Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Agrigrain Pty Ltd v Rindfleish [2024] NSWCA 295 Hearing dates: 17 June 2024 Date of orders: 09 December 2024 Decision date: 09 December 2024 Before: Ward P at [1]; Kirk JA at [2]; Stern JA at [134] Decision: (1) Appeal dismissed. (2) The appellant is to pay the respondent's costs. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Contract terms – Which of two entities in same corporate group is true employer of respondent – What reasonable person in position of all persons potentially party to contract would understand as to which entity was party as employer – Post-contract conduct relevant where contract unwritten – Factors still relevant in employee/independent contractor characterisation context may shed some light on issue – Question of control and direction significant though not definitive CIVIL PROCEDURE – Pleadings – Admission contrary to subsequent argument not withdrawn – Pleadings and particulars define issues for decision – Primary judge entitled to determine issue based on admission LIMITATIONS OF ACTIONS – Discoverability – Personal injury – Knowledge of fault of defendant – When plaintiff "ought to know" facts – No requirement that plaintiff knows capacity in which putative defendant might be liable – Reasonable steps to be taken by plaintiff, not plaintiff's lawyers – Lawyers' omissions not to rebound on plaintiff where he had taken all reasonable steps NEGLIGENCE – Damages – Non-economic loss, future economic loss for loss of earning capacity, future out-of-pocket expenses, past gratuitous domestic assistance Legislation Cited: Civil Liability Act 2002 (NSW), s 16(1) Government Information (Public Access) Act 2009 (NSW) Limitation Act 1969 (NSW), Pt 2, Div 6 Uniform Civil Procedure Rules 2005 (NSW), r 51.18(1)(e) Workers Compensation Act 1987 (NSW), s 2A, Pt 5 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4(1), 250(2) Cases Cited: Baggs v University of Sydney Union [2013] NSWCA 451 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165 Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Lawrence v Ciantar [2020] NSWCA 89 Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 Murgolo v AAI Ltd [2019] NSWCA 295 Pitcher v Langford (1991) 23 NSWLR 142 Ramsey v Denton [2021] NSWCA 310; (2021) 98 MVR 340 Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; (2022) 277 CLR 115 Resilient Investment Group Pty Ltd v Barnet [2023] NSWCA 118; (2023) 111 NSWLR 446 Russell v J Hargreaves & Sons Pty Ltd (1956) 30 ALJR 533 Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 Sinclair v Balanian [2024] NSWCA 144; (2024) 114 NSWLR 248 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213; (2023) 326 IR 289 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 White v Redding [2019] NSWCA 152; (2019) 99 NSWLR 605 WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456 ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 275 CLR 254 Texts Cited: GE Dal Pont, Law of Limitation (2nd ed, 2021, LexisNexis) Ian Neil, David Chin and Christopher Parkin, The Modern Contract of Employment (3rd ed, 2023, Lawbook) NC Seddon and RA Bigwood, Cheshire & Fifoot Law of Contract (12th ed, 2023, LexisNexis Butterworths) Category: Principal judgment Parties: Agrigrain Pty Ltd (Appellant) Ian Rindfleish (Respondent) Representation: Counsel: MA Friedgut / M Meares (Appellant) B Dooley SC / K Balendra (Respondent) Solicitors: HWL Ebsworth Lawyers (Appellant) Slater and Gordon (Respondent) File Number(s): 2023/462853 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: [2023] NSWDC 543 Date of Decision: 6 December 2023 Before: Russell DCJ File Number(s): 2022/70861 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] Mr Ian Rindfleish, the respondent, suffered severe physical injuries while working at a grain handling facility in Coonamble, New South Wales, on 18 January 2016. He sued the appellant, Agrigrain Pty Ltd, in the District Court, alleging that it was responsible for the maintenance of the facility and safety onsite and that it breached a duty of care owed to him, causing his injuries. He pleaded that at the time of his injuries his employer was Agrigrain (Coonamble) Pty Limited (Agrigrain Coonamble), a wholly owned subsidiary of Agrigrain. The primary judge held in favour of Mr Rindfleish and awarded him $521,134 in damages. Agrigrain appealed, raising three issues: (1) Which entity was Mr Rindfleish's employer at the time of his injury (grounds 1-4)? It was not in dispute that if Agrigrain was the employer, as it asserted, then Mr Rindfleish's claim would fail for non-compliance with procedural prerequisites in the workers compensation scheme. (2) Was Mr Rindfleish's claim time-barred (grounds 5-9)? Pursuant to Pt 2, Div 6 of the Limitation Act 1969 (NSW) his claim was barred unless brought within three years after it was "discoverable". Agrigrain challenged the primary judge's finding that Mr Rindfleish only knew or ought to have known that his injuries were caused by the fault of the defendant shortly before his claim against Agrigrain was filed in November 2022. (3) Was the primary judge wrong to award the amounts that he did for non-economic loss, future economic loss for loss of earning capacity, future out-of-pocket expenses and past gratuitous domestic assistance (ground 13)? The Court (Kirk JA, Ward P and Stern JA agreeing) dismissed the appeal and held: As to the first issue (whether Agrigrain was the employer): 1. The issue as to the identity of Mr Rindfleish's employer here depends upon the common law understanding of that notion: at [28]. It is an issue of contract law, the question being what a reasonable person in the position of the parties would understand as to which entity was party to the employment contract as employer, taking account of permissible evidence. Where there are two potential employers, in a case such as this one, the "parties" here can be taken to include both of them. For contracts not exclusively in writing, post-contractual material may be relevant. The issue of characterising a contractual relationship as one of employment or independent contracting is different from the issue of identifying who are the parties to a contract which it is accepted establishes a relationship of employment, but factors relevant to the former issue may throw some light on the latter: at [34]-[40]. Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165; WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 275 CLR 254; Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; (2022) 277 CLR 115; Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125; Lawrence v Ciantar [2020] NSWCA 89; Resilient Investment Group Pty Ltd v Barnet [2023] NSWCA 118; (2023) 111 NSWLR 446, referred to. 2. The primary judge would have been entitled to determine the employment issue, insofar as it depended upon the common law notion, based purely upon the repeated admissions made in Agrigrain's defence and proposed amended defence, though in fact his Honour did not do so: at [47]. Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, referred to. 3. The primary judge did not err in placing little weight on supposed admissions made in words and conduct by Mr Rindfleish given that he had had no clear understanding of, and no great interest in, which particular entity was his employer or what the corporate structure was: at [48]-[51]. Agrigrain's argument that Mr Rindfleish himself said that he had "resumed employment" with Agrigrain, having earlier worked for the business, rebounded on Agrigrain as it became apparent on appeal that the argument was based on a false premise: Agrigrain itself only came into being shortly before Agrigrain Coonamble, at around the time Mr Rindfleish commenced working for the Agrigrain group again: at [53]-[55]. 4. The accepted facts that Agrigrain had power to reprimand Mr Rindfleish, and to direct him as to what work to do and how to do it, are significant matters pointing towards Agrigrain being the employer. His Honour erred in failing to recognise the significance of that evidence in aiding Agrigrain's case. However, those matters are not definitive: at [66]. Evidence indicates that Agrigrain Coonamble was no mere nominal entity the name of which was used only on certain documents but a business which was distinct from, if overlapping with, Agrigrain. Mr Rindfleish was working for that business: at [67]-[70]. Post-contract conduct indicating that Agrigrain Coonamble made relevant payments to and in relation to Mr Rindfleish is relevant, although again not determinative: at [72]-[73]. In all the circumstances the primary judge's conclusion that Agrigrain Coonamble was the employer was correct: at [74]. Personnel Contracting; Resilient, referred to. As to the second issue (the limitation period): 5. To know that an injury was "caused by the fault of the defendant" for the purposes of s 50D(1)(b) of the Limitation Act, the plaintiff need not know the capacity in which a putative defendant might be liable. The primary judge erred insofar as he suggested to the contrary: at [85]. However, the plausible and persuasive findings of the primary judge were that it was only after reading documents obtained in early November 2022 that the solicitor for Mr Rindfleish appreciated that Agrigrain was the entity with responsibility for safety at the Coonamble site, and that Mr Rindfleish himself did not know quite what, if anything, Agrigrain had to do with the Coonamble site: at [86], [92] and [94]. 6. The statutory language refers to what steps it would have been reasonable for Mr Rindfleish, not his lawyers, to take: at [98]. Nothing suggests that Mr Rindfleish ought to have concluded that his lawyers had overlooked a responsible entity. It may well be that Mr Rindfleish's lawyers, acting diligently, could and should have done more to clarify the corporate structure much earlier than they did. But their omissions should not rebound on him. He had taken all reasonable steps by engaging lawyers in time and providing instructions as sought by them: at [100]. Baggs v University of Sydney Union [2013] NSWCA 451, applied. Murgolo v AAI Ltd [2019] NSWCA 295, referred to. Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213; (2023) 326 IR 289, distinguished. As to the third issue (damages): 7. Agrigrain faces the significant hurdle that the primary judge's findings on damages were based on having observed and heard the relevant witnesses: at [103]. It has not come anywhere close to establishing error in the findings challenged to the requisite compelling level, or more generally established error in relation to the award for non-economic loss. On the contrary, the careful analysis of the primary judge is compelling: at [119]. The evidence indicated a decrease in Mr Rindfleish's earning capacity in terms of the level of responsibility he was able to take on. And there is obvious room for doubt about whether Mr Rindfleish would be able to continue working long hours in order to sustain his earnings. In these circumstances a buffer would be permissible: at [125]. Agrigrain's challenge to the award of future out-of-pocket expenses is trivial and meritless: at [127]. Agrigrain's submissions about a relatively minor sum awarded for past gratuitous domestic assistance are also without merit: at [131]. Russell v J Hargreaves & Sons Pty Ltd (1956) 30 ALJR 533; White v Redding [2019] NSWCA 152; (2019) 99 NSWLR 605; Ramsey v Denton [2021] NSWCA 310; (2021) 98 MVR 340, referred to. Judgment 1. WARD P: I agree with Kirk JA. 2. KIRK JA: Mr Ian Rindfleish, the respondent, suffered severe physical injuries while working at a grain handling facility in Coonamble, New South Wales, on 18 January 2016. He sued the appellant, Agrigrain Pty Ltd, in the District Court. He alleged that Agrigrain was responsible for the maintenance of the facility and safety onsite and that it breached a duty of care owed to him, causing his injuries. He pleaded that at the time of his injuries his employer was Agrigrain (Coonamble) Pty Limited (Agrigrain Coonamble), which was a wholly owned subsidiary of Agrigrain. This allegation was admitted by Agrigrain in its defence filed on 24 February 2023. 