Golowka v Cotton on Pty Ltd
[2021] VCC 1794
•24 November 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-20-02209
| MONICA GOLOWKA | Plaintiff |
| v | |
| COTTON ON GROUP SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24, 25, 26, 27, 30, 31 August 2021, 1 and 2 September 2021, 11 and 13 October 2021 |
DATE OF JUDGMENT: | 24 November 2021 |
CASE MAY BE CITED AS: | Golowka v Cotton On Pty Ltd |
| MEDIUM NEUTRAL CITATION: First Revision 3 December 2021 | [2021] VCC 1794 |
REASONS FOR JUDGMENT
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Subject:WORKER’S COMPENSATION
Catchwords: Injury to left knee and left leg – Failure of employer to provide a safe system of work – Manual handling work
Legislation Cited: Occupational Health and Safety Regulations 2007 (Vic)
Cases Cited:McLean v Tedman (1984) 155 CLR 306; Fox v Percy (2003) 214 CLR 118; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Karabotsos v Plastex Industries Pty Ltd [1981] VR 675; Watts v Rake (1960) 108 CLR 158; Fox v Wood (1981) 148 CLR 438; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545
Judgment: Judgment for the Plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr A Coote | Slater and Gordon |
| For the Defendant | Mr S Smith QC with Ms L Glass | Wisewould Mahony |
HIS HONOUR:
Introduction
1Ms Monica Golowka was employed by Cotton On Group Services Pty Ltd (“Cotton On”) as a picker in their warehouse at Lara. She was required to push a trolley along aisles, picking items of clothing and haberdashery and putting them into boxes. Once she had picked the items required, the boxes were sealed, wheeled by trolley and unloaded onto despatch pallets. She began this work in 2013. On 7 March 2016, she alleges that she sustained injury to her left knee as a result of attempting to push a trolley which was heavily laden. While Cotton On accepts an injury occurred by reason of the pushing of a trolley on that day, it denies that this injury was caused by its negligence. The Plaintiff puts her claim in a number of different ways. First, she alleges that the system of work devised by Cotton On was unsafe, in that it permitted, in fact, encouraged workers to stack their trolleys, such that they became heavy to push, which knowingly created a situation of danger. As part of this argument, the Plaintiff alleges that there has not been compliance with the Occupational Health and Safety Regulations 2007 (Vic), in that there had not been an appropriate risk assessment performed of her trolley, nor manual handling training performed. Further, she alleges that the trolleys which were in use were inappropriate for the task of picking, in that they were difficult to push, heavy, and having wheels of poor quality, which were often matted with debris such as tape. She further alleges that Cotton On had received numerous complaints from pickers in at least the year prior to her accident, such that they had actively decided to change to a lighter and more appropriate trolley and in fact were in the process of providing these trolleys to staff when the Plaintiff’s injury occurred. Unfortunately, the Plaintiff’s area had not received the new trolleys at the time of the Plaintiff’s injury, so that she was left working with the old, inappropriate, trolleys.
History and background facts
2The Plaintiff was born in July 1971. She completed schooling to about Year 9 level and then worked in various roles being, for example, at Hungry Jack’s and Tuckerbox. She was a catering assistant at Spotless and then did some cleaning work. She had two daughters and was on home duties for a period. She obtained a Certificate IV in Aged Care, but suffered injury to her right wrist and arm while employed with Sutton Park Aged Care in about 2004. She was off work for a period of time and then returned to work full time as a cleaner for Tabcorp. In May 2013, she commenced working for the Defendant at the Lara distribution centre.
3Cotton On is a retailer of clothing and haberdashery. It also has subsidiary brands such as Typo, which sells stationery at retail outlets. Each of the Cotton On, or subsidiary brand stores, send orders to the Lara distribution centre. The distribution centre is divided into a number of different sections such as Online, Brands, Body etc. In each of these sections there are large shelving units. Each section has a series of shelving units stacked along aisles, much like a supermarket. Each aisle runs between 50 and 100 metres. At the end of each aisle are pallets where a picker can unload their boxes. At one end of each section is an area known as despatch. Pickers can unload their filled boxes here.
4A picker commences the shift with a Toolbox meeting between other pickers and their brand manager. In this case, at the time the Plaintiff started in 2013, the brand manager was Mr Lawrence “Arthur” Hodgson and then at the relevant time of the accident in 2016 it was Ms Tiarni McKinnis. After reporting for the Toolbox meeting, each picker then set up their trolley. Trolleys are as depicted in Exhibit P6.[1] To describe it briefly, it is a metal tray onto which are attached four wheels on the underside. The front wheels are fixed in position, that is, they only roll forwards and back, they do not swivel. The wheel itself is a sealed unit within the rim, around which is a hard plastic.[2] The rear wheels are made of the same material, however they do swivel. At the rear of the trolley is a handle which is affixed to the tray by two bolts. At the time the Plaintiff began work, workers would attach a cardboard box to the handle, into which they would put various items, such as a cutting knife and what is termed an RF Gun. The RF Gun identifies for each picker those items which needed to be picked for an order. The RF Gun also indicated to the picker the order in which items needed to be picked. After picking up the RF Gun and their trolley, the picker then proceeds to the first aisle and item that needed to be picked.
[1]Exhibit P6 – Photographs of Trolley and Boxes, at Plaintiff’s Court Book (“PCB”) 100-101. Shown at Annexure A PCB 100.
[2]Transcript (“T”) 619, Line (“L”) 26-30
5The aisles were set out in alphabetical order. The Plaintiff worked in the Adults’ Brand section of the warehouse. This comprised aisles “A” through to “J”. Along each of the aisles on the shelving there were boxes which had been cut open to reveal the products inside. The picker proceeded down the aisle until they reached the relevant box number and found the box which the RF Gun indicated needed to be picked from. The picker then takes the item from that box, scans it and places it into an empty box on the trolley. When that is done, the picker proceeds to the next item that the RF Gun indicates and picks that item. That process went on until the box was filled. The picker then seals the box and proceeds, according to the RF Gun’s instructions, to the next picking site.
