District Court New South Wales Medium Neutral Citation: Rindfleish v Agrigrain Pty Ltd [2023] NSWDC 543 Hearing dates: 25, 26, 27, 31 October 2023 1, 2, 3 November 2023 Date of orders: 6 December 2023 Decision date: 06 December 2023 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Dismiss the defendant's Notice of Motion filed on 29 September 2023. (2) Order the defendant to pay the plaintiff's costs in relation to that Notice of Motion. (3) Judgment for the plaintiff against the defendant for $521,134. (4) Order the defendant to pay the plaintiff's costs. (5) The exhibits are returned. Catchwords: LIMITATION OF ACTIONS — discoverability — personal injury — when plaintiff knew or ought to have known the fact that the injury was caused by the fault of the defendant NEGLIGENCE — general principles DAMAGES — non-economic loss — economic loss — loss of superannuation — out-of-pocket expenses — domestic assistance OTHER — plaintiff injured while replacing a bearing in a grain auger — employed by defendant's subsidiary ­company — defendant responsible for safety on site, including maintenance tasks Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D, 5F, 5G, 5H, 13, 15, 15C, 16 Limitation Act 1969 (NSW), ss 18A, 50C, 50D Workers Compensation Act 1987 (NSW), ss 66, 150 Work Health and Safety Act 2011 (NSW) Cases Cited: Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 Mamo v Surace [2014] NSWCA 58 Murgolo v AAI Ltd [2019] NSWCA 295 Pomare v Whyte [2019] NSWCA 317 Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213 Williams v Twynam Agricultural Group Pty Ltd [2011] NSWSC 1098 Texts Cited: Dominic Villa, Annotated Civil Liability Act 2002 (NSW) (2nd ed Thomson Reuters) Category: Principal judgment Parties: Ian Rindfleish (Plaintiff) Agrigrain Pty Ltd (Defendant) Representation: Counsel: K Balendra (Plaintiff) M A Friedgut with M Meares (Defendant) Solicitors: Slater & Gordon (Plaintiff) HWL Ebsworth Lawyers (Defendant) File Number(s): 2022/00070861 Judgment Introduction 1. On 18 January 2016 the plaintiff Mr Ian Rindfleish was working at a grain handling facility at Gadsens Lane in Coonamble. While attempting to replace a bearing in a grain auger, Mr Rindfleish suffered serious facial injuries when part of the machine shattered. 2. By an Amended Statement of Claim filed on 1 December 2022 Mr Rindfleish sued Agrigrain Pty Ltd as the sole defendant. His pleading alleged that at the time of the incident he was employed by Agrigrain (Coonamble) Pty Ltd, which was a 100% owned subsidiary of the defendant. The Amended Statement of Claim alleged that the defendant exercised authority and control over grain handling operations, which included maintenance tasks. The Amended Statement of Claim also alleged that the defendant exercised authority and control over safety at the premises, including with respect to maintenance tasks. 3. Mr Rindfleish pleaded that on 18 January 2016, assisted by an employee of Agrigrain (Coonamble) Pty Ltd, Mr Luke Hamilton, he was involved in changing a bearing at the base of a grain auger. The auger consisted of a large helical screw, weighing 200kg, which rotated inside a metal tube. The screw was known as a "flight". The grain auger operated by lifting grain, through the spinning flight, from a bin and then upwards towards grain silos. Devices of this type were described by Archimedes, but were in use well before his time, when the Ancient Egyptians used screw conveyors to lift water from the Nile to irrigate their crops. 4. The Amended Statement of Claim pleaded that to replace the bearing at the base of the grain auger, the flight had to be lifted up, so that a new bearing could be put in place, and then the flight was lowered into the bearing. At the top of the flight was a pulley. When the auger was in operation this pulley was connected by a belt to a motor which sat adjacent to the top of the auger. To lift the flight a sling was attached to the pulley on top of the flight, and that sling was then connected to a forklift. Mr Hamilton operated the forklift to lift the flight by the sling attached to the pulley. It was during the course of this operation, when Mr Rindfleish was standing on a ladder close to the top of the auger, that the pulley shattered, striking him in the face and knocking him off the ladder onto the ground. He suffered serious injuries to his face and nose. 5. In its form, the Amended Statement of Claim was not dissimilar to the common "labour hire" type of cases which frequently come before the courts. In those cases an employer lends or hires its labour to a second company. It is the second company which controls the work being done and is responsible for safety at the work site. The only difference here is that the two companies are related. The allegation made by Mr Rindfleish is that while he was employed by Agrigrain (Coonamble) Pty Ltd, it was the defendant which was responsible for the operations at the grain handling facility in Coonamble, and in particular it was the defendant which was responsible for the safety of those operations. The allegation is that the defendant owed Mr Rindfleish a duty of care, it breached that duty, and as a result of the breach Mr Rindfleish suffered loss and damage. 6. The claim brought by the Amended Statement of Claim was thus an action in negligence, subject to the principles of the Civil Liability Act 2002 (NSW) (the CLA). 7. The Defence to the Amended Statement of Claim was filed on 24 February 2023. The key allegations in the Defence were as follows: 1. The defendant admitted that the plaintiff was employed by Agrigrain (Coonamble) Pty Ltd – par 4(a). 2. There was no relationship between the defendant and the plaintiff – par 4(c). 3. The defendant did not possess and exercise authority and control over the plaintiff during the course of his employment as the Facility Manager at Coonamble, including the carrying out of maintenance tasks – par 4(d). 4. While the defendant employed a Maintenance Supervisor, who was responsible for the maintenance employees and all maintenance tasks, and who from time to time provided suggestions to the plaintiff when he sought advice on carrying out maintenance tasks, the Maintenance Supervisor did not possess and exercise authority and control over the plaintiff – par 7(e). 5. The defendant was not the employer of and had no relationship with the plaintiff – par 8(d). 6. The defendant did not owe any duty to the plaintiff to ensure that it took all reasonable precautions against foreseeable risks of injury to the plaintiff, including with respect to carrying out maintenance tasks at Coonamble – par 14(a). 7. The defendant denied that it was the employer of the plaintiff – par 14(b). 8. In answer to the whole of the Amended Statement of Claim, the defendant said that the plaintiff's claim is not maintainable as it is brought after the expiration period prescribed in s 18A(2) of the Limitation Act 1969 (NSW) – par 30. Issues 1. Counsel for the defendant identified five issues for determination. They were: 1. This is a "work injury damages" claim within the meaning of the workers compensation legislation. The plaintiff has not complied with the procedural requirements of that legislation and thus cannot bring these proceedings. They should be dismissed. 2. If it is not a "work injury damages" claim, then the cause of action is time barred under the Limitation Act. 3. The plaintiff has not proved negligence or called evidence about the mechanism of the injury being suffered. 4. In the alternative, the plaintiff was primarily responsible for the damage he suffered. 5. If the plaintiff is entitled to any damages, then they are "de minimus". The Course of the Hearing 1. The matter was set down for a three-day hearing, commencing on 25 October 2023. The hearing lasted for seven days, and even then it did not finish. At the conclusion of Day 7, counsel for the defendant had not finished oral submissions, and I directed that the balance of his submissions be put in writing. 2. The plaintiff's case was conducted with commendable efficiency by his counsel. On 25 October 2023, after 1½ hours were spent on an unsuccessful interlocutory application made by the defendant, the plaintiff's counsel opened her case at 11.45am and called Mr Rindfleish at 12.05pm. Mr Rindfleish gave evidence in-chief for the balance of that day. His evidence continued until 10.50am on 26 October 2023. 3. Cross-examination of the plaintiff commenced at 10.50am on 26 October 2023. The cross-examination continued for the balance of that day, all of 27 October 2023 and until 11.55am on 31 October 2023 ie more than two days were spent in cross-examination of the plaintiff. Much of the cross-examination was directed towards the defendant's contention that the defendant was the employer of the plaintiff, and thus this was a "work injury damages" claim. 4. The plaintiff's partner Ms Warnock gave evidence by AVL from 12.20pm on 31 October 2023 to 3.00pm on that day. 5. The plaintiff's solicitor Mr Joel Redman was called as a witness at 3.05pm on 31 October 2023. His evidence went to the Limitation Act point. Cross-examination of Mr Redman commenced at 3.15pm on 31 October 2023. Mr Redman was cross-examined the balance of that day, all of 1 November 2023 and until 2.40pm on 2 November 2023 (ie just under two days). The rest of 2 November 2023 was taken up with the tender of documents. 6. On 3 November 2023, being Day 7 of the hearing, counsel for the plaintiff addressed for one hour. Counsel for the defendant gave an estimate of three to four hours necessary for closing submissions on behalf of the defendant. After three and a half hours, at 4.00pm on Day 7 of the case, counsel had not finished the first of his five issues, concerning the "work injury damages" point. At that stage I directed the defendant to provide the balance of its closing submissions in writing by 10 November 2023. I directed the plaintiff to provide any written submissions in reply by 17 November 2023. 7. Something needs to be said about the volume of documentation in this case. The plaintiff prepared a six-volume Court Book which ran to 2,369 pages. Counsel for the plaintiff tendered, in my view, only the documents necessary to establish the plaintiff's case. The tendered documents are listed in MFI 2. For example, at the start of the trial I observed to counsel that there were hundreds of pages of clinical notes from hospitals and doctors. I indicated that I required counsel to extract from that material only the important documents for tender. Counsel for the plaintiff did this. The attitude of counsel for the defendant was that all of the hospital notes should go in, as one never knew what might prove relevant. By that stage of the case (the end of Day 6), it should have been obvious to both sides what was relevant and what was not. I indicated to counsel for the defendant that I would only receive in the plaintiff's case, those parts of the hospital notes tendered by counsel for the plaintiff. As it turned out, counsel for the defendant made no reference to even one page of the material from the hospital notes which did not go into evidence. 8. Another example can be given. The plaintiff tendered an expert report of Mr David Cockbain (Tab 9 in Folder 1 of the Court Book). When that report was tendered on Day 6 of the case, counsel for the defendant asked for time to consider whether any objections to it should be taken, as he had not read it. That request was refused. 9. The defendant prepared its own Court Book which ran to 991 pages. The bulk of the defendant's Court Book (pp 66-932) contained a copy of the entire file of Mr Redman. It was said that this material was relevant to the Limitation Act point. Most of the material in the file was not referred to in cross-examination or submissions. There were at least five copies of each medical report in the file, none of which were relevant to the Limitation Act point. Mr Redman was cross-examined about a limited number of documents in his file, principally his file notes and letters of advice to the plaintiff. This meant that there were hundreds of pages of his file reproduced in the defendant's Court Book, which were not the subject of cross-examination or submissions. 10. The written submissions of the defendant (MFI 8) ran to 60 pages. The submission that the defendant was the employer of the plaintiff, and thus this was a "work injury damages" claim (already developed for three and a half hours orally) occupied pp 6-41 of the 60 pages. Pages 32-41 of the submissions set out a detailed analysis of the procedural provisions in the workers compensation legislation which the plaintiff had not complied with. This was completely unnecessary, as counsel for the plaintiff conceded very early on in the case that if this truly was a "work injury damages" claim, then the plaintiff had not even attempted to comply with these procedural provisions, and his claim must necessarily fail. Oral Evidence of Mr Rindfleish Background to Employment at Coonamble 1. Mr Rindfleish gave the following evidence in-chief. He was born in 1982 and left school in 1999 after Year 11. He spent 12 months in various labouring jobs. In 2000 he obtained employment at a winery in Mudgee and worked there for a couple of years assisting in winemaking. In 2003 he moved to the Napa Valley in the USA where he worked in a winery for 13 months. In 2004 he moved back to Mudgee and resumed work at the winery until there was a downturn in the industry. 2. Mr Rindfleish said that he enjoyed making wine. He described it as a perfect life which was very peaceful and happy. He originally came from Gulgong and had a long-term plan to buy a few hectares of land there and grow grapes in semi-retirement. The incident which led to his injuries, which occurred on 18 January 2016, resulted in him losing his sense of smell and much of his sense of taste. That means that in the future he would not be able to work as a winemaker. 3. In 2004, after the downturn in the wine industry, Mr Rindfleish worked for Western Milling in a flour mill for three years. In 2005 he met his partner Ms Warnock. 4. In 2007 Mr Rindfleish commenced work for the defendant at its Narromine operation. He started looking after the seed part of the business and after six months he was promoted to look after the yard at Narromine. This involved supervising deliveries and staff. The office at Narromine looked after the export side of the business. 5. Mr Rindfleish had completed some trade courses. He obtained a Flour Milling Certificate while working at Western Milling. He had completed courses in First Aid, Confined Spaces and Working at Heights. He had no mechanical qualifications and had never done an apprenticeship of any sort. 6. When Mr Rindfleish started working at Narromine, that was the only site from which the defendant operated. He left that employment in 2011 and moved to Narrabri where he worked in a similar grain handling business. He did not enjoy that employment. Mr Rindfleish ran into Mr David Ringland at the Narromine Races, and they discussed him returning to work for the defendant. Mr Ringland indicated that the defendant was opening up another site at Coonamble. The proposal was that Mr Rindfleish would move to Coonamble, help build the site and then run it. The Coonamble site was to receive grain and pack containers with grain for the export market. 7. Mr Rindfleish was involved in finding an appropriate site in Coonamble and setting it up. Building started in August 2011 and was completed by December, when the first grain was received at the Coonamble facility. The role of Mr Rindfleish there was as a site foreman manager, in charge of the site. Trucks came in with grain and trains went out with grain. He supervised the workers over the whole site. He usually had six employees, but during the busy harvest period there were between 25 and 30 employees. Drought hampered the business, and it went down to two to three employees at Coonamble. There were always more casuals employed during the harvest period. 8. Mr Rindfleish was asked about his understanding of the hierarchy of the company. He said that after Mr Peter Pritchard left, a company called Plum Grove bought part of the business. At some stage Plum Grove increased its percentage ownership of the business. 9. Mr Rindfleish was asked about his understanding of the identity of his employer. When the Coonamble site was acquired, the company Agrigrain (Coonamble) Pty Ltd did not exist. Mr Rindfleish assumed that the defendant employed him but that when Agrigrain (Coonamble) came into being it employed him. He said that he really could not answer as to which company was his employer at any one time. Mr Rindfleish said that he took orders from "Agrigrain Narromine". Mr Rindfleish was aware that there were two companies, and that there were two businesses financially. He said that he was not included in the operational decisions made for the business. 10. Mr Rindfleish said that the income earned by the Coonamble operation came from packing grain. There was a monthly phone call to Narromine to discuss whether the site was making money or not. He used to ask Mr Jeremy Brown over the phone how the business was tracking. His understanding was that Mr Brown worked for the defendant. Mr Rindfleish said that after the ownership structure changed (being the involvement of Plum Grove) he lost touch with how it all worked. No-one told him which company operated which business, and he had no understanding of the corporate structure. 11. While Mr Rindfleish would organise casuals to work on the site, he had to ring Mr Brown to obtain authority to provide specialised staff. He would put a case to Mr Brown, who could say yes or no to specialised staff being employed. 12. At the Coonamble site there were silos, augers, trucks, tractors and grain handling machinery. The machinery was both fixed and mobile. If mechanical work was needed in Coonamble, Mr Rindfleish used to organise that, but he needed approval from Narromine for major repairs. If a mechanical repair was required, he contacted Narromine to see if a fitter was available to come to Coonamble and fix the problem. In relation to any mechanical issues, his options were to speak to Narromine or to fix it himself. There were two fitters based at the defendant's operation in Narromine. Mr Rindfleish would call Mr Brown or Mr Wayne Halbisch to see how Narromine wanted to fix a mechanical problem. 