Cotton On Group Services Pty Ltd v Golowka

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0004

COTTON ON GROUP SERVICES PTY LTD	Applicant
v
MONICA GOLOWKA	Respondent

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JUDGES:	McLEISH, T FORREST JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2022
DATE OF JUDGMENT:	14 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 279
JUDGMENT APPEALED FROM:	[2021] VCC 1794 (Judge Pillay)

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BREACH OF DUTY – Causation – Respondent sustained injury to left knee and left leg in course of employment – Respondent injured when pushing trolley – Whether judge had sufficient basis for inferring that different system of work would have reduced risk of injury – Whether sufficient evidence to support finding of causation – Causation not established – Reasons for finding causation and breach of the Occupational Health and Safety Regulations 2007 inadequate – Leave to appeal granted – Appeal allowed.

Occupational Health and Safety Regulations 2007 – Wrongs Act 1958, ss 45(1)(b), 51.

Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, McLean v Tedman (1984) 155 CLR 306, Swain v Waverley Municipal Council (2005) 220 CLR 517, Quigley v Commonwealth (1981) 55 ALJR 579, Tabet v Gett (2010) 240 CLR 537 applied; Greater Shepparton City Council v Clarke [2017] VSCA 107, Bauer Media Pty Ltd v Khedrlarian [2020] NSWCA 288, East Metropolitan Health Service v Ellis [2020] WASCA 147, Masters Home Improvement Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88 referred to.

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Counsel
Applicant:		Ms F Ryan SC with Ms L Glass
Respondent:		Mr J Brett KC with Mr A Coote
Solicitors
Applicant:	Wisewould Mahony
Respondent:	Slater and Gordon Ltd.

MCLEISH JA:

I agree with T Forrest JA and J Forrest AJA, for the reasons they give, that the appeal fails on ground 1 but must be allowed on ground 2. I wish only to add the following.
While the evidence supported the judge’s finding of breach of duty, the plaintiff failed to show how her injury would have been averted under the counterfactual scenario in which she unloaded boxes from the trolley at the end of each aisle instead of waiting until she had a fully laden trolley.[1]
[1]Munday v St Vincent’s Hospital [2021] VSCA 170 [22]–[23] (Maxwell P and Walker JA, citing Wodonga Regional Health Service v Hopgood (2012) 37 VR 284, 292 [31] (Maxwell P).
Like T Forrest JA and J Forrest AJA, I have been unable to find the evidence attributed by the judge to Ms McKinnis, to the effect that by unloading at the end of each aisle, she usually had only 2-3 boxes on her trolley at any given time.[2] However, in my view an inference could properly have been drawn from the plaintiff’s own evidence to the effect that her load would have been substantially lighter at the point where she sustained the injury, had she adopted that method.
[2]Golowka v Cotton On Pty Ltd [2021] VCC 1794, [17] (Judge Pillay) (‘Reasons’). As the joint judgment points out, Ms Alford stated that using this method she would usually not be pushing a trolley with more than three or four boxes on it, but the judge did not accept her evidence.
The plaintiff said that it was likely that she would have to pick in every aisle in order to complete an order, and that it was only ‘once [in] a blue moon’ or once in her time working at the distribution centre that an order was completed in one or two aisles. The plaintiff’s injury was sustained around aisle H or J, and picking for an order commenced in aisle A. On the basis that the task of completing the order ordinarily involved picking in every aisle, there had therefore been multiple opportunities to offload boxes at the end of previous aisles before she reached the scene of the injury. The likelihood is that there would have been boxes to unload on each occasion. When that evidence is placed alongside the evidence of other pickers choosing to unload boxes at the end of an aisle in order to reduce the load on their trolleys and make them easier to push, it was in my view open to infer that, had this been the method employed by the plaintiff, her load would have been substantially lighter by the time she reached the location where she sustained the injury.
The problem still lies, however, in establishing that the adoption of this method would have averted the injury.
The first problem for the plaintiff is that, without evidence such as that attributed to Ms McKinnis, the reduction in weight that the alternative method would have produced cannot be identified except in the most general terms. Even so, it is conceivable that some meaningful conclusion could have been reached as to the likely effect of pushing a trolley carrying a substantially lighter load. In that regard, I note that the plaintiff said that only ‘a little bit of force’ was needed to push an empty trolley. If there were only four boxes on the bottom of the trolley and one on top, a ‘bit more force’ was required,

but ‘anybody … could just do it with their arms’. It was when the trolley was fully loaded that ‘great force’ was required.

Although this evidence is not entirely clear, it might be said to found an inference that a half-laden trolley could be moved by applying force using the arms, in contrast to the event that happened, in which the plaintiff sustained injury to her knee and leg by bracing her legs while pushing at the stationary trolley. If so, it might be concluded that, had the plaintiff’s load been substantially lighter, she would not have adopted the stance she did to get it moving and the injury would not have been sustained.
But in my opinion that is not the true import of the plaintiff’s evidence as a whole. The plaintiff did not say that, if the trolley’s load was lighter, she would move it by using her arms, rather than using the method she used when she sustained the injury. Her evidence as to how she would get a trolley moving, with her right leg forward and her left leg going back and ‘kicking off’ to move the trolley with her shoulders and arms, as she did at the time of the injury, did not differentiate according to how heavily laden the trolley was.
Elsewhere in her evidence, she also said that once the trolley was loaded, even with a small order, the wheels of the trolley would ‘go to [the] side’ and the picker would need to ‘bang’ the trolley to make it move. Importantly, she said that ‘it didn’t matter if you were fully loaded or you just had say like four boxes or whatever’. It was in this context that the plaintiff said that the trolleys were ‘always like a little tank to push’, although once the trolley was moving it was ‘okay’. Later, she said that it was always a real effort to push the trolley, whether it was full, half full or empty. Plainly, she was saying that it was always necessary to apply considerable force to the trolley to get it moving, and the size and weight of the load made no material difference.
Far from supporting the plaintiff’s case on causation, therefore, her evidence tended to suggest that, even if her load had been substantially lighter, she would still have needed to use considerable force to get the trolley moving in the same way as she did when she sustained the injury. In the circumstances, the need for expert evidence was acute. There was otherwise no way of knowing whether the counterfactual would have involved a sufficiently reduced use of force to have averted the injury. Instead, the Court was faced with the need to compare the effect on the plaintiff’s knee and leg of forcefully pushing two differently loaded trolleys to get them moving, without any evidence on that subject. Even if the relative weights of the trolleys under each scenario could have been estimated, therefore, there was nothing to show that the difference would have averted the injury.

T FORREST JA

J FORREST AJA:

Monica Golowka, the respondent to this application, suffered an injury to her left knee and leg in March 2016 in the course of her employment with the applicant, Cotton On Group Services Pty Ltd (‘Cotton On’).

At the trial in the County Court, Ms Golowka alleged that her injury was caused by Cotton On requiring her to push a heavily laden trolley in the course of her employment at its warehouse at Lara.
After a 10-day hearing and evidence from twelve witnesses on liability, the judge found that Cotton On failed to provide a safe system of work and breached the Occupational Health and Safety Regulations 2007 (the ‘OHSRegulations’) by failing to conduct a risk assessment of Ms Golowka’s duties. His Honour held that the system of work was deficient, and the trolley used by Ms Golowka should have been unloaded by her at the end of each aisle of the warehouse. His Honour concluded that this breach was a cause of her injury. The judge rejected Cotton On’s allegation of contributory negligence on the part of Ms Golowka.
The judge ordered Cotton On to pay damages assessed (after deduction of statutory benefits) at just over $687,000.
Cotton On’s appeal to this Court, although couched on three alternate grounds, raises two issues — first, whether, having found that Cotton On’s system of work was unsafe, the judge was correct in his conclusion as to the existence of a reasonably practicable alternative system of work that would have reduced the risk of her injury occurring; and second, whether such a system would, if implemented, have prevented Ms Golowka sustaining the injury to her left knee and leg.
The third ground, the adequacy of the judge’s reasons, goes to the judge’s findings on these two issues.