6This much was agreed by the parties. However, dispute arose as to what a picker would do once they reached the end of the aisle. On the Defendant’s case, once a picker had reached the end of an aisle with completed boxes they would then unload them onto a despatch pallet, which was located at the end of each aisle. Alternatively, on the Plaintiff’s case, pickers continue to pick through the entirety of their order if they could, prior to dropping off at the despatch area. This was because there was a pick rate imposed on the pickers of some 410 units per hour and doing fewer drops offs made for quicker picking.
7A unit was one item that had to be picked from a shelf into a box, for example, a t-shirt. It was generally accepted that the trolley held three boxes on the base and could hold somewhere up to about eight or nine boxes. The evidence was that, as a rule of thumb, workers should not stack the boxes so high that they could not see over the top.[3] It was accepted by management that pickers had their own tactics[4] and that it was important they were able to see over their trolley.
[3]T413, L14-16
[4]T467, L24-28
8I will return to this issue between the parties in greater detail below under consideration of the Plaintiff’s arguments in negligence. It is sufficient to record my finding that while there might have been some pickers who dropped off at the end of each aisle, it was an accepted practice to do the work in the way that the Plaintiff and other pickers did it, namely, to pick through an order until their trolley was full and only then proceed to despatch.
9In about March 2015, Mr John Plummer, the warehouse manager, decided to order new trolleys to be used by the pickers in the warehouse. These trolleys were slightly larger but of roughly similar design, though the wheels were larger. The first of these new trolleys arrived at the Lara Distribution Centre in late September 2015. At about this time, a risk assessment was done regarding a picker’s job task. It was contentious whether this risk assessment was in respect of work with the old trolleys or simply confined to the new trolleys. In any event, the new trolleys were progressively introduced to the pickers but were not in use in the Adults section as at Ms Golowka’s date of injury.
The day of the incident
10Turning to the day of the incident on 7 March 2016. The Plaintiff gave evidence that on that morning she had been allocated a big order.[5] As she was following the route laid out by the RF Gun, she picked about eight to nine boxes and had loaded them onto the trolley. She made the point that the weight of each box did vary depending on the items picked.[6] She gave evidence that the trolley was difficult to push when it was as heavy as it was that morning.[7] Her evidence was in the following terms as to what then occurred:[8]
“I went to push my trolley to go to the next bay and in the standing position I – it didn't go nowhere 'cause it was fully loaded, so I went to put my foot out to give it a kick start and as I've done that I've just felt this, me [sic] knee twisted a little bit, and, um, I just got this sharp pain.”
[5] T77, L12
[6]T54, L6-18
[7] T80, L16
[8] T32, L15-20
11Immediately after the accident, she felt pain in her knee and while she tried to keep picking, her knee was hurting. She reported her injuries and was placed on light duties during the afternoon. The next day she reported for work, but was in such pain in her left knee that she was taken to see the work doctor, Dr Al-Hadi, in Lara. Thereafter, she went to see her treating doctor at the Scott Street Medical Centre in Melton, with pain and difficulty moving her left knee, on 9 March 2016. I do not need to set out the full medical history at this stage, as it is largely non-controversial. In brief, however, I note that the Plaintiff came under the care of an osteopath, Dr Jack Williams, on 11 April 2016.[9] She had an ultrasound-guided cortisone injection into her left knee[10] before attempting to return to work on light duties in May 2016. She ceased work again in mid-June 2016, when she stopped due to ongoing left leg pain. She consulted an orthopaedic surgeon, Dr Ishfaq Hussaini, who proceeded to perform an arthroscopy on 22 July 2016.[11] She then attempted a further return to work in September 2016. She continued on in that way despite ongoing problems doing light-duties work until about February 2017. She trialled further ultrasound-guided cortisone injections, but they were not successful. She ceased work with the Defendant in June 2017 and has not worked since. Ms Golowka was then referred to Mr Timothy Lording, a surgeon, in September 2017.[12] He ordered a number of viscosupplementation injections, but these were not successful and ultimately, on 28 March 2018, she underwent a partial knee replacement of the patella foraminal joint performed by Mr Lording.[13] This did not resolve her problems and she had another arthroscope on 18 October 2018.[14] She has attempted some pain management with Dr Nick Christelis, a pain specialist.
[9]PCB 45
[10]PCB 46
[11]PCB 131
[12]PCB 42
[13] PCB 134
[14]PCB 135. See also PCB 43
Plaintiff’s arguments in negligence
Was there an unsafe system of work?
12Turning to the first argument that the Plaintiff makes. The Plaintiff pleads that the system of work employed at Cotton On was not safe. Particularly that she was required to repetitively push trolleys which were old, worn, had small wheels which were matted with tape and were too heavy to push safely.[15] She alleges that she had to perform work with these trolleys throughout the course of her employment and that such work had specifically caused her injury on 7 March 2016. There are several strands to that argument. First, (i) focusing on whether the trolley was of a reasonably safe type and then (ii) whether it was overly heavy when it was loaded and, (iii) further, that it had its wheels constantly matted with tape and other debris making it difficult to push.
[15]PCB 8, paragraph [8(f)] of the Statement of Claim.