13. Mr Rindfleish used to ring Narromine and tell them what the problem was and ask for a suitable person to be sent to fix the issue. A fitter came if a fitter was available and free to come. If a fitter was not available, then Mr Rindfleish had to attempt to fix the problem himself. If the problem was not fixed, then work at Coonamble had to cease. The whole site would stop. 14. When Mr Rindfleish started at Coonamble, the person he rang was Mr Brown. Mr Halbisch started in mid-2015 as the operations manager, and after he started Mr Rindfleish would ring Mr Halbisch in relation to mechanical problems. Mr Rindfleish said that Mr Halbisch was his "direct boss" and he had to ring him about any problems at the Coonamble site. Mr Halbisch visited Coonamble about once a week for an hour at a time. He came twice a week during harvest time. When Mr Halbisch came to the site he usually delivered a safety talk to the workers, and he would read out any new policy or procedure. Mr Halbisch and Mr Rindfleish would drive around the site and talk about things which they saw which needed doing. 15. Mr Rindfleish requested that a full-time fitter or boilermaker be employed to work on the Coonamble site. If Coonamble had to wait too long for a tradesman, then fixed machinery would break down. Mr Rindfleish told Narromine that someone had to be at Coonamble all the time to improve the maintenance of the equipment to stop it breaking down. Mr Rindfleish said that there was no maintenance schedule. There were "tick and flick" books for the machinery, but these just involved simple things like checking the oil and checking that the machine was fit for use. If the machine was safe then it was used. If not, then the machine was stopped and tagged out. 16. Mr Rindfleish was aware that there was a safety co-ordinator based in Narromine. Mr Rindfleish had discussions over 12-18 months, firstly with Mr Brown and later with Mr Halbisch about the need for a mechanical assistant on site at Coonamble. To Mr Brown he said words to the effect: "I'm fucking over this Jeremy, I need someone here to do this shit". Mr Rindfleish told Mr Brown that there were things that he did not know how to fix and that he did not have time to fix. When Mr Rindfleish spoke to Mr Halbisch, Mr Halbisch agreed that someone should be made available, but that permission was needed "from someone higher up". Mr Rindfleish consistently said to Mr Halbisch that he needed a maintenance person on site at Coonamble. He continued to ask Mr Halbisch whether he was going to get a fitter, or whether he was going to get a mechanic. 17. Mr Rindfleish said that he never signed an employment contract with anyone. He identified his PAYG Statements, his tax returns and his Notices of Assessment (all of which were put into evidence). These nominated Agrigrain (Coonamble) Pty Ltd as his employer. That company paid him wages and withheld tax which was remitted to the Australian Taxation Office. The Incident on 18 January 2016 1. On 18 January 2016 Mr Rindfleish arrived at work at the Coonamble site at 7.00am. He recalled fellow employees named Luke Hamilton, Jamie Peacock, Gary O'Connor and Lucy being there. The grain auger involved in the incident was one which descended below ground into a pit. The day before the incident, the operator of the auger had reported to Mr Rindfleish that there was a rattle coming from the pit. Mr Rindfleish explained that trucks would bring grain to the site and dump the grain into the pit. From there it would be lifted by the auger onto a grain elevator and then into the silos. From the silos it was packed into containers and sent out on trains. There was a grate covering the top of the pit. Trucks drove onto this grate and dumped their load into the pit. Mr Rindfleish explained that the rotating flight picked up grain from the bottom of the pit and moved it upwards through the barrel of the auger. 2. At the top of the auger there was a pulley attached to the spindle of the flight, which was then joined by a belt to another pulley on an adjacent motor. When the motor spun it turned the belt which in turn turned the pulley and the flight. 3. Mr Rindfleish said that he received a text on the day prior to the incident indicating that there was a rattle from the auger at the pit. From previous maintenance and repairs performed by Mr Rindfleish, he was aware that the shaft of the flight, at the base, sat inside a wooden block with a round hole in the centre. This was the bearing in which the flight revolved. It was not possible to have a sealed bearing at that point, as the auger needed to catch the grain in the flight and send it upwards. If the bearing was not there, or was worn, then the flight would move around inside the barrel and would make a rattling noise. Mr Rindfleish said this was a common occurrence. About every three months the wooden bearing at the base of the auger had to be replaced. It had been replaced about 12-15 times while Mr Rindfleish had been working at Coonamble. Mr Rindfleish had done this maintenance work with others. The first step was to vacuum out the grain in the bottom of the pit. Then someone had to climb in and look at the block to check that it was worn. 4. Part of the operation of replacing the bearing involved lifting the flight. For this to happen four bolts on the bearing housing at the top of the flight had to be undone. A sling was fastened around the pulley at the top of the flight and this sling was then connected to the tine of a forklift. When the tine was lifted, the sling would go taut and lift the flight, so that the wooden bearing at the base of the auger could be changed. The pulley was thus used as a lifting point for the flight, which weighed around 200kg. 5. Mr Rindfleish said that this is the way he had seen the job done previously by the defendant. He said that it was how the job was done at Narromine when he had worked there. He had observed persons in the maintenance service at Narromine, all of whom were qualified tradesmen, do the job this way. He also saw maintenance people do the job this way at the Coonamble site, when he had assisted the tradesmen. At Narromine there were five augers which all operated on the same system with a wooden bearing at the base of the flight. They needed replacing regularly. There was only one auger at Coonamble. 6. On 18 January 2016 the pit was cleaned out by vacuuming the grain at the base. An inspection was then done to check that the wooden block was the problem. Mr Rindfleish said that he called Mr Steve Bakac at Narromine (the maintenance supervisor) to tell him the block was getting worn. The flight was lifted using the sling and the forklift and the bearing was changed as described. Mr Luke Hamilton assisted with this work. After the block was changed, Mr Jamie Peacock went for lunch. Initially Mr Peacock had worked on the forklift and Mr Hamilton had been directing Mr Peacock when to lift. 7. After the block was changed, there was a need to lift up the flight again, as the flight was touching the wooden block instead of rotating inside the hole. Mr Hamilton was on the forklift and Mr Rindfleish stood on a ladder near the bearing at the top of the auger to assist in loosening the top bearing and lifting the flight so that it could be reinserted into the wooden bearing at the base. 8. While standing on the ladder Mr Rindfleish was side-on facing the pulley attached to the top of the flight. He undid the bolts to allow the shaft to slide in the bearing housing. It was too tight. Mr Rindfleish rang Mr Bakac again. Mr Bakac told Mr Rindfleish to make sure that the flight was spinning freely. He said to tap it with a hammer or jimmy it with a crowbar. Mr Rindfleish did those things, but it was still not successful. While he was performing these operations the cast iron pulley exploded when it was adjacent to his face. Pieces of metal hit him in the face. Mr Rindfleish has no memory of about five to ten seconds before the explosion, but he can recall the explosion itself. He said that the metal hit him across the nose and up between the eyes. He was knocked off the ladder and landed on the ground on his back. The back of his head hit the concrete. 9. Mr Rindfleish realised that his nose was hanging on the right side of his face under his eye. He said it was flapping there. Mr Hamilton said "It's not good boss". Mr Hamilton rang the office and the office rang the ambulance. Mr Hamilton told Mr Rindfleish to get in his car and he would drive him straight to Coonamble Hospital. After the Incident 1. Mr Rindfleish said that initially he did not feel too bad. At Coonamble Hospital he was cleaned up and transferred to Dubbo Base Hospital. He then had to wait until the next morning to be flown by air ambulance to Westmead Hospital. He underwent surgery there on 19 January 2016. 2. Mr Rindfleish spent a couple of days at Westmead Hospital. He was then discharged home. He was suffering from headaches. At first they were not so bad, but once the swelling subsided they were lasting for four or five days. He said that he had no orbits on either side of his nose and that his face just felt mushy at that point. He could put his finger sideways in underneath his eyes. 3. Mr Rindfleish saw his GP in Coonamble. He complained of headaches which initially were constant. 4. Mr Rindfleish went back and saw Dr Haddad, a specialist at Westmead. He told Mr Rindfleish that the headaches would continue. A facial reconstruction operation was carried out by Dr Haddad in February 2016. When Mr Rindfleish returned home from this operation he was suffering from headaches. He was not moving and was simply lying on a mattress in the lounge room suffering from headaches. He contracted pneumonia. 5. At the time Mr Rindfleish and his partner Ms Warnock had two children aged 3 years and 15 months. The children had to be put into day care. Straight after the accident Ms Warnock did everything for Mr Rindfleish. This included cooking, cleaning, mowing, shopping and taking the children to and from day care. Mr Rindfleish was dressing and showering himself and could toilet himself. 6. Mr Rindfleish said that he spent three weeks lying on the floor. He then had to be admitted to hospital with pneumonia. For 10 or 11 weeks he simply did nothing except try to rest and watch TV. 7. Mr Rindfleish said that before the incident, Ms Warnock did all of the inside jobs and Mr Rindfleish did all of the outside jobs. This included looking after cars, gardens, groceries and mowing. The couple shared the care of the children. Mr Rindfleish said that he did about 15-20 hours per week on these outside jobs. About 10 hours were done mowing and gardening. He spent about 5 hours a week on his "toys" which included boats, cars and bikes. Ms Warnock took over all of these tasks straight after the incident. 8. Mr Rindfleish said that he slowly improved and began to function again. He would get up, but five minutes later he had to go back and lie down with a bad headache. He got progressively better, but he still did not get back to how he had been before the incident. Headaches could be triggered by loud noises or stress. He said that the headaches were now not as frequent, and there were no particular triggers now which caused him to have a headache. Nowadays he was managing the headaches with Panadol or Nurofen. Now he gets a headache about one day a week, but the severity is less than it was initially. Return to Work 1. Mr Rindfleish returned to work at Coonamble in June 2016. He said that he did not feel right and he was still suffering from bad headaches. He felt cranky, he knew he was making poor decisions and making mistakes. However, he wanted to prove that he could go back to work. He did not do well at work. He felt frustrated and he was sore. Work triggered his headaches, in particular noise, stress, sun and cold. He stayed at work for six to eight weeks but then spoke to Mr Brown, resigned and finished up. 2. Mr Rindfleish said that he stayed home for a few months until he felt better. He then went and got another job where he still works. He started on 6 October 2016 with Batterline Earth Moving (Batterline) driving a road roller. With Agrigrain (Coonamble) Pty Ltd Mr Rindfleish had been earning $104,000 gross per annum. He was paid $50 per hour for a 40-hour week. At Batterline he started off being paid $30 per hour but was now earning $35 per hour. His income was nearly the same as at Coonamble, but he was working between 65 and 70 hours to earn the same income. His responsibilities in the new job were less than at Coonamble. Mr Rindfleish said that he was not sure if he could do his old Coonamble job anymore. He felt that he could not do a supervisor's position for several years after the injury. He said that his "head would have exploded". 3. Mr Rindfleish was paid workers compensation for medical expenses and treatment. He did not fill out a workers compensation claim form. Someone at Narromine filled out a claim form. He received weekly payments. After a while they stopped. The workers compensation insurer did ring and check in on him. 4. Dr Haddad had informed Mr Rindfleish that his lost sense of smell might return in up to 18 months. Mr Rindfleish said that he has permanently lost his sense of smell and has also lost his sense of taste. He can tell the difference between sweet and sour, but he cannot taste aromatics such as garlic, ginger and curry. His enjoyment of food is diminished. Consulting Solicitors 1. When his sense of smell did not return after 18 months, Mr Rindfleish contacted Slater & Gordon after he saw their ad on TV. On 23 October 2018 he spoke to Mr Joel Redman solicitor by telephone. He was given advice about the type of claim he could make. Mr Redman said that he would organise visits to doctors and make a claim for whole person impairment (WPI). Mr Redman gave him advice as to what the likely payout figure for a WPI claim would be. 2. Mr Rindfleish said that no-one spoke to him about making a claim against his employer or anyone else, apart from a workers compensation and WPI claim. This was not raised with him until after there was a WPI finding and a payout. Mr Redman then organised for a conference with Mr Ivan Judd barrister. This took place by telephone. Mr Judd asked Mr Rindfleish if he had considered commencing proceedings. Mr Judd asked Mr Rindfleish to describe what had happened. Mr Judd asked Mr Rindfleish who his employer was. Mr Rindfleish said that it was "Agrigrain", which was owned by Plum Grove as majority owner. 3. Part of the evidence in-chief of Mr Rindfleish was given through his affidavit dated 23 October 2023 (PX 2, pp 128-138). This was an affidavit prepared in relation to a Motion filed by the defendant. In relation to the conference with Mr Judd, and the events after that conference, Mr Rindfleish said the following in the affidavit: "21 Following settlement of my lump sum compensation claim, my legal representatives briefed Mr Ivan Judd, Barrister, in respect of a potential work injury damages claim. I was told that I had three years to bring a claim against my employer for work injury damages, however it was possible to extend this time if my symptoms had not reached maximum medical improvement within the required time. 22 On 25 June 2021, I spoke with Mr Judd in respect of my accident and claim. Upon questioning from Mr Judd, I explained that in 2014 the premises that I was working at was sold to Plum Grove Pty Ltd ('Plum Grove'). It was my understanding that they owned the site at the time of my accident. Mr Judd advised me to commence proceedings against Plum Grove. I was advised that there was a limitation period to bring the claim. 23 Until this time I was unaware that I had a claim against Plum Grove as I was not advised that I had rights against anyone other than my employer. Until this time I was not aware that there was a limitation period that applied to bringing a claim against a non-employer. 24 I subsequently instructed my legal representatives to commence proceedings against Plum Grove on my behalf. I have been advised and understand that in March 2022, Court proceedings were then filed against Plum Grove. 25 On 15 June 2022, a conference was held with my legal representatives and Ms Kate Lloyd, Barrister. It was my understanding that Mr Judd had retired and Ms Lloyd was taking over my claim. At that time, Ms Lloyd expressed concerns about continuing the claim against Plum Grove. It was her advice that there did not appear to be a relationship between Plum Grove and the site at which I was working. 26 On 30 June 2022, I instructed my legal representatives to discontinue to the claim against Plum Grove Pty Ltd. 27 I have been advised and understand that thereafter, and for a long period of time, my legal representatives and Counsel attempted to discontinue the claim against Plum Grove. I was advised that they were met with continued resistance by the legal representatives for Plum Grove. 28 By letter dated 10 November 2022, I was advised by my legal representatives that they had issued a number of subpoenas on various parties, including SafeWork NSW. I was advised that the documents produced by SafeWork NSW identified a number of people who were responsible for the oversight of the Coonamble site at which I was injured. My legal representatives advised that the people identified were likely employees of Agrigrain Pty Ltd and not Agrigrain (Coonamble) Pty Ltd, my employer. It was recommended by my legal representatives that we amend the proceedings to remove Plum Grove and add Agrigrain Pty Ltd. It was only upon receipt of this letter that I became aware of the existence of Agrigrain Pty Ltd, and that they employed the various people with oversight and control of the site at which I was injured. 29 On 11 November 2022, I provided instructions to my legal representatives to proceed with a claim against Agrigrain Pty Ltd." 1. I regard the expression "It was only upon receipt of this letter that I became aware of the existence of Agrigrain Pty Ltd" in par 28 of the affidavit as no more than Mr Rindfleish saying that it was only after he received legal advice that he was aware that he had a potential court claim against Agrigrain Pty Ltd. This part of the affidavit has been poorly drafted, but its meaning is clear. 2. Mr Rindfleish was asked during evidence in-chief about an interview he gave with a SafeWork inspector who conducted an investigation of the incident. The transcript of the interview, which was tendered, is at PX 4, pp 901-925. Mr Rindfleish said that everything he told the inspector was true. At Q 28 of the interview (p 904) Mr Rindfleish said that he was employed on the day of the accident by Agrigrain (Coonamble) Pty Ltd. The explanation of the incident set out in the Record of Interview is consistent with the oral evidence given by Mr Rindfleish. Continuing Problems 1. Mr Rindfleish said that he had check-ups every few months with Dr Haddad for three years at Westmead Hospital. He always carries a supply of Panadol or Nurofen. Now he takes about four tablets a week. His use of these pain killers has diminished over time. He has been as he is now for a couple of years. 