Factual background

Ms Golowka commenced employment with Cotton On in May 2013 as a picker at its Lara distribution centre (the ‘centre’).
Cotton On is a large vendor and distributor of clothing and haberdashery. Orders from retail outlets are filled and distributed from the centre.
The centre is a large warehouse which has a series of shelving units stacked along aisles which run between 50 to 100 metres.
Boxes of garments are located on the shelves. Ms Golowka worked as a picker in the ‘Adults brand’ section. Her job involved taking garments (called units) from the shelves and placing them in a designated customer box. Those boxes were placed on a trolley (which carried the employee’s name). A photograph is below.[3] It held three boxes on its base and could hold up to eight to nine boxes.
[3]Reasons, 31 Annexure A.
The process of picking was relatively simple. A picker was, via an ‘RF gun’, provided with the ‘pick path’ (which set out the aisle and bay numbers by which the order for a particular client was to be filled).
Usually, a picker would commence in aisle A, and then park the trolley at a point indicated by the RF gun. The garments were taken from a box located on a shelf. Items would be picked from both sides of the aisle and placed in the designated box within the trolley. The picker would proceed to the next aisle repeating the process through to aisle J. Once a box was complete (i.e., full of garments) it was sealed.
The trolley would ultimately be unloaded onto a pallet in the despatch area although the frequency and number of boxes (discussed later at [146]–[151]) unloaded in the area varied from picker to picker. The despatch area was located at the top end of the aisles and could be traversed at the top of aisles B, D, F, H and J.
The pickers worked to an hourly quota of picking 410 units.
In May 2015, the centre distribution manager, Mr John Plummer, introduced a different form of trolley to be used by the pickers.[4] These were of roughly similar design, though they were lighter and slightly larger.
[4]Ibid, [22].
In September 2015, Mr Nicholas Freisler, the Cotton On group health and safety co-ordinator, carried out a risk and hazard assessment of the pickers’ duties. This involved an examination of the picker’s tasks when using a new trolley. His risk assessment classified pushing a trolley as a medium risk that warranted manual handling training.
No new trolleys were provided to Adults brand pickers. So, Ms Golowka only used the older type of trolley up until her injury in March 2016.
Ms Golowka sustained an injury to her left knee on 7 March 2016 whilst pushing a trolley loaded with eight to nine boxes.[5]
[5]Ibid, [10].

Ms Golowka’s pleaded case

The relevant parts of the statement of claim alleged that:
In and between May 2013 and March 2016, and in particular on or about 7 March 2016, the Plaintiff, in the course of her employment with the Defendant at the said premises, was required to repetitively push trolleys full of boxes containing picked items in order to carry out her work duties.
As a result of the said repetitive pushing of the trolleys, and an incident when pushing a trolley on or about 7 March 2016, and the cumulative work stress on the Plaintiff’s knee, the Plaintiff suffered injury.
The particulars of injury alleged by Ms Golowka included:
Left knee injury;
Aggravation of degenerative changes in the left knee;
Discoid lateral meniscus and widespread chondral damage;
Aggravation of Grade II patella chondromalacia; … [and]
Stress, anxiety, and depression.
The particulars of negligence were pleaded in the usual expansive and broad fashion. Of relevance were the following:
(b)Failing to provide a safe system of work;
(d)Requiring the Plaintiff to repetitively use awkward movements to push trolleys;
(f)Requiring the Plaintiff to repetitively push trolleys which were old, worn, had small wheels which were matted with tape, and were heavy to push;
(g)Failing to inspect, repair and maintain the trolleys;
(h)Failing to provide the plaintiff with a new, efficient and safe trolley.
It is to be noted that there is no mention in the particulars of breach of the failure to adopt a system that required a lesser number of boxes to be carried on a trolley or that the boxes were to be removed from the trolley at the end of an aisle.
In addition to the claim in negligence, Ms Golowka also alleged breach of ‘the provisions of the Occupational Health and Safety Act and the regulations made thereunder, including the Occupational Health and Safety Regulations relating to manual handling and/or the Manual Handling Code of Practice.’
Cotton On alleged contributory negligence on the part of Ms Golowka. This was pleaded in a generic and unhelpful form.

The trial

The trial commenced on 24 August 2021. It was conducted audio-visually and concluded with final oral submissions on 13 October 2021.
Ms Golowka claimed pain and suffering and pecuniary loss damages in respect of the injury to her left knee. Her case at trial was confined to the injury resulting from pushing the trolley on 7 March 2016 (as opposed to the pleaded case which also alleged the whole period of employment as being responsible for her injury).
The opening statement of senior counsel for Ms Golowka was admirably concise. It centred on the difference between the use of an old trolley (which Ms Golowka alleged she had used to collect and fill the boxes) and a new trolley. Counsel said of the new trolley:
Now the plaintiff will have to describe that to you but it’s aluminium with large wheels and so on and so forth. And you’ll hear evidence that [it’s] very easy to manoeuvre as opposed to the old trolley. We say the old trolleys were ordered for some time. Then in fact they were available to the defendant’s department but were in boxes and not being used at that time. And we say they would’ve made a very considerable difference.
It’s unclear to us just what the defendant will say about that, but that we contend would need to be a central issue.
After discourse with the judge, senior counsel concluded the opening on liability in the following terms:
Now during the course of all of this Your Honour will hear that the old trolleys — and bearing in mind the plaintiff used the same — her own, same trolley every day, but the old trolleys were in the process of being replaced. And you’ll even hear that her department, which is called Adults, had the new trolleys come in, but they were still boxed and hadn’t been set free, as it were, for use. They were actually there prior to her accident. And of course were brought into use afterwards. That’ll be the plaintiff’s contention.
In response, senior counsel for Cotton On in his opening statement said as follows:
We anticipate a number of complaints will be made by the plaintiff as to the trolleys and the system of work more generally. We would anticipate calling evidence from a number of witnesses to dispute those facts that there was, in fact, any problem with the trolley. But there were complaints about the trolleys. You will hear some evidence about the system of maintenance in respect of trolleys if they ever needed repair and to the matters more generally in relation to the workplace.
There’s a fundamental issue, your Honour, we’d say in terms of a vacuum in the plaintiff’s case in terms of the absence of any expert evidence as the difference between for instance the old and new trolleys and what difference, if any, that makes to the prospect of the plaintiff sustaining injury.
At trial, Cotton On accepted that old and new trolleys were in use at the warehouse but in addition to disputing negligence, maintained (as its counsel had flagged) its contention as to whether the provision of a different trolley would have made any difference to the risk or eventuality of Ms Golowka sustaining her injury. It maintained its allegation of contributory negligence on the part of Ms Golowka.
Ms Golowka, in addition to giving evidence herself, called several fellow pickers and two medical witnesses:
(1)Casey Golowka-Miller.
(2)Graziella (Grace) Sanges.
(3)Dr Nick Christelis (medical witness).
(4)Joan Gavin.
(5)Tim Lording (medical witness).
Cotton On called the following witnesses, all former or current employees:
(1)Denise Alford.
(2)Matthew Grgic.
(3)Myriam Greenland.
(4)James Chandler.
(5)John Plummer.
(6)Lawrence (Arthur) Hodgson.
(7)Wayne McAuliffe.
(8)Tiarni McKinnis.
It is necessary now to say something about how the parties conducted their respective cases at trial. Counsel for Ms Golowka, consistent with their opening statement, focused on adducing evidence to support a case that Cotton On should have provided Ms Golowka with a new trolley which would have been easier to move than the old trolley.
Cotton On defended the use of the old trolley, asserting that it was far easier to move than Ms Golowka asserted. Cotton On called a number of witnesses to make good this contention. In addition, it alleged contributory negligence on the part of Ms Golowka. It argued that Ms Golowka should, consistent with the system of work prescribed by Cotton On, have ‘dropped off’ completed (ie full) boxes from the trolley at the end of each aisle so as to lighten the load. This proposition was not identified in any of the particulars of contributory negligence. Nor was the assertion that, alternatively, Ms Golowka devise her own system and drop off the completed boxes. These arguments (and cross-examination based upon them) were advanced without objection from Ms Golowka’s counsel.
At the conclusion of the trial in closing written and oral submissions, Ms Golowka’s case took what was described at the hearing of this application (and accepted by counsel for Ms Golowka), as a right-hand turn. Whilst the primary focus was upon the failure of Cotton On to provide a new trolley for Ms Golowka, counsel argued that Cotton On should have adopted a system that required only a limited number of boxes to be transported within the trolley (by dropping boxes off at the end of an aisle) thus reducing its weight and, presumably lessening the force required to move the trolley. This was, in effect, a replica of the very process Cotton On said, as part of its contributory negligence case, should have been utilised by Ms Golowka.