13As set out above, the system of work was for pickers to move through the aisles in accordance with the path laid out by the RF Gun. However, as set out above, there was dispute between the parties as to when pickers had to drop off boxes. On the Plaintiff’s case, pickers were required to comply with a pick rate of 410 units per hour.[16] This meant that there was pressure on staff to meet the pick rate. The evidence was unanimous that the pick rate was important for both the business and the pickers. Mr Plummer, who was brought into the warehouse in 2013 as the manager, gave evidence that the pick rate was important and it was his role to ensure that the pick rate was met.[17] This was the hallmark of efficiency and a key performance indicator. Ms McKinnis gave evidence that the pick rate was important for workers because it meant that they were meeting the requirements of their job. The workers gave evidence that if they did not meet their pick rate then they would be spoken to by management.[18] It was clear that the pick rate was important because the evidence was that the pick rate was published each day, listing those workers meeting their pick rate or exceeding it, and those who were not.[19] All workers gave evidence that it was a source of great pride and an achievement to be seen at the top of the pick-rate list. The Plaintiff gave evidence that she was a good picker and often at the top of the pick-rate chart.[20] The evidence was that in order to meet the pick rate, the Plaintiff would only drop off her load at the end of her order being picked. As set out above, this often resulted in her having a trolley laden with eight to nine boxes. Ms Casey Golowka-Miller’s evidence was to the same effect. She was adamant that top pickers, such as herself and her mother, would not do drop offs at the end of each aisle, but would rather wait until completing their order.[21] It was submitted that Ms Golowka-Miller gave evidence in an inconsistent manner and was prone to exaggeration. I do not accept that she exaggerated her evidence. The example given by the Defendant as to her description of pushing her trolley with force is no more than loose wording. I consider otherwise her evidence was almost wholly consistent with the evidence of other pickers. I record my finding that she was a witness of truth. Ms Graziella Sanges, a picker previously employed with Cotton On, was uncertain on this point, and indicated that she would often unload as she went, but it all depended on the type of order she was picking.[22] I accept her evidence was inconsistent with respect to when the new trolleys were bought but the essential components of her evidence about the picking task and the trolley weight was consistent. I find she was an honest witness who did her best and I accept her evidence. Ms Joan Gavin, a picker who worked from 2011 in the Adults section and was a full-time picker like Ms Sanges, gave evidence that the system was as the Plaintiff had given evidence, that is, not unloading as you went, but rather waiting until the end to do drop offs.[23] However she conceded that workers could unload frequently.[24] The Defendant submitted she was an argumentative and disingenuous witness. When regard is had to the Defendant’s submissions on this point it is actually no more than an attack on Ms Gavin for having her own case against Cotton On. I put this criticism aside. Otherwise, criticism of her estimation of the aisle length are trivial and have no bearing on her evidence on critical matters. Overall, I accept her evidence and consider her a witness of truth. Ms Denise Alford was called by the Defendant to give evidence. She is a forklift driver primarily, but also did some picking duties. She said that she only did picking duties every few weeks and it was often on the afternoon shift. Her evidence was obviously not as robust in terms of outlining the system of work used by pickers as the other workers, such as the Plaintiff, Ms Golowka-Miller, Ms Sanges and Ms Gavin because she picked so infrequently. I put it to one side in considering what the actual system of work was. Turning to the evidence of Ms Myriam Greenland, she was a picker who began employment in 2013 at Cotton On, in the Adults section. Her evidence was that the only limit on the number of boxes you could have on your trolley was that you could still see over the top of the trolley.[25] She gave evidence that this was about 18 boxes on the old trolley.[26] Her evidence was that there was no set system as to the drop off.[27] Ms McKinnis gave similar evidence.[28] This evidence was echoed by Mr James Chandler,[29] who was one of the managers in 2014. It must be said about his evidence that, once again, he was not a full-time picker, or overly concerned with his own pick rate. Similarly, Mr Matthew Grgic’s evidence, who I have referred to above, is that pickers had their own tactics and there was only a rule of thumb prohibiting workers from stacking boxes too high.
[16]T23, L7-11
[17]T570, L1-3
[18]T70, L6-8 in relation to Ms Golowka. See T186, L4-6 in relation to Ms Golowka-Miller. See T273, L8-9 and T276, L12-14 in relation to Ms Gavin.
[19]T24, L6-9; T25, L23-30; T351, L26-27; T467, L8-12; T501, L13-14; T578, L4-6.
[20]T26, L2-3
[21]T185, L14-21
[22]T212, L30 – T214, L6
[23]T276, L12-14
[24] T276, L23-27
[25]T487, L30 – T488, L1
[26]T488, L1
[27]T488, L26 – T489, L8
[28] T692, L31 – T693, L8
[29]T510, L31 – T511, L10
14All of this evidence leads me to conclude that the system of work was, as described by the Plaintiff, that is, that she would only do drop offs at the end of picking a full order. Necessarily, this meant that she could stack much more than two or three boxes on her trolley. This obviously is different to the evidence of Mr Hodgson,[30] whose evidence I reject because it is not supported by the majority of the pickers and is inconsistent with the fact of workers devising their own system to meet the pick rate which was known and accepted by managers such as Mr Grgic and Ms McKinnis. I record my finding that I consider Ms McKinnis gave evidence in a direct and open manner. Most of her evidence was broadly consistent with that of other pickers. I have set out why I prefer the evidence of the other pickers on key points where there is conflict.
[30]T585, L1-4
15I note that legally it is the responsibility of the employer to devise and implement a safe system of work. It is not sufficient for the workers to be left to their own devices to devise a system of work.[31] Here, it was obvious that the pickers had devised a system of work that enabled them to complete their picking tasks and comply with the company directive as to the pick rate. This was important to them as it was part of their job requirements and ensured their job security with Cotton On.[32] It was therefore in the company’s interest that they maintained the pick rate, and to do that, it appears that the employer was willing to tolerate the picking system employed by pickers, such as the Plaintiff.