3. Russell DCJ, the primary judge, held in favour of Mr Rindfleish and awarded him damages for non-economic loss ($216,500), past economic loss ($44,610.63), future loss of earning capacity ($90,000), past and future loss of superannuation ($126,784.31), past and future out-of-pocket expenses ($28,123.08) and domestic assistance ($15,115.98), totalling an amount of $521,134: Rindfleish v Agrigrain Pty Ltd [2023] NSWDC 543 (J). 4. Agrigrain has appealed. Its amended notice of appeal contains 13 grounds. Grounds 10-12, relating to liability, were not pressed. The drafting of the amended notice of appeal left much to be desired. The grounds in the amended notice of appeal which were pressed extend over nearly 17 pages, padded out by extensive subparagraphs and particulars. This style of drafting does not comply with the requirement that a notice of appeal must state "briefly, but specifically, the grounds relied on in support of the appeal": Uniform Civil Procedure Rules 2005 (NSW), r 51.18(1)(e). 5. Despite the prolixity of the amended notice of appeal, the issues boil down to three. Counsel for Agrigrain managed to articulate these in a few sentences at the beginning of his submissions – a crispness which could and should have been reflected in the notice of appeal. It is that articulation which identifies the real issues in dispute and it is that, as expounded upon in submissions, upon which I focus in these reasons and not the minutiae of the particulars in the amended notice as though each was an essential part of Agrigrain's appeal. 6. The three issues raised by Agrigrain were as follows: 1. Which entity was Mr Rindfleish's employer at the time of his injury (grounds 1-4)? Despite having never applied to withdraw its admission to the contrary, Agrigrain contends that it, instead of Agrigrain Coonamble, was the employer. If that is so, Mr Rindfleish's ability to claim compensation would have been governed by provisions of the Workers Compensation Act 1987 (NSW) (1987 Act) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act). Those Acts prescribe certain procedural prerequisites. It is common ground that Mr Rindfleish's claim did not comply with those prerequisites such that if Agrigrain was his employer, his claim must fail. 2. Was Mr Rindfleish's claim time-barred (grounds 5-9)? Pursuant to Pt 2, Div 6 of the Limitation Act 1969 (NSW) his claim was barred unless brought within three years after it was "discoverable". Mr Rindfleish's claim was brought well beyond three years after he was injured, but the primary judge found that the cause of action was not discoverable by Mr Rindfleish until shortly before it was filed in November 2022. Agrigrain challenges that finding. 3. As regards damages, was the primary judge wrong to award the amounts that he did for non-economic loss, future economic loss for loss of earning capacity, future out-of-pocket expenses and past gratuitous domestic assistance (ground 13)? Agrigrain's challenges are directed to his Honour's fact-finding, thus facing a significant hurdle given the findings depended on the evidence his Honour saw and heard being given. Moreover, the amounts awarded to the respondent do not leap off the page as excessive given the severity of Mr Rindfleish's injuries. That is especially in a context where, perhaps uniquely, Mr Rindfleish was found by the primary judge to have engaged in doctor-shopping in order to find a doctor who would certify him fit for work. 1. None of these challenges is made out. The appeal should be dismissed with costs. I will deal with the issues raised in turn after first setting out the context in which they arise. Background 1. Mr Rindfleish first commenced work for the Agrigrain business in 2007 at a site in Narromine. He did not enter into any written contract of employment. In 2011 Mr Rindfleish left Agrigrain to work for another grain handling business. Both parties, and thus the primary judge, proceeded in the hearing below on the understanding that in his first period with the business he had been employed by Agrigrain itself (ie Agrigrain Pty Ltd). However, on appeal Mr Rindfleish pointed out that this could not be right as an ASIC record in evidence disclosed that it had only been registered as a company on 19 March 2012. Agrigrain Coonamble came into existence just over a month later on 30 April 2012. It was suggested in Mr Rindfleish's submission that he was likely to have been employed in 2007-2011 by "The Trustee for David Ringland Family Settlement", drawing upon the "entity name" registered for a relevant Australian Business Number. Regardless of whether that is correct, he could not have been employed by Agrigrain itself. 2. Mr Rindfleish did not enjoy his new employment. He ran into David Ringland, the proprietor (one way or another) of the Agrigrain business, at the Narromine Races. Mr Ringland told him that the business was opening up a new grain handling facility at Coonamble, and offered him a position helping to build the site and then to run it as site foreman/manager. Mr Rindfleish accepted. His evidence – albeit "I'm guessing", he said – was that he recommenced employment in April or May 2012 (he initially referred to March as a possibility, but his subsequent identification of April or May seemed more considered). He moved to live in Coonamble on 2 July 2012. The first concrete was poured at the site in August 2012 (incorrectly referred to as August 2011 at J [25]) and it started operating to receive grain in November 2012. 3. The circumstances leading to Mr Rindfleish's injuries are not disputed on appeal. On 18 January 2016 a grain auger at the Coonamble site had to be repaired. The group employed two maintenance people but they were based at the Narromine site and only attended the Coonamble site infrequently. On the day of the accident neither of them was at the Coonamble site. Mr Rindfleish thus had to fix the issue himself, which was not an uncommon task for him given the lack of maintenance support onsite. He was aided by Mr Luke Hamilton. He received instructions from the group's maintenance supervisor over the phone. He was standing next to the auger, as he had been directed to do, when a metal component of the auger exploded near his face. Pieces of the auger hit him across the nose and between the eyes. He was knocked off the ladder, landing on his back. His head hit the concrete. His face was badly damaged, with his nose hanging on the side of his face. 4. Mr Rindfleish was taken to the local hospital, from where he was transferred to Dubbo Base Hospital then flown to Westmead Hospital in Sydney, where he underwent surgery on 19 January 2016. A few days later he was discharged home. He has continued to suffer from sustained headaches. He has suffered a permanent loss of smell and partial loss of taste, which has ended his long term aspiration to work as a winemaker (he had previously worked in the wine industry in the Napa Valley). 5. Mr Rindfleish returned to work at the Coonamble site for a few days soon after the accident but could not cope (J [238]). He returned to work in June 2016 for a few weeks then resigned. In October 2016 he took up a job working for an earth moving company driving a road roller, for which he got paid less per hour than in his previous position, but had far fewer responsibilities, such that he could work longer hours. 6. In October 2018 Mr Rindfleish sought legal advice from Mr Joel Redman of Slater & Gordon about compensation. That firm has acted for him with respect to claims arising from his accident since then. Mr Redman suggested that he make a workers compensation and workplace injury claim. Subsequently in March 2022, on advice of a barrister, Mr Rindfleish initiated proceedings in the District Court against Plum Grove Pty Ltd, which he had understood to be the owner of the Coonamble site (in fact it had bought shares in Agrigrain). The barrister who gave that advice then retired and was succeeded by another, who expressed concerns about continuing the claim against Plum Grove as there did not appear to be a relationship between it and the Coonamble site. After further inquiries made by Mr Rindfleish's solicitors, and on their advice, Mr Rindfleish instructed them to discontinue the claim against Plum Grove. 7. On 1 July 2022 Mr Redman sent a letter to Plum Grove's solicitors accordingly, attaching a draft notice of discontinuance. In response Plum Grove's solicitors indicated that they would seek costs on an indemnity basis, referring, amongst other things, to the fact that Mr Rindfleish never established who owned the grain auger in question. That prompted Mr Redman to take further steps to ascertain the ownership of the auger and the Coonamble site. On 25 July 2022 an application was made to SafeWork NSW, the workplace health and safety regulator which had investigated Mr Rindfleish's accident, for disclosure of certain documents under the Government Information (Public Access) Act 2009 (NSW). SafeWork NSW disclosed some documents, with heavy redactions, on 22 August 2022. Mr Redman then served a subpoena on SafeWork NSW seeking its complete file. SafeWork NSW complied, producing voluminous documents on 7 November 2022. 8. The material produced on subpoena included interview records with, amongst others, Stephen Bakac and Paul Bayliss (who constituted the "Narromine maintenance team" for Agrigrain), Jeremy Brown (who was listed on organisation charts as "General Manager" of both Agrigrain and Agrigrain Coonamble), and Wayne Halbisch (who was the "Operations Manager" at both sites). Also produced were the employment contracts of Messrs Brown, Bayliss and Bakac, showing that they were employees of Agrigrain at the date of the accident. Mr Halbisch had said in his interview that he believed he was employed by Agrigrain, as distinct from Agrigrain Coonamble. On Mr Redman's evidence, upon reading the voluminous documents subpoenaed, he formed the view that those four persons were responsible for the safety and maintenance at the Coonamble site. By letter dated 10 November 2022 Mr Redman advised Mr Rindfleish to amend the proceedings to replace Plum Grove with Agrigrain as defendant. Mr Rindfleish provided instructions to that effect on 11 November 2022. 9. On 30 November 2022, after a contested hearing, Andronos DCJ made orders permitting Mr Rindfleish to file his amended statement of claim substituting Agrigrain as the defendant instead of Plum Grove, and ordering Mr Rindfleish to pay certain of Plum Grove's costs. 10. In Agrigrain's defence to the amended statement of claim it admitted that Mr Rindfleish was employed by Agrigrain Coonamble. It further asserted that "there was no relationship" between it and Mr Rindfleish, and said neither it nor its directors nor its employees possessed or exercised control over Mr Rindfleish's work. Agrigrain's admission about the identity of Mr Rindfleish's employer was never withdrawn. On 29 September 2023, just over three weeks before the trial was listed to begin, Agrigrain filed a notice of motion seeking, amongst other things, that the proceedings be dismissed or that a separate question be determined as to whether the claim was one for work injury governed by the workers compensation legislation. That issue relevantly turned on whether Agrigrain was Mr Rindfleish's employer for the purposes of the statutory scheme. The motion was stood over for hearing at the trial. 11. On the first day of the trial Agrigrain filed a further motion seeking to amend its defence such as to raise its argument that the claim must fail for non-compliance with the statutory scheme. The primary judge ruled on the motion that day, declining to allow the amendments including because no explanation had been given as to why the point had not been raised much earlier. However, his Honour stated that "the legal issue as to whether the plaintiff cannot bring this claim because of non-compliance with the workers compensation legislation is fairly and squarely raised by the motion of 29 September 2020 and is a matter which I must determine on this hearing". As explained further below, an oddity of Agrigrain's position is that the amended defence still did not withdraw the admission that Agrigrain Coonamble was Mr Rindfleish's employer. 