2. Mr Rindfleish said that he had been advised that he could have an "eyelift" in future if the eye droops further. He was told that if it did this would impair his vision in the future and he would need an operation. 3. Mr Rindfleish said that the nerves on the right side of his forehead and his face were a bit different to those on the other side. They were susceptible to light touch. He said that he is sensitive if his kids touch his face, which will cause him to start rubbing his face on that side. 4. I inspected the scarring across the bridge of Mr Rindfleish's nose. He indicated that it extends from the bridge of the nose behind the right eyebrow. This camouflages that part of the scar. Mr Rindfleish still has plates and screws inside his skull, extending across the top of his right eye. There is no plan to remove those. Cross-examination 1. Cross-examination commenced by Mr Rindfleish being asked about his time between 2007 and 2011 when he worked for the defendant at Narromine. He gave evidence about the courses he did there and the jobs he did. 2. Mr Rindfleish was asked about being approached by Mr Ringland to come back to open a new site at Coonamble. Mr Rindfleish understood at that time that Mr Ringland somehow owned 80% of the Agrigrain business. When Mr Rindfleish recommenced work he directly reported to Mr Peter Pritchard who was the general manager of the defendant. Mr Rindfleish was involved in finding a place to build the Coonamble facility, obtain permits and DAs, and buying silos. He had a project manager role. The land at Coonamble was purchased in June 2012, the first concrete was poured in August 2012 and the site started operating in November 2012. Mr Rindfleish and his family moved to Coonamble in July 2012. Mr Pritchard left the defendant in August 2012 and his place was taken by Mr Brown. He was the boss of Mr Rindfleish. 3. Mr Rindfleish said that Mr Ringland came to Coonamble every week in the first couple of months. He described Mr Ringland as having a "bash and cuddle" style of management. This meant that Mr Ringland would come to the site and yell at everyone, but then put his arm around them and take them to lunch. This baptism of fire probably served Mr Rindfleish well for engaging in litigation. Counsel for the defendant, from time to time, asked his questions of Mr Rindfleish by raising his voice, at one stage thumping the Bar table to emphasise each word in a question. Mr Rindfleish was not phased, but then again the Coonamble grain handling facility was not conducted like a soiree. 4. Mr Rindfleish acknowledged that he was the senior person in charge at the Coonamble site. He said that it was beyond his technical capacity to draw up a maintenance schedule. He just assumed that everything that they did at Coonamble was done in the appropriate fashion. There were two maintenance people on site at Narromine, but they rarely came to Coonamble. It was two hours to travel from Narromine to Coonamble. Even if he rang up Mr Bakac at 8.30am, he would not see a fitter until 11.00am the next day. Mr Rindfleish said that he and his team had done the task of replacing the wooden bearing at the base of the grain auger without the maintenance team, on many prior occasions. If the bearing was not replaced, then this could cause considerable damage to the machinery. Mr Rindfleish confirmed that on several occasions he raised with Mr Brown, and later with Mr Halbisch, his request to have a maintenance person engaged at Coonamble. Mr Rindfleish said that he didn't have the time to do the maintenance, he wasn't qualified to do the maintenance, and someone else would have done it better than he could. 5. Mr Rindfleish was asked why he did not send an email about this matter. He said that this was not the way that things were done at Agrigrain. 95% of instructions were given over the telephone. Mr Rindfleish said that he had no dealings with Mr Brown's bosses or with Plum Grove. 6. Mr Rindfleish said that his accountant Mr Green prepared his tax returns. He simply passed on the documents which were received in relation to his employment. The payslips were kept at the Head Office of Narromine, not at Coonamble. When Mr Rindfleish resumed work with the business in 2012 he did not sign an employment contract. His salary was $2,000 lower than when he had left in 2011. Mr Rindfleish said that he was not concerned with the name of his employer, he just wanted to see that money arrived in the bank for the work he did. 7. Mr Rindfleish ultimately resigned from his employment by a letter dated 27 June 2016 sent to Mr Brown (DX 3). Mr Rindfleish said that he was "resigning from my role due to health reasons". Mr Rindfleish thanked Mr Brown for the opportunity to work at "Agrarian". This misspelling is another indication of the view of Mr Rindfleish – he was not particularly aware of or concerned about the formal name of his employer, he just wanted to see that he got paid. 8. Mr Rindfleish was cross-examined about a schedule of damages that said that his claim was for being off work for six months after the incident. He was taken to a SIRA Claim Detail Report which showed that he would return to work at the start of February 2016. Mr Rindfleish said that he did go back for two days but that he could not cope and went off work again. 9. Mr Rindfleish was cross-examined about requesting Dr Sorial in Coonamble to provide him with a certificate to say that he could go back to work. Mr Rindfleish had told Dr Yates on 11 April 2016 that he felt he could go back to regular duties. Dr Yates thought that he could not and declined to give him a certificate. He therefore approached Dr Sorial to get a certificate because he wanted to go back to work. Later evidence showed that the workers compensation insurer was so concerned by Mr Rindfleish returning to work too early, that it contacted Dr Sorial, who in effect, withdrew his approval for Mr Rindfleish to go back to work. I did remark to counsel for the defendant that in 46 years in the law, this was the first time I had seen an injured worker go to his GP to ask for a certificate to go back to work. 10. Mr Rindfleish was cross-examined about medico-legal reports obtained by his solicitor, for the workers compensation insurer, all of which referred to him working for Agrigrain Pty Ltd. I do not think that Mr Rindfleish said this to the doctors. It is more likely that this was said to the doctors by way of a letter of instruction from Slater & Gordon. 11. Mr Rindfleish was cross-examined about the assistance given to him by his partner after the incident. He said that he could not mow the lawn, deal with screaming children, bend with his head down or drive long distances. The children were put into childcare until October 2016. His partner did all the grocery shopping. If he had a headache, he would have to lie down and she would bring him a glass of water. They lived then on a property of 20 acres, so there was a lot of mowing. Two acres of the property was garden, which Mr Rindfleish used to maintain prior to the incident. Mr Rindfleish said that the family had now moved into town, so the work in the yard was much less onerous. Documents in Defendant's Court Book 1. Mr Rindfleish was cross-examined about documents in the defendant's Court Book (DX 4). In this section of the judgment, references to page numbers are references to page numbers in DX 4. 2. Mr Rindfleish was first cross-examined about a letter dated 25 July 2023 from Slater & Gordon to the defendant's solicitor (pp 63-64). Paragraphs 1, 2 and 3 of that letter said: "1. As you are no doubt aware the date of discoverability under s 50D of the Limitation Act requires not just the fact that the injury has occurred but also that the injury was caused by the fault of the Defendant and that it is sufficiently serious to justify the bringing of an action. 2. In the context of the circumstances of the injury and the immediacy of the need for significant medical care, the Plaintiff was aware that the injury had occurred on or around the date of injury. The Plaintiff was aware that the injuries were serious also on or around the date of injury. The Plaintiff was aware at that time that he had a claim against his employer, and received workers compensation payments as a result. 3. However the Plaintiff was not aware of a claim against the Defendant until the identity of the Defendant was ascertained. The identity of the proper defendant was not be ascertained by the Plaintiff until 11 November 2022 (as was noted in Rindfleish v Plum Grove Pty Ltd (2022) NSWDC (unreported) at [15] [17]). As such the Plaintiff was unaware that the injury was caused by the fault of the Defendant until at least that date." 1. Mr Rindfleish said that he had not seen this letter. He did tell Mr Redman initially that the defendant was his employer. Mr Rindfleish was aware that Mr Redman said that until he got the SafeWork documents on subpoena, Mr Redman had not identified the defendant as the party to sue. Mr Rindfleish said that he did not read the SafeWork documents, but he understood that Mr Redman did. 2. Mr Rindfleish was cross-examined about a letter dated 14 November 2018 which he received from Slater & Gordon (pp 72-75). That letter recorded that Mr Rindfleish had sought advice from Mr Redman "in relation to your potential entitlements arising from injuries sustained by you during the course of your employment with Agrigrain Pty Ltd on 18 January 2016". Under the heading "Advice" the letter gave advice about rights to claim compensation under the workers compensation legislation, being weekly benefits, treatment expenses, and lump sum benefits, depending on the level of injury. 3. Under the heading "Common Law Rights – Work Injury Damages – Negligence" the letter said the following (p 74): "In addition to the benefits available above, you may also make a Work Injury Damages Claim or Common Law claim if the injury was caused, or mainly caused, by the negligence of your employer and where your injuries are assessed as at or greater than 15% whole person impairment. 'Work Injury Damages' consists of compensation for past and future economic loss, as well as past and future loss of superannuation. It does not include a lump sum for pain and suffering. It does not include a payment for past or future 'out of pocket expenses' or past or future medical or treatment expenses. Once you resolve a Work Injury Damages claim all of your workers compensation rights will be brought to an end, in other words, settling or resolving your Work Injury Damages claim means you have no further claims against your employer for any form of compensation benefit. Thresholds to Work Injury Damages claims What must be established before you can assert your rights to Work Injury Damages is: • that you have a 15% or greater whole person impairment (WPI) as assessed under the WorkCover Guides for the Evaluation of Permanent Impairment • There is evidence of negligence • You have notified your intentions to pursue a Work Injury Damages claim within 3 years of the date of the injury (although failure to do so may not prevent you from pursuing the claim in some circumstances) These thresholds affect every potential Work Injury Damages claim no matter when your injury occurred." 1. Mr Rindfleish said that he did not ask his solicitors to pursue a work injury damages claim and that he did not know that he would have litigation rights. 2. Mr Rindfleish was cross-examined about a letter dated 3 December 2018 sent to him by Slater & Gordon (p 76). This asked him to return signed retainer documents to Slater & Gordon. He was asked whether before he signed these documents he satisfied himself that he was comfortable with the advice in the letter dated 14 November 2018. Mr Rindfleish replied that he had. 3. Mr Rindfleish said in cross-examination that he told Mr Redman that his specialist Dr Haddad had said that 90% of people had their sense of smell return within six months but some took up to two years. Dr Haddad had told Mr Rindfleish of one case of nine years before the sense of smell returned. Dr Haddad told Mr Rindfleish that if the sense of smell had not returned after 18 months, then normally it's not going to come back. 4. Mr Rindfleish was cross-examined about a written advice delivered by Mr Judd barrister dated 29 June 2021 (pp 365-367). Mr Judd recorded that on his instructions Mr Rindfleish was employed by Agrigrain Pty Ltd of Coonamble. The name of the employer was again misspelt as "Agragrain". The advice referred to the involvement of a company which Mr Judd recorded as "Plumbgrove Pty Ltd". The instructions given to Mr Judd were that in 2014 the premises and the auger were sold to this company. The instructions were that Plumbgrove was responsible for the care and maintenance of the auger and the grain pit. Mr Judd said: "There was still a relationship between Plumbgrove and Agragrain and it would appear that Plumbgrove was used to move grain on behalf of Agragrain." 1. Mr Judd then recorded the instructions he was given concerning the occurrence of the incident. Mr Judd advised that all of the documents should be obtained from "WorkCover". 2. The advice given by Mr Judd is summarised in pars 20, 21 and 22 (p 367) as follows: "20. It would appear that the involvement of Agragrain in the injury to Mr Rindfleish was minimal and at best, in my view, Agragrain would only have a non-delegable duty of care of something in the order of 10%. This is complicated by the fact that Mr Rindfleish is earning more now than he was whilst in the employ of Agragrain and, taking all matters into account, it seems to me that there is no point in pursuing Agragrain. 21. My instructing solicitors should be aware that in making a claim only against Plumbgrove, the whole of the workers compensation paid to Mr Rindfleish paid to Mr Rindfleish will need to be repaid; however, in the scheme of things, this does not seem to be a great deal. 22. Enclosed is a draft District Court Statement of Claim against Plumbgrove Pty Limited. I confirm my instructing solicitors are to attend to the preparation of the Statement of Particulars." 1. The draft Statement of Claim prepared by Mr Judd is to be found a pp 374-379. The defendant is Plum Grove Pty Ltd (Plum Grove). I infer that the version in the defendant's Court Book is one prepared by Slater & Gordon, after discovery of the correct name of that company, but based upon the draft prepared by Mr Judd. The allegation in the document is that Plum Grove operated a grain handling facility at Coonamble and that Mr Rindfleish was employed by "Agragrain Pty Ltd" as a facility manager. After pleading what happened in the incident, the draft Statement of Claim alleges that Plum Grove owed Mr Rindfleish a duty of care to provide a safe system of work at the Coonamble site. The allegations are pleaded pursuant to the CLA (see pars 19-23). The draft pleading is clearly one by which it is proposed that Mr Rindfleish sues a third party tortfeasor, who owed a duty of care while Mr Rindfleish was working at Coonamble when he was employed by another company. 2. It turns out that the name of the employer was wrong and it turns out that the name of the party responsible for the safety of Coonamble and the operations conducted there was not Plum Grove. Be that as it may, the form of the draft Statement of Claim makes it plain that Mr Rindfleish was employed by a company at the Coonamble site, but that a third party tortfeasor owed him a duty of care and breached that duty which resulted in his injuries. This is the same format as the Amended Statement of Claim upon which Mr Rindfleish brings these proceedings, with the correction of names as follows: 1. The Amended Statement of Claim pleads that the employer of Mr Rindfleish was Agrigrain (Coonamble) Pty Ltd. 2. The Amended Statement of Claim pleads that Agrigrain Pty Ltd was the defendant responsible for safety on the site, which breached a duty of care to Mr Rindfleish. 1. Mr Rindfleish was cross-examined about a Statement of Particulars filed on 16 May 2022 (pp 392-398). That document stated (p 396, par 9) that at the time of the accident the plaintiff was employed by Agrigrain (Coonamble) Pty Ltd as a supervisor. There was thus an inconsistency between the original form of the Statement of Claim and the particulars which were filed in support of it. That is an error on the part of the plaintiff's solicitor, and nothing to do with the plaintiff himself. A demonstration that that is so is contained in the letter dated 20 May 2022 from Slater & Gordon to an expert witness (pp 405-410). The expert was informed that the plaintiff was employed by "Agrigrain Pty Ltd". That is clearly an assumption made by Slater & Gordon, and I do not attribute it to the plaintiff, as I accept his evidence that he was unconcerned about the name of his employer and was unsure about the corporate structure of the business. All he said was that he was employed by "Agrigrain", or as he spelt it, "Agrarian". 2. The plaintiff was cross-examined about the Statement of Claim which was actually filed to commence these proceedings on 11 March 2022 (pp 411-420). The filed Statement of Claim sued "Plum Grove Pty Ltd" as the defendant and pleaded that Mr Rindfleish was employed by "Agragrain Pty Ltd" as a facility manager. Mr Rindfleish said that he was not sure how the ownership of the business worked and he was not sure about the involvement of Plum Grove. 3. Mr Judd retired and the Brief was passed to Ms Kate Lloyd of counsel. Mr Rindfleish was cross-examined about an email sent by Mr Redman to Ms Lloyd on 5 June 2022 (p 518). The email commences by talking about delay, which was an issue raised by the defendant. Mr Redman said: "The delay is due to the client providing instructions to Ivan and I when he was briefed that the other person he was working with and the site he was working at was employed by the Defendant and not the employer. Until that time, I was of the view that it was all the employer and no third party." 1. In relation to this statement by Mr Redman, Mr Rindfleish said that he initially provided advice that the other workers were employed by Plum Grove. By this he meant when he was asked about that issue by Mr Judd. 2. At the very least, this passage in the email demonstrates the uncertainty, even in the mind of Mr Redman, about the correct name of the employer and the identification of the appropriate party to be sued. 3. Mr Rindfleish was cross-examined about a request for particulars which came from the defendant's solicitors. The document was sent to Mr Rindfleish by Slater & Gordon, and Mr Rindfleish inserted his answers in relation to the requests (pp 561-563). 