[31]McLean v Tedman (1984) 155 CLR 306 at [19]
[32]T186, L3-8
16The effect of that, however, was that the trolleys that the Plaintiff and other pickers were given were loaded with at least eight to nine boxes, but perhaps as many as eighteen. It was put consistently in cross examination that each box weighed, on average, about 10 kilograms. Both Ms Sanges and Ms Golowka-Miller accepted that generally, but with the caveat that all boxes differed in weight and that it was hard to average.[33] I accept that evidence but, as a rough guide, it can be assumed that, on a very loose average, each box weighed approximately 10 kilograms. Translating that to the Plaintiff’s situation, it meant that she was regularly pushing a load of around 90 kilograms on her trolley.
[33] Ms Sanges at T212, L11-14 and Ms Golowka Miller T187, L24-27
17Turning, then, to the evidence about the pushing of the trolley. I have set out a description of the trolley itself above. The Plaintiff’s evidence was that pushing a trolley weighed down by boxes was difficult.[34] 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.[35] 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.[36] 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.[37] 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.[38] In contrast, Ms McKinnis gave evidence that the trolleys were easy to push.[39] 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 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,[40] even when it had 18 boxes on it. She conceded that the old trolleys were heavier than the current ones.[41] 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.
[34] T27, L8-11
[35] T150, L11-16
[36] T195, L8-16
[37] T194, L2-4; T208, L23
[38] T265, L14-20
[39] T706, L20-22
[40] T486, L4-6
[41] T492, L5
18Synthesising 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.
19I draw the inference that the trolleys when laden with boxes that the Plaintiff and other pickers were required to push were heavy especially when regard is had to the number of boxes typically on the trolley, and the average weight of 10 kilograms of the boxes. On the day of the Plaintiff’s incident, the Plaintiff was picking a big order and had about eight to nine boxes on her trolley which would have had an approximate weight of 80 to 90 kilograms. For a woman of her size and stature this was a considerable load to push as demonstrated by the constant complaints the Plaintiff and other pickers made as outlined below. Furthermore, Cotton On failed to establish, maintain and enforce a safe system of work.[42] They acquiesced to the system of work employed by the Plaintiff and other pickers where boxes would be dropped off once the order had been fully picked rather than at the end of each aisle. It can be thought that Cotton On encouraged this system of work given the daily publication of pickers’ pick rates and the natural competition that comes with pickers wanting to be at the top of the list. At the very least Cotton On did nothing to stop pickers from employing this alternative system of work.
[42] McLean v Tedman & Brambles Holdings Ltd (1984) 155 CLR 306 at [12]
20For 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.
What Cotton On knew or ought to have known
21The success of the Plaintiff’s argument depends on knowledge by the Defendant, or on facts from which they ought to have known, that the use of these trolleys while laden was causing strain to workers. The Plaintiff’s argument, firstly, is that the Defendant ought to have known this was the case. That is because it had staff onsite who could see the workers struggling with the trolleys. Furthermore, it knew that the Plaintiff and others like her, for instance, Ms Golowka-Miller, were short of stature and not overly strong. In that circumstance, pushing a steel trolley with 80 to 90 kilograms on it, was, or ought to have been, known to have been a difficult manual-handling task. I will come to that issue later. The Plaintiff put her case against the Defendant primarily on the basis that Cotton On specifically knew that workers were having difficulties with pushing fully laden trolleys. That knowledge was said to arise, on the Plaintiff’s case, by reason of ongoing complaints made directly to Ms McKinnis and also by the Plaintiff at consultative committee and health and safety meetings.
Were direct complaints made by workers to management?
22The Plaintiff’s case is that she had complained, along with other pickers, regularly at Toolbox meetings. In support of this, was the evidence of Ms Sanges,[43] Ms Gavin[44] and Ms Golowka-Miller.[45] The Defendant’s case was that no such complaints had been made and they particularly relied on the evidence of Ms McKinnis who denied such complaints as having been made to her. As I have said previously, the evidence of Ms Alford can be put to one side given she only picked every few weeks and was not working the relevant morning shifts. Ms Greenland gave evidence that there certainly was grizzling between workers about the trolleys,[46] but she could not recall any complaints at Toolbox meetings.[47] I consider Ms Greenland’s evidence to sit comfortably with that of the other pickers. She also accepted that Ms McKinnis was an approachable team leader.[48] In that circumstance, it seems entirely plausible that workers made complaints at Toolbox meetings, along the lines the Plaintiff gave evidence about, but that it simply was not recalled by Ms Greenland. To the extent that Ms McKinnis denied completely those complaints being made, I prefer the evidence of the Plaintiff, as supported by Ms Golowka-Miller, Ms Sanges and Ms Gavin. It was said by the Defendant that it was illogical that complaints could be made by so many people on such a consistent basis and yet they were all turned away by Ms McKinnis, who was otherwise thought to be a good manager and approachable. I find that the answer to this lies in the fact that as of May 2015, Mr Plummer had made the decision to obtain new trolleys for the factory. Ostensibly, he gave evidence this was for efficiency gains, because the new trolleys had a larger base which enabled more boxes to be stacked on them.[49] It might be thought this reason runs contrary to the Defendant’s primary position that the system of work required drop offs only after a few boxes, and certainly by the end of each aisle. In that circumstance, having a trolley able to take more boxes was unnecessary because drop offs were being done every three boxes or so and there was no need to take more boxes on the trolley base. I find this was another reason why it is likely the pickers worked as they had described, being to pick until their trolleys were full and only then go to despatch. However, returning to the argument about complaints. Faced with a situation as Ms McKinnis was, on the Plaintiff’s case of complaints by pickers about trolleys, and knowing that new trolleys were being arranged, Ms McKinnis was in a position where she could do no more. In that circumstance, while she could receive complaints, she could do nothing about them until the new trolleys arrived and management had put them into service. To that extent, it is not an overly-memorable complaint for Ms McKinnis because there was simply nothing she could do about the complaints at that time. It is also significant that in evidence Ms McKinnis confirmed that once the new trolleys began rolling out in the Distribution Centre the pickers in the Adults section were keen to get them. When asked why this was so Ms McKinnis stated that it was because her pickers “hated” the old trolleys.[50] The obvious inference being that there was something wrong with them. I therefore prefer the evidence of the pickers on this point to that of Ms McKinnis, as it is more consistent with the surrounding evidence.[51] I should also note that as part of that, Ms Greenland gave evidence that when the new trolleys did arrive, it was those who made complaints who received new trolleys first.[52] Once again, this is a fact that can be used to infer that there had been complaints known by management about the old trolleys, such that they gave new trolleys to those members who had complained first. This infers not only that there had been consistent complaints about the old trolleys, but also that this was a fact known by management. Taken together, it leads to a finding that the Plaintiff’s argument must be accepted, that there had been complaints about the old trolleys to management and that they were aware that pickers had difficulty pushing them. I accept that evidence from the Plaintiff.