12. In due course the primary judge held that "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" (J [111]). On that finding the workers compensation statutes did not prevent Mr Rindfleish's claim from success. 13. In relation to liability, his Honour found that Agrigrain was the entity with the power to direct Mr Rindfleish as to what work to do and how to do it, that it had responsibility for operations at the Coonamble site, and it had employed relevant maintenance staff who had advised Mr Rindfleish from time to time (J [192]-[194]). He held that it owed Mr Rindfleish a duty of care, it was responsible for the risk to which he was exposed when he was injured, and it had breached its duty. These findings on liability are not challenged on appeal. 14. Mr Rindfleish, his long term partner Ms Samantha Warnock, and the solicitor Mr Redman, all gave evidence in his case. Their evidence in chief was primarily given orally. Mr Rindfleish was cross-examined for over two days, and Mr Redman for nearly two days. Importantly, the primary judge made credit and reliability findings in their favour. Of Mr Rindfleish he said: [108] 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). 1. He described Ms Warnock as follows: [144] 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. 1. And of Mr Redman his Honour said that "[i]n my view he was a perfectly credible witness" who "struck me as a capable and careful solicitor", albeit "I do think that he made some minor mistakes along the way" (J [169]). 2. The High Court has held that appellate restraint is appropriate, reflecting the natural limitations of the appellate process, in relation to "factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence": Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55]. In relation to such findings – as opposed to conclusions drawn from them (see Lee v Lee at [56]) – the appeal court must consider whether "incontrovertible facts or uncontested testimony" demonstrate error by the trial judge, or that the finding is "glaringly improbable" or "contrary to compelling inferences": ibid; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [28]-[29]. In simple terms, a compelling basis is needed to overturn such a finding. Those principles apply here. Issue 1: who was the employer (grounds 1-4)? 1. Mr Rindfleish has accepted below and on appeal that if Agrigrain was his employer at the time of his accident, for the purposes of the workers compensation legislation, then his claim is one for work injury damages under that scheme and it would fail for non-compliance with the procedural requirements mandated by the scheme. The notion of "employer" is not defined generally in the 1987 Act, leaving aside s 150 (quoted below) which is for the purposes of Pt 5. The notion is defined in broad, inclusive terms in s 4(1) of the 1998 Act. In effect that definition presupposes that the common law understanding of the notion is (also) encompassed by references to the notion in the statutory scheme. The two Acts are to be construed together: 1987 Act, s 2A. 2. Part 5 of the 1987 Act is headed "Common law remedies". Section 150 of that Part provides (and see similarly s 250(2) of the 1998 Act): 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. This definition, too, is expansive and inclusive, building upon the definition in the 1998 Act. In ground 3 of its amended notice of appeal Agrigrain asserted that the primary judge erred in failing to find that it was Mr Rindfleish's employer within the extended meaning in s 150(b). However, as Mr Rindfleish noted in his written submissions, no submissions were directed by Agrigrain to this issue in its primary written submissions. In its written reply there was one passing reference to the extended definition in s 150 but the point was not developed. The words "vicarious liability" were not used in Agrigrain's written or oral submissions. The primary judge addressed separate reasoning to the issue (J [120]-[128]), and that reasoning was not attacked on appeal. In this context any reliance on the extended definition in s 150 can be taken to have been abandoned. 2. The issue as to the identity of Mr Rindfleish's employer therefore depends upon the common law understanding of that notion. A binary choice was presented by the parties in that regard, both below and on appeal: the employer was either Agrigrain Coonamble, as asserted by Mr Rindfleish and found by the primary judge, or Agrigrain, as it asserted. There was no written employment contract. 3. The matters which the primary judge took into account in concluding that Agrigrain Coonamble was the employer were that: it was Agrigrain Coonamble that paid Mr Rindfleish's wages and superannuation, took out his workers compensation policy, withheld and remitted his tax, issued his PAYG Summary and gave him leave entitlements; Agrigrain Coonamble paid a lump sum payment in relation to a whole person injury claim made by Mr Rindfleish in relation to the same incident; Agrigrain's solicitor had sworn an affidavit in which he said as at the date of the incident Mr Rindfleish was "an employee and site supervisor of Agrigrain (Coonamble) Pty Ltd"; and Agrigrain failed to apply to withdraw its admission in its defence that Agrigrain Coonamble was the employer. 4. Agrigrain asserted that the primary judge erred by: 1. employing the wrong legal test by failing "to have regard, as a matter of substance, to the 'totality of the relationship between the parties'" (quoting Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 29); 2. having regard to Agrigrain's admission that Agrigrain Coonamble was the employer; 3. placing insufficient weight on the evidence of Mr Rindfleish suggesting that he had understood he had been employed by Agrigrain; 4. failing to accept that Mr Rindfleish had "resumed" employment with Agrigrain after briefly working for another employer in such a way that he must have been re-employed by the same company; 5. having insufficient regard to the significance of the control that Agrigrain exercised over the work activities of Mr Rindfleish; and 6. attributing excessive weight to the fact that Agrigrain Coonamble had been the entity which made relevant payments (etc) with respect to Mr Rindfleish's employment, where these were said to be "essentially administrative matters". The applicable test 1. Agrigrain's argument that his Honour should have considered the totality of the relationship between the parties overtly called in aid legal principles previously developed to distinguish between an employee and an independent contractor. Those principles have themselves evolved at common law in recent times: Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 275 CLR 254; see also WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456, relating to the characterisation of an employee as "casual" or not. A majority in Personnel Contracting rejected a multi-factorial approach to the issue of characterising a person as an employee or independent contractor, indicating that at least for written contracts the issue was to be determined by reference to the terms of the contract: at [59] (Kiefel CJ, Keane and Edelman JJ), [187]-[189] (Gordon J), [203] (Steward J). As counsel for Agrigrain accepted in the course of argument, those principles are not directly applicable to the issue here of the identity of Mr Rindfleish's employer. Counsel also accepted, again correctly, that that issue is one of contract law. 2. In Australia, an employment relationship is viewed as inherently contractual: see Ian Neil, David Chin and Christopher Parkin, The Modern Contract of Employment (3rd ed, 2023, Lawbook) at [1.001]. Although Mr Rindfleish had no written employment contract, both parties accepted that there must have been a contract to which Mr Rindfleish was a party. There was no dispute that one of the Agrigrain entities had an intention to create legal relations; there was no dispute that there was consideration; and there was no relevant dispute about terms and conditions, other than as to identity. The issue was simply which of the two possible Agrigrain entities was the party to the employment contract. That is an issue of formation going to the terms of the contract: note NC Seddon and RA Bigwood, Cheshire & Fifoot Law of Contract (12th ed, 2023, LexisNexis Butterworths) at [7.2]. 3. There are other related but distinct arguments which might arise in such matters. In some cases it might be alleged that the identified contract is a sham: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471 at [46]. In other cases there may be an allegation that the party named as employer was contracting as agent for an undisclosed principal: eg Resilient Investment Group Pty Ltd v Barnet [2023] NSWCA 118; (2023) 111 NSWLR 446 at [166]-[185]. That issue overlaps with the occasional need to identify whether a party who has signed a contract bound themselves in one capacity and/or in another: as to which see Sinclair v Balanian [2024] NSWCA 144; (2024) 114 NSWLR 248. In yet other cases it might be argued that one employment contract has been overtaken in practice by another, in which case "the courts can consider what the parties to a contract have done, in order to see whether it has been ignored or abandoned": Pitcher v Langford (1991) 23 NSWLR 142 at 161 (Handley JA). None of these issues have been raised in this case. 4. The contractual question here is what a reasonable person in the position of the parties would understand as to the terms and effect of the contract: eg Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [40]; Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; (2022) 277 CLR 115 at [15], [47] and [115]. That principle extends to identifying the parties to the contract: see, in the employment context, Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 at [61]-[62]. Where there are two potential employers, in a case such as this one, the "parties" here can be taken to include both of them such that the question is what a reasonable person in the position of all potentially relevant parties would understand as to which entity was party to the employment contract as employer. For a written contract, assessment of what a reasonable person would understand "requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction": Toll at [40]. For contracts not exclusively in writing, post-contractual material may also be relevant in determining what were the terms of the contract: eg Lawrence v Ciantar [2020] NSWCA 89 at [114], and authority there cited; Personnel Contracting at [177] and [190]. 5. In Resilient Gleeson JA, speaking for the Court, indicated that "there is a real distinction" between the issue addressed in the trio of recent High Court cases and the "true employer" cases (at [162]). As to the latter, his Honour indicated that the primary judge in that matter had not erred in considering the "substance and totality of the relationship" (at [165]). Both statements were obiter. It is said in The Modern Contract of Employment that the suggestion of such a distinction, and reference to authority preceding the trio of recent cases, "is likely to be controversial" (at [2.020]). There need be no such controversy, nor tension with the High Court decisions, if the statements in Resilient are understood to be addressing the issue of identifying the relevant party to the contract as a matter of contract law. That is how the issue was addressed in this Court's earlier majority decision in Shaw, which was referred to approvingly in Resilient. As explained, as a matter of contract law regard may be had to surrounding circumstances and, in cases of a contract not wholly written, also to post-contract evidence. 