Ms Golowka’s written submissions (filed and served prior to oral submissions) included the following:
·The Defendant failed to have any proper system for moving the trolley or transporting loads on the trolley prior to the accident.
oThe system that existed, that is the pickers load the trolley up with eight or nine boxes and sometimes more, was an unsafe system.
oIt was part of the system that the trolley was heavy and hard to push, particularly when loaded.
oA mandated system that required the picker to only have a small number of boxes on the trolley would have significantly reduced the risk… in the absence of a better trolley, a safe system of work would require such a mandate.
And then in oral submissions on the final day of the trial, senior counsel for Ms Golowka said:
We say this, your Honour that the incident or the accident was clearly caused by a trolley which was too heavy for the plaintiff and required her to used [sic] great force to move. And we say this was the cause of the injury.
And also:
So, we say, certainly as described by the plaintiff in terms of the system she used and her witnesses that that system could have been vastly improved and it never was. Now that’s the real issue in this case, Your Honour, not whether or not the trolleys were very different. We say and I’ve set this out, we say there is evidence that there was a significant difference in the trolleys. My learned friend says we can’t measure that. We say look it’s not just the trolley, it’s everything. And a — devising of a safe system of work is multifactorial, you don’t just look at one thing and say, well, that’s, you know, that’s what you do, you look at everything.
And:
And we say Your Honour can easily infer on the balance of probabilities that this injury would not have taken place if the plaintiff was not pushing a heavy load, but something far more moderate — given the way she describes it.
…
We would submit that Your Honour ought to be able to easily infer that a lighter, moderate load would on the balance of probabilities [have] averted this incident.
…
...It may be but the load was, we would certainly contend that the load would’ve been lighter, it would not have been heavy or difficult to move and the plaintiff could have taken more than four boxes if she’d used the new trolley.
…
Now that leads us to the next step, that is, what difference would a safe system of work make. We say the central point of the plaintiff’s case is that a safe system of work would have produced a significantly lighter trolley. It was continuously put by my learned friend if the trolley was too heavy then the plaintiff should unload. We say available to the defendant was a system of work that would have led to the significant lightening of the load. And that could be done, we say easily in a number of — in a number of ways.
The evidence was adduced from the defendant that really it didn’t make a great deal of difference to the flow of work if the trolleys were emptied at the end of the aisle. And this would have produced a system whereby the trolley had half the number of boxes on it, or less than half the number of boxes on it. That would be one aspect.

The findings of the trial judge

The judge delivered his reasons on 24 November 2021.

As to the circumstances surrounding and the happening of the injury

As mentioned earlier, Ms Golowka’s case at trial was confined to the left knee injury resulting from pushing a heavily laden trolley on 7 March 2016.
The judge accepted Ms Golowka’s evidence that at the time of her injury she was picking a large order and had eight to nine boxes. His Honour accepted that the weight of this load on the trolley was approximately 80 to 90 kilograms.[6]
[6]Ibid, [19].
His Honour then said:
Synthesising that evidence, I find, consistent with the evidence of the Plaintiff, Ms Golowka-Miller, Ms Gavin and Ms Sanges, that the trolleys, once loaded to at least eight or nine boxes, became heavy and difficult to push. I find, consistently with the Plaintiff’s evidence, that on the day in question she had loaded about eight or nine boxes and was attempting to push the trolley in a straight line. She was struggling to do so. She got into a runner’s pose to exert greater pressure and push the trolley forward and that is when her injury occurred. I find that at the time she was attempting to push the trolley she was doing no more than following an accepted system of work which she and others had employed, of loading trolleys with at least eight to nine cartons of full boxes before going to despatch. I find that Cotton On knew that this was a system employed by some of its workers consistent with the evidence of Mr Grgic and Ms McKinnis.[7]

As to the adequacy of the system of work

[7]Ibid, [18].

His Honour’s findings of fact as to the system of work and its alleged deficiencies were as follows:
(a)The system of work adopted by Ms Golowka (and acquiesced to by Cotton On) was to load a trolley with at least eight to nine boxes, and perhaps as many as 18.[8]
(b)On a very rough average, each box weighed approximately 10 kilograms.[9]
(c)Ms Golowka was regularly pushing a load of around 90 kilograms on her trolley.
(d)The pickers each used their own systems in filling the trolley;[10] in particular Ms McKinnis unloaded her trolley at the end of an aisle and thus pushed a lesser weight.
(e)The risk assessment carried out in September 2015 assessed only the use of the new trolley and there was no risk assessment of the job involving the old trolley.
(f)There was no manual handling training in the use of the old trolley.
(g)Complaints had been made to management about the use of the old trolleys and difficulties in pushing them.[11]
(h)Ms Golowka complained about problems with the trolleys, but these were not recorded by Cotton On.
(i)The new trolleys were easier to push than the old trolleys.
[8]Ibid, [16].
[9]Ibid, [16].
[10]Ibid, [30].
[11]Ibid, [22].
And his Honour concluded as to the adequacy of the system of work and the breach of the OHS Regulations:
I find that there was no restriction on the Plaintiff employing the system of work she did. I find that as a result, she and other pickers were left to devise their own system in order to meet the company target of 410 units per hour. I find that system meant that some workers picked at least until the end of their order, or their trolley was full, before going to despatch. While I find that system was not universal, it was certainly a system employed by many pickers, including the Plaintiff, at Cotton On. I find that system was known to management. I find that the system caused difficulty for workers. I find that was because the trolleys, when laden with 8–9 boxes, were heavy and difficult to push. I find that Cotton On knew this by reason of complaints made by the Plaintiff and others to Ms McKinnis, and also by complaints made at consultative committee level. I find that the complaints were not acted on. I find that one of the reasons for the new trolleys to be brought into Cotton On was, in part, to address complaints by workers regarding the use of trolleys that were heavy and difficult to push. I find that after the new trolleys were brought in there was a risk assessment performed which, for the first time, assessed manual-handling risks associated with the picker’s role. However, I find that risk assessment was confined to the picker’s use of new trolleys. I find that there was no risk assessment performed of the pickers’ task using the old trolleys. I find that the failure to perform a risk assessment of the pickers’ role using the old trolleys was a breach of the Occupational Health and Safety Regulations. I find that the system employed by the Defendant, which permitted pickers to use the old trolleys and wheel them while fully laden, was unsafe.[12]
[12]Ibid, [30].
Ultimately stating:
For all these reasons I find that the system of work employed at Cotton On was unsafe, in that it required pickers to work with heavily laden trolleys, which they found difficult to push and caused undue strain on them [sic].[13]

As to causation and an alternative system of work

[13]Ibid, [20].

The judge said:
It was said by the Defendant that the Plaintiff could not prove that there was a causal link between the negligence of the Defendant and the occurrence of the Plaintiff’s injury. This was said to be so because of the absence of expert engineering or ergonomic evidence identifying the load on the trolley on the date of the incident as being unreasonably heavy and more likely than not to exert undue force on her left knee. In circumstances where I have found the trolley weight was 80 to 90 kilograms and accepted the Plaintiff’s evidence that the trolley was a ‘tank’ to push I consider such expert evidence is unnecessary to prove factual causation. A common sense approach dictates that but for the loaded trolley being pushed the Plaintiff’s injury would not have occurred. The alternative system which would have avoided the injury was that employed by Ms McKinnis — an unloading at the end of each aisle.[14]
[14]Ibid, [31]
Pausing here, importantly, it is to be noted that his Honour’s finding was not that the reasonably practicable alternative system of work should have required new equipment, such as the provision of a new trolley, as had been opened by senior counsel for Ms Golowka and was the primary but not only allegation of breach at the conclusion of the trial. It was rather that the system used by Ms Golowka should have been altered to that employed by Ms McKinnis — that is, unloading boxes from the trolley at the end of each aisle.

As to contributory negligence

Cotton On argued that Ms Golowka should have dropped off the boxes of full garments at the end of the aisle in accordance with its system of work. The judge rejected the allegation on the basis that Ms Golowka was performing her normal work duties as ‘permitted by her employer’.[15]
[15]Ibid, [44]

Proposed Grounds of Appeal

(1)The learned trial judge erred in finding that it was a reasonable response to the risk of harm, for the applicant to enforce a system of unloading at the end of each aisle, when there was no evidence that an enforced system of unloading would have had made any difference to the respondent’s injury.
(2)The learned trial judge erred by finding that the applicant had breached its duty and that that breach had caused injury, in circumstances where the necessary counterfactual was not established on the evidence.
(3)Alternatively, the learned trial judge failed to give adequate reasons for his conclusion that the applicant had breached its duty and that that breach had caused injury, by failing to identify the necessary counterfactual and the evidence.