4. Mr Redman sent Mr Rindfleish's answers to the request for particulars to Ms Lloyd by an email dated 8 June 2022 (p 560). He said to Ms Lloyd: "Please find attached the draft response to the particulars provide by the client. I have grave concerns for this matter now given his response to these particulars. Can we please discuss further." 1. Mr Rindfleish was then cross-examined about a file note written by Mr Redman on 30 June 2022, recording a conversation between Mr Redman and Mr Rindfleish (pp 596-597). Mr Redman said: "I spoke with Ian today by phone in relation to his claims. I advised him that we have done further investigations in respect of the structure and relationship between Plum Grove and Agrigrain. I advised him that I had also written to the solicitors for Plum Grove asking for their involvement. It appears that they did own a significant stake in Agrigrain but had no influence on the day to day operations at the site. I explained to him that there is nothing to prove that Plum Grove was in any way involved in respect of the accident on his updated instructions and the on the advice received from the solicitors for the Defendant. I advised him that Counsel and I believe that the claim should not be pursued any further as if he is unsuccessful, he will be obligated to pay Plum Grove's legal costs. I advised him that we cannot envisage how a claim against Plum Grove could be successful given the circumstances. I explained to him that even though they own 90% of the Agrigrain business, there is no involvement in the day to day operation and in particular, anything to do with the date in which he was injured and how the injury occurred. I explained to him that the causal nexus would not be able to be proven against Plum Grove. I advised him that we recommend discontinuing the claim against Plum Grove in the District Court. He provided further instructions to do so. I advised him to respond to my email and he stated that he would this afternoon. I explained to him that we may look at a work injury damages claim against Agrigrain but explained that it would only entitle him to loss of wages and superannuation past and future. I advised him that we need to confirm that it would be worthwhile pursuing such claim." 1. I pause to note that at this point, 30 June 2022, Mr Redman doubted that the proceedings brought against Plum Grove could succeed, as there was nothing to indicate that they were involved in respect of the accident, based upon the answers which Mr Rindfleish provided to the particulars. The advice was to terminate the proceedings against Plum Grove. It is to be noted that at that point in the file note, there was no indication that either Mr Redman or Mr Rindfleish knew that Agrigrain Pty Ltd (the present defendant), was the party responsible for the site. The part of the file note reproduced above concludes by speaking of consideration of a work injury damages claim "against Agrigrain", but there is no indication there that Mr Redman gave consideration to there being two Agrigrain companies. I have recorded these matters, as they are relevant both to the cross-examination of Mr Redman (dealt with below) and the Limitation Act issue. 2. Mr Rindfleish was cross-examined about a letter dated 14 July 2022 sent by Slater & Gordon to the solicitors for the defendant (pp 621-622). This letter was sent at a time when the proceedings against Plum Grove were still on foot. Mr Redman said in his letter that "the plaintiff instructed that he was employed by Agrigrain and not the Defendant (ie Plum Grove Pty Ltd), and it would be reasonable to be of the view that the Defendant was partially responsible for the accident as it occurred". 3. Mr Redman also said in the letter: "We assert that it is still unclear as to the corporate structure and relationship surrounding the Defendant and Agrigrain. Whilst the Defendant owned 90% of Agrigrain at the time of the accident, their involvement in any of the operations of Agrigrain remain unclear." 1. I pause at this point to note that as at 14 July 2022, this letter indicates that Mr Redman was not aware which corporate entity was responsible for safety at the Coonamble site, and indeed his letter gives no indication of the knowledge of the two Agrigrain companies, or the relationship between any entities involved with the Agrigrain business, including Plum Grove. 2. Mr Rindfleish was cross-examined about an email from Mr Redman to Ms Lloyd dated 27 July 2022 (pp 721-722). Mr Redman instructed Ms Lloyd that Agrigrain (Coonamble) Pty Ltd was the company which had paid wages to Mr Rindfleish and that that company owned the property at Coonamble. He said: "On the basis of all of the above, it does not appear that Plum Grove had any ownership at the site at which the client was injured. We could look at pursuing a work injury damages claim but note that the client did return to work not long after the accident. Perhaps a buffer type claim." 1. I pause to note that at this point, 27 July 2022, Mr Redman appeared to have no understanding that the defendant Agrigrain Pty Ltd had some responsibility for safety at the Coonamble site. I also pause to remark that if Mr Redman did not understand this, then Mr Rindfleish could not be expected to have understood it. 2. On Day 4 of the case Mr Rindfleish was cross-examined about the instructions he had given to Slater & Gordon. He said that he assumed that the people giving him instructions at the Coonamble site were Agrigrain Pty Ltd people. He said that "Agrigrain" was the name on the front gate. He told the solicitor simply that he worked for Agrigrain. He said that he was not sure of the name of his employer when Plum Grove purchased shares in Agrigrain in 2014. He never told his solicitor that Plum Grove was now the entity giving instructions, but he had said in mid-2021 to his solicitor that Plum Grove owned the auger. He did tell his solicitors that the premises was sold in 2014 to Plum Grove and on his understanding Plum Grove owned the site. He agreed that in June 2021 he told Mr Judd that the premises was sold to Plum Grove in 2014 and on his understanding Plum Grove owned the site. Mr Rindfleish said that he assumed that because Plum Grove owned the business, they must have bought the site. 3. Mr Rindfleish acknowledged that no-one from Plum Grove ever told him what to do at the site. Their representatives came to the site only a few times. When Mr Young from Plum Grove came to the site, he was wearing a Plum Grove shirt. 4. Mr Rindfleish acknowledged that in June 2022 he was advised by Slater & Gordon that there was no foundation for a claim against Plum Grove. Re-Examination 1. In re-examination Mr Rindfleish was asked who he thought his employer was. His answer was that Agrigrain was owned by Plum Grove. Credibility of Mr Rindfleish 1. I formed a favourable impression of Mr Rindfleish as a witness. As recited above, he was cross-examined for slightly more than two days. He did not lose his temper or lose his focus in that time. I gained the impression that all of the answers he gave were frank, direct and honest. Mr Rindfleish impressed as a laconic and stoic character who, if anything, understated the effect of his injuries. When Mr Rindfleish was still lying on the ground beside the ladder, he could feel his nose flapping on his cheek underneath his eye. No doubt in shock, he said to his workmate: "I probably wouldn't be going back modelling" (Tcpt 67/33). 2. Before dealing with the evidence given by Ms Warnock and by Mr Redman, I pause at this point in the judgment to deal with the submission made by the defendant that this is a work injury damages claim, and thus it should be dismissed because Mr Rindfleish has not complied with any of the procedural requirements of the workers compensation legislation. As previously recited, if it is a work injury damages claim, then the plaintiff is "out of court" and the claim must be dismissed. 3. I will deal later with findings regarding what Mr Rindfleish knew or did not know at certain important points in time, which are relevant to the Limitation Act issue. Is this a Work Injury Damages Claim? Who was the Employer? 1. Putting aside the extended definition of employer in the workers compensation legislation (which is dealt with below), all of the evidence establishes the fact that the employer of Mr Rindfleish at the time of the incident was Agrigrain (Coonamble) Pty Ltd and not Agrigrain Pty Ltd. The oral submissions made on Day 7 of the case drew attention to a number of High Court authorities to the effect that control, over the manner in the way workers perform tasks, usually points to an employment relationship. However, the cases cited concerned the distinction between an employee and an independent contractor. Where the contest is between which of two companies was the employer, the factor of control is a neutral one. 2. Counsel for the defendant submitted that the defendant was the employer because it had power to reprimand the plaintiff, it had power to direct the plaintiff which work to do, and power to direct the plaintiff how to do the work. I accept all of those submissions as matters of fact. None of them mean that the defendant was the employer of the plaintiff. If the ability to do these things made a company the employer, then there would never be a successful claim in the "labour hire cases" against a third party tortfeasor who had control over safety on a worksite. 3. I take into account the following matters in making a finding of fact that the employer of Mr Rindfleish was Agrigrain (Coonamble) Pty Ltd: 1. Paragraph 4 of the Amended Statement of Claim pleads that as at 18 January 2016 the plaintiff was employed by Agrigrain (Coonamble) Pty Ltd. Paragraph 4(a) of the Defence to the Amended Statement of Claim pleads that the defendant admits that the plaintiff was employed by Agrigrain (Coonamble) Pty Ltd. 2. At the commencement of the hearing the defendant made an unsuccessful application to amend the Defence to add another 53 paragraphs and 16 pages. However, there was no application to amend par 4(a) of the Defence, being the admission that Agrigrain (Coonamble) Pty Ltd was the employer of Mr Rindfleish at the date of the incident. 3. Counsel for the defendant submitted that pleadings are not evidence. That is so, but admissions in pleadings are admissions. No application was made for leave to withdraw that admission. 4. On 29 September 2023 Mr Turnbull, solicitor for the defendant, swore an affidavit which became DX 1 in the proceedings. Mr Turnbull said that he was the solicitor for Agrigrain Pty Ltd, the defendant to the proceedings. Under the heading "General Background to Parties and Claim" Mr Turnbull swore in par 3 of the affidavit that Mr Rindfleish was on 18 January 2016 "an employee and site supervisor of Agrigrain (Coonamble) Pty Ltd". At one stage during the oral submissions of counsel for the defendant I drew attention to the admission in the pleading and to the admission made in Mr Turnbull's affidavit about the identity of the employer of Mr Rindfleish. Counsel's response was to ask, in effect, rhetorically "How would he know?". My rhetorical response to that is: "I don't know, but presumably by some means that enable an officer of the court to swear on oath that the employer of Mr Rindfleish as at 18 January 2016 was Agrigrain (Coonamble) Pty Ltd". 5. At this point, the cognitive dissonance raised by the submission that Agrigrain Pty Ltd was the employer is almost deafening. However, there are other matters that point towards identity of the true employer. 6. Agrigrain (Coonamble) Pty Ltd paid Mr Rindfleish his wages. 7. Agrigrain (Coonamble) Pty Ltd withheld tax from the wages it paid to Mr Rindfleish, remitted those amounts to the Australian Taxation Office, and issued a PAYG Summary recording that it had withheld those payments of tax. 8. Agrigrain (Coonamble) Pty Ltd paid superannuation on behalf of Mr Rindfleish. 9. Agrigrain (Coonamble) Pty Ltd took out a workers compensation policy which responded to the workers compensation claim in relation to Mr Rindfleish and which paid him weekly benefits and covered his medical expenses. After some time, the workers compensation insurer for Agrigrain (Coonamble) Pty Ltd also paid a lump sum payment in relation to a WPI claim. 10. Agrigrain (Coonamble) Pty Ltd gave Mr Rindfleish leave entitlements. This emerged from cross-examination about the amounts paid to Mr Rindfleish after 30 June 2016. The amount looked high for the short period of employment after 30 June. Mr Rindfleish explained that part of the payment made to him by Agrigrain (Coonamble) Pty Ltd related to accrued leave. 11. No witness was called by the defendant to say that Mr Rindfleish was really employed by the defendant. The response of counsel for the defendant to this was to say that Agrigrain Pty Ltd and its business had been sold some years ago, and it could well be that no person was available to the defendant's solicitors to give such evidence. If that were so, evidence of their unavailability could have been called. It was not. I draw the conventional Jones v Dunkel inference in relation to the failure to call any evidence on the issue of employment. 1. The submission of counsel for the defendant was that the documents produced on subpoena by SafeWork showed that the employer of the plaintiff was the defendant. Far from this being the case, some of the documents produced by SafeWork suggested that other people who worked there, like Mr Rindfleish, were unsure which company employed them. Mr Bakac was interviewed by a SafeWork inspector. On the topic of employment, he gave the following answers (PX 4, pp 977-978): "Q28 Who were you employed by on the 18th of the 1st, 2016? A Agrigrain. Narromine. Q29 And that is a separate entity to Agrigrain (Coonamble)? A Not sure. I'm based in Narromine so I just say Agrigrain Narromine. Q30 What was your position with Agrigrain (Coonamble) on that --- A Maintenance. Q31 Maintenance. Okay. Maintenance foreman or --- A Maintenance boss. Q32 Maintenance boss. Okay. What work did you carry out for Agrigrain (Coonamble) Pty Limited? A What work? Q33 Mm. A Mostly whatever's got to be fixed. Repairs to augers, silos." 1. Mr Halbisch said in his interview (PX 4, p 1025): "Q37 Are they the same entity as in – the Agrigrain Narromine and the Coonamble – Agrigrain Coonamble Pty Ltd, they are the same entity as such? A I don't think so. As far as I know they operate under different – but yeah, I can't confirm that because I don't know." 1. Mr Halbisch also said (PX 4, p 1028): "Q62 So Jeremy has control over this site, financial control over this site? Agrigrain Narromine? A He would have knowledge of it, yeah. He'd have a fair bit of control. And again, I'm not 100 percent sure of how it all fits into the overall structure of - all I know is that Agrigrain Coonamble is a separate business to Agrigrain Narromine. How that links together, I don't see the financial side, I couldn't tell you, and I don't know how the control that, so that's probably a question for Jeremy. Q63 But Jeremy is General Manager of both sites? A Yep. Q64 So he would have financial control? A Yeah." 1. Mr Jeremy Brown was interview by a SafeWork inspector. He confirmed that Agrigrain (Coonamble) Pty Ltd paid the wages to Mr Rindfleish and that that entity employed Mr Rindfleish on the day of the incident (PX 5, p 1068). However even Mr Brown, the general manager, was less than certain about the identity of the employer of Mr Rindfleish. He said in his interview: Q48 Thank you. What is the name of the entity that employed Ian Rindfleish on the 18th of the 1st 2016? A I would have to check but at that stage it would have still been under Vincenta Pty, Agrigrain. Q49 Agrigrain? A Agrigrain could have been a partnership. So Ian was employed prior to Plumgrove. Q50 O.K. A Which wouldn't be on that organisational chart I wouldn't have thought. I can give you those, that exact stuff if you want." 1. Based upon the above findings of fact, all of which are established by the evidence and indeed are uncontested, I find as a fact that Agrigrain (Coonamble) Pty Ltd was the employer of Mr Rindfleish as at 18 January 2016. 2. Counsel for the defendant also submitted that the claim was pleaded as a work injury damages claim. Try as I might, I cannot read the pleading in that way. It is clearly a pleading that a person employed by company A has been injured by a breach of duty of care committed by company B. The first form of the pleading (being the original Statement of Claim as drafted by Mr Judd) was in precisely the same form. This has never been a work injury damages claim on the pleadings and it has never been a work injury damages claim as a matter of fact. That does leave the defendant with its argument arising from the extended definition of employer contained in the workers compensation legislation. Extended Definition of Employer 1. Part 5 of the Workers Compensation Act 1987 (NSW) (WCA) deals with "Common law remedies". Part 5 deals with what are commonly called "work injury damages" claims, which are common law claims based in negligence against an employer. Section 150 of the WCA provides as follows: "150 Reference to worker's employer includes fellow workers etc A reference in this Part to a worker's employer includes a reference to – (a) a person who is vicariously liable for the acts of the employer, and (b) a person for whose acts the employer is vicariously liable." 1. The submission of the defendant as to why this extended definition applies in the present case, did not state whether par (a) or par (b) is the relevant part of s 150 of the WCA. It cannot be par (b), as these words are clearly designed to make an employer vicariously liable for any negligence of its employees. As to whether the defendant can be vicariously liable for any negligence of Agrigrain (Coonamble) Pty Ltd, the written submission of the defendant was as follows: "66. As to the extended definition of a "worker's employer" in s 150 of the WCA and s 250(2) of the WIM Act, it is relevant to note that an employer owes its employees a non-delegable duty of care; it has a duty to take reasonable care to avoid exposing the employee to unnecessary risks of injury. If an employer breaches that duty by delegating its care, control, supervision, management and maintenance of the employee's work and work site to a different company, and that different company breaches the duty to take reasonable care to avoid exposing the employee to unnecessary risks of injury by failing to maintain a safe workplace, and the employee suffers damage as a result, the legal employer would, of course, be vicariously liable for the tortious breach of that company and, similarly, if that company took responsibility for the care, control, supervision, management and maintenance of the plaintiff's work and work site, but, notwithstanding that assumption of responsibility, the worker suffered damage in the course and scope of his/her employment as a result of a tortious act of the legal employer, the company would, on first principles, be vicariously liable for the tortious acts of the employer." 