6. Consistently with the distinction identified in Resilient, the issue of characterising a contractual relationship as one of employment or independent contracting (the characterisation issue) is different from the issue of identifying who are the parties to a contract which it is accepted establishes a relationship of employment (the "true employer" issue). That being said, insofar as post-contract conduct is relevant to the true employer issue it is necessary to identify what sort of conduct might throw light on which entity was the true employer. Notions from the characterisation context may assist in that regard. For example, the nature and degree of control exercised may be relevant to determining whether a person is an employee or contractor (see below at [61]). Analogously, identifying who exercises control may be relevant to identifying the true employer. Insofar as account is taken in the true employer context of factors identified in the characterisation context, they should be factors which are still relevant in that context in light of the recent trio of High Court decisions. 7. In Personnel Contracting Kiefel CJ, Keane and Edelman JJ made the point that in characterising a relationship as employment or contractor it was still permissible to consider the totality of the relationship between the parties (at [61]). But that had to be on the understanding that "for a matter to bear upon the ultimate characterisation of a relationship, it must be concerned with the rights and duties established by the parties' contract, and not simply an aspect of how the parties' relationship has come to play out in practice" (ibid). A similar point applies here. There is some danger in using language such as having to assess the "totality of the relationship between the parties", as though that were the legal test, without keeping a steady eye on the fact that the issue in the "true employer" cases is one of contract law, and that any assistance from the characterisation cases is analogical and must also take account of the law on that topic as it now stands. 8. If there was at the relevant time an extant written employment contract, which is not alleged to be a sham, or invalid for some other reason, or to have been overtaken by a subsequent contract, or to have in fact been made for an undisclosed principal, or such like, then the answer to the true employer will readily be found in the document. 9. If the contract was not wholly written then it is permissible to refer to post-contractual conduct. Care should be taken to avoid a "roaming inquiry beyond the contract" except to the extent permitted by contract law principles (quoting Personnel Contracting at [188] per Gordon J). In this context, as in the context considered in Workpac, "it is the function of the courts to enforce legal obligations, not to act as an industrial arbiter" (Workpac at [62]). As Gordon J explained in Personnel Contracting (footnotes omitted): [178] … The parties' conduct may also demonstrate "a tacit understanding or agreement" sufficient to show that there was a contract in the absence of an earlier express contract. In a dynamic relationship where "new terms [may] be added or [may] supersede older terms", it may also be necessary "to look at the whole relationship and not only at what was said and done when the relationship was first formed". The reference to the "whole relationship" should not be misunderstood. The inquiry remains an objective inquiry the purpose of which is to ascertain the terms the parties can be taken to have agreed. It is not an approach directed to inquiring into the conduct of parties which is not adduced to establish the formation of the contract or the terms on which the parties contracted. 1. The ultimate question in cases such as this is the contractual one of what a reasonable person in the position of all the potentially relevant parties would understand as to which entity was party to the employment contract as employer, taking account of the permissible evidence. The primary judge did not state the issue in quite those terms, but that does not establish of itself that he reached the wrong conclusion. It is necessary to address Agrigrain's other arguments to assess whether his Honour did so. The significance of Agrigrain's admissions 1. The primary judge attributed significance to the fact that Agrigrain had admitted in its defence that Agrigrain Coonamble was Mr Rindfleish's employer, along with the associated fact that its solicitor had sworn an affidavit (obviously on instructions) positively asserting that fact: J [113(4)-(5)]. Agrigrain criticised this reliance. It was said to be "elevat[ing] form over substance" given that its primary point in seeking to amend its defence was to contend that it was Mr Rindfleish's employer. Agrigrain argued that its "motion and proposed amendment, as a matter of substance, did far more than simply seek the withdrawal of an admission", but "unequivocally asserted a positive contrary case". 2. As noted above, when the primary judge dismissed the application to amend the defence he said that the position of Agrigrain was protected because the employer issue was raised by its separate motion of 29 September 2020. In that context, but for one matter, it might have been reasonable for Agrigrain to say that an admission on point in its filed defence should not be held against it. The difficulty with the argument is the admission was still contained – indeed variants of it were repeatedly restated – in the proposed amended defence. In that document Agrigrain set out 59 new paragraphs "in limine" (numbered [1]-[59]). These paragraphs were inserted prior to the existing paragraphs (still numbered, confusingly, from [2] onwards) which responded to the allegations in the amended statement of claim. In that latter half of the proposed pleading Agrigrain: 1. as before, "admit[ted] that the Plaintiff was employed by Agrigrain Coonamble Pty Ltd" (at [5(a)]); 2. asserted that "the Maintenance Supervisor did not possess and exercise authority and control over the employees of Agrigrain Coonamble, including the Plaintiff" (at [8(h)], [9(h)], [10(h)], [11(b)], [12(b)], [13(h)], [14(e)], [15(f)], [16(f)], [20(f)], [22(g)], [23(e)], [25(d)], [26(d)], [27(f)] and [28(d)]); 3. said that it "was not the employer of and had no relationship with the Plaintiff" (at [9(g)] and [10(g)]); and 4. denied "that it was the employer of the plaintiff" (at [15(b)], [16(b)], [22(d)], [23(b)], [24(b)], [25(b)] and [26(b)]). 1. It is difficult to reconcile all those assertions with the argument that Agrigrain clearly was seeking to make that it was the employer of Mr Rindfleish such that the claim could not proceed. However, the dissonance can be resolved. A particular to the paragraph numbered [2] in the proposed "in limine" portion of the amended defence said the following: If the allegations pleaded by the plaintiff in [certain paragraphs of the amended statement of claim] are true and correct, then [the] defendant is and at all material times was a person for whose acts the employer is and at material times was vicariously liable and/or a person who is and at all material times was vicariously liable for the acts of the employer within the meaning of s 150 of the [1987 Act], and s 250(2) of the [1998 Act], and is, and at all material times was, a worker's employer within the meaning of s 150 of the [1987 Act], and s 250(2) of the [1998 Act], and the sections of the [1987 Act] and the [1998 Act] pleaded below. 1. Thus the argument Agrigrain was seeking to make below, set out in its proposed amended defence, was based on Mr Rindfleish's own allegations and was to the effect that he was an employee of Agrigrain within the extended meaning of that notion provided for in the workers compensation legislation. As counsel for Agrigrain put it to the primary judge below, when seeking to file the amended defence: If … the material facts alleged by the plaintiff in the plaintiff's statement of claim are true and correct then it follows that on the basis of those material facts the plaintiff is – the defendant is an employer within the meaning of the Workers Compensation Act. And incidentally you can have two employers within the meaning of the Workers Compensation Act because s 150 uses the words "includes employer within the meaning of this Act". Includes somebody for whom the employer would be vicariously liable. 1. That argument based upon the extended statutory meaning of "employer", drawing on notions of potential vicarious liability, was rejected below (J [120]-[126]). As explained, it was not agitated on appeal. 2. The primary judge referred to the admissions made in Agrigrain's defence when addressing the employer issue as a matter of common law, not when addressing the extended statutory meaning. In the context just outlined, no complaint can be made about his Honour doing so. The judge was not elevating form over substance; he was simply dealing with the case presented to him by Agrigrain. 3. Pleadings and particulars "define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial": Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664. Given the way that counsel for Agrigrain put his submission on the point below, and given the terms of the proposed amended defence, this is not a case where "the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial" (ibid). In this context, the primary judge would have been entitled to determine the employment issue, insofar as it depended upon the common law notion, based purely upon the repeated pellucid admissions made in Agrigrain's defence. In fact he did not do so, but no complaint can be made that his Honour referred to those admissions. The significance of Mr Rindfleish's own views and conduct 1. In its written submissions in reply Agrigrain listed 40 matters which it said the primary judge failed to have regard to in addressing the employer issue. Many of these are matters going to Mr Rindfleish having "resumed" employment with Agrigrain, or issues of control, topics which I address below. What I will address here are the many other points which Agrigrain invoked to argue that Mr Rindfleish's own conduct and evidence suggested that he understood Agrigrain was the employer. 2. Consistently with basic contractual principle, evidence of the subjective understanding of a party to the contract is not to the point. Many of the points made by Agrigrain fall into this category. For example, Mr Rindfleish's evidence in cross-examination that he "assumed" that managers of Agrigrain to whom he reported (Messrs Pritchard, Brown and Halbisch) were employed by Agrigrain goes nowhere. It was merely a subjective assumption, and those employees were based at Narromine and not at Coonamble anyway. 3. It is evident that Mr Rindfleish had had no clear understanding of, and no great interest in, which particular entity was his employer or what the corporate structure was. While the group's corporate structure is not a particularly complex one, it did go through changes from time to time and on Mr Rindfleish's evidence, which was accepted by the primary judge, after Plum Grove became involved with the group he "lost touch with how it all worked" and "had no understanding of the corporate structure" (J [28] and [90]). Mr Rindfleish's lack of clear understanding is illustrated by the fact that he at no stage corrected the assumption of all concerned, now shown to be false, that Agrigrain had existed as a corporate entity when he was employed by the business from 2007-2011. The primary judge found that Mr Rindfleish "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" (J [71]). Even in his letter of resignation, addressed to Jeremy Brown, he said "I would like to thank you for the opportunity to work at Agrarian [sic]". When first asked by his solicitor, he simply said he was employed by "Agrigrain" (J [58]), telling Mr Redman that he "worked primarily at the Coonamble branch". The reference to "Agrigrain" could have been understood as a reference to any company within the group, and reference to "the Coonamble branch" was consistent with him working for the Coonamble subsidiary. 