The proposed grounds are not a model of clarity. After reading Cotton On’s written case and raising this in discussion with counsel we consider that the grounds in precis are as follows:
First, by ground 1 in relation to breach of duty: there was insufficient evidence for the judge to find that a ‘mandated’ system of unloading the trolley at the end of each aisle was a reasonably practicable alternative which would have minimised the risk of injury to Ms Golowka.
Second, by ground 2, in relation to causation: there was insufficient evidence to demonstrate that if the alternative system of unloading at the end of an aisle was a reasonably practicable alternative, then Ms Golowka’s injury would have been avoided if that process had been adopted.
Third, that the judge’s reasons did not adequately identify the path of reasoning in relation to both these issues.

Consideration

Principles

First, this Court is bound to conduct a real review of the evidence given at first instance and of the judge’s reasons to determine whether there has been an error in fact or law.[16]
[16]Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); [2016] HCA 22 (‘Robinson Helicopter’). See also Lee v Lee (2019) 266 CLR 129, [55] (Kiefel CJ, Bell, Gageler, Nettle and Edelman JJ); [2019] HCA 28; Fox v Percy (2003) 214 CLR 118, [25] (Gleeson CJ, Gummow and Kirby JJ; [2003] HCA 22.
In Robinson Helicopter the High Court said:
A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review ’of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.[17]
[17]Robinson Helicopter (2016) 90 ALJR 679, [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); [2016] HCA 22.
Second, in discharging its duty of care the employer’s obligation ‘is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system’.[18]
[18]McLean v Tedman (1984) 155 CLR 306, [12] (Mason, Wilson, Brennan and Dawson JJ); [1984] HCA 60.
Earlier this year, the High Court in Kozarov v Victoria[19] restated this fundamental principle:
Victoria’s duty was ‘not merely to provide [that] safe system of work’, but to ‘establish, maintain and enforce such a system’, taking account of Victoria's power, as employer, ‘to prescribe, warn, command and enforce obedience to [its] commands’.[20]
[19][2022] HCA 22.
[20]Ibid, [83] (Gordon, Edelman JJ).
In a case involving an asserted breach of duty by an employer in its failure to implement a safe system of work it is insufficient for a plaintiff to make out a case by establishing only a departure from the reasonable response of an employer to an identified risk. It must also be proved that a reasonably practicable alternative system of work which would have reduced or avoided the risk of injury was available to the employer and should have been utilised.
Although in the minority in Swain v Waverly Municipal Council,[21] the following statement of McHugh J as to this principle is not in issue:
The plaintiff bears the legal and evidentiary burden of establishing a prima facie case of negligence. To prove negligence, the plaintiff must be able to point to a reasonably practicable precaution or alternative course of conduct that could have avoided, or reduced the consequences of, the injury to the plaintiff. The plaintiff does not establish a prima facie case simply by asserting that there ‘must be’ a practicable alternative, and that it is for the defendant to provide evidence that no such alternative exists. The plaintiff does not prove a case of negligence, for example, by proving the existence of the risk and then alleging that the defendant took no precautions to protect the plaintiff against that risk.
[21]Swain v Waverley Municipal Council (2005) 220 CLR 517, [40] (McHugh J); [2005] HCA 4 (‘Swain’).
McHugh J went on to say:
On the other hand there are undoubtedly cases where the danger is so clear and the precautions so straightforward that no such evidence is required. Common sense is sufficient.[22]
[22]Swain (2005) 220 CLR 517, [44]; See also QBE Insurance (Australia) Ltd v Stewart [2009] NSWCA 66, [17].
The facts and the decision of the High Court in Quigley v Commonwealth[23] demonstrate, quite simply, what else must be established by a plaintiff employee in a negligence claim against an employer alleging an unsafe system of work.
[23]Quigley v The Commonwealth (1981) 55 ALJR 579; 3 ALR 537 (‘Quigley’).
A quarantine inspector was injured while attempting to board a vessel from a launch. The breach alleged of the employer’s duty of care was the failure to provide a second crew member on the quarantine launch, to assist the inspector when boarding other ships. In their joint judgment, Mason and Aickin JJ said:
The issue then is whether there was evidence on which a jury could determine that the [employer’s] failure to provide a safe system of work caused or contributed to the accident. Where a defendant fails to provide a safe system of work, it is for the plaintiff to show that the appropriate safety measures would have been effective and that he would have made use of them had they been available.
Third, the relevant test for causation in this case is governed by common law principles.[24]
[24]Part X of the Wrongs Act 1958 does not apply to workplace injuries: s 45(1)(b).
Those principles in the context of a claim in negligence are also not in dispute. Kiefel J (with whom Hayne and Bell JJ agreed) said in Tabet v Gett:
The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. ‘More probable’ means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.[25]
[25]Tabet v Gett (2010) 240 CLR 537, [111] (Kiefel J) (emphasis added); [2010] HCA 12.
Fourth, these two principles (i.e. the existence of a reasonably practicable alternative system of work and that of causation in a hypothetical or counterfactual scenario) will often be considered together in cases involving an allegation of a failure by an employer to provide a safe system of work.
So, recently in this Court in Munday v St Vincent’s Hospital Pty Ltd, Maxwell P and Walker JA said:
And, as Maxwell P explained in Wodonga Regional Health Service v Hopgood, when a plaintiff alleges a negligent omission:
[T]he causal link between the breach of duty and the claimed damage can only be established by means of a counterfactual hypothesis. That is, the plaintiff must propound an alternative state of facts, premised upon the defendant’s having exercised reasonable care and, specifically, upon there having been no such omission.
In that context, his Honour explained, the plaintiff’s counterfactual hypothesis must identify:
(a)what the defendant would have done had reasonable care been exercised; and
(b)how the taking of that action would have averted the loss or damage which the plaintiff in fact suffered.[26]
[26][2021] VSCA 170, [22]–[23].
Proposition (a) relates to breach and the need for a plaintiff to demonstrate a reasonably practicable alternative system of work which would reduce or alleviate the risk of injury. Proposition (b) relates to causation. It must be shown that the deployment of the hypothetical system would have avoided the injury sustained by the plaintiff.
On this appeal these two propositions were not in issue. What was contested was whether Ms Golowka had satisfied them.

The first ground of appeal: was there evidence of a reasonably practicable alternative to the system of work used by Ms Golowka which would have reduced the risk of injury?

Cotton On argued two points under this proposed ground of appeal: first, that there was no evidence that an aisle drop off system at the end of the aisle could have been ‘mandated’ by it; and second, that there was no evidence that the use of an aisle drop off system would have reduced or minimised the risk of injury.
The judge concluded that there was no prescribed system of work for dropping off boxes at the end of an aisle. In the reasons his Honour set out the work practices and use of the trolleys as follows:
The Plaintiff’s evidence was that pushing a trolley weighed down by boxes was difficult. She gave evidence of having to push hard to move a loaded trolley. This evidence was supported by Ms Golowka-Miller, who said that she found it very difficult to push a trolley with such a heavy load. It is to be noted that both Ms Golowka-Miller and the Plaintiff were of a similar height and weight, being around 152 centimetres and just slightly over 53 kilograms. Their evidence was supported by Ms Sanges. She had worked at Cotton On since about 2014. She ceased in about 2018. She had experience of using the old trolleys. She confirmed that boxes were about 10 kilograms and she said that pushing an old trolley with many boxes was a strain. She described the trolleys themselves as old and heavy to push. Ms Gavin, a picker who worked in an almost identical situation to the Plaintiff, described the old trolleys as old and heavy and very hard to push if full. In contrast, Ms McKinnis gave evidence that the trolleys were easy to push. However, it must be noted that she unloaded at the end of each aisle and mostly only had 2–3 boxes on her trolley. She was not subjected to the same daily pick rates as the pickers given she was a manager picking only a few hours a day. Her evidence then cannot be compared to the Plaintiff regarding the system of work employed and the difficulty in pushing a fully laden trolley. As I have said, the evidence of Ms Alford can be put to once [sic] side as she works so infrequently as a picker. It is also highly relevant that she was substantially younger than the Plaintiff, being some 24 years of age at the time when these events occurred, and also much larger in build. Ms Greenland, the other relevant picker, gave evidence that she had no difficulty with the old trolley, even when it had 18 boxes on it. She conceded that the old trolleys were heavier than the current ones. This was a concession made repeatedly by all of the witnesses: that the old trolleys were heavier than the newer trolleys. It must be noted that Ms Greenland’s evidence was essentially confined to her use of her own trolley. To explain this, each of the full-time pickers were given their own individual trolley after about six months. They then named that trolley and kept it aside for their own use. While the evidence was that there were other trolleys of a similar kind available for use, full time pickers invariably used their own trolley day after day. I took Ms Greenland’s answers as to whether old trolleys were difficult to push when loaded to be confined to her own trolley. I consider Ms Greenland to be an honest witness overall and consider her evidence broadly aligns with the other pickers. Where it conflicts I prefer the evidence of the Plaintiff, Ms Golowka-Miller, Ms Sanges and Mr Gavin. I find the evidence of Mr Grgic, Mr Chandler and Mr Hodgson to not be as useful on this point as the evidence of the pickers. This is because they were not involved in this task every day, they did not have their own trolleys and they were generally not picking to a rate. In addition, they were larger men. Their situation was vastly different to the pickers who gave evidence, such as the Plaintiff, Ms Golowka-Miller, Ms Sanges, Ms Gavin and Ms Greenland.[27]
[27]Reasons, [17].