1. Putting aside the obvious non-sequitur in the submission, that an employer who owes a non-delegable duty of care can delegate that duty to a different company, there is no reasoning behind the proposition in the submission that "the legal employer would, of course, be vicariously liable for the tortious breach of that company". [Emphasis added] 2. In Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 the High Court considered the question of where responsibility in negligence lay if an employer had engaged an independent contractor to perform part of the work. The court emphasised that the employer had a non-delegable duty of care to an employee and could thus be liable for the consequences of the negligence of an independent contractor. However, such liability was not vicarious liability, but was a breach of the employer's own non-delegable duty to provide a safe system of work. 3. In par 68 of the same written submissions, the defendant submitted that if Agrigrain (Coonamble) Pty Ltd had a non-delegable duty of care to the plaintiff as his employer, it breached that duty "by allowing Agrigrain to take full control of the plaintiff's work and worksite". This submission is just not supported on the evidence. The Coonamble site was run by Mr Rindfleish as the facility manager. He had wide powers to control the day-to-day operations of the Coonamble site. When it came to financial matters, or to the employment of full-time personnel, he had to seek permission to do that from Head Office in Narromine ie from the defendant. The documents produced to SafeWork show that Agrigrain (Coonamble) Pty Ltd is a 100% fully owned subsidiary of the defendant. This was a matter pleaded in par 4A of the Amended Statement of Claim and admitted by par 5 of the Defence to the Amended Statement of Claim. The evidence certainly shows that the defendant had power to direct and control certain operations of the Coonamble site, including the important matters of employment of full-time staff, the expenditure of money, and the safety of the site. That is a long way short of the submission that Agrigrain (Coonamble) Pty Ltd allowed the defendant "to take full control of the plaintiff's work and worksite". 4. The evidence does not establish that Agrigrain Pty Ltd was vicariously liable for the acts of the employer Agrigrain (Coonamble) Pty Ltd. No authority was cited for that proposition, and in any event, the evidence does not establish a basis for such a finding. 5. I reject the submission that the defendant was the employer of Mr Rindfleish, by reference to the extended definition of employer contained in s 150 of the WCA. That means that I again reject the submission that this is a work injury damages claim. 6. The defendant sought to have this determined as a preliminary matter, by Notice of Motion. That Notice of Motion was stood over for determination by the trial judge. I will dismiss that part of the Notice of Motion with costs. 7. At this point in the judgment I will resume my summary of the evidence. Evidence of Samantha Warnock 1. Ms Warnock gave evidence by AVL from the tea room at the premises of her employer, a hardware store in Coonamble. The connection was very good. 2. Ms Warnock has been the partner of Mr Rindfleish for the last 17 years. They have two children, born in February 2013 and December 2014. She presently works at the hardware store. Before that she worked at a supermarket. In the past she has done agricultural work including tractor driving, cattle work, and grain inspecting. 3. At the time of the incident on 18 January 2016 the couple were living on acreage. It was a large home with a yard and a pool. The premises were rented. Ms Warnock did all of the inside duties and Mr Rindfleish did all of the outside duties. She gave evidence that Mr Rindfleish spent about an hour a day maintaining the pool. He spent one full day on the weekend doing the mowing, the whipper snippering and working in the yard. Ms Warnock did most of the work looking after the children, but when Mr Rindfleish came home from work, he was involved with the children. He returned home each day between 5.00pm and 7.00pm, depending on whether it was harvest time. He left home for work at about 7.00am each morning. 4. When Mr Rindfleish came home each afternoon, they did family things outside. There were swings and a poddy calf that the children looked after. Mr Rindfleish would have the children outside with him and Ms Warnock would go inside and cook dinner. 5. On 18 January 2016 Ms Warnock became aware of the accident about one hour after it happened. She drove into town. She took the children with her and went straight to Coonamble Hospital. When Mr Rindfleish was discharged from Westmead Hospital on 21 January 2016 he came home. He was very sore. He would lie down. Mr Rindfleish took a lot of tablets for pain relief, slept and didn't move from the lounge or the bed. Between 21 January 2016 and 15 February 2016 Ms Warnock did all of the cooking and the housework. She was also trying to help with the outside of the property. Mr Rindfleish could toilet and shower himself. He used to say to her that every step he took his head was pounding. He would lie on the lounge with a pillow wrapped around his head. 6. On 15 February 2016 Mr Rindfleish had further surgery. The scars on his face were revised. Three months after the accident, Mr Rindfleish started snoring loudly. He would wake up and think that he was choking. He would have to take five minutes to recover and he said that he couldn't get his tongue out of his throat. He now sleeps on his side but his snoring is still quite loud. 7. After 15 February 2016 Mr Rindfleish still suffered from severe headaches. He was taking Endone and Lyrica. On 24 February 2016 he went to Coonamble Hospital with pneumonia. He was not well and not breathing properly. He had a few days in hospital. Mr Rindfleish asked Ms Warnock to ring his father, as he feared that he would not come out of hospital alive. He had three weeks in Coonamble Hospital. 8. When Mr Rindfleish came out of hospital he was not well for a couple of weeks. He spent more time on the lounge. Ms Warnock had a memory that in total he spent six months lying on the lounge. He did return to work briefly in March 2016. Ms Warnock had the view that he was completely unfit for work but he insisted on going. He still had headaches and she saw him take a lot of pain relief, wrap a pillow around his head and ask her to take the children outside because of the noise. 9. Ms Warnock observed that Mr Rindfleish's mental health was bad. He was getting stressed very quickly. Even when he was home he was getting phone calls from work. Ms Warnock asked him to stay home, but he was getting so many phone calls at home that Mr Rindfleish said that he may as well be back at work. After 10 days at work he came home. He had continuing headaches and resumed lying on the lounge, only getting up to go to the toilet and the shower. He could not deal with the children and the noise they made. 10. In June 2016 Mr Rindfleish returned to work but got more headaches. Ms Warnock saw him take more pain relief and he was lying down when he came home. He was taking two Panadol and two Nurofen every four hours, on top of prescribed pain medication. He was still getting phone calls at all hours of the day as "everything went through Ian". The phone calls continued to come until he stopped work at the end of June 2016. 11. Two weeks after he ceased work, Mr Rindfleish was still lying on the lounge, but could get up to do small things like feed himself or make a sandwich. At the end of June 2016 he resigned. He said that there was too much pressure and too many headaches. He could not continue to work at the Coonamble site. Mr Rindfleish could still not do any work outside at the home. By October 2016 Mr Rindfleish was starting to tolerate his headaches. Later in 2016 he started mowing and doing heavier duties at home. When he did these duties, or worked on the pool, he would come inside and lie down with a headache. 12. Up until November 2016 Ms Warnock was doing the whipper snippering and the mowing. She did stop the mowing after a couple of weeks and by December Mr Rindfleish had started doing the mowing. Because Mr Rindfleish had only been receiving workers compensation payments, which was not as much as his wage at Coonamble, Ms Warnock obtained work driving tractors. The children were put in childcare at about the end of February 2016. When Ms Warnock came home from work, she would take the children outside as Mr Rindfleish could not stand their noise. She tried to keep the children quiet when they were inside. 13. By about December 2016 the headaches were better. Mr Rindfleish was not taking as many tablets and not lying on the lounge after work. Nowadays Mr Rindfleish gets a headache if there is a lot of noise. He still takes Panadol and Nurofen. He complains of having lost his sense of smell and taste. 14. In cross-examination Ms Warnock said that Mr Rindfleish had gone back to work for a couple of days in February 2016. He went back to work in June but by the end of June he ceased work. When Mr Rindfleish resigned, Ms Warnock was aware that he told Mr Halbisch that Ms Warnock was suffering from health issues. That was correct, as Ms Warnock was then suffering from seizures. These started after the second baby. She used to get about half an hour's notice of a seizure coming on. She had to be taken to hospital when required. Ms Warnock said that this was not the reason for Mr Rindfleish resigning. She said that she was at him to take leave. Ms Warnock said that 2016 was a tough year. Her mother came to help with the children. The children were put in day care for five days a week, so that Ms Warnock could go and earn money to pay the bills. 15. In relation to outside work, Ms Warnock said that about an hour each day was spent cleaning the pool and a full day on the weekend was spent doing the whipper snippering and the mowing. By October 2016 Mr Rindfleish had resumed doing all of the work in relation to care for the pool. Credibility of Ms Warnock 1. Ms Warnock was a particularly straightforward and impressive witness. I accept everything she said. She may have had some months wrong about return to work, but she was giving evidence from her memory and not from documents. Her evidence corroborated that of Mr Rindfleish, particularly in relation to the level of disabilities he suffered through 2016 and the inability to perform domestic work for most of that year. I accept her evidence about the ongoing disabilities suffered by Mr Rindfleish. Like Mr Rindfleish, Ms Warnock is a particularly hardworking person. In 2016 she was caring for a sick partner, minding two small children, trying to maintain a 20-acre property, and driving tractors to bring in enough money to feed the family. Evidence of Joel Redman 1. As previously recited, Mr Redman is a solicitor with Slater & Gordon, and he has advised Mr Rindfleish since 2018. The evidence in-chief of Mr Redman is contained in two affidavits. His evidence is relevant to the Limitation Act issue. 2. The first affidavit of Mr Redman was affirmed on 11 November 2022 (PX 8). Mr Judd barrister had advised Mr Redman to obtain the documents from the SafeWork investigation. Mr Redman made an application under GIPA in August 2022 which resulted in the production of limited and redacted documents. Those documents were tendered in evidence by counsel for the plaintiff. They would have told any solicitor little or nothing. 3. To further investigate which entities were involved in the incident Mr Redman issued a subpoena to SafeWork NSW. This produced voluminous investigation documents. One of those was a flow chart setting out the ownership of relevant entities. This was reproduced as Annexure "B" to the affidavit. The flow chart showed that Plum Grove Pty Ltd owned 90% of the shares in Agrigrain Pty Ltd. In turn, Agrigrain Pty Ltd owned 100% of the shares in Agrigrain (Coonamble) Pty Ltd. This document was the source of the allegations to the same effect in the Amended Statement of Claim. Those matters were admitted by the defendant. 4. In par 7 of the affidavit Mr Redman referred to SafeWork interviews with Mr Brown, Mr Halbisch, Mr Bakac and Mr Paul Bayliss. In par 8 of the affidavit Mr Redman summarised his understanding of that material as follows: "8 The records of such interviews reveal the following: a. Steven Bakac and Paul Bayliss (maintenance employees) were unclear about which corporate entity employed them, but suggested it was an entity they designated as Agrigrain (Narromine); b. Steven Bakac and Paul Bayliss were referred to as the Narromine maintenance team; c. The Narromine maintenance team would attend the Coonamble site to perform maintenance; d. Maintenance issues at Coonamble were to be discussed with the Narromine maintenance team, who frequented the Coonamble site once or twice a week; e. The auger in question was built by Steven Bakac at Narromine and installed by him at the Coonamble site; f. The Narromine maintenance crew would conduct routine maintenance on the auger in question; g. There was no risk assessment or safe working procedure for that maintenance task; h. Steve Bakac spoke to the Plaintiff over the telephone while the Plaintiff was carrying out the maintenance task that led to his injuries and gave the Plaintiff direction, instruction and advice as to how to carry out that task; i. Jeremy Brown was employed by Agrigrain Pty Ltd as a General Manager and indicated he had authority over the staff and operations at Narromine and Coonamble; and j. Wayne Halbisch was the Operations Manager of both the Narromine and Coonamble sites, and was the Plaintiff's supervisor." 1. In his affidavit Mr Redman said that on 11 November 2022 he performed a company search of Agrigrain Pty Ltd. I infer that this is the first time he obtained a company search in the name of the defendant. 2. On 11 November 2022 Mr Redman caused a proposed Amended Statement of Claim to be drafted, changing the name of the defendant from Plum Grove Pty Ltd to Agrigrain Pty Ltd, and making other amendments to the pleading. Included in these amendments was a change of the allegation of employment from Agrigrain Pty Ltd to Agrigrain (Coonamble) Pty Ltd. 3. The second affidavit of Mr Redman was affirmed on 11 October 2023 (PX 1). He referred to a hearing which took place before Judge Andronos in relation to Motions filed by both parties. The plaintiff's Motion was to seek leave to amend the Statement of Claim. Part of the amendments were to remove Plum Grove Pty Ltd as the defendant and to add and substitute Agrigrain Pty Ltd as the defendant. Mr Redman annexed a copy of the unreported decision of Judge Andronos to his affidavit. His Honour granted leave to the plaintiff to amend the Statement of Claim. Pursuant to that leave, the Amended Statement of Claim which is the subject of this hearing was filed. 4. Mr Redman also annexed to his affidavit of 11 October 2023 correspondence between Slater & Gordon and the solicitors for the defendant. Reference has already been made above to the letter dated 25 July 2023 from Slater & Gordon, upon which Mr Rindfleish was cross-examined. I set out again pars 1, 2 and 3 from that letter: "1. As you are no doubt aware the date of discoverability under s 50D of the Limitation Act requires not just the fact that the injury has occurred but also that the injury was caused by the fault of the Defendant and that it is sufficiently serious to justify the bringing of an action. 2. In the context of the circumstances of the injury and the immediacy of the need for significant medical care, the Plaintiff was aware that the injury had occurred on or around the date of injury. The Plaintiff was aware that the injuries were serious also on or around the date of injury. The Plaintiff was aware at that time that he had a claim against his employer, and received workers compensation payments as a result. 3. However the Plaintiff was not aware of a claim against the Defendant until the identity of the Defendant was ascertained. The identity of the proper defendant was not be ascertained by the Plaintiff until 11 November 2022 (as was noted in Rindfleish v Plum Grove Pty Ltd (2022) NSWDC (unreported) at [15] [17]). As such the Plaintiff was unaware that the injury was caused by the fault of the Defendant until at least that date." Cross-Examination 1. Mr Redman said that he is an accredited personal injury specialist and has been so accredited since 2018. He commenced work as a solicitor with Slater & Gordon in 2012 and has practised since then in personal injury law. Mr Redman confirmed that he issued the subpoena to SafeWork in September or October 2022. He was first instructed by the plaintiff in October 2018. 2. Mr Redman accepted that a solicitor had a duty of care to advise a litigation client of risks in the case, and to advise of any impending limitation period. Mr Redman confirmed that he had written correspondence to indicate that there was no issue in relation to s 50D(1)(a) and (c) of the Limitation Act. 3. Mr Redman said that it was not until November 2022 that he first ascertained that the plaintiff had a claim against Agrigrain Pty Ltd, in the form put forward in the Amended Statement of Claim. The SafeWork documents were received on 11 November 2022 and he read them. 4. As previously recited, Mr Redman had affirmed in par 8 of his affidavit PX 8 the matters revealed by his reading of the documents. He was cross-examined by being asked to look at all of the SafeWork documents and indicate which questions and answers given by which interviewees led him to the view expressed in that affidavit and in his correspondence. This required Mr Redman to read 1,265 pages of documents produced on subpoena by SafeWork. The matter was adjourned for 40 minutes on Day 4 and Mr Redman said that he had had enough time to do that exercise. 5. For the balance of Day 5 of the case Mr Redman gave evidence about those parts of the interviews conducted by SafeWork which led him to the view expressed in his affidavit. I will not repeat or review all of the questions and answers in the various interviews identified by Mr Redman. He did say, more than once, that he was identifying the important questions and answers, but it was the entirely of the documents that led him to give his advice to amend the pleadings to make a claim in negligence against the defendant. I accept this evidence. 