4. Post-contractual conduct is a permissible source of evidence here. But beyond matters going to control and direction, and the evidence as to which entity made payments to and relating to Mr Rindfleish (which Agrigrain sought to downplay), Agrigrain did not point to any evidence of any significance of particular conduct of the parties that pointed towards the contract of employment being with Agrigrain and not Agrigrain Coonamble. The claimed resumption of the earlier employment 1. Agrigrain sought to rely on Mr Rindfleish's prior history of employment with the Agrigrain business. It emphasised that Mr Rindfleish said in cross-examination that, after the discussion at the Narromine Races, he said he "resumed employment". Agrigrain emphasised that Agrigrain Coonamble only came into existence on 30 April 2012, where Mr Rindfleish's evidence, "guessing", was that he recommenced employment in April or May 2012. Agrigrain thus argued that Mr Rindfleish "returned to work for the appellant" at that time, and remained in the same employment relationship with Agrigrain despite the later establishment of Agrigrain Coonamble. 2. The argument was never very convincing given Mr Rindfleish's uncertainty about exactly when he commenced working on the Coonamble project. It may well have been immediately after the new company was established. Further, as already explained, Mr Rindfleish did not really know who was employing him. 3. In any event, it turned out that the argument is based on a false premise. As explained above, the parties overlooked the fact that Agrigrain was itself only established a few weeks before Agrigrain Coonamble, on 19 March 2012. As noted above at [8], it is possible that when Mr Rindfleish had previously worked for "Agrigrain" the employer was a trust for David Ringland and his family. This point was raised for the first time in Mr Rindfleish's written submissions in this Court. Perhaps, strictly, Mr Rindfleish should have sought to raise it by way of notice of contention. Regardless, this Court is engaged in an appeal by way of rehearing and should not ignore a clear and simple fact which emerges from the evidence tendered below and which was raised in the written submissions filed well prior to the hearing of the appeal. 4. In light of the evidence about when Agrigrain itself was established, if any weight was to be given to the argument that Mr Rindfleish had "resumed" his earlier employment then that would strengthen the case for Mr Rindfleish. Whoever that employer was, it was not the appellant. And Agrigrain can only succeed on this issue if it was the employer. 5. In its written submissions in reply Agrigrain complained about Mr Rindfleish departing from the common assumption below. It also complained about the fact that Mr Rindfleish had referred to organisation charts in evidence (which had also not received attention below) in which Jeremy Brown was listed as "General Manager" of both Agrigrain and Agrigrain Coonamble, and Wayne Halbisch was listed as the "Operations Manager" at both sites. Agrigrain submitted that "it must follow that it was Coonamble P/L (represented by Messrs Ringland, Brown and Halbish) which was responsible for the safety of the operations at Coonamble", and that it was Agrigrain Coonamble and not Agrigrain which owed a duty of care. It then said the following: Accordingly, if this Court accepts respondent's new case, appellant will seek leave to amend its Notice of Appeal to insert a ground that the primary judge erred in finding Agrigrain P/L liable for the alleged damage because Coonamble P/L (represented by Ringland, Brown and Halbish) was the employer of the respondent, and was responsible for the care, control, supervision, management and maintenance of the respondent's work and worksite, and was thus responsible for the respondent's alleged damage; the case against Agrigrain P/L ought therefore to have been dismissed with costs. 1. This submission appears implicitly to concede that in light of the evidence about when Agrigrain itself was incorporated, and the organisation charts, the better view is that Agrigrain Coonamble was indeed Mr Rindfleish's employer. Perhaps it was meant to be expressed in the alternative. As it turned out, Agrigrain did not apply to further amend its amended notice of appeal prior to the hearing, nor did it do so in the course of its submissions in chief. There was the following exchange in oral submissions in reply: FRIEDGUT: … But if your Honours were to be against me on that point then we did give notice in our reply submissions that if the Court was minded to seriously consider that new argument and find in favour, then, of course, it having never, ever been raised before, we would seek to add as a ground of appeal that - KIRK JA: At the end of the day, you have made no application to amend. FRIEDGUT: I hereby make that application. KIRK JA: You can't make an application contingent on what we decide. 1. As there stated, it is not appropriate for an appellant to say to the Court that "if you decide X then we will apply to amend our notice of appeal to add a further ground". The issues in dispute need to be crystallised, and procedural fairness accorded to the other party, prior to the Court making its decision. A ground of appeal is either raised prior to the Court's decision or it is not. The point was not pursued by Agrigrain and at no stage was the Court presented with a draft further amended notice of appeal seeking to capture the point. In this context, the flirted-with ground is not before the Court. The control exercised by Agrigrain and related factors 1. Agrigrain complained that the primary judge wrongly dismissed the significance of the control that it had exercised over his employment activities. Mr Rindfleish himself had alleged in his statement of claim that at all material times Agrigrain, through its directors and staff, exercised authority and control over operations at the Coonamble premises, including with respect to maintenance and safety, and had control over his own employment activities including carrying out maintenance tasks. Indeed, he had also alleged that Agrigrain's duty "was akin to that of an employer". The primary judge found that Agrigrain had exercised control in the manner alleged and it was on that basis that it was held to have owed a duty of care to Mr Rindfleish (J [192]-[194]). 2. However, his Honour dismissed the relevance of such control to the issue of identifying the employer (see also at J [5]): [111] … [Agrigrain] 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. [112] 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. 1. The ability of an entity to exercise control over work tasks is an important indicium assisting to characterise a relationship as one of employment rather than independent contractor: Workpac at [101]; Personnel Contracting at [73]-[78], [113]-[118], [174] and [203]. The primary judge implicitly accepted as much. Control is central to the notion of being an employer. That being so, who exercises such control can also be an important factor in identifying which of two possible entities was the employer of a person such as Mr Rindfleish. His Honour thus erred in dismissing the relevance of the factor. 2. Relatedly, in Personnel Contracting Kiefel CJ, Keane and Edelman JJ held that the dichotomy between a person working in their own independent business as distinct from serving in the business of the employer, whilst not universally applicable, was still useful in assessing whether a person was an employee or independent contractor (at [33]-[39]). Gageler and Gleeson JJ held that the "extent to which the putative employee can be seen to work in his or her own business as distinct from the business of the putative employer" was one of three key considerations (at [113]). Gordon J, with whom Steward J relevantly agreed, held that the issue should not be reduced to a binary choice, but a useful question to ask was "whether, by construction of the terms of the contract, the person is contracted to work in the business or enterprise of the purported employer" (at [180]-[183], quoting from [183]; emphasis in the original). Like control – indeed, overlapping with it – this factor has some potential relevance in the current context. The relevant dispute here is not between working in one's own business or the employer's business but between working in the business of one entity as opposed to another. 3. Kiefel CJ, Keane and Edelman JJ quoted with apparent approval the following statement by the New York Court of Appeals, in 1922, filling out the own business/employer's business distinction (Personnel Contracting at [36]): Ordinarily no one fact is decisive. The payment of wages; the right to hire or discharge; the right to direct the servant where to go, and what to do; the custody or ownership of the tools and appliances he may use in his work; the business in which the master is engaged or that of him said to be a special employer; none of these things give us an infallible test. At times any or all of them may be considered. The question remains: In whose business was the servant engaged at the time? 1. Matters such as these may also throw light on which business is employing a person. 2. Further, and again relatedly, in Resilient the fact that an entity nominated as employer did not carry out any business activities of its own was relevant in considering whether that entity was acting as agent for another entity in entering the employment contract (at [179]-[184]). Reference was also made to whether there was an "intelligible business purpose" in the first entity being the employer (at [177]-[178]). Both matters may be relevant to identifying which of two companies in a corporate group was the employer of a person. 3. Turning back to this matter, the accepted facts that Agrigrain had power to reprimand Mr Rindfleish, and to direct him as to what work to do and how to do it, are significant matters pointing towards Agrigrain being the employer. His Honour erred in failing to recognise the significance of that evidence in aiding Agrigrain's case. However, those matters are not definitive. The primary judge's point about labour hire companies illustrates as much. A person may be an employee of a labour hire business but their activities may in practice be under the direction of someone else. 4. It is clear that Agrigrain was the main business. Agrigrain Coonamble was its wholly owned subsidiary. Importantly, Agrigrain Coonamble was not just serving as nominal employer (noting, as discussed below, that it assumed responsibility for the obligations of an employer with respect to Mr Rindfleish). As discussed above, it was incorporated in 2012 shortly after Agrigrain itself was incorporated. It was established just as Agrigrain was embarking on setting up a new grain handling operation at Coonamble. It was Agrigrain Coonamble which then acquired and owned the site in question (J [194]). The organisation charts from 2016 which were in evidence indicate that the businesses were separately organised, albeit with overlapping personnel. Thus, as noted, Jeremy Brown was listed as General Manager and Wayne Halbisch as the Operations Manager on both charts. It seems the ultimate boss at the relevant time was David Ringland (note J [67]-[68]), who was a director of both entities. The personnel and roles identified on the two organisation charts were not identical. They bespeak different businesses, with senior staff having roles in both. That is a commonplace arrangement within a corporate group. 5. Consistently with that evidence, Mr Rindfleish himself testified that Agrigrain Coonamble was "a separate business" which was treated separately from Agrigrain with respect to its finances (note J [27]), albeit that financial decisions were made by Mr Brown who was based at Narromine. That was no doubt a somewhat loose understanding, given Mr Rindfleish's confessed lack of clear understanding about the corporate structures. Yet it is very plausible that he, as the foreman at the site, would have learned if the finances of Agrigrain Coonamble were treated separately from those of the Narromine business. The cost of employing Mr Rindfleish was a cost of running the Coonamble business, which would naturally be attributed to the entity running the business. 