As mentioned earlier, under Cotton On’s allegation of contributory negligence it was asserted that Ms Golowka should have dropped the boxes off at the end of the aisle so as to lessen the load within the trolley.
In cross-examination Ms Golowka was asked why she did not offload the full boxes onto the pallet at the end of the aisle and then continue picking. Her answer was that she was directed not to pick in that fashion as her picking rate would drop. She said that on average she would fill three or four full trolleys a day.
When it was put to her that a fellow worker, Denise Alford, would give evidence that there was a general direction to workers that if they were worried about the heaviness of a trolley they could drop the boxes on the pallets in the despatch area, she disagreed and said this was not the system in which she had been instructed.
Ms Casey Golowka-Miller, Ms Golowka’s daughter who also worked as a picker with Cotton On, said that it was possible to drop off at a despatch area, but this would affect compliance with the quota.
Ms Grace Sanges, a picker, said if there was a concern about the trolley being too heavy she could unload the full boxes onto despatch pallets.
Ms Joan Gavin, also a picker, said that if a picker dropped off boxes on the pallets at the end of an aisle ‘you would get told off because you were not picking quick enough’. She also agreed that she could put boxes on the pallets at the end of the aisle and still be an effective picker.
Ms Denise Alford, who worked at times as a picker, said that it was usual to drop off the boxes at the end of an aisle as ‘you do not want to walk up the next aisle with too many boxes’. She said that most people would unload their load at the top of an aisle and that she would usually drop the boxes off at the end of the second aisle and this meant unloading three to six boxes. Typically she said she would not be pushing a trolley with more than three or four boxes when adopting this method.
Ms Alford said she was never criticised by management when carrying out this method. She also said that if ‘you had three to four or five boxes at the end of an aisle you would unload it to make sure your load remained light enough to continue to pick’. This was the way she had been trained to pick.
Ms Miriam Greenland also worked as a picker. She said that ‘if you do not want to carry a lot of boxes a picker was free to drop them off at any time in the despatch area’ and this is what she did — she did this as soon as her trolley became too heavy or overloaded.
Ms Tianna McKinnis was the direct supervisor of Ms Golowka on the day she sustained her injury and to whom Ms Golowka reported that fact. The judge accepted her evidence and relied upon it in determining that a reasonably practicable alternative existed.
Ms McKinnis said that she commenced work as a picker in Cotton On Body (the same area in which Ms Golowka worked) and after nine months was promoted to ‘Pick Supervisor of the Adults brand’. Twelve months later she was promoted again to the role of a Brand Manager and had worked in that capacity for three years.
In her capacity as a picking supervisor, she would spend two days a week floor picking using a trolley (both the older and subsequently the replacement new trolley).
Ms McKinnis described the new trolleys as being a bit lighter than the old ones and more manoeuvrable.
She would fill boxes working along the aisle and then drop the full boxes onto a pallet at the end of the aisle. She said that this was a practice in which she was trained when she started and that she then trained new employees in that task. It would take a minute or two to unload the trolley at the end of the aisle but it did not impact the pick rate too much.
In cross-examination, Ms McKinnis agreed that the system of unloading was left up to the pickers. Some dropped off at the pallet at the end of the aisle and others did not.
She also agreed that the old trolleys could contain up to eight to nine boxes, with the pickers having a choice as to when they dropped the boxes off. She said that there was nothing unusual in having eight or nine boxes on a trolley if a large order was being picked, and if the picker did not drop off the boxes at the end of the aisle.
In addition to those employees or former employees who worked on the floor, a number of the more senior personnel employed by Cotton On accepted that the drop off system could be utilised.
For instance, Mr Matthew Grgic, the Facilities Manager, said that it seemed logical to drop off cartons at the end of the aisles to slightly lighten the load on the trolley and that there was always the opportunity to drop off the cartons.
Mr James Chandler, the National Transport Manager, said that a picker could drop a carton off as the picker saw fit.
Mr John Plummer, the Centre Distribution Manager, said that from an efficiency point of view the pickers team were ‘dropping off too often’, and the old trolley could not carry enough boxes, so he changed to the new trolley.
Mr Arthur Hodgson, a Brand Manager, confirmed there was an opportunity to drop off at the end of each aisle. He also said that pickers were directed to try and have as empty a trolley as they could ‘all the time’.
So, there was, as the judge found, no prescribed or enforced system of work as to the load to be carried in a trolley and whether there should be a drop off at the end of an aisle. Some pickers, such as Ms McKinnis, Ms Alford and Ms Greenland would drop off at the end of an aisle and others such as Ms Golowka and Ms Sanges, concerned with meeting the quota, would drop off when the trolley load was full.
In Greater Shepparton City Council v Clarke[28] this Court said in relation to the implementation of an alternative system:
It is well recognised that, in a number of cases, a court may rely on common sense and common knowledge to reach a conclusion as to the existence of a risk, and as to the reasonable and appropriate precautions which a defendant should have taken to avert that risk. In Neill v NSW Fresh Food & Ice Pty Ltd, Taylor and Owen JJ stated:
No doubt in many cases no more than common knowledge, or perhaps common sense, is necessary to enable one to perceive the existence of a real risk of injury and to permit one to say what reasonable and appropriate precautions might appropriately be taken to avoid it. Hamilton v Nuroof (WA) Pty Ltd was such a case and many other examples may be found where the problem was considered to be capable of resolution by the application of common knowledge.
In similar terms, in Swain, McHugh J stated:
In some cases, common knowledge or common sense is all that is required to prove a reasonably practicable alternative. In other words, the plaintiff may be able to discharge the evidentiary onus of establishing a practicable alternative without the benefit of technical or expert evidence.[29]
[28][2017] VSCA 107, [108] (Santamaria, Beach and Kaye JJA); 56 VR 229. See also Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301.
[29]See also [70] above.
The judge was correct in holding that the alternative of dropping off full boxes at the end of an aisle was a reasonably practicable alternative to pushing a trolley until it was full and then dropping off the boxes.[30] Common sense dictates that the aisle drop off system could have been implemented by Cotton On — indeed this was the very system it said Ms Golowka should have followed or, of her own initiative, applied. Moreover, as has been seen, it was also the method used by Ms McKinnis, a supervisor who taught other employees to use it.
[30]See the final sentence of [57] above.
If there was any doubt about this, it was confirmed by the evidence of other members of Cotton On management to which we have referred.
True it is that Ms Golowka’s argument as to the system of work emerged at the last minute; however, the evidentiary foundation for it had been adduced, mostly by counsel for Cotton On during the trial, as part of its contributory negligence case. This is demonstrated by Cotton On’s written submissions at trial:
The defendant relies on 12.(a) of its Defence, failing to use equipment in the manner for which it was designed, to found its case in contributory negligence against the Plaintiff.
The weight of the evidence before the court, establishes that the proper manner in which to use the trolley, was to drop any full boxes onto the dispatch pallets each time one passed the top of an aisle, and/or frequently enough to ensure that
the trolley did not become too heavy for an individual to handle, and also for reasons of operational efficiency.
The inference as to the availability of an alternative system is all the more easily drawn when it is understood that in pursuing the argument of contributory negligence (hopeless as it was) that Ms Golowka should have implemented this method, Cotton On undoubtedly had regard to its own internal systems and attainment of the quota by its employees.
In those circumstances contending on appeal that the evidence did not go as far as to establish that Cotton On should or could have implemented or ‘mandated’ that very same system is, to put it mildly, perplexing.
In summary, this Court, and the judge, could readily infer, on the evidence, that such a system was a reasonable and practicable alternative and could, to use Cotton On’s expression, have been ‘mandated’ for all employees engaged in picking tasks.
Equally so, and notwithstanding the absence of direct evidence, as a matter of common sense, the judge, and this Court, are entitled to infer that reducing the load contained within the trolley at regular intervals would necessarily reduce the risk of Ms Golowka suffering an injury to her knee when pushing a fully loaded trolley.
On this issue, Cotton On relied upon the decision of the Court of Appeal of New South Wales in Bauer Media Pty Ltd v Khedrlarian.[31]
[31][2020] NSWCA 288; 302 IR 377 (‘Bauer’).
In Bauer part of the plaintiff’s case turned upon whether job rotation would have prevented the injuries the plaintiff alleged she had sustained when carrying out the manual sorting of magazines. The Court of Appeal held that the evidence, and the trial judge’s reasons, did not disclose what the suggested alternative duties would have achieved in preventing the injury and, further, there was no examination of the practicality of such a course of action.
Whilst the decision stands for orthodox principle, namely the necessity of proof of a reasonably practicable alternative system which might obviate or minimise the risk of injury — the decision is fact and judgment specific. Not only did the Court find that the trial judge misstated the law[32] there was no evidence that the hypothetical alternative system of work (rotation of tasks) was either practicable or that it would have reduced or minimised the risk of injury.[33]
[32]Ibid, [27] (Basten and Meagher JJA).
[33]Ibid, [29] (Basten and Meagher JJA).
In this case, as we have concluded, the conduct of Cotton On’s defence as well as the evidence of Ms McKinnis, other pickers and the Cotton On management (which we have referred to) made it clear that such a system was reasonable and practicable. Not only could it have been implemented for all workers but, at least for several workers, it was indeed the system they were ‘mandated’ to use.
As the plurality in Bauer observed, it was also necessary for the plaintiff to show that the relevant precaution would ‘obviate or, in practical terms, reduce the risk of injury to an acceptable level’ before a breach of duty could be established.[34]
[34]Ibid, [32] (Basten and Meagher JJA) (emphasis added).
Ms Golowka described the trolley as a tank and the exaggerated posture necessary to exert sufficient force to move the trolley when it was fully laden with nine or ten boxes. In practical terms, reducing the load by having less boxes and to have no more than three or four boxes on the trolley would self-evidently reduce the stresses placed on her body; particularly those parts of the musculoskeletal system involved in exerting the force in the manner in which Ms Golowka carried out this exercise at the time she sustained injury.
Although the judge did not address this point directly in the reasons, the evidence is sufficiently clear. There was a reasonably practicable alternative which would, applying common sense, have reduced the risk of Ms Golowka suffering injury. This proposed ground fails.
We should add this: the answer to this question does not resolve the more difficult question as to causation in fact. As will be seen in a moment, the question of risk of injury is irrelevant except as part of the factual matrix in establishing the proof of a causal nexus between the negligent omission and the injury.