[43] T196, L7-14
[44] T265, L29 – T266, L25
[45] T151, L10 – T152, L5
[46] T489, L29 – T490, L4
[47] T489, L25-28
[48] T490, L17-18
[49] T570, L3-8
[50] T686, L30-31
[51]Fox v Percy (2003) 214 CLR 118
[52] T502, L29-31
23The Defendant also argued that it was unlikely there were any complaints because the Plaintiff actually sat on the consultative committee and yet there were no notes of the consultative committee recording complaints about the trolleys. The Plaintiff’s case was that she had raised complaints at the monthly consultative committee meetings and she could not explain why it was not in the minutes. The Plaintiff’s evidence as to whether she received the minutes was inconsistent.[53] Mr Grgic gave evidence that he could not deny that the Plaintiff might have raised these matters and that they were not in the minutes.[54] He did recall, however, that team members were keen to obtain the new trolleys once they understood that they were arriving.[55] This was in around December 2015, and he put this down to people simply wanting to get a new piece of equipment. I find consistently with what I have found above, that this is unlikely to be the only reason. I consider that the pickers were keen to get the new trolleys because they had been making complaints about the functioning of the old trolleys. This is also consistent with Mr Chandler’s evidence that he could not recall complaints about the trolleys at the consultative committee, but that such complaints might well have occurred.[56]
[53] T84, L30 – T85, L5 in contrast to T85, L31 – T86, L4
[54] T452, L9-21
[55] T452, L26-28
[56] T519, L11-17
24Minutes for the health and safety committee similarly recorded no complaints about the trolleys. Mr Chandler’s evidence was that there were no complaints and no issues with the old trolleys.[57] However, in considering these minutes and the function of the health and safety committee, it is necessary to say something about the overall occupational health and safety system at Cotton On. First, the health and safety committee does not appear to have been in existence for a long period of time prior to the incident. Its first meeting was on 3 June 2014.[58] Certainly, prior to mid-2014, there do not appear to be any meeting notes. It also seems that the committee was staffed by people who had limited understanding of the occupational health and safety framework in Victoria. For example, Mr Grgic, who sat as the Chair for a considerable period, stated he was not aware of the Code of Practice on manual handling[59] or the Occupational Health and SafetyRegulations 2007 (Vic).[60] He conceded that there had been no manual handling training campaign with pickers prior to 27 May 2016. It is to be remembered that the main part of the Cotton On workforce at the Lara distribution centre was some two hundred pickers, which would swell to about five hundred over peak and busy periods. Pickers are involved in manual-handling tasks for the majority of their shifts. It seems entirely unclear as to why there was no manual-handling training campaign prior to this time, and most relevant to the job task that pickers were engaged in. For the Chair of the health and safety committee to be unaware of the Code of Practice on manual handling or the Occupational Health and Safety Regulations seems more than curious. Mr Chandler, who was also a member of the committee at various times, similarly, did not know about risk assessments[61] and did not know about what training pickers had had in manual handling.[62] Overall, I record my finding that Mr Chandler was unable to assist the Court on many highly relevant matters to safe manual handling practices at the Lara distribution centre. Mr Wayne McAuliffe, who was in charge of maintenance and also on occasion Chair of the health and safety committee, similarly did not know about the Code of Practice[63] or Occupational Health and Safety Regulations.[64]
[57] T514, L7-10
[58] PCB 164
[59] T412, L30 – T413, L1
[60] T412, L24-26. Note: there appears to be a typographic error at L26 of the word ‘on’. I have assumed
this is meant to be ‘no’.
[61] T533, L29-31
[62] T532, L8-11
[63] T654, L14-16; T655, L9-10
[64] T654, L8-13
25It can be seen from a perusal of the minutes of both the health and safety committee and the consultative committee, that there was very little reporting on injuries in the workplace throughout 2015 and 2016. The Plaintiff pointed to the very loose follow up of injuries in the workplace to support its argument that there was not a reasonable system of occupational health and safety at the Lara distribution centre and that this was why it did not record complaints about the trolleys. For example, Mr O’Dwyer SC pointed to the fact that in May 2015 it had been recorded that there had been some eight instances of workers cutting themselves with knives while opening cartons, yet, despite Mr Chandler accepting this was a significant number and demonstrating a significant problem, nothing was done for almost a year before the knives used at Cotton On were replaced by a much safer model. Similarly, Plaintiff’s counsel noted that even after Ms Gavin’s incident, where she sustained two fractures in her foot while attempting to push a trolley in December 2015, and this had been conveyed directly to Mr Grgic, who was often the Chair of the health and safety committee, there was no report of this incident in either the health and safety committee or the consultative committee notes. The same was said to be the situation with the Plaintiff’s injury. It was not recorded in the health and safety committee or the consultative committee notes.