6. This evidence indicates that Agrigrain Coonamble was no mere nominal entity the name of which was used only on certain documents. It was its own business, albeit conducted as an offshoot of Agrigrain and with key decisions being made by personnel based at Narromine, some of whom held roles in both Agrigrain and Agrigrain Coonamble. There is nothing surprising or unusual in such an arrangement. It manifests a relatively common and entirely intelligible business purpose. Agrigrain had established and was running a smaller subsidiary business at Coonamble, doing so through Agrigrain Coonamble, albeit with directions being given from the parent entity at Narromine. Agrigrain itself submitted that "[t]he most that can be said on the evidence is that Agrigrain P/L – and the respondent himself – treated Coonamble simply as a division of the business of Agrigrain P/L". That understanding is consistent with Agrigrain Coonamble, as a distinct legal entity, running a meaningfully separate business at a different site under the direction of those working at and from the parent entity. 7. These circumstances point towards Agrigrain Coonamble being Mr Rindfleish's employer. He was working in the distinct Agrigrain Coonamble business, playing the role delineated on Agrigrain Coonamble's organisation chart. These matters outweigh the significance of the fact that substantial control in operations was taken by staff employed by Agrigrain at Narromine. 8. That there were two overlapping but distinct businesses is not inconsistent with the finding that Agrigrain owed Mr Rindfleish a duty of care. Maintenance activities at Coonamble were the responsibility of Agrigrain (see J [69], [114], [193]-[195] and [210]). And, as indicated, the liability finding has not been challenged. The significance of the "administrative matters" 1. Agrigrain does not contest that it was Agrigrain Coonamble which paid Mr Rindfleish's wages, remitted tax on his behalf, issued him PAYG tax summaries, paid his superannuation, dealt with his leave entitlements, and had taken out a workers compensation insurance policy which covered him (J [113]). It submits, however, that these are "essentially administrative matters" of little or no weight. 2. This Court said in Resilient that, consistently with earlier authority, such matters are relevant but not determinative (at [174]). Given the absence of a written contract, such post-contract conduct may be taken into account. It is relevant to how a reasonable person in the position of the parties would assess which entity was the employer. Here, unlike in Resilient, there is no reason to suggest that the records did not reflect the business reality, as just discussed. Conclusion as to the identity of Mr Rindfleish's employer 1. The analysis of the primary judge was not without error, in particular as regards the significance of control. Nevertheless, his Honour's conclusion was correct. It would have been open to conclude that Agrigrain Coonamble and not Agrigrain was Mr Rindfleish's employer based on Agrigrain's formal admissions in its defence alone. In any case, the other matters focused on by Agrigrain do not lead to a contrary conclusion. Various statements Mr Rindfleish himself had made do not greatly aid contractual analysis, especially when it was understood he did not have a clear understanding of the corporate structure. The argument about Mr Rindfleish having "resumed" his earlier employment rebounded on Agrigrain. The evidence indicated that Agrigrain ran the Coonamble site as a relatively distinct business, through Agrigrain Coonamble. And the "administrative matters" were consistent with, and offered some reinforcement to, the conclusion that Mr Rindfleish was an employee of Agrigrain Coonamble. Taking account of all the relevant circumstances, that is what a reasonable person in the position of the parties would have concluded. 2. Grounds 1-4 are not made out. Issue 2: when was the cause of action discoverable (grounds 5-9)? 1. Part 2 Div 6 of the Limitation Act applies to Mr Rindfleish's claim. Relevantly, pursuant to s 50C(1), there was a 3 year limitation period from when the cause of action was discoverable by Mr Rindfleish. That notion is addressed in s 50D: 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. … 1. The sole issue in dispute relates to the subs 1(b) point, that is, when Mr Rindfleish first knew or ought to have known of the fact that his injuries were caused by the fault of Agrigrain. Mr Rindfleish conceded that he had known of the matters addressed in subs (1)(a) and (c) more than three years before the claim was made against Agrigrain. 2. The primary judge found that Mr Rindfleish could only know he had a cause of action against Agrigrain after his lawyers advised him so, and that the lawyers only knew after Mr Redman received documents subpoenaed from SafeWork NSW which suggested Agrigrain was the entity with responsibility for safety at the Coonamble site (J [187]-[188]). That was in early November 2022. As explained above at [14]-[16], immediately thereafter an amended statement of claim was prepared, and leave to file was given by Andronos DCJ on 30 November 2022. The primary judge thus held that Mr Rindfleish's claim was not time-barred. 3. Agrigrain's complaints were, in substance, that the primary judge "erred in law by applying the wrong test"; erred in failing to conclude that Mr Rindfleish actually knew that the injury was caused by Agrigrain; and erred in failing to conclude that Mr Rindfleish ought to have known that the injury was caused by Agrigrain. The relevant test 1. The primary judge said, after summarising his relevant findings of fact (emphasis added): [188] 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 … 1. For clarity, it should be noted that this statement might be taken to suggest that Agrigrain had been sued in some capacity in Mr Rindfleish's original statement of claim. That is not so. Plum Grove was the only defendant named in that statement of claim. The amendments allowed by Andronos DCJ had the effect, amongst other things, of substituting Agrigrain's name for that of Plum Grove. 2. Agrigrain's argument was founded upon the analysis of Simpson AJA, speaking for this Court, in Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213; (2023) 326 IR 289. In that case the employee initially thought Synergy Scaffolding Services Pty Ltd was his employer, when actually it was DJ's Scaffolding Services Pty Ltd (DJSS), a related entity. He commenced proceedings against Synergy Scaffolding nearly five years after his injury, and subsequently also joined the Workers Compensation Nominal Insurer as representative of DJSS. At first instance he succeeded in his claim against Synergy Scaffolding. On appeal it asserted that the claim was time-barred. 3. Her Honour, drawing upon earlier authority, there relevantly explained what s 50D(1)(b) involves in the following clear terms (citations omitted, emphasis added): [69] … To "know" that an injury is caused by the fault of the defendant is to know "the key factors necessary to establish liability". That may involve knowledge of a number of anterior facts, from which a conclusion that the injury was caused by the fault of the defendant may be drawn. The s 50D(1)(b) "fact" is, in reality, a conclusion drawn from known (or supposed) facts. The anterior facts sufficient to justify such a conclusion may … became known to the plaintiff at different times. [70] Whether the anterior facts known to the putative plaintiff are such as to constitute knowledge that the injury was caused by the fault of the putative defendant depends upon a "legal evaluative judgment". In particular, having regard to the provisions of the Civil Liability Act, notably ss 5B and 5D, the putative plaintiff needs an appreciation of the principles applicable to a claim for damages based on negligence. Similarly, where the putative plaintiff is an employee of the putative defendant, an appreciation of the provisions of the Workers Compensation Act is necessary. Ordinarily, the lay person will not have either of those appreciations without legal advice, and sometimes specialist expert advice. That is not to say that legal advice will be required in every case … [80] In my opinion, for the purposes of s 50D(1)(b), the relationship between Synergy Scaffolding and DJSS was not material … Section 50D(1)(b) does not require knowledge of the capacity in which a putative defendant might be liable. It requires knowledge that the circumstances in which the injury occurred are such that legal liability could be established. Whether Synergy Scaffolding was Mr Alelaimat's employer, or no more than an occupier of premises, had no necessary bearing on the question whether Mr Alelaimat's injury was caused by Synergy Scaffolding's fault. 1. Her Honour went on to hold that the plaintiff there had sufficiently known that his injury was caused by the fault of Synergy Scaffolding (at [81]-[82]). That was so because he had known more than three years before his claim was filed that Synergy Scaffolding had been in occupation of the site and that its workers were responsible for his injury. In other words, regardless of whether or not Synergy Scaffolding was his employer, the plaintiff knew enough to have known that legal liability could be established against it. 2. Agrigrain argued that "[t]o know that an injury was 'caused by the fault of the defendant' for the purposes of s 50D(1)(b) of the [Limitation Act], the plaintiff need not know the capacity in which a putative defendant might be liable"; rather, "[i]t suffices that the plaintiff knows that the circumstances in which the injury occurred are such that legal liability could be established" against the defendant. These arguments are correct. What the primary judge said at J [188] involved either loose language or legal error insofar as it suggested to the contrary. 3. But if there was such error, it does not mean that Agrigrain succeeds on these grounds. This case is not the same as Synergy. Here – subject to considering Agrigrain's other arguments – his Honour found facts establishing that neither Mr Rindfleish nor Mr Redman understood that Agrigrain had the responsibilities at the Coonamble site that it did. Specifically, he found that "[i]t was only after reading [the SafeWork NSW] documents that Mr Redman appreciated that [Agrigrain] was the entity with responsibility for safety at the Coonamble site" (J [187(17)]). That was the basis upon which Agrigrain was held liable and, importantly, it is the only basis upon which it has been suggested that Agrigrain was liable (at least once the conclusion is reached – as confirmed above – that Agrigrain was not Mr Rindfleish's employer). Until that penny had dropped, in contrast to the situation of the plaintiff in Synergy, it could not be said that Mr Rindfleish had knowledge of the relevant legal evaluative judgment constituting the fact that his injury was caused by the fault of Agrigrain. Whether the primary judge erred as regards what Mr Rindfleish knew 1. Agrigrain then argued that Mr Rindfleish in fact did know of relevant facts sufficient for him to have known since the time of the accident onwards that the injury was caused by its fault. The argument is without merit. 2. The primary judge (at J [181]) quoted the following analysis by Basten JA in Murgolo v AAI Ltd [2019] NSWCA 295, which is apposite: [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. Here, to a significant extent Agrigrain's argument involved an assertion that Mr Rindfleish was "clearly aware of the fact that Agrigrain was his employer". As addressed above, Agrigrain was not his employer. 2. Agrigrain pointed to all the allegations made in the amended statement of claim which set out the basis for its liability. That such allegations were eventually put as against Agrigrain in November 2022 does not establish earlier knowledge. 