The second ground: causation; would the implementation of the alternative system have avoided the injury to Ms Golowka

In Robinson Helicopter[35] the High Court said as follows:
First, at the level of principle, this Court has set its face against recovery of loss of a chance in the law of negligence relating to personal injuries. Although proof of causation may sometimes entail the robust, pragmatic drawing of inferences, especially where there are a number of possible causes and there is difficulty in ascertaining which of them was the cause of damage suffered proof of causation still requires proof on the balance of probabilities that the alleged breach of duty was the cause of the damage suffered.
[35]Robinson Helicopter (2016) 90 ALJR, [86] (French CJ, Bell, Keane, Nettle and Gordon JJ); [2016] HCA 22.
The recent West Australian Court of Appeal decision of East Metropolitan Health Service v Ellis (‘Ellis’)[36] involved a medical malpractice case and an extensive review by the Court of recent Australian decisions dealing with causation in negligence claims.
[36][2020] WASCA 147.
In that case causation was to be determined in accordance with the statutory test in the Western Australian equivalent of s 51 of the Wrongs Act 1958. There is no distinction between the common law and this part of the statutory test.
The Court restated the basic principle:
In this regard, it is clear, and there can be no doubt, that mere proof by a plaintiff of the possibility that a defendant's breach caused the plaintiff to suffer harm is insufficient. The court must be satisfied that it is more probable than not that the defendant's breach caused the relevant harm; it is not sufficient to conclude that the breach may have been a cause of the harm.[37]
[37]Ellis [2020] WASCA 147, [263] (Quinlan CJ, Mitchell and Beech JJA).
As Tabet demonstrates, at a general level common sense can be used in drawing an inference as to a causal link between the hypothetical alternative system of work and the avoidance of the injury. However, this still requires deductive reasoning based on the evidence and the drawing of an appropriate inference or inferences.
The principles in relation to the drawing of inferences in a civil case were set out by this Court in Masters Home Improvement Pty Ltd v North East Solution Pty Ltd:[38]
The principles, relating to the drawing of inferences in civil cases, are well established. First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork. Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be ‘the more probable inference’ from those facts. In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference. Fourthly, in determining whether an inference is to be drawn as a matter of probability, the tribunal of fact is not required to consider each primary fact, established by the evidence, in isolation. Rather, the Court considers the totality of those facts together, giving effect to their united and combined force.
[38][2017] VSCA 88, [101].
In Ellis, on this point the Court said:
At the same time, it is also well‑established that causation may be proved by inference. If direct proof is not available, an inference of causation may be drawn if the circumstantial evidence is sufficiently strong and coherent to support a definite inference to that effect. Before such an inference can be drawn, there must be more than two conflicting inferences of equal probability.
The drawing of an inference has been described as ‘an exercise of the ordinary powers of human reason in the light of human experience’. A court must, of course, avoid conjecture, but the distinction between permissible inference and conjecture occurs on a continuum in which there is no bright line division.
Accordingly, even if other disciplines may not be able to give a conclusive answer, questions of causation, as a step in the determination of liability in negligence, call for ‘sufficient reduction to certainty to satisfy the relevant burden of proof for the attribution of liability’.[39]
[39]Ellis [2020] WASCA 147, [264]–[266] (Quinlan CJ, Mitchell and Beech JJA).
It is also well established that to satisfy the test of causation it is not necessary to lead expert or technical evidence. In Ellis the Court said:
These observations make clear that in cases where expert evidence is led bearing upon a question of causation, the court must consider, and reason with reference to, the expert evidence led. However, nothing in these observations requires a plaintiff to prove, or a trial judge to find, by reference to expert evidence, the specific mechanism by which one event caused another event.
…
A court may draw an inference of causation notwithstanding that, in the particular case, expert witnesses do not express an opinion that the damage was caused by the relevant breach. An inference of causation may be drawn without medical evidence to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible if, but only if, the materials as a whole justify an inference of probable connection. In circumstances where the aetiology is uncertain, or subject to significant scientific dispute, the courts are not thereby disabled from making decisions as to causation on the balance of probabilities.[40]
As Pullin JA said in BGC Residential Pty Ltd v Fairwater Pty Ltd, referring to Amaca v Booth:[41]
In many cases in place of the ‘rough and ready answers of the practical man’ an ‘exact and reasoned solution’ is now required. This is so in cases where the wealth of knowledge of science may provide such an exact and reasoned solution to a causation issue: Booth [68]. However, the plurality in Booth accepted [69] that there will still be cases (and this is one such case) where ‘other disciplines’ cannot give any conclusive answer, in which case a commonsense assessment of the evidence is the only method which can be used to reach a conclusion about whether a breach of contract has caused the claimed damage. The question to be asked is whether it is possible to infer, on the balance of probabilities and applying a commonsense approach, that but for the breach the damage would not have occurred.[42]
[40]Ibid, [271]–[274] (Quinlan CJ, Mitchell and Beech JJA).
[41]BGC Residential Pty Ltd v Fairwater Pty Ltd [2012] WASCA 268 (‘BGC’).
[42]Ibid, [51] (Pullin, Newnes and Murphy JJA).
Returning to this case, we commence by rejecting Cotton On’s argument that there was no evidence that Ms Golowka would have complied with a mandated aisle drop off system. This appears to rely upon the fact that she chose not to adopt that system in the course of her work. But in truth there was no universal system: it is clear, as the judge found, that pickers dropped off boxes in different ways. As Ms McKinnis, the supervisor on the day of the injury, said ‘the pickers could choose when they dropped off’. This was accepted by the judge.

