".
35The findings at [43], [109] and [110] are justified on the basis of the evidence described above. Mr Mill's first reaction to the event of 5 May 2006 was to terminate BTSS' further involvement on the site because of concerns about its safety record. He was talked out of that position on a basis which required that a revised SWMS be prepared for the remaining work to be performed by BTSS, that it be prepared by Waco and that Waco supervise that work, not to the exclusion of BTSS, but so as to ensure that the revised SWMS was followed by BTSS' employees. At the same time BTSS was to agree to comply with the revised SWMS.
36Waco contends that the primary judge's finding at [43] that it "decided" that it was necessary to develop a revised SWMS was wrong because it was Axis which decided that was necessary. That is contrary to Mr MacAskill's evidence, which was that after discussions between the union, WorkCover, Waco and BTSS it was agreed that Waco would take responsibility for the "work method"; and that as a result Mr Pade "designed a new work method statement" for the remaining works. Axis was involved at the end of that process because the SWMS formed part of the OHS plan for which, by cll 210 and 226 of the OHS Regulation, it was responsible. The evidence did not show that it was involved in initiating or preparing the draft revised SWMS. That being the evidence, the primary judge's finding that Waco "decided" it was necessary to revise the SWMS may overstate the position, which was that the decision was made at a meeting of the union, WorkCover and Waco. However, the significant fact remained that it was made clear to BTSS that Waco would take over responsibility for the revised work method and supervision of BTSS' workers.
37Waco submits that nothing really changed after the "Salisbury incident" and relies on the following matters: Mr Perigo agreed that from 12 May 2006 his working responsibilities did not change and Mr Tracey continued to work on the scaffold; the subcontract between BTSS and Waco remained on foot; and that Mr Tracey continued to give instructions that the work had to be done in accordance with the revised SWMS. This evidence does not contradict or call into question the correctness of the primary judge's findings at [43], [109] and [110].
38Waco also submits that its "full time supervisors" were only engaged to oversee at a high level and not to supervise directly the scaffolders. That submission is not supported by the evidence of its site supervisor, Mr MacAskill, who said:
"Q. Because Waco wanted - your instructions were to make sure this birdcage was dismantled as safely as possible?
A. Yes.
Q. Waco didn't want to have any more accidents; correct?
A. Nobody did.
Q. No, that's right. In effect, after the Workcover involvement, you were there to oversee the dismantling of the birdcage; correct?
A. Yes.
Q. Bradley Tracey still retained his usual authority in respect of his own men; didn't he?
OBJECTION (KELLY).
A. It was limited."
He also gave the evidence referred to in [31] above as to the instructions he received. Those instructions were to deal directly with BTSS employees in the event that they were not complying with the work method statement, by ordering them off the scaffold.
39At [50] of the primary judge's reasons, when referring to cl 17 of the subcontract between Waco and BTSS, her Honour observed that the terms of the SWMS were ultimately Waco's responsibility. Waco takes issue with the correctness of that statement, pointing out that under the OHS Regulation it was Axis which was ultimately responsible for the preparation of the SWMS. That is so but is beside the point. As between itself and BTSS, Waco had agreed to "develop" the SWMS. At the same time BTSS had acknowledged that it was not released from its obligations to develop its own work method and to ensure that its employees worked in a safe manner (cl 17(c)). Owing to the events of early May 2006, Waco formulated a revised work method statement which specifically addressed how the remaining dismantling work was to be carried out and it did so without consultation with BTSS as to its contents.
40Finally, Waco challenges findings of the primary judge relating to the period prior to 5 May 2006. Those findings, at [101] and [102], were as to Waco's having had "some" responsibility for the system of work which was required to be carried out by the scaffolders because it supplied the scaffolding system which was used and participated in the preparation of the original SWMS and reviewing that part of that SWMS prepared by BTSS.
41Waco's written submissions take issue with the finding that these matters meant that before May 2006 Waco had a "substantial" role in the establishment of the system of work because that description of the extent of its role was not material to her Honour's subsequent conclusion as to the scope and content of the duty of care. That conclusion was based on Waco's response to the events of 5 May 2006: [110] Her Honour found that prior to that time Waco was justified in proceeding on the basis that it had engaged a competent contractor to undertake the activity of erecting and dismantling the scaffold: [105].
42Waco's challenges to these findings of fact are not made out.