3. Agrigrain argued in oral submissions that there had been "a clear miscarriage of the fact-finding process" and that the evidence of Mr Rindfleish and Mr Redman on this issue should not have been accepted. Reference was made, for example, to statements in correspondence long before the SafeWork NSW documents were obtained talking of obtaining damages from Agrigrain. Agrigrain also referred to the fact that Mr Rindfleish had given evidence that he was given instructions by people who were employees of Agrigrain based at Narromine. 4. The findings of fact of the primary judge about what Mr Rindfleish and Mr Redman knew and understood were indisputably based upon seeing and hearing them give evidence. The principles referred to at [24] above therefore apply. No compelling basis has been shown to overturn his Honour's findings of fact, as summarised at J [197]. On the contrary, those findings are not only plausible but persuasive. 5. The primary judge considered the evidence which Agrigrain now points to, including the legal file notes and correspondence. His Honour found that the first time Mr Rindfleish was given advice he may have a common law claim was in a phone conference with the first barrister retained on 25 June 2021 (J [187(10)]). That advice was that there was a viable claim "against the owners of the facility and machinery", being (it was wrongly thought) Plum Grove. Just such a claim was filed. Agrigrain's assertion of actual knowledge of the relevant legal evaluative judgment – the "composite fact" – is undercut by the course of events. Mr Rindfleish, represented by Mr Redman, sued the wrong entity. He did not seek to sue Agrigrain until November 2022. That conduct bespeaks the understanding. 6. As explained above (at [50]), Mr Rindfleish had no clear understanding of the way in which the corporate group was organised. It cannot be inferred, simply from his likely awareness of the existence of Agrigrain as an entity, that he had an appreciation of Agrigrain's place in the corporate group structure and its responsibility over the Coonamble site. Unlike in Synergy, Mr Rindfleish was not just confused as to whether Agrigrain was his employer. He did not know quite what, if anything, the Agrigrain entity had to do with the Coonamble site. Until the SafeWork NSW documents were subpoenaed, Mr Redman's knowledge rose no higher than Mr Rindfleish's. Whether they ought to have known is the next issue. Whether the primary judge erred as regards what Mr Rindfleish to have known 1. Section 50D deems the action to be discoverable if the person in question "ought to know", in the sense (relevantly) that the fact that the injury was caused by the fault of the defendant "would have been ascertained by the person had the person taken all reasonable steps before that time": s 50D(2). Counsel for Agrigrain argued that even if Mr Rindfleish had no actual knowledge of his claim against Agrigrain prior to 10 November 2022, he ought to have known. 2. First, Agrigrain complained that Mr Rindfleish had provided "no explanation as to why he waited until almost the end of the limitation period before instructing his solicitor". Mr Rindfleish first consulted Mr Redman nearly 2 years and 9 months after the accident. That left time for investigatory steps to be undertaken. The real issue is that such steps were not taken at that point, which is the third complaint. 3. Second, it was said that "the respondent knew exactly what the position was from 2016 … [and] knew exactly who was instructing him". Agrigrain relied on an argument that taking "all reasonable steps" involves, where a lawyer is briefed, placing all relevant information in a lawyer's possession, citing GE Dal Pont, Law of Limitation (2nd ed, 2021, LexisNexis) at 167 [7.53]. Yet the primary judge found with good reason that Mr Rindfleish did not have a clear understanding of the organisation of the Agrigrain group. He passed on the benefit of his limited and confused understanding and thereafter relied on his solicitor. 4. That then leads to the third complaint, namely that there had been no explanation as to why detailed investigations were not undertaken when Mr Redman was retained in 2018, including obtaining the SafeWork NSW materials. The statutory language refers to reasonable steps taken by the person whose knowledge of the fact is in issue, being here Mr Rindfleish. The question is what steps would have been reasonable for Mr Rindfleish, not his lawyers, to take. 5. In Baggs v University of Sydney Union [2013] NSWCA 451 the plaintiff received advice from solicitors that she had low prospects of claiming in damages against the University of Sydney but the advice did not address a possible claim against the University of Sydney Union, a distinct legal entity which occupied the building where she was injured. She later sought to sue the Union. An issue arose as to whether she ought to have known that her injury was caused by the fault of the Union. The Union argued that the inquiries made by the initial solicitors were totally inadequate and that Ms Baggs should have sought further advice from a second firm that she had consulted about making a workers compensation claim. That argument was rejected. There was no evidence that Ms Baggs "appreciated or had any basis for believing that the advice … was not given carefully or that it was not correct", and thus "from her perspective there is no reason suggested as to why, acting reasonably, she was required to seek a further opinion" (at [36]). 6. The facts are similar here. Nothing suggests that Mr Rindfleish ought to have concluded that his lawyers had overlooked a responsible entity. There is nothing in his background or experience which suggests that he should have been double-checking that the solicitor retained to advise him had conducted ASIC and property searches and the like. It may well be that Mr Rindfleish's lawyers, acting diligently, could and should have done more to clarify the corporate structure much earlier than they did. But their omissions should not rebound on him. He had taken all reasonable steps by engaging lawyers in time and providing instructions as sought by them. 7. Agrigrain has therefore not established that Mr Rindfleish knew or ought to have known that his injury was caused by it prior to November 2022. His claim was therefore not outside the 3 year limitation period prescribed by Pt 2, Div 6 of the Limitation Act. Grounds 5-9 are not made out. Issue 3: damages (ground 13) 1. Agrigrain challenges the amount the primary judge awarded for non-economic loss, a buffer for loss of future earning capacity, future out-of-pocket expenses and past domestic assistance. The task of quantifying damages for non-economic loss is one for which there is no single correct answer, such that Agrigrain must establish House v The King error: White v Redding [2019] NSWCA 152; (2019) 99 NSWLR 605 at [61], [71]-[76], [80], [88] and [94]-[98]. Whether or not that standard of review applies to the other types of assessment was not argued here, but in any event Agrigrain only alleged House v The King error as regards each of the assessments at issue. 2. Counsel for Agrigrain accepted that "all of these damages challenges depend upon [the Court] finding that his Honour should not have accepted the evidence of the plaintiff and his partner". Agrigrain faces the significant hurdle that his Honour's findings were based on having observed and heard the relevant witnesses and Agrigrain must therefore establish a compelling basis for overturning such findings (see above at [24]). Non-economic loss 1. Section 16(1) of the Civil Liability Act 2002 (NSW) provides that "[n]o damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case". The primary judge took into account the following: "the very torrid year of 2016", saying "I completely accept the evidence of the plaintiff and his partner Ms Warnock concerning his significant difficulties in getting through that year"; Mr Rindfleish's loss of smell and partial loss of taste; having a significant scar across the bridge of his nose; ongoing sensory changes in his face; having plates and screws in his skull; and that he was 41 years old and had many decades left to put up with these disabilities (J [229]-[235]). The primary judge assessed Mr Rindfleish at 32% of a most extreme case, leading to an award of $216,500 for non-economic loss. 2. It is not entirely clear from Agrigrain's submissions what criticisms applied to which findings but the following challenges seemed to be relevant to non-economic loss, and perhaps to other heads of damage. 3. First, it was suggested that Ms Warnock's evidence was inadmissible because it was opinion or hearsay. The argument was not developed in any detail and has no apparent merit. It is commonplace for the partner of a claimant to give evidence as to what they observed of how the claimant was affected by their injuries and how, for instance, that affected the running of the household. Whilst statements such as that Mr Rindfleish was "completely unfit for work" (referred to at J [136]) are of doubtful admissibility, there is nothing to suggest his Honour placed any real reliance on it. Indeed, when that statement was objected to the judge responded by suggesting to counsel for Mr Rindfleish that he would be assisted by evidence of what Ms Warnock had seen or heard rather than questions inviting "opinion and speculation". 4. Second, Agrigrain challenged the primary judge's acceptance of a statement by Ms Warnock that she "had a memory that in total [Mr Rindfleish] spent six months lying on the lounge" (quoting J [136]). Agrigrain argued that this is obviously untrue as records show that Mr Rindfleish was back at work two weeks after the incident. Agrigrain's argument seemed to have the overtone that it was clearly untrue that anyone would spend six months lying on the couch. There is no reason to think that the primary judge took the evidence in a literal sense. Shortly after Mr Rindfleish's first attempt to return to work he had to be admitted to hospital to be treated for pneumonia, then ten days after his second attempt in March or April he stopped – on his and Ms Warnock's evidence due to continuing headaches and stress – before going back again in June 2016, then resigning at the end of that month. As such during much of the six months after his injury he was not actually working. 5. Ms Warnock was being asked in chief about how Mr Rindfleish seemed after he was discharged from hospital, for the second time, in March 2016. She said: For a couple of weeks he was still not very well in his chest, so he spent here again more time on the lounge, all up it would have been a good six months at least that he spent on that lounge. 1. She was then immediately asked "[i]t's the case isn't it that he returned to work though in March?", to which she said "[c]orrect". The primary judge noted this evidence in the same paragraph as that impugned by Agrigrain. Therefore what she said about Mr Rindfleish spending six months on the lounge, as understood and accepted by the primary judge, must be taken in context. Besides, what Ms Warnock said was that he "spent … more time on the lounge", rather than doing so all day every day. This challenge is devoid of merit. 2. The third challenge is similar and concerns a statement recording that Ms Warnock gave evidence to the effect that "[t]wo 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" (J [139]). That statement relates to when Mr Rindfleish retreated home again after his brief resumption of work in June 2016. Again, so long as not understood in a silly literal sense, this evidence is entirely plausible and relevant as an indicator of his capacity at the time. It is obvious from Ms Warnock's evidence that there she was talking about Mr Rindfleish's movements when he was not at work. For example, shortly before the relevant statement there was the following exchange: Q. When he came back home after being at work for a few days what did you observe about him in terms of his symptoms? A. Just constant headaches, laying on the lounge again. The only thing he was doing was getting up, going to the toilet and having a shower. That was as far as his home duties would go. He couldn't go outside. Just couldn't deal with the children. Couldn't deal with noise. 