As the judge correctly found,[43] Ms Golowka complied with the system that was in place, and contrary to Cotton On’s assertion there is no reason whatsoever to infer that if the alternative system had been laid down, then she would not have complied with it. There is nothing in this point.
[43]Reasons, [44].
As to the substantiative issue on causation, it may help to repeat the judge’s conclusion on this issue:
In circumstances where I have found the trolley weight was 80 to 90 kilograms and accepted the Plaintiff’s evidence that the trolley was a ‘tank’ to push I consider such expert evidence is unnecessary to prove factual causation. A common sense approach dictates that but for the loaded trolley being pushed the Plaintiff’s injury would not have occurred. The alternative system which would have avoided the injury was that employed by Ms McKinnis — an unloading at the end of each aisle.
In Cotton On’s written case on the appeal the following is said of this finding:
There was no evidence as to what if any load the respondent would have been pushing at the time of injury if she had unloaded at the end of the previous aisle. Crucially, there was no evidence as to how many boxes were packed by the respondent in the aisle preceding the injury aisle, nor how many boxes were packed in the injury aisle prior to her suffering injury. This is fatal to the respondent’s case in circumstances in which her evidence was that every order is different … There was no evidence that if the respondent had unloaded her trolley at the end of the previous aisle, that would have been sufficient to lessen the force required to push the trolley on the day in question so as to avoid the injury suffered.
The primary judge failed to undertake any analysis as to whether the applicant’s breach, as he found it, was causative of injury on 7 March 2016. The assumptions underlying the causation finding are not addressed in his Honour’s reasons.
At law, the respondent was required to prove the applicant’s conduct materially caused the injury. … [T]he applicant contends that there was a complete absence of evidence to support a finding of a causal connection between the system of work counterfactual identified by the primary judge and the damage suffered by the respondent.[44]
[44]Written case for the applicant, [5].
Ms Golowka’s written case on this point provided no greater illumination than that presented at the trial. The following was said:
His Honour’s analysis was entirely consistent with these principles. The respondent was not required to prove, and his Honour was not required to find, anything more than it was more probable than not that, had the respondent been employing the system of dropping boxes off at the end of each aisle on the day she was injured, she would not have been injured.[45]
[45]Written case for the respondent, [8].
To put it kindly, this was a masterpiece in obfuscation. It also failed to acknowledge the need for the judge to explain how he reached that conclusion. Indeed, it demonstrates the very point made by Cotton On in respect of the judge’s finding: the absence of evidence to support it.
In oral argument in this Court counsel for Ms Golowka put it this way:
It was open to the trial judge to assume that had the system been adopted, it was likely that the load in the trolley would have been significantly less. If it had been significantly less, then it was likely that she would not have encountered the same difficulty in pushing it as she did, thus putting the stress on her knee which caused her to come to grief.
The difficulty with this far more attractive proposition is that, for reasons we shall now explain, it was not open in the circumstances of this case to rely upon common sense to prove the case on causation.
Ms Golowka was required to establish as a matter of probability that the reduction in the weight of the load by adopting the alternative system would have resulted in her avoiding injury.
We accept that in many cases involving a hypothetical alternative system of work it will be possible for a Court to infer by the application of common sense that such a system would have averted the occurrence of the injury. By way of example, if the reasonably practicable alternative was to introduce a system that entirely mechanised the trolley task so that no force was required to move the trolley and therefore no stress was placed upon Ms Golowka’s lower limbs, it could be comfortably inferred that Ms Golowka would not have suffered injury. But that was not this case. The proposed alternative still required a reasonable degree of exertion and force by Ms Golowka in moving the trolley and its contents. Resolving the issue of causation turns upon determining the differential in the weight of the hypothetical unloaded trolley as against its actual weight at the time of Ms Golowka’s injury and the associated difference in the stresses placed on her lower limbs in performing the task. The answer requires evidence and associated inferential reasoning which goes further than merely establishing that a lessening of the load would have reduced the risk of the occurrence of the injury — as common sense would dictate.
As already noted, the judge made credible and unchallenged findings as to (a) how the accident happened; and (b) that the fully laden trolley weighed about 80 to 90 kilograms. However, it is also clear, as Cotton On contends, that there is nothing in the passage set out at [57] in which his Honour concluded that the aisle drop off system would have avoided the injury (or in the reasons generally) which enlightens the reader as to how this conclusion was reached.
As we just mentioned, there were two things that needed to be proved for Ms Golowka to establish her case on causation. First, evidence (or inferences properly drawn from it) as to the putative weight of the trolley at the time of the injury if it had been unloaded by Ms Golowka at the end of each aisle. Second, evidence (or inferences properly drawn from it) demonstrating how manoeuvring a trolley with a lesser weight would have resulted in Ms Golowka avoiding injury.
Neither were addressed by his Honour, so it is necessary to return to the evidence given at trial.
Ms Golowka said that when the trolley was loaded with boxes it could only be moved with great difficulty and the application of great force and that she would need to get in a runner’s position with her right leg forward and her left leg back and kick off to move with her shoulders and arms.
At the time of the injury, Ms Golowka said that she was heading to despatch and the trolley was at the bottom of H aisle. She could not remember if she had done one drop off previously. She had almost finished the order and the trolley was almost but not entirely full and was getting too heavy to push; as she tried to push off ‘I twisted my knee funny’.
Ms Golowka said that sometimes she might finish nine boxes in one aisle and other times she might have to navigate a number of aisles to fill a box.
We agree that, as counsel for Cotton On argued, it is not possible from Ms Golowka’s evidence alone to infer what was the likely load that she would have been moving if she had dropped off boxes at the end of each aisle prior to suffering her injury. This hypothetical scenario was not explored in evidence-in-chief nor in cross-examination, presumably because this was not the case being presented to the Court at this time by Ms Golowka.
Nevertheless, and contrary to Cotton On’s contention, in determining what was the likely (hypothetical) load of the trolley at the time of injury if the aisle drop off system had been employed, the review by this Court is not confined to the evidence of Ms Golowka. The exercise undertaken by this Court in determining whether there is an error of law or fact is to review the evidence before the judge relevant to the grounds of appeal.[46]
[46]Li v So [2021] VSCA 32, [34] (Tate, Emerton and Sifris JJA); Allesch v Maunz (2000) 203 CLR 172, 180, [23]; [2000] HCA 40 (Gaudron, McHugh, Gummow and Hayne JJ).
Nor is this Court inhibited by the fact that the argument as to the aisle drop off alternative only surfaced at the conclusion of the evidence. Provided this case was within the pleadings and Cotton On had notice of it by the time of final submissions (as it did in the form of the written submissions of Ms Golowka’s counsel) then it was open to Ms Golowka to pursue it as her counsel did without apparent demur from counsel for Cotton On.[47]
[47]Dare v Pulham (1982) 148 CLR 658; Water Board v Moustakas (1988) 180 CLR 491, 497; Karatjas v Deakin University [2012] VSCA 53, [19].
In the reasons, set out at [80], his Honour noted that Ms McKinnis unloaded at the end of each aisle and usually had 2–3 boxes on her trolley. The judge used this estimate and Ms McKinnis’ practice upon which to make his finding as to causation.[48]
[48]Reasons, [16], referring to lower court transcript 706, line 20-22.
In oral submissions on this point on the appeal, counsel referred to the evidence of Ms Alford which is set out at [87]–[88] which it was said supported that of Ms McKinnis. The following part bears repeating: most pickers would unload at the top of every aisle, consistent with the direction given to them. She said ‘typically you would not be pushing a trolley with more than three or four boxes’ and that you would make sure if you came out of an aisle and had three or five boxes that they would be unloaded to make sure the load was light enough to continue to pick.
Ms Golowka-Miller said that if a picker got to the end of an aisle and had two or three full boxes on a trolley and a couple of other boxes that are ‘sort of half done’, you might take the full boxes off and keep the half boxes on.
Ms Sanges said that if she had three to five full boxes she could go and drop them off at despatch.
Ms Greenland said that she would drop boxes off as soon as her trolley became heavy and overloaded.
The most persuasive accounts of the likely load if the aisle drop off system was employed is that recited by the judge in his summary of Ms McKinnis’ evidence and the evidence of Ms Alford.
The judge’s recited evidence of Ms McKinnis and the evidence of Ms Alford as to the average number of boxes which would normally be decanted at the end of an aisle and, more importantly, the usual load of a trolley employing this method. This is significant as it contains a degree of precision as to the average load carried by a trolley using the aisle drop off system. As a matter of practicality and common sense, we think that this body of evidence, if accepted, permits the drawing of an inference that, if Ms Golowka had adopted the aisle drop off system, she would have not been required to push a load of more than four boxes. This means that in this hypothetical, or counterfactual scenario, Ms Golowka would have been pushing a load of less than half that which she was pushing at the time she sustained her injury; and probably no more than 40 kilograms.