26Overall, I find that the committee meeting notes for both committees were certainly not comprehensive and did not record all matters relating to occupational health and safety that were of concern at the workplace. This fatally undermines the Defendant’s argument that, if the Plaintiff had made a complaint at the monthly consultative committee meeting, it would have been recorded. I find that the recordings in the minutes were deficient and, as Mr Chandler accepted, such complaints by the Plaintiff were made but simply not recorded. I find that the Plaintiff did complain but such complaints were not recorded.
Was a risk assessment of the manual handling by pickers using the old trolleys performed?
27A further issue arose as to whether an appropriate risk assessment had been done of the manual handling task that the Plaintiff was involved with, that is, pushing a laden trolley along her pick path. The Defendant called in aid a document dated 28 September 2015, authored by Mr Nick Freisler, which described in detail a picker’s role, the equipment used and assessed the risks posed by that task. Mr Grgic described Mr Freisler as being from head office and being the subject matter expert in performing such a risk assessment.[65] As it has been recorded above, this seems to be the first assessment of the pickers’ task and equipment performed by Cotton On. The risk assessment is notable for a number of reasons. First, Plaintiff’s counsel pointed out that it most likely assessed only the newer trolleys brought into the Lara warehouse in September 2015. The Plaintiff made this argument because of the photograph depicting the new trolleys on the front of the risk assessment itself. The Plaintiff also pointed out that as there had been no risk assessment of the pickers’ task up to that date, it is likely that the risk assessment was prepared in conjunction with the arrival of the new trolleys.[66] The risk assessment stated that pushing a trolley constituted a medium risk that warranted manual-handling training.[67] However, as it is made clear by Mr Grgic’s evidence, manual-handling training actually only occurred on 27 May 2016, some two months after the Plaintiff’s accident. The risk assessment seems clear that it does not assess the workers’ use of the old trolley. The two trolleys are not the same. So much can be seen by Exhibit P6 at PCB 100 as set out in Annexure A. They are made of different materials, the old trolley is heavier,[68] and the new trolleys were said to “glide” and be much more manoeuvrable around corners.[69] Even more importantly, however, is the fact that the new trolleys had a larger tray and could take more boxes – meaning they could carry more weight. The weight being pushed was obviously highly relevant to an assessment of risk within the manual handling assessment. The risk assessment does nothing to deal with the different risks posed by the different piece of equipment and the different weights that it might carry. It seems obvious, then, that only one trolley was being assessed as part of the risk assessment, and that is the trolley depicted on the front of the risk assessment being the new trolley. It is also relevant that Mr Freisler was not called to give evidence. He was said to be the subject matter expert by Mr Grgic in relation to manual handling and that particular risk assessment for Cotton On.[70] He could have provided a definitive answer as to what piece of equipment he assessed. In the absence of that evidence, I find that the risk assessment assessed only the new trolley. I find that there was no risk assessment of the pickers’ task in using the old trolley. I find that there was no manual-handling training in the use of the old trolley.
[65] T415, L14-16
[66]PCB 154 – First invoice from Back Safe to Cotton On was dated 23.09.15
[67] DCB 96
[68] T188, L6-9; T194, L2-4; T265, L13-16; T421, T24-25; T492, L5.
[69] T31, L2; T155, L5-6, T205, L15-17; T266, L31 – T267, L1
[70] T415, L14-16
28Turning, then, to consider the new trolley and the old trolley, the evidence all seems to be consistent that the new trolleys were lighter to use. Ms Greenland described the difference as being not insignificant.[71] Ms Golowka-Miller described the new trolleys as simply gliding along and being smoother.[72] Ms Sanges said there was a huge difference and it helped with the pick rate.[73] Ms Gavin gave evidence that the new trolleys glide and were a lot easier to push.[74] Even Mr Grgic, who initially stated there was no difference, did concede that the new trolleys were aluminium and obviously lighter.[75] Even Ms McKinnis conceded that the newer trolleys were lighter and easier to push, while stating that the old trolleys were not difficult to use.[76] All this fits neatly with what Mr Plummer had wanted from the new trolleys, which was for them to be easier and more efficient to use, so as to maintain the workers’ pick rates.[77] It is undoubted that the new trolleys were able to take more boxes and still be easy enough for pickers to use so that they could achieve their pick rates. All this leads to the inference that there was a significant difference between the use of the old trolleys and the new trolleys. I find, consistent with the evidence of the Plaintiff, Ms Golowka-Miller, Ms Sanges and Ms Gavin, that the old trolleys were heavier and much more difficult to use than the new trolleys when laden with boxes.
[71] T492, L5-8
[72] T155, L5-13
[73] T259, L15-18
[74] T266, L31 – T267, L2
[75] T385, L19-21
[76] T682, L11-12; T682, L21-22
[77] T570, L3-8
29It was said by the Plaintiff that there was a delay in the commissioning of the new trolleys. During this time, workers in the Adults brand, such as the Plaintiff, Ms Golowka-Miller, Ms Sanges and Ms Gavin, all complained about why they could not use the new trolleys. This may be because in Ms McKinnis’ words they “hated” the old trolleys.[78] It was common ground between the parties that the new trolleys began arriving in batches of about ten from September 2015. Mr McAuliffe gave evidence that he assembled the trolleys very quickly within a day or two of them arriving.[79] The new trolleys were then put into service, brand by brand, throughout the Lara distribution centre. It was accepted that the Adults brand, where the Plaintiff worked, received the new trolleys last. The evidence was that the trolleys would arrive in a flatpack and then be assembled by Mr McAuliffe and put into service. However, this argument between the parties, about the time that the flatpacks remained unopened, diverged. Ms Golowka-Miller gave evidence that it was for months,[80] Ms Sanges said that it was about two to three weeks, but then reduced that to about two to four days.[81] Ms Gavin similarly said it was for quite a while[82] and Ms Greenland gave evidence it was a week.[83] Whatever the case, it was the fact that workers in the Adults brand watched the new trolleys being progressively rolled out to other sections, and I find consistently, began clamouring to have the new trolleys available for their use, certainly by March 2016. However, I find that, consistent with my above findings, they wanted to use the new trolleys to make their jobs easier and so that they would not have to push the heavy and difficult-to-use old trolleys, rather than simply having a new piece of equipment. I accept that Mr McAuliffe wanted to get the new trolleys into service quickly, as this was a simple task to perform on his evidence, but also aided achievement of pick rates, which his employers were keen to ensure. For all those reasons, I consider it likely that he assembled the new trolleys reasonably quickly and this was likely to be in a matter of days, or potentially a week. He gave evidence that around March that year was a busy period in the lead up to Easter, which was typically a very busy period.[84] I accept that evidence, as it is consistent with that of Ms Alford[85] and Ms Sanges.[86] With those imperatives, it is unlikely that Mr McAuliffe would have let the new trolleys sit around for months, especially in a situation where other brands had obtained, and were using, the new trolleys.