6. The interviews were conducted in a conversational style with interviewers and interviewees often talking across each other. Sentences remained unfinished and unfinished thoughts were not pursued by the interviewers. The interviews do not record focussed and complete questions and answers such as one would (hopefully) hear during the running of a trial in court. I accept the evidence of Mr Redman who said that it was the totality of the SafeWork documents that led him to form a view about the plaintiff having a cause of action against the defendant. 7. In cross-examination Mr Redman did say that the corporate structure document, which he annexed to his affidavit (PX 2, p 24) was the first document which he had seen which disclosed the actual corporate structure of the Agrigrain entities. 8. Mr Redman was cross-examined about the file note dated 23 October 2018, which has been referred to and summarised above. He said that he wrote his letter of 14 November 2018 (also dealt with above) relying on information given in that first conference. He disputed the suggestion that his assertion that he did not have information to advise the plaintiff to sue the defendant, until the SafeWork documents were produced in November 2022, was untrue. He disputed the suggestion that all he had done was create a disingenuous excuse for seeking to amend the Statement of Claim within seven years after the incident. 9. It is the duty of counsel to put difficult propositions to any witness, including officers of the court. There was absolutely nothing put to Mr Redman to establish the bare propositions, recited above, that his evidence was "untrue" or a disingenuous creation. I totally reject these notions, unsupported as they were by any follow up questions or any evidence to support such suggestions. 10. In relation to the application for funding of the workers compensation WPI claim, where Mr Redman stated that the employer was Agrigrain Pty Ltd, he said that he assumed that Mr Rindfleish was employed by Agrigrain Pty Ltd, based upon instructions. 11. Mr Redman said that after receiving the advice of Mr Judd, who suggested that he obtain the SafeWork documents, he made his GIPA application. That did not elucidate matters. Mr Redman was taken to his letter to the expert dated 20 May 2022 (referred to above) and said that early on he assumed that Agrigrain Pty Ltd was the employer and he continued operating on that assumption until further documents came along, being the SafeWork documents. 12. Mr Redman acknowledged that Mr Judd provided a draft Statement of Claim in June 2021, but the Statement of Claim in these proceedings, against Plum Grove Pty Ltd, was not filed until March 2022. Mr Redman could provide no explanation for this delay. 13. Mr Redman was cross-examined as to whether he had a concern about a limitation issue when Mr Judd provided advice in June 2021 concerning common law proceedings. Mr Redman said he could not recall his level of concern at that time. He could not explain the delay between June 2021 and March 2022, saying that this was a "mistake by me". Mr Redman said that he did not discuss the matter with Mr Rindfleish in that interval, and the plaintiff did not contact him in that time. 14. Mr Redman acknowledged that by June 2022, when he was writing to Ms Lloyd, he had doubts about whether the plaintiff had a cause of action against Plum Grove Pty Ltd. After he started to have doubts about whether there was a cause of action against Plum Grove Pty Ltd, Mr Redman said that he was not aware of a potential cause of action against the defendant until he received the SafeWork documents. 15. Mr Redman was cross-examined about what caused the change in the pleading about the identity of the employee. The original Statement of Claim pleaded that the plaintiff was employed by Agrigrain Pty Ltd, but the Amended Statement of Claim pleaded that the plaintiff was employed by Agrigrain (Coonamble) Pty Ltd. Mr Redman said that he discovered this from reading the SafeWork documents. The PAYG documents, which clearly set out that Agrigrain (Coonamble) Pty Ltd was the employer, were part of the SafeWork documents. 16. In re-examination Mr Redman again confirmed that he held the belief that the plaintiff was employed by Agrigrain Pty Ltd, until he received the SafeWork documents. Credibility of Mr Redman 1. As previously recited, Mr Redman was cross-examined for nearly two days. In my view he was a perfectly credible witness. He struck me as a capable and careful solicitor. I do think that he made some minor mistakes along the way. There were some documents from the workers compensation insurer which, if read closely, would have identified for him that the workers compensation payments were being made on behalf of Agrigrain (Coonamble) Pty Ltd rather than Agrigrain Pty Ltd. However, I accept his evidence that his instructions were simply that Mr Rindfleish was employed by "Agrigrain", and Mr Redman made the assumption that this was Agrigrain Pty Ltd. This assumption carried through, in a "Chinese whispers" type fashion to the instructions given to Mr Judd and the instructions given to the various medico-legal reporters. This particular error was not corrected until the Amended Statement of Claim was filed. As previously recited, the allegation that the employer was Agrigrain (Coonamble) Pty Ltd was admitted by the defendant upon this allegation being made in the Amended Statement of Claim. There was never any Defence filed to the original Statement of Claim, which had wrongly pleaded that the employer was Agrigrain Pty Ltd. Thus there was nothing from the defendant to alert Mr Redman to his error. 2. Be all that as it may, the identity of the employer is not the important issue in relation to the limitation point. I accept the evidence of Mr Redman, in his affidavit evidence, in his correspondence, and in cross-examination, that he did not realise that Agrigrain Pty Ltd had control of the Coonamble site, and responsibility for safety at the site, until he read the SafeWork documents. The clearest indication that this was so is contained in the SafeWork interview with Mr Jeremy Brown. The relevant questions and answers are to be found in PX 5, pp 1066-1067 as follows: "Q45 Are you in a position to influence the company as far as safety goes here at Agrigrain (Coonamble) Pty Limited? A Yes, yes absolutely but I, I'm obviously working out of Narromine most of the time but yes would be the answer but I'm not here day to day and probably spend maybe one day every month in Coonamble but I would probably, my influence on the safety day to day is obviously with the Operations Manager, with also, a lot of the other Agrigrain employees so, yes would be the answer but day to day I probably don't have direct contact with the workers. INSPECTOR CHILLINGWORTH Q 46 And do you have financial control over the --- A Yep. Q46 - - - the business? A Yep. Q47 In Coonamble --- A Yep. 047 - - - Agrigrain (Coonamble) Pty Limited? A Yes. Q48 Thank you. What is the name of the entity that employed Ian Rindfleish on the 18th of the 1st 2016? A I would have to check but at that stage it would have still been under Vincenta Pty, Agrigrain. Q49 Agrigrain? A Agrigrain could have been a partnership. So Ian was employed prior to Plumgrove. Q50 O.K. A Which wouldn't be on that organisational chart I wouldn't have thought. I can give you those, that exact stuff if you want." 1. It is instructive that during this exchange, even the general manager of Agrigrain Pty Ltd gave answers about the entity which employed Mr Rindfleish which were, to say the least, obscure. It is small wonder that Mr Rindfleish, a worker in the business, and not an owner or a boss, was also unsure about the identity of his employer and the identity of the entity responsible for safety and control at Coonamble. Limitation Act 1. As previously recited, the Defence to the Amended Statement of Claim pleaded that the proceedings were time barred pursuant to s 18A of the Limitation Act. Because of s 18A(1)(c) of the Limitation Act, s 18A does not apply to a cause of action to which Part 2, Div 6 of the Limitation Act applies. The defendant remained under the mistaken view that s 18A did provide a three year limitation period until Day 6 and p 412 of the transcript. 2. The limitation provisions which do apply to these proceedings are contained in Part 2, Div 6 of the Limitation Act. Section 50C(1) of the Limitation Act provides as follows: "50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire— (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned." 1. The issue in this case concerns the "three year post discoverability limitation period" and not the "12 year long-stop limitation period". Section 50D of the Limitation Act provides as follows: "50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts— (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased." 1. As recited above, there is no dispute that the plaintiff knew of the fact that the injury concerned had occurred and that the injury was sufficiently serious to justify the bringing of an action on the cause of action. Thus, the limitation issue presently before the court is that raised by s 50D(1)(b). The plaintiff says that he did not know that the injury was caused by the fault of the defendant. In this regard, the issue is when the plaintiff knew or ought to have known of the identity of Agrigrain Pty Ltd as the negligent defendant responsible for his injury. Court of Appeal Authorities 1. No authorities were cited by counsel for the defendant in relation to the not uncomplicated question of the "3-year post-discoverability limitation period". Before embarking upon fact-finding in relation to the Limitation Act point, I will review some of the recent Court of Appeal authorities. 2. In Murgolo v AAI Ltd [2019] NSWCA 295 Mr Murgolo suffered serious injuries while working on a building site. Two other workers had negligently failed to secure an acrow prop, which fell and struck Mr Murgolo. Mr Murgolo understood that those two workers were employed by a business known as Class Welding. He consulted solicitors who commenced proceedings against Class Welding Pty Ltd. It then emerged that it was possible that the two workers had been employed by a related company Class Welding (NSW) Pty Ltd. The limitation point was: "When did the plaintiff first know the identity of the employer?" There was no dispute in the case that shortly after the accident occurred, Mr Murgolo was fully aware of the injury that he had suffered and that it was sufficiently serious to justify the bringing of an action. Thus there was no issue about pars (a) and (c) of s 50D(1) of the Limitation Act. In those respects the case is quite similar to the present proceedings. 3. The solicitor for Mr Murgolo gave evidence that it was not until a creditors meeting in 2016 that he became aware of the identity of the correct defendant. Again, this has similarities to the evidence of Mr Redman, which I have accepted, that he was unaware of the identity of the correct third party tortfeasor to be sued, until November 2022 when he received the documents from SafeWork NSW. 4. In considering the legal test in s 50D(1), Basten JA said at [39]: "While the language of s 50D(1) is beguiling in its simplicity, there are circumstances where its application is fraught with difficulty." 1. Basten JA said that because Mr Murgolo had consulted solicitors to advise him, he had taken all reasonable steps to ascertain relevant facts, for the purposes of s 50D(2). His Honour said that some facts may only be reasonably ascertainable with professional assistance and there may be facts which involve an element of professional judgment – at [40]. 2. In determining the "first date" that a plaintiff knew something, Basten JA said at [46]: "The fact that s 50D(1) requires the court to determine the "first date" that the plaintiff knew something does not necessarily mean finding the first date on which the plaintiff believed that he knew something. Especially may that be so where the 'something' is a composite fact, such as the identity of the defendant or a causal connection between the injury and the defendant's act, or the characterisation of the defendant's act as involving fault. Each of these "facts" is encompassed by par (b). The identity of the defendant may not always be a composite fact, but it can be so described in a case where there is more than one possible defendant. In the present circumstances, the relevant "fact" required the determination of which of two potentially responsible parties was the employer of the two workers. That fact cannot be known until discovery of the existence of two companies, the contract with Proline and the employment arrangement of the workers. A belief based on ignorance of the choice to be made does not constitute relevant knowledge for the purposes of s 50D(1)." 1. Macfarlan JA and Leeming JA agreed with the reasoning of Basten JA. 2. In Pomare v Whyte [2019] NSWCA 317 Mr Pomare was travelling in a prime mover which struck a bull and overturned, leading to significant injuries. Mr Pomare commenced proceedings against Mr Whyte, who had care and control of the bull. Mr Whyte pleaded that the proceedings were out of time. The issue was whether Mr Pomare knew, or ought to have known, that the injury was "caused by the fault of" Mr Whyte within a period of three years prior to the commencement of the proceedings. 3. Mr Pomare had consulted solicitors less than a year after the accident. The Court of Appeal said at [13]: "Thus, where a claimant has consulted solicitors in a timely fashion, the inquiry is as to what they told the claimant, not what they knew but did not communicate, nor what they should have known had they made enquiries which they did not make." 1. The question to be determined was therefore what the evidence established that Mr Pomare knew, no later than 15 May 2014, which was a date three years prior to the commencement of proceedings – at [15]. 2. In Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213 Simpson AJA said that whether a plaintiff knows that injury was caused by the fault of a particular defendant depends upon a "legal evaluative judgment" – at [70]. Her Honour said that it is necessary for a plaintiff to know that a cause of action is available – at [71]. Her Honour noted that the advice which Mr Alelaimat received from his solicitors "did nothing to inform him of any rights that he had to bring proceedings at common law" and that the advice "was clearly focussed on and directed to his entitlements under the Workers Compensation Act" – at [86]. In this regard the decision has a parallel in the present case, as Mr Rindfleish consulted Mr Redman in relation to his rights to workers compensation and received no advice about any viable common law cause of action against a third party tortfeasor until he saw Mr Judd. 3. I have summarised above the evidence of the plaintiff, the evidence of Mr Redman, and the evidence contained in relevant documents. On the Limitation Act point I make the following findings of fact: 1. Mr Rindfleish first consulted Mr Redman on 23 October 2018 and the contents of that conference is recorded in Mr Redman's file note (DX 4, pp 900-901). 2. Mr Rindfleish instructed that he was employed "by Agrigrain" as the site supervisor. 3. Mr Rindfleish did not give instructions that he was employed by the defendant, and he did not nominate any proprietary limited company as his employer. 4. The notion that Mr Rindfleish was employed by Agrigrain Pty Ltd was, I infer, an assumption made by Mr Redman. 5. Mr Redman advised Mr Rindfleish of the three main benefits available to him under workers compensation legislation. The only reference to lump sum compensation in the file note is a reference to WPI lump sum compensation, and not common law damages. 6. Mr Redman wrote a letter of advice to Mr Rindfleish dated 14 November 2018 (DX 4, pp 902-905). This referred to employment of Mr Rindfleish by "Agrigrain Pty Ltd", but as I have previously found, that was an assumption made by Mr Redman and did not come from the vague instructions of Mr Rindfleish. 7. The letter contained detailed advice about weekly benefits, treatment expenses and a lump sum payment for permanent impairment, all of which were rights under workers compensation legislation. 8. The letter also contained advice about a work injury damages claim, but the advice was generic and theoretical. There was no advice to bring such a claim, or against whom such a claim might be brought. 9. After that letter of advice Mr Redman pursued obtaining a WPI assessment for Mr Rindfleish, and ultimately reached a settlement with the workers compensation insurer (DX 4, p 910). 10. On 25 June 2021 a conference was held by telephone between Mr Judd barrister, Mr Redman and Mr Rindfleish. For the first time Mr Rindfleish was advised that he may have a claim at common law. In a file note dated 25 June 2021 (DX 4, p 911) Mr Redman recorded: "A conference was held today with the client and barrister, Ivan Judd. During the course of the conference, Mr Judd advised that he believes there to be a viable claim in public liability against the owners of the facility and machinery, the public liability defendant is Plumgrove or Palmgrove." 1. Mr Judd provided a Memorandum of Advice dated 29 June 2021 (DX 4, pp 912-915). This has been summarised above. In effect his advice that the involvement of the employer in the injury was "minimal" and that there was no point pursuing a work injury damages claim against the employer (par 20 of the Advice). 2. Mr Judd advised that, based on the instructions from Mr Rindfleish, a common law claim against "Plumbgrove" should be commenced. Mr Judd provided a draft District Court Statement of Claim against Plumbgrove Pty Ltd. 3. Mr Redman had doubts about the viability of the action against Plum Grove Pty Ltd by June 2022, when he was writing to Ms Lloyd, the new barrister in the matter. His correspondence with Ms Lloyd has been summarised above. 4. Mr Rindfleish was advised by Mr Redman to discontinue proceedings against Plum Grove Pty Ltd. 5. Mr Redman had received advice from Mr Judd that he should subpoena the documents from the investigation conducted by "WorkCover". Mr Redman made a GIPA application to SafeWork NSW for such documents, but he received little in the way of helpful material. 6. Mr Redman did issue a subpoena to SafeWork NSW, and he received their voluminous documents in November 2022. 