However, acceptance of this body of evidence has its problems. First, despite careful perusal of the transcript, we have been unable to find the passage in which Ms McKinnis gives the evidence set out by the judge as to the number of boxes usually carried by her in a trolley when employing the aisle drop off system.[49]
[49]Ibid, [17].
Second, the judge regarded Ms Alford’s evidence as irrelevant, stating that Ms Alford only did picking duties every few weeks, often on afternoon shift and concluding:[50]
I put it to one side in considering what the actual system of work was.
[50]Ibid, [13]; see also [80] above.
These two matters present a formidable obstacle to this Court using either piece of evidence in its analysis. Ms McKinnis’ evidence falls by the wayside and Ms Alford’s account was rejected by the judge as being atypical. The remaining evidence of the fellow pickers does not permit an inference to be drawn as to the likely weight of the trolley under the alternative system. Ultimately this Court must be affirmatively satisfied that the evidence as a whole permits the drawing of the inference as to the trolley’s weight if the alternative system had been implemented. Absent the evidence of Ms McKinnis and Ms Alford, we cannot.
This conclusion is fatal to Ms Golowka’s case on causation. However, given the consequences of this finding we should address the ultimate point (namely, that the lessened weight of the trolley would have prevented the injury to Ms Golowka’s knee) on the basis that the weight of the trolley was approximately 40 kilos under the putative alternative system.
On this point, Cotton On argued in its written case:
Finally, it cannot simply be assumed, in the absence of medical evidence directed at the respondent’s particular circumstances, including her pre-existing congenital and degenerative conditions in the left knee, that injury would have been avoided by way of the system of work counterfactual, in the absence of any evidence of the likely force required to push the trolley, if the alternative system had been adopted. The medical reports tendered by the respondent failed to address whether the system of work counterfactual would have avoided the injury. The only two doctors who gave oral evidence (Dr Lording and Dr Christelis) were not asked by the respondent to address the question of whether the system of work counterfactual would have avoided injury. Given the respondent would have been exposed to some degree of stress on her left knee, even under the system of work counterfactual (which necessarily involved pushing the trolley with a load), the conclusion that she would not have suffered such injury under that alternate system was not open in the absence of medical or other expert opinion to that end. …[51]
[51]Written case for the applicant, [7]–[8].
We do not accept counsel for Ms Golowka’s contention that it is possible to infer from the allegation of contributory negligence by Cotton On as to the implementation of an aisle drop off system by Ms Golowka that such a system would have avoided the injury. The argument as to contributory negligence was just that; if it had been made out by Cotton On in its case on contributory negligence it would also have been required to prove on the evidence that it had a causal relationship to Ms Golowka’s injury.
Counsel for Ms Golowka, in oral submissions (the matter having been only addressed in the written case in the one short paragraph set out at [131] above), referred to the medical reports of two orthopaedic surgeons Mr Rodney Simm, and Associate Professor Miron Goldwasser.
In a report in May 2019 to Cotton On’s WorkCover agent, Associate Professor Goldwasser noted the incident in the following terms:
The episode. She remembered the episode occurred at approximately 10.30am when she was pushing a laden trolley, which required some effort. She said the trolley was relatively old and, on that occasion, when she pushed very hard, she noticed that her left knee gave way and twisted and was painful. She rested for a few minutes and attempted to work but at a slower pace, but her knee kept on getting worse. Eventually she reported it at work and was put on light duties for the last hour or two of her shift.
In his analysis of findings, Professor Goldwasser wrote:
Ms Monica Golowka suffered an injury to her left knee, consistent with the history given, including the episode at work on or about 7 March 2016.
In his report to Cotton On’s solicitors of January 2021, Mr Simm expressed the following opinion in answer to questions posed by the lawyers:
1.       Please take a detailed history of:
(a)     the plaintiff’s employment duties generally;
(b)the incident on 7 March 2016 and the plaintiff’s account of the development of symptoms; and
(c)     treatment received.
A:      I have addressed the components of this question in the report. There were moderate physical demands on her knees to undertake her normal work duties. It was necessary to push quite a heavy trolley. In the absence of underlying pre-existing chrondomalacia patella, pushing the trolley would not cause pathology or symptoms.
2:       Please describe the plaintiff’s presenting condition in medical terms:
A:      As a result of moderate loading of her left knee to push a trolley at work on 7 March 2016, she initiated acute symptoms from pre-existing Grade 2 to Grade 3 (moderate) chrondomalacia patella. She subsequently developed severe adverse pain and injury response…
In our view, these opinions do not assist Ms Golowka’s case. Neither is directed to the question of the difference that a lighter weighted trolley would have made to the happening of the injury. Neither opinion can lead to an inference that the provision of such a system would have made any difference let alone avoided the injury.
It was always open to Ms Golowka’s lawyers to seek to adduce oral evidence, on notice, on this issue. At trial two treating medical practitioners, Mr Tim Lording, orthopaedic surgeon, and Dr Nicholas Christelis, pain management specialist, were called by counsel for Ms Golowka.
Mr Lording adopted his two written reports. Neither dealt with this issue. Mr Lording was cross-examined by senior counsel for Cotton On primarily on the role of the underlying condition of chondromalacia of Ms Golowka’s patella and the physical basis for her ongoing symptoms.
Dr Christelis adopted his three written reports. None dealt with this issue. Dr Christelis was cross-examined by senior counsel for Cotton On primarily upon the effect of his various interventions upon Ms Golowka’s condition.
Whilst it would have been necessary for Ms Golowka to comply with the provisions of either O.33 or O.44 of the Supreme Court (General Civil Procedure) Rules 2015, no application was made by her lawyers to adduce any evidence on the causation issue from either of the medical practitioners — particularly Mr Lording.
To be fair, it is unsurprising that the medical opinions (both oral and written) did not deal with this issue, given the way in which the trial was run and with the argument as to aisle drop offs being raised as part of Ms Golowka’s case, in effect, at the stroke before midnight.
The result is, as Cotton On contends, that there is no evidence to support the proposition that a lighter loaded trolley would have produced a different outcome for Ms Golowka. The difference in stresses and loads and the respective strains on a particular body part, especially on a knee with an underlying degenerative condition required scientific and/or medical expertise as to the potential outcome with a lighter load.
This question cannot be resolved, as the judge purported to do, by common sense. Whilst common sense may be used to determine whether a risk of injury may be lessened (as we have at [110] and [117] above) the drawing of a conclusion without medical or ergonomic evidence as to the probability of the injury being avoided cannot be made in this case. To do so would amount to speculation and guesswork. As we mentioned earlier that does not mean that in other cases common sense and practicality will not provide the basis for drawing such an inference.
Ms Golowka has failed to establish that there is a causal link between the breach of duty on the part of Cotton On and the injury she sustained. This proposed ground of appeal is made out.
Although it was not addressed by the parties we should, for the sake of completeness, add that the claim for breach of the OHS Regulations relating to manual handling (and found by the judge to have been established because of the failure to undertake a risk assessment) also fails. This is for two reasons. First, the causal connexion between the breach of the OHS Regulations and Ms Golowka’s injury was not established on the evidence and is not addressed in the judge’s reasons. Second, in any event, if the evidence had explored the result of a putative risk assessment it may have led to the same conclusion as that postulated by the judge — the introduction of an aisle drop off system. Proof of causation could not be established on this basis.

Adequacy of reasons

The judge was obliged to provide reasons ‘sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied’.[52]
[52]DL v The Queen (2018) 266 CLR 1, 44–5 [131]; [2018] HCA 26; see also Warburton Environment Inc v VicForests [2021] VSCA 194, [89]–[94].
It is unnecessary, given our conclusion in relation to the second ground, to address this issue in any detail. It suffices to make the following two observations. First, the judge’s reasons in relation to causation did not (and in our view, could not on the evidence) explain the factual basis for drawing an inference that the different system of work would have led to a different outcome. Second, it was conceded by counsel for Ms Golowka that the judge’s reasons in relation to the finding of breach of the OHS Regulations relating to manual handling and/or the Manual Handling Code of Practice were inadequate.

Conclusion

Cotton On has established that there was no evidence to support the finding of causation made by the judge. Ms Golowka’s claim must, therefore, fail and her proceeding should have been dismissed.
Leave to appeal should be granted and the appeal allowed. The judgment of the County Court in favour of Ms Golowka should be set aside and, in its place, judgment entered for Cotton On.

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[2022] VSCA 279

14 December 2022