[78] T686, L30-31
[79] T629, L9-20
[80] T154, L17-18
[81] T196, L19-21; T204, L27 – T205, L3
[82] T281, L19-20
[83] T506, L1-4
[84] T633, L19-21
[85] T368, L23-26
[86] T207, L1-7
30To summarise my findings of fact to date, 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.
31It 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.[87] The alternative system which would have avoided the injury was that employed by Ms McKinnis – an unloading at the end of each aisle.
[87] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 525-534
32I find as a result of these matters, on 3 March 2016, the Plaintiff suffered injury to her left knee in negligent circumstances.
33I turn now to consider the injuries caused by that negligently inflicted injury.
Medical history
34The Plaintiff was born in July 1971 and at the date of the incident was 45 years of age. After the incident, she began treatment with an osteopath, Dr Williams. She attempted an ultrasound-guided cortisone injection into her left knee in May 2016, which allowed her to return to work on light duties for a short period. By June 2016, she was unable to continue working, and then consulted with an orthopaedic surgeon, Dr Hussaini. He performed an arthroscope on the left knee on 22 July 2016.[88] She then returned to work with Cotton On, on light duties, in September 2016. She continued working until about February 2017, when she had further problems in the knee. She trialled a further ultrasound-guided cortisone injection into the left knee. This did not assist her and though she soldiered on at work, she ultimately stopped in June 2017. She has not worked since that time. She was then referred to another orthopaedic surgeon, Mr Lording. He trialled three viscosupplementation injections.[89] These did not improve her symptoms and she underwent surgery, being a partial joint replacement, performed by Mr Lording in March 2018. Things seemed to progress well after surgery, however she began experiencing more giving way of her knee, leading Mr Lording to conduct a saucerization of the left knee on the discoid meniscus.[90]
[88]PCB 131
[89]PCB 43
[90]PCB 43
35She continued on with osteopathic treatment by Dr Williams. In January 2019, she began to develop right hip pain. An ultrasound of the hip was performed in February 2019.[91] This was reported as essentially normal, though there was some thickening of the trochanteric bursa. A trochanteric pain syndrome was diagnosed on scan. An x-ray revealed no evidence of hip joint degeneration.[92] Given those findings, Mr Lording was uncertain as to the ongoing cause of pain in the left knee. He arranged referral to a pain specialist, Dr Christelis.[93] Dr Christelis attempted to isolate the problems in the left knee and first performed nerve blocks of the genicular nerve.[94] This was positive and so a radiofrequency ablation of that nerve was performed in February 2020. He considered that there might be other nerves involved, as her moderate pain symptoms continued, and he recommended that she have further saphenous nerve blocks. He thought this offered a good opportunity to alleviate some of the pain the Plaintiff was in. It was suggested by Mr Smith QC that because she had had a good result for the genicular nerve block, she would have had a similarly good result for a saphenous block. He took Dr Christelis to an article suggesting that radiofrequency denervation is good treatment for chronic pain. However, a number of things must be said about the Defendant’s argument. First, the study that Dr Christelis was taken to referred to the treatment of elderly patients who had osteoarthritis. Dr Christelis made the point that the Plaintiff was certainly not elderly (that being a category for those 65 and above), nor was she an osteoarthritic patient. As such, he said that it was not possible to prognosticate as to whether or not she would have had a good result from a saphenous nerve ablation.[95] He concluded by saying no more than that the proposed ablation to the saphenous nerve had the potential to assist the Plaintiff, but that it was not set in stone that it would be very beneficial.
[91]PCB 127
[92]PCB 127
[93]PCB 102
[94]PCB 54
[95] T225, L23-27
36Mr Lording admitted that the major problem facing the Plaintiff was weakness of the quadriceps and considered if that could be remedied that would assist her to obtain some improvement in function.[96]
[96] T296, L22-24; T299, L27-29
37The Defendant sought to cross examine Mr Lording, along similar lines. That is, suggesting that it was the failure by the Plaintiff to properly follow his advice and strengthen her quadriceps that had led to the substantial dysfunction in the left leg. It emerged from Mr Lording’s evidence that after the replacement surgery she had a good range of motion and had made good progress. Mr Lording assumed her physiotherapy at this stage was being effective. However, unbeknownst to him, it was not physiotherapy treatment, but osteopathic treatment. By January 2019, he had become concerned by the wasting in the quadriceps and considered that she potentially had chronic regional pain syndrome, as there was mottling of the skin. This led to his referral to Dr Christelis. His correspondence with Dr Christelis led him to conclude that there was no regional pain syndrome and that it was possibly nerve involvement that was the cause of the pain. Dr Christelis’ exclusion of the genicular nerve also excluded the possibility of pain being referred from the back and hip. This led Mr Lording to focus on strengthening of the quadriceps as a key to returning function to the Plaintiff. He was clear in his evidence that he believed, from late 2019, there should have been physiotherapy treatment from a specialist knee physiotherapist and he referred her on for such physiotherapy treatment, in fact, nominating a physiotherapist near her home.[97] By this stage he had worked out that the osteopathic treatment she was having was not physiotherapy and, in his view, it was not working. He considered that if she had specific knee physiotherapy as he had determined, this might potentially allow a return to work.