7. It was only after reading these documents that Mr Redman appreciated that the defendant was the entity with responsibility for safety at the Coonamble site. 8. Mr Redman advised the plaintiff of this, and a decision was taken to seek to amend the existing proceedings against Plum Grove Pty Ltd, by removing that party and substituting Agrigrain Pty Ltd as the defendant. 9. Until Mr Rindfleish was advised by Mr Redman, that Mr Redman upon reading the SafeWork NSW documents had come to the view that Agrigrain Pty Ltd was the party at fault for Mr Rindfleish's injury, Mr Rindfleish did not know the identity of the appropriate defendant against whom to bring damages proceedings. 1. I find that the first date on which Mr Rindfleish knew or ought to have known that his injury was caused by the fault of Agrigrain Pty Ltd, in the capacity in which it was sued in the original District Court pleadings, and by the Amended Statement of Claim, was when he received advice from Mr Redman to that effect by letter dated 10 November 2022 (DX 4, pp 919-920). This was the date on which his cause of action against the defendant was "discoverable" within the meaning of s 50D of the Limitation Act. The District Court proceedings were first brought against Agrigrain Pty Ltd, when the orders were made by Judge Andronos, granting leave to amend to add Agrigrain Pty Ltd as a defendant. 2. This happened within a very short time after November 2022, which I have found was the date on which the cause of action was discoverable by the plaintiff. 3. I therefore find that these proceedings are not time-barred by the Limitation Act. The limitation issue was raised, in proper form, only by the Notice of Motion, which was stood over to be heard together with the proceedings themselves. That part of the Notice of Motion will also be dismissed. Liability in Negligence Duty of Care and Scope of Duty 1. The CLA governs questions of breach of duty and causation, leaving the question of the identification and scope of the duty as matters to be determined according to common law principles – Mamo v Surace [2014] NSWCA 58 at [48]. 2. Counsel for the defendant submitted that the defendant had the power to direct the plaintiff which work to do and the power to direct the plaintiff how to do the work. In par 112 above I have accepted those submissions. Mr Brown, the General Manager of the defendant, accepted in his interview with SafeWork that he, and thus the defendant, was in a position to influence the safety of the work done at Coonamble. Mr Brown said that the influence on the safety day-to-day lay with the Operations Manager, which was Mr Halbisch. Responsibility for safety also lay with other employees of the defendant. In par 170 above I have extracted that part of the SafeWork interview in which Mr Brown made those statements. 3. To those matters can be added the fact that it was the defendant who had qualified mechanical trades people at the Narromine Head Office of the defendant. When a request was made, and if a fitter or mechanic was available, the defendant sent those tradesmen to the Coonamble site. Further, the evidence establishes that Mr Rindfleish could call Mr Bakac to obtain his advice about safety matters. Paragraph 7(e) of the Defence pleaded that the defendant employed a Maintenance Supervisor who was responsible for the maintenance employees and all maintenance tasks. The pleading accepted that Mr Bakac from time-to-time provided suggestions to the plaintiff when he sought advice on carrying out maintenance tasks. 4. In the light of those admissions and the evidence in relation to safety at the Coonamble site, I have no hesitation in finding that the defendant owed the plaintiff a duty of care in relation to work which the plaintiff performed at the Coonamble site. This was so, even though it was Agrigrain (Coonamble) Pty Ltd which owned the Coonamble site and which employed Mr Rindfleish. As Mr Rindfleish said in his evidence, he could not make any significant financial decisions without asking permission from the defendant, and he had no financial control over the income of the business or the expenditure of the business at Coonamble. All of that was controlled by the defendant. When he asked for additional staff to assist in maintenance tasks, his request was either ignored or refused. 5. Mr Rindfleish was a person with experience in the grain handling industry, but he had no mechanical qualifications, no engineering qualifications and no safety qualifications. When something needed fixing, if support was not provided by the defendant, he had to adopt an ad hoc solution and keep the Coonamble site running as best he could. The defendant was quite content for Mr Rindfleish to do the best he could at Coonamble, while providing him with little or no support in relation to matters of maintenance or safety. 6. The Amended Statement of Claim was less than illuminating concerning identification of the particular risk against which a reasonable person would have taken precautions. The pleading said that the defendant owed the plaintiff a duty of care to provide a safe system of work (par 19) and that the defendant had a duty to ensure the premises were safe for those who entered upon them (par 20). Paragraph 21 of the pleading alleges that the defendant was negligent in failing to take precautions "against a risk of harm which was foreseeable and not insignificant". But the Amended Statement of Claim does not identify the particular risk in relation to which reasonable precautions should have been taken. 7. However, there was really no dispute about the risk to which Mr Rindfleish was exposed. It was the risk that Mr Rindfleish might suffer an injury when attempting to lift the flight in the auger, in the course of replacing the lower wooden bearing, by using a sling attached at one end to the pulley on the flight. Reasonable Precautions 1. Against the background of those findings in relation to the existence of the duty of care and its scope, I move to consider s 5B of the CLA. This section provides as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)— (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 1. The factual matters relevant to be considered under s 5B arise from two sources. The first source is the evidence of the plaintiff about what happened, which has been summarised above. I have accepted the entirety of the evidence of Mr Rindfleish, including his evidence about the incident itself. The defendant submitted that statements made by others (particularly Mr Bakac) in the SafeWork interviews should be accepted where they were in conflict with the evidence of Mr Rindfleish. I decline to do so. None of the interviewees were called to give sworn evidence. Their absence from the witness box remained unexplained. Their statements were not the subject of cross-examination. 2. The second source of evidence relevant to the negligence question is the expert witness report of Mr D Cockbain dated 9 March 2023 (PX 2, Tab 9, pp 139-253). The gravamen of the expert report is to be found in pars 158-163 where Mr Cockbain said: "158. The Defendant provided and controlled the systems of work associated with the auger maintenance and repair and had the legal responsibility to make the systems safe and to ensure that the Plaintiff and other workers were not exposed to the risk of injury as a result of a failure in these systems. 159. The adopted system of work required the Plaintiff to: • undertake whatever work tasks were required to maintain the grain facility; • maintain production throughput; • ensure that there was no breakdown of plant or that plant breakdowns were kept to a minimum; • undertake maintenance work tasks in the absence of a Maintenance Management System and in the absence of competent mechanical assistance; • undertake maintenance work tasks in the absence of SWPs, SWMSs, training or effective monitoring or supervision; • rely upon a forklift operator with limited experience for assistance to perform a single point lift of the shaft; • rely upon the assistance of co-workers who had no maintenance training or experience; • attach a damaged sling to the end of the shaft and the other end of the sling to one forklift tine to single point vertically lift the auger using a non-rated lifting point; • access/egress a defective ladder and undertake manual handling work tasks at a level where he could fall; and • be positioned adjacent to the pulley which exposed the Plaintiff to the risk of a strike. 160. With regard to lifting the auger, it is noted that there was no ability to attach a lifting eye to the end of the shaft to lift the auger. The shaft should have been replaced or modified so that the end of the shaft had a thread onto which a lifting eye nut could have been placed to allow mechanical lifting to enable a safe inclined lift. 161. It is the writer's opinion that the vertical single tine lift, and vertical force exerted on the pulley which was attached to the inclined auger shaft was a fatally flawed method of lifting. 162. Additionally, there should have been an effective and safe method for slinging and lifting the auger using a crane or manual/electric winch that enabled the auger to be manoeuvred in an inclined manner. 163. With respect to the striking of the Plaintiff by the components of the shattered pulley, the writer notes that it was reasonably foreseeable that an incident of this type could have occurred, given: • the force exerted on the pulley by the damaged and defective sling; • the single point lift in a vertical plane being undertaken by the forklift; • the absence of any effective mechanical lifting equipment to safely lift the auger; • the vertical force exerted by the hydraulic cylinder of the forklift was imposed on the angled spokes of the pulley; and • the close proximity of the Plaintiff to the auger and pulley." 1. This part of the expert report establishes that to attempt to lift the flight by putting force upon the pulley, and by doing an inclined lift using a tine of the forklift, there was a risk which was foreseeable and ought to have been known to the defendant. Thus s 5B(1)(a) of the CLA is satisfied. 2. The risk was certainly not insignificant. As the expert said, attempting to lift the flight by putting force upon the pulley was "a fatally flawed method of lifting". The risk of an explosion of the metal in the pulley, while the plaintiff was standing adjacent to the pulley and on a ladder, results in a finding that the risk was not insignificant. Thus, s 5B(1)(b) of the CLA is satisfied. 3. Finally, a reasonable person in the position of the defendant would have taken appropriate precautions against that foreseeable and not insignificant risk. Section 5B(1)(c) of the CLA is satisfied. 4. The court must now consider what a reasonable person would have done to take precautions against the risk of harm. 5. The precautions are those pleaded in par 24 of the Amended Statement of Claim (PX 2, pp 5-6). Many of those precautions are pleaded in general and non-specific terms. However, the specific precautions which it is alleged the defendant should have taken are pleaded in pars (l)-(u) inclusive in par 24 of the Amended Statement of Claim. The report of Mr Cockbain, and in particular those paragraphs extracted above, provide evidence that the pleaded steps should have been taken by the defendant to take precautions against the risk of harm. 6. Mr Cockbain also said (PX 2, p 182) "170. In the present matter, there was no risk assessment performed or any other method of task planning and identification of safety risks and control measures regarding the auger maintenance and bearing replacement. 171. With respect to planning, despite the frequency of the bearing collapses being reported to the maintenance staff in Narromine there was no effective maintenance inspection or investigation of the root cause of the continual bearing failures." 1. These additional matters are steps which could and should have been taken to guard against the risk of harm, particularly given that Mr Rindfleish had no training or qualifications to enable him to carry out the replacement of the flight bearing in a safe fashion. The defendant would not have needed to take each and every step pleaded. For example, installing a lifting point on the flight, and providing appropriate training and instruction in relation to its use, would have meant that no strain whatever was put on the pulley which shattered during the lifting operation. 2. I find that there was a significant probability that the harm would occur if care was not taken – s 5B(2)(a) of the CLA. The pulley was never designed to be a lifting point, and it was clearly not strong enough to be used for that purpose. 3. I find that it was likely that serious harm would occur if care was not taken – s 5B(2)(b) of the CLA. The way in which the lift was conducted had Mr Rindfleish standing on a ladder with his face adjacent to the pulley, and he was thus at serious risk of harm if and when the pulley exploded. 4. I find that the burden of taking precautions to avoid the risk of harm was minimal – s 5B(2)(c) of the CLA. The creation of a risk assessment, and the creation of a Safe Work Method Statement, were matters which should have been everyday tasks for the defendant and its maintenance people, who were responsible for safety at the Coonamble site, according to Mr Brown. Similarly, there was no great cost involved in providing appropriate information, training and instruction for Mr Rindfleish and other workers at the Coonamble site. When Mr Halbisch came there from time to time, he might have been better occupied giving such training and instruction, and looking for potential risks such as the lifting of the flight, rather than simply reading out a new policy at a toolbox talk. Mr Cockbain gave evidence that the cost of a lifting point on the flight would be $10 for the eye nut and $1,500 for the engineering (PX2, p 225). He also gave evidence that the total cost of providing an electric winch, rather than using the forklift to lift the flight, would have been between $2,500 and $3,000 (PX 2, p 226). These do not seem to be significant monetary amounts, compared to the harm which they would be designed to eliminate or minimise. 5. Section 5B(2)(d) of the CLA requires the court to consider "the social utility of the activity that creates the risk of harm". This is not a relevant factor in the present case. The defendant was conducting its operations for profit and was able to factor into its finances the cost of any appropriate safety precautions. 6. The defendant pleaded in par 14(k) of the Defence that if it was found to have a duty to the plaintiff, then it took precautions that a reasonable person in the defendant's position would have taken against foreseeable risks of injury to the plaintiff. Under the heading "Particulars" the pleading referred to "The Agrigrain Induction Manual dated 12 October 2012". Not a word was said in submissions about this document and it was not put into evidence. Causation 1. Section 5D(1) of the CLA provides as follows: "(1) A determination that negligence caused particular harm comprises the following elements— (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)." 1. The failure to provide appropriate equipment (both a lifting eye and a winch) and the failure to provide maintenance, training, instruction, a risk assessment and a Safe Work Method Statement, were necessary conditions for the occurrence of harm. In the light of the evidence of the expert Mr Cockbain, it is those matters which were necessary conditions for the harm to occur. There is no question that it is appropriate for the scope of the defendant's liability to extend to the harm so caused, as it was conducting a for profit enterprise, and it was subject to various duties, including those under the Work Health and Safety Act 2011 (NSW) to ensure a safe workplace. 2. The plaintiff has established the necessary element of causation. Obvious Risk 1. The defendant pleaded in par 39 of the Defence reliance upon ss 5F and 5G of the CLA. 2. Section 5F of the CLA provides as follows: "5F Meaning of 'obvious risk' (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable." 1. Section 5G of the CLA provides as follows: "5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk." 1. The risk that the pulley should not be used as a lifting point, because it was not suitable for it, was hardly a patent risk or a matter of common knowledge. As previously recited, Mr Rindfleish had no qualifications, training or experience to know not to use the pulley as a lifting point. In those circumstances the risk of being injured by using the pulley in that fashion was not an obvious risk. 2. Further, Mr Rindfleish gave evidence that he attempted to lift the flight in the fashion he did, because he had seen it done that way at Narromine on many occasions, and he had seen the defendant's maintenance people do it that way before. I accept that evidence. No-one was called from the defendant to refute that evidence. In those circumstances it could not be the case that Mr Rindfleish was aware of the risk, as the defendant had effectively told him to do the job in the fashion he did. This proves, as required by s 5G, that he was not aware of the risk. Indeed, it would seem that the defendant was not aware of the risk. However, it ought to have been aware of the risk, as required by s 5B(1)(a) of the CLA. 3. Because there was no obvious risk in the first place, s 5H of the CLA provides no protection to the defendant. Section 5H(1) provides that a defendant does not owe a duty of care to another person to warn of an obvious risk to a plaintiff. Contributory Negligence 1. In par 40 of the Defence, the defendant pleads that if the plaintiff sustained injury, then this was caused, or materially contributed to, by his own negligence. Seven particulars of contributory negligence are set out under par 40, but the first four are generic and are little more than re-statements of the principle of contributory negligence, rather than being particulars of the steps which a reasonable person would have taken for his own safety. 