1. Fourth, Agrigrain sought to rely on a certificate of capacity Mr Rindfleish obtained in order to get back to work at Coonamble which said that he could perform all duties, save for lifting over five kilograms and pushing and pulling as tolerated. Mr Rindfleish had gone out of his way to get a certificate to go back to work (see J [74]). As his cross-examination below revealed, he first went to a Dr Yates saying he felt he could go back to regular duties. Dr Yates thought that he could not and declined to give him such a certificate. He then approached a Dr Sorial who initially gave an all-clear, then withdrew it having heard concerns from the workers compensation insurer about Mr Rindfleish returning to work too early. As the (very experienced) primary judge said of this noteworthy course of events, "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" (J [74], emphasis in the original). In this context, the certification invoked by Agrigrain is far from being compelling evidence to undermine the primary judge's findings of fact about how the injury had affected Mr Rindfleish. And, incidentally, not being able to lift over five kilograms was in any case a significant restriction for someone whose work involved overseeing the operations of a grain handling facility. 2. The fifth challenge was as to the reason Mr Rindfleish finally resigned from the Agrigrain group. This challenge related to the degree to which his capacity for work had been affected. Agrigrain asserted he resigned because of health concerns relating to Ms Warnock and it had nothing to do with the impact the incident had on Mr Rindfleish's health. The argument was not off to a good start given that Mr Rindfleish's letter of resignation, dated 27 June 2016, said as follows: I am writing to inform you that I am resigning from my position as yard manager from 15.7.16. I am resigning from my role due to health reasons. I would like to thank you for the opportunity to work at Agrarian [sic]. 1. Mr Halbisch, of Agrigrain, attached the resignation letter to an email he sent to the worker compensation insurer, saying "I believe the health issues stated are family related". Mr Rindfleish was cross-examined about this: Q. Did you not have a discussion with Wayne Halbisch before resigning, or possibly even after resigning, in which you told him that the health issues which had persuaded you to resign were family-related health issues? A. I don't recall. But, in saying that, that, that is true. I was sick, my partner was sick and it was too much. 1. Contrary to Agrigrain's submission, that response does not indicate that any health issue in Mr Rindfleish's family – relating to Ms Warnock – was the sole, or even main, reason that he resigned. 2. Relatedly, Mr Rindfleish was asked why he switched employment from the Agrigrain group to his then current job (which he started in about October 2016), which paid significantly less per hour. He said it was because "I'm not sure I could do that anymore" with the "stress phone calls" that came with his supervising role which he frequently received even at home. His "head would have been exploded". He said when headaches set in he would "become cranky", "make poor decisions" and "make mistakes", and overall he "don't think I did very well at all actually" during his short period resuming work. Those go directly to his capacity to work. Given his injuries it is unsurprising that Mr Rindfleish would consider that he could – and, given his hardworking character, should – take a job that he could do which involved far less responsibility and stress. 3. Ms Warnock was asked why, to her knowledge, Mr Rindfleish had stopped work in June 2016, saying: It was just too much. Too much pressure. When there was too much pressure. When there was too much pressure it causes the headaches. He just - he couldn't function there. It just wasn't possible for him. He also asked for help, a second person to help in the office. They never got a second person to help and it just became too much for him. 1. "Too much" – the same language Mr Rindfleish adopted – supports the conclusion that a substantial reason for his resignation was the consequences of the injuries he had suffered. His injuries caused him headaches that could be triggered by a plethora of matters apt to disturb such as noise, stress, sun or cold. One of those triggers may have been his partner's ill health. Ms Warnock did not deny having health issues around the time, as shown in this exchange: Q. … do you remember you were suffering from health issues in June 2016, which was one of the reasons that he resigned from his job? A. That's correct. So I have seizures. I only started having seizures after my second baby. So when Ian had his accident … a lot of the time during that year of 2016 we were relying on our landlord to take me to hospital when required. And I have a lot of stomach issues as well. But the main issue was the seizures, but that wasn't the reason for Ian resigning. It may have been what he said to the company. But … his health was declining, the headaches were getting worse, and he just couldn't do it. He couldn't cope. He was coming home, going to the lounge. … I mean, like – it was a tough year. It was hard. It was – on both of us, it was mentally and physically hard. … My kids … were in daycare five days a week. … I had to go and chuck em in there … So I could go out and earn a little bit of money so we had enough to pay our bills. 1. It was entirely open for the primary judge to accept all of this evidence from Mr Rindfleish and Ms Warnock. Her answers also suggest that he downplayed the impact of his injury to his employer. Doing so was consistent with the primary judge's conclusion that he was "a laconic and stoic character who, if anything, understated the effect of his injuries" (J [108]). Mr Rindfleish himself had said: "I only wanted to go back to prove a point to say that I was right to go back to work, really. I went back to work for no logical reason … My partner … told me not to go back to work". So much was demonstrated by his efforts at "doctor shopping", as recounted above at [110]. 2. Agrigrain has not come anywhere close to establishing error in the findings challenged to the requisite compelling level, or more generally established error in relation to the award for non-economic loss. On the contrary, the careful analysis of the primary judge is compelling. Buffer for future economic loss 1. The primary judge awarded the sum of $90,000 as a buffer for future economic loss, saying: [250(3)] … 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. 1. Agrigrain made the following, odd submission about whether or not Mr Rindfleish got headaches: The respondent did not adduce any medical evidence whatsoever in relation to [continuing] headaches. A fortiori, there is no admissible evidence whatsoever that the respondent had suffered continuing headaches of the kind described as a result of the incident. 1. Mr Rindfleish himself gave extensive evidence of his ongoing headaches. That was the best evidence available on the point, if Mr Rindfleish was credible. The judge found him to be so and no basis for undermining that assessment has been established. 2. Agrigrain then argued that no such buffer should have been awarded because there was no rational basis for it, in particular because "[t]here was no evidence before the primary judge that the respondent has suffered a diminution in his earning capacity due to the accident". Agrigrain noted that Mr Rindfleish had secured employment after leaving the Agrigrain group; he had been working for the same company for seven years before the date of the hearing below; and he had good prospects of keeping his job. It pointed out that Mr Rindfleish was earning as much if not more than he did before his injury. 3. These arguments ignore several significant facts. Mr Rindfleish was working for a significantly lower hourly rate in his new job. No longer a manager, he had become a road roller driver. When asked why he accepted the pay cut he said – as recounted above – that his injuries caused recurring headaches which made him incapable of fulfilling his management/supervising role. He had to trade his rate of pay for less stress. The only reason he was able to make as much as he did was his industriousness. He had been working 40 hours per week at the Coonamble site, but worked 65 to 70 hours per week in his new position. He explained that he was fine working such long hours in order to make as much as before because with his new work "the stress levels are fairly low" and he was able to work in a quieter environment. 4. Increased income does not necessarily preclude damages for future loss of earning capacity: see Russell v J Hargreaves & Sons Pty Ltd (1956) 30 ALJR 533 at 533-534 (Dixon CJ and McTiernan J). The evidence indicated a decrease in Mr Rindfleish's earning capacity in terms of the level of responsibility he was able to take on. And there is obvious room for doubt about whether Mr Rindfleish would be able to continue working such long hours in order to sustain his earnings. As Cavanagh J, speaking for this Court, explained in Ramsey v Denton [2021] NSWCA 310; (2021) 98 MVR 340: [58] … Whilst a more precise calculation might generally be preferred, a buffer would be permissible when the task of assessing loss of earning capacity cannot be undertaken with reference to precise weekly amounts due to the uncertainty of the claimant's likely future circumstances and the number of variable factors which would render a more precise assessment merely artificial and speculative. 1. This was just such a case. Future out-of-pocket expenses and superannuation 1. Agrigrain's challenge to the award of future out-of-pocket expenses is trivial – the primary judge only awarded a modest $2,000. And it is meritless. Agrigrain's ground of appeal asserted that "there was no evidence whatsoever supporting such an award". Yet it did not put on any written or oral submission whatsoever on point, other than its counsel saying in oral argument that "[w]e challenge it – not that it's a thing …". The primary judge gave rational reasons for awarding a small amount under this head at J [255]-[256]. No error has been shown. 2. In oral arguments counsel for Agrigrain said the primary judge's award for future superannuation was also challenged, but this was not raised by any ground of appeal or supported by any form of submission. That challenge, insofar as this Court could consider it, must also fail. Past gratuitous domestic assistance 1. On evidence given by Mr Rindfleish and Ms Warnock, after he sustained his injuries she had to take on more domestic tasks during an extended period. His Honour was satisfied that Mr Rindfleish was entitled to 12 hours per week from the date of the accident (18 January 2016) to August 2016 and 9 hours per week from September to November 2016 (J [259]). An amount of just over $15,000 was awarded. This conclusion was based upon the primary judge accepting the evidence of Mr Rindfleish and Ms Warnock on point. 2. Agrigrain's principal challenge on this front was as to Ms Warnock's evidence. No compelling basis has been shown to undermine his Honour's acceptance of that evidence. At the time the couple were living on a 20 acre property, two acres of which were garden (J [76]), with two very young children, and a swimming pool to maintain. The time allowed by his Honour for domestic assistance is very plausible given the significance of Mr Rindfleish's injuries, the time he spent in hospital, his ongoing problems with headaches and noise, and the evidence about him substantially just spending time on the couch during their annus horribilis after the accident. That Ms Warnock herself had health problems does not establish that she was not performing extra domestic tasks. 3. Agrigrain's quibbling submissions about a relatively minor sum are without merit. 4. In no respect, thus, is ground 13 made out. Orders 1. The orders of the Court should be as follows: 1. Appeal dismissed. 2. The appellant is to pay the respondent's costs. 1. STERN JA: I agree with Kirk JA. ********** 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: 09 December 2024