2. Particular (v) is "failing to heed the advice of the Maintenance Supervisor, to leave the wood block and the flight". A party alleging contributory negligence bears the onus of proving it. The defendant did not call the Maintenance Supervisor (Mr Bakac) and did not explain his absence from the witness box. The defendant did not obtain any admission from Mr Rindfleish that the Maintenance Supervisor had told him "to leave the wooden block on the flight". This particular has not been made out. 3. Particular (vi) of contributory negligence is that "notwithstanding the Maintenance Supervisor's advice and despite not having worked on the flight before, the plaintiff proceeded to work on the flight". I have already found that there was no evidence about the alleged advice of the Maintenance Supervisor. Further, the notion that the plaintiff had not worked on the flight before was contradicted by the evidence which I have accepted that this wooden bearing used to fail about every three months, and that Mr Rindfleish had been involved in replacing it at the Coonamble site at least 12 times before. This particular has not been made out. 4. Particular (vii) alleges that "without any or adequate regard for his own safety or the safety of the persons present, he recklessly proceeded to attempt to adjust the flight of the auger". No evidence was called by the defendant as to a safer method of lifting the flight, provided by the defendant, than that adopted by the plaintiff. I have accepted the evidence of Mr Rindfleish that the advice he did get from Mr Bakac was to try and shift the upper bearing with a hammer or a bar, and that he was carrying out the instructions of Mr Bakac when the pulley exploded causing injury. This particular has not been made out. 5. The defendant had a very difficult task in establishing what a safe system would have been, when it had no maintenance schedule, no maintenance programme, no risk assessment, no Safe Work Method Statement and provided no training or instruction to its unqualified employees to carry out the potentially dangerous task of lifting the flight. In other words, the defendant did nothing to draw the attention of Mr Rindfleish to the dangers he was facing in doing the work in that fashion. The defendant seems to have been content to adopt a "hands-off" attitude in relation to Coonamble, even though according to Mr Brown, the defendant was responsible for safety at the site. 6. I find that the defendant has not discharged its onus of proof in relation to the allegation of contributory negligence. Conclusion on Liability 1. I find that the defendant is liable to the plaintiff in negligence for damages and that such damages will not be reduced as there was no contributory negligence. Damages Non-Economic Loss 1. Section 16 of the CLA provides that no damages may be awarded for non-economic loss unless the severity of that loss is at least 15% of a most extreme case. The balance of s 16 sets out a formula for determining the dollar figure to attach to a percentage finding. The amounts are indexed each year and the most recent table was published effective from 1 October 2023. The relevant medical evidence concerning non-economic loss is found in three medical reports. In a report dated 6 February 2023 (PX 2, p 276) Dr Bowler, oral and maxilla facial surgeon, set out the symptoms which Mr Rindfleish presently has. Dr Bowler recorded these as follows: "1. He is aware of persistent scarring on his nose and in the vicinity of his right orbit. He feels the scarring is acceptable, particularly following his plastic surgery revision but he is still aware of a change to his appearance. 2. He complains of drooping of his right upper eyelid laterally and is concerned this affects his appearance. 3. He had difficulties with persistent headaches following his surgery. He was advised that this would slowly improve, as it has, but he still has the occasional headache. 4. Ian has significant loss of the sense of smell and taste. He is unable to enjoy aromatic foods such as curries. At one stage he was considering a career as a wine maker having spent some time working in the Napa Valley in the USA however with his loss of smell and taste he feels this would no longer be a possibility. 5. He complains of altered sensation in the right supraorbital region and the frontal region in the midline. He rates this at approximately 2/10, where 1 would be negligible sensory change and 10 would be substantial change. If he has a light sensation such as a hair passing across is forehead his sensory loss appears significantly worse and he would rate that at approximately 8/10." 1. Dr Bowler diagnosed a displaced nasoethmoid fracture. He thought that there was no requirement for future surgery. 2. Dr Scoppa, ear, nose and throat physician, provided a report dated 24 March 2023 (PX 2, p 281). Dr Scoppa said that the loss of sense of smell was permanent and was probably caused by an injury to the olfactory area just above the cribriform plate. 3. Dr Cole, general ear, nose and throat surgeon, provided a report to the defendant's solicitors dated 24 June 2023 (PX 2, p 286). Dr Cole recorded the following physical effects from the injuries: 1. Loss of smell and taste due to direct physical damage to the anterior skull base causing shearing of the olfactory nerves. 2. Scarring of the face over the orbit and the nose. 3. Bony deformity of the orbit and the nose. 4. Loss of sensation over the right orbit and forehead. 1. Counsel for the plaintiff submitted that Mr Rindfleish should be assessed by the court as 38% of a most extreme case (MFI 6). Counsel for the defendant submitted that the plaintiff did not reach the required 15% threshold prescribed by s 16 of the CLA. The defendant also submitted that the plaintiff had been "fully compensated for pain and suffering with the receipt of the permanent impairment lump sum amount of $46,000 pursuant to s 66 of the WCA". I reject that submission. The defendant does not get a credit for monies paid pursuant to a WPI assessment by the workers compensation insurer of an employer. The plaintiff may well come under an obligation to pay that amount back, but it is not deducted from the plaintiff's damages. That submission is incorrect as a matter of law. 2. I take into account the very torrid year of 2016, and I completely accept the evidence of the plaintiff and his partner Ms Warnock concerning his significant difficulties in getting through that year. Thereafter the plaintiff has made the best of a bad lot, and he presents nowadays as a person who does not dwell upon his misfortune, and who indeed makes light of his injuries. That having been said, he has been left with significant problems, primarily the loss of smell and the partial loss of taste. He still has a significant scar across the bridge of his nose. He has ongoing sensory changes in his face. He has plates and screws in his skull. 3. The plaintiff is 41 years of age, so he has many decades left to put up with his disabilities caused by the incident. I assess the plaintiff at 32% of a most extreme case. In monetary terms, this means that there will be an award of $216,500 for non-economic loss. Past Economic Loss 1. Counsel for the plaintiff submitted (MFI 6) that past economic loss could be divided into three periods. 2. The first period was from 18 January 2016 to 1 June 2016. It was submitted that during that time there was approximately eight weeks off work at $1,504.81 nett per week, a total of $12,038.48. 3. I accept this submission. It takes account of the fact that the plaintiff returned for a few days a relatively short time after the accident but he could not cope and he had to go off work again. He then returned to work for a few weeks, but again gave up work because he could not cope with the noise and the headaches it caused. I accept the evidence of the plaintiff in this regard, that the reason for giving up work was because he was suffering the consequences of the incident to such an extent that he could no longer do his job. In this he was corroborated by Ms Warnock, who I also accept. 4. The second period submitted by counsel for the plaintiff was between 27 June 2016 (when the plaintiff ceased work) to 6 October 2016, when he commenced his new employment with Batterline. The claim is for 15 weeks at $1,504.81 nett per week, a total of $22,572.15. 5. I also accept this submission. I find that the plaintiff left his job because he could not cope with the work and was not voluntarily out of the workforce until October 2016. I accept his evidence, corroborated by the evidence of Ms Warnock, that in that time he had to recuperate further from the injuries suffered in the incident. 6. The third period submitted by counsel for the plaintiff is between October 2016 to the date of the trial. This is put as a "buffer for loss of earnings and intermittent periods of time off work". The figure claimed is $30,000. There was no evidence of any intermittent periods of time off work in the new job. There was however evidence that for some of the financial years since leaving work at Coonamble, the plaintiff has earned less with Batterline, even though he has been working many more hours. In other words, his income has been less for several of the financial years since the accident. I do not have evidence to enable me to make a precise calculation, but I will award $10,000 for this third period. 7. The award for past economic loss will therefore be the total of the three amounts above, being $44,610.63. Past Loss of Superannuation 1. Section 15C of the CLA says: "15C Damages for loss of superannuation entitlements (1) The maximum amount of damages that may be awarded for economic loss due to the loss of employer superannuation contributions is the relevant percentage of damages payable (in accordance with this Part) for the deprivation or impairment of the earning capacity on which the entitlement to those contributions is based. (2) The relevant percentage is the percentage of earnings that is the minimum percentage required by law to be paid as employer superannuation contributions." 1. For the periods of past economic loss in 2016 the calculation is: $44,610.63 x 9.5% = $4,238.01. 2. Mr Rindfleish started working for Batterline in 2016. From October 2016 to date (370 weeks) he has been paid for 38 hours per week as ordinary time earnings, plus overtime. He often works up to 70 hours per week. Superannuation is only payable on ordinary time earnings, a matter on which the parties agreed. Without doing any fine mathematics, I will adopt the figure of $1,000 per week for the difference between ordinary earnings at Coonamble (which attracted superannuation on his entire wage) and ordinary earnings at Batterline. Using the SGC rates, the loss of past superannuation arising from this wages gap is: 1. 2017 financial year (39 weeks x $1,000 x 9.5%) = $3,705 2. 2018 financial year (52 weeks x $1,000 x 9.5%) = $4,940 3. 2019 financial year (52 weeks x $1,000 x 9.5%) = $4,940 4. 2020 financial year (52 weeks x $1,000 x 9.5%) = $4,940 5. 2021 financial year (52 weeks x $1,000 x 9.5%) = $4,940 6. 2022 financial year (52 weeks x $1,000 x 10.0%) = $5,200 7. 2023 financial year (52 weeks x $1,000 x 10.5%) = $5,460 8. 2024 financial year (22 weeks x $1,000 x 11.0%) = $2,420 TOTAL: $36,545 1. The total award for past loss of superannuation will be $4,238.01 + $36,545 = $40,783.01. Future Loss of Earning Capacity 1. Section 13 of the CLA provides as follows: "13 Future economic loss—claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 1. The second step in the assessment of future economic loss involves the application of s 13(2), described by the Mr Villa, the learned author of Annotated Civil Liability Act 2002 (NSW) (2nd ed, Thomson Reuters) as "clumsily worded". 2. The most helpful explanation of s 13 which I have found comes from the decision of Justice Hoeben in Williams v Twynam Agricultural Group Pty Ltd [2011] NSWSC 1098 at [216]. The approach is as follows: 1. The court must assess the "most likely" of the possible future economic circumstances facing the plaintiff but for the accident (including type of employment, duration of employment and remuneration). 2. Assess the plaintiff's economic prospects as a consequence of the accident. 3. Compensate the plaintiff for the difference between (1) and (2) including, where appropriate, the use of a buffer. 4. Adjust (3) by an appropriate percentage for vicissitudes, to reflect the possibility that the plaintiff may not have achieved (1) even had the accident not occurred. 5. Include a statement of the assumptions made as to the plaintiff's most likely future circumstances on which the award was based and the appropriate percentage adjustment. 1. Taking that approach, my findings are as follows: 1. The most likely of the possible future economic circumstances for the plaintiff but for the accident was to remain in employment similar to that of Agrigrain (Coonamble) Pty Ltd. Mr Rindfleish had already been poached once to go to Narrabri, and he was clearly very well thought of and employable in that industry. Even when drought reduced the number of workers at Coonamble, Mr Rindfleish stayed on as the site supervisor. 2. The plaintiff would have some limitations in going back to a similar job, in that he still suffers from headaches from time to time. However, the plaintiff has been able to perform long hours of work in the road construction industry, ever since he returned to employment in October 2016. Mr Rindfleish did not give any evidence of difficulty in doing that physical job. 3. It is hard to see a great difference in actual dollar earnings between (1) and (2) above, but I find that the plaintiff is entitled to a buffer to reflect some restriction on his ability to work, arising from his headaches. Headaches would necessarily impact the ability to do a job involving stress, such as the site supervisor job at Coonamble. An appropriate buffer would be $100,000. Mr Rindfleish is presently 41 years old, so he has 26 working years ahead of him. 4. From this figure should be deducted 10% for vicissitudes. The evidence shows that Mr Rindfleish is a most determined and conscientious worker. He has always been focussed on providing for his family, who are still very young. I have selected a figure lower than the conventional 15% discount for vicissitudes. 5. The assumptions on which the award is based and the percentage is adjusted have been set out above. 1. In the circumstances I find that it is appropriate for a buffer of $90,000 for future economic loss to be awarded. Future Loss of Superannuation 1. This consists of: 1. Loss of superannuation upon the buffer amount at the current SGC rate of 11%: $90,000 x 11% = $9,900. 2. Loss of superannuation on the difference between ordinary earnings at Coonamble and ordinary earnings at Batterline: say $1,000 per week x 11% x 768.7 x 0.9 = $76,101.30 3. TOTAL of (1) and (2): $9,900 + $76,101.30 = $86,001.30 Past Out-of-Pocket Expenses 1. The parties were agreed that the hospital, medical, rehabilitation and travel expenses funded by the workers compensation insurer totalled $26,123.08. This figure will be included in the damages awarded in these proceedings. Obviously, it will have to be repaid by the plaintiff to the workers compensation insurer. Future Out-of-Pocket Expenses 1. Counsel for the plaintiff set out some figures which total $12,000 (MFI 6). Counsel for the defendant submitted that nothing should be allowed for future medical expenses, as there was no expert medical evidence to support such a claim. 2. The plaintiff gave no evidence that he has seen a general practitioner for his accident-related problems for many years. He has not seen a specialist in that time, except for medico-legal purposes. While there is an outside possibility of repair of his drooping right eye, or removal of the plates and screws in his skull, the chance of either operation is very slight. 3. The only expense that the plaintiff faces in the future, which is supported by the evidence, would be a modest allowance for analgesics, which are still taken. I will award a lump sum figure of $2,000 to cover medication and the outside chance of surgery. Domestic Assistance 1. Section 15 of the CLA governs damages for "gratuitous attendant care services". There must have been a reasonable need for the services to be provided, that need must have arisen solely because of the injury to which the damages relate, and the services would not have been provided to the claimant but for the injury. There is a dual threshold of six hours per week and six consecutive months – s 15(3) of the CLA. That section also prescribes an hourly rate, which is currently $34.99 per hour (not $45 as submitted for the plaintiff). 2. Counsel for the plaintiff put forward a claim in MFI 6 at an incorrect rate. Further, the mathematics in MFI 6 were simply wrong. 3. I find that Mr Rindfleish is entitled to: 1. 12 hours per week from the date of the accident (18 January 2016) to August 2016. The correct calculation is $34.99 x 12 hours x 30 weeks = $12,596.40. 2. 9 hours per week from September to November 2016. The correct calculation is $34.99 x 9 hours x 8 weeks = $2,519.28. 1. Counsel for the defendant submitted that the plaintiff "manifestly does not meet the required threshold" and there was "not a skerrick of medical evidence or evidence from an occupational therapist that supports any need for past or ongoing domestic assistance" (pars 394 and 395 of MFI 8). 2. There is no claim for ongoing domestic assistance. The claim relates entirely to the past. I have accepted the evidence of Mr Rindfleish concerning the domestic work he did, principally outside the house, prior to the incident. I have also accepted his evidence that he could not do that work until towards the end of 2016. I was particularly impressed by the evidence of Ms Warnock, who took over the domestic duties previously performed by her partner, as best she could given her other commitments. 3. The total figure to be awarded for this head of damages is: $12,596.40 + $2,519.28 = $15,115.68. Summary of Damages 1. The damages which will be awarded are summarised in the following table: Non-Economic Loss $216,500.00 Past Economic Loss $44,610.63 Past Loss of Superannuation $40,783.01 Future Loss of Earning Capacity $90,000.00 Future Loss of Superannuation $86,001.30 Past Out-of-Pocket Expenses $26,123.08 Future Out-of-Pocket Expenses $2,000.00 Domestic Assistance (Past Gratuitous Attendant Care Services) $15,115.98 TOTAL $521,134.00 Conclusion and Orders 1. The defendant's Notice of Motion filed on 29 September 2023 was largely concerned with the "work injury damages" argument and the Limitation Act argument. On those issues the defendant has completely failed. It is therefore appropriate that the Motion be dismissed with costs. 2. The plaintiff is entitled to judgment against the defendant in accordance with the reasons above and to an order for costs. 3. The orders of the court are: 1. Dismiss the defendant's Notice of Motion filed on 29 September 2023. 2. Order the defendant to pay the plaintiff's costs in relation to that Notice of Motion. 3. Judgment for the plaintiff against the defendant for $521,134. 4. Order the defendant to pay the plaintiff's costs. 5. The exhibits are returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2023