[97] T298, L30 – T299, L7
38There was a faint argument put by the Defendant that Ms Golowka’s injury was caused by genetic pre-disposition and not work. While Mr Lording gave evidence that it is unlikely a straight line push off the trolley would produce such an injury for the Plaintiff,[98] I note he was not given the surrounding circumstances of the injury, which would have allowed him to give an informed opinion about causation. For example, it was not put to him the size or weight of the trolley, and in particular how it was stacked with boxes, or their approximate weight. He did say that because of the state of her discoid meniscus, it suggested a predisposition to injury, however he only referred to it as potentially higher risk of tearing than in a normal person of her age.[99] In re-examination, however, he accepted that it was a common enough condition in the Plaintiff’s age group and demographic.
[98] T303, L4-7
[99] T304, L11-14; T305, L1-2
39Overall, there seems very little dispute as to the Plaintiff’s causation argument. That is, that the work injury was a cause of her injury and ongoing problems. The Defendant made an argument that Ms Golowka had failed to mitigate her loss by having the saphenous vein ablation and further by failing to engage the knee physiotherapist as recommended by Mr Lording. The question for decision regarding this argument is was it reasonable for the Plaintiff to refuse to undergo the treatments.[100] It is undoubted that she could have treatment by way of saphenous nerve ablation, but she has chosen not to. The Plaintiff’s explanation for this was that she was at the end of her tether in respect of treatment and could not bear further injections.[101] Dr Christelis accepted that there was no guarantee of success with such a procedure as set out above. In those circumstances her refusal is, I find, reasonable. What is more troubling is that the Plaintiff has refused to accept the advice of Mr Lording to return to a specialist knee physiotherapist. This is inexplicable given that he had given such frank advice to her that it offered a real chance of improving her function and that she was not progressing with Dr Williams. However, it must be understood that she has had numerous procedures and has been under Dr Williams’ care for some time. There is no doubt she feels an element of comfort and safety with him. There is also an element of despair that medical treatment has not improved her condition and therefore she does not wish to trial anything new. However, overall, I do not consider her failure to embark on knee physiotherapy to be reasonable. I consider such treatment has a good prospect of success in improving her function. I will reduce her general damages accordingly, by $25,000. However, even on the best reading of Mr Lording’s evidence, and that of other medical practitioners, it does not suggest a return to work after knee physiotherapy.
[100] Karabotsos v Plastex Industries Pty Ltd [1981] VR 675 at 677
[101] Watts v Rake (1960) 108 CLR 158 at 159; Karabotsos v Plastex Industries Pty Ltd [1981] VR 675
40The medico-legal reporting in this case is otherwise reasonably non-controversial. They all opine that the Plaintiff has a very significant knee injury, that it is probable she will go onto a total knee replacement and that she has no current work capacity, and that this will continue. Both Dr Joseph Slesenger and Dr Michael Baynes are of the opinion there is little prospect of any return to work.[102] I accept that evidence. While it is theoretically possible that she will experience some improvement with knee physiotherapy, or even a saphenous block, the problems with her knee have been so significant as to have had three rounds of surgery and to have persisted for a period of, now, almost six years. She is a woman of limited education, who has only really worked in manual positions. With her very significant injury, it is entirely understandable why the occupational physicians have come to the positions that they have after considering the possibility of rehabilitation and retraining. I accept those opinions and find that the Plaintiff will not return to work. As a result, I assess her loss of earnings in the past as being from 3 March 2016 to date, on the agreed figures put by the parties as $53,452.76. This figure is inclusive of the Fox v Wood[103] component.[104]
[102] PCB 95, see answers to question 2 and 3; DCB 71, see answer to question 3.
[103] (1981) 148 CLR 438
[104] Plaintiff’s submissions on damages, at paragraph [57]; Defendant’s amended submissions, at
paragraph [54]; T737, L11-13
41The Plaintiff sought to tender the medical panel opinion and reasons dated 29 May 2021. The Plaintiff submitted that the opinion and reasons were admissible in accordance with Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545. The tendering of the opinion and reasons was opposed by the Defendant. The Defendant submitted that allowing the opinion and reasons to be tendered without cross examination, in the context where the evidence of Dr Christelis and Mr Lording was tested by way of cross examination, would result in unfair prejudice to the Defendant and the Court should exercise its discretion to not allow the documents to be tendered.[105] In Yirga-Denbu[106] the medical panel reasons were found to be admissible and were not excluded under section 135 of the Evidence Act 2008 (Vic).[107] It is important to note that in Yirga-Denbu there was no cross examination of any medical witnesses and parties were content to not test the medical evidence by cross examination.[108] In circumstances like in the present case, it would be highly prejudicial to the Defendant to not be able to cross examine the medical panel members. Consequently, the medical panel opinion and reasons will be excluded under section 135.[109]
[105] T660, L3-21
[106] Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545
[107] Ibid at [62]
[108] Ibid at [61]
[109] Evidence Act 2008 (Vic), s 135
42As to her future loss of earnings, I find that, but for the injury, she would have worked to the age of 67. That was largely non-controversial. The agreed figures between the parties result in a net weekly figure of $816.76 by the multiplier of 562.9. The Defendant submitted that with appropriate knee physiotherapy Ms Golowka could return to some form of work. For the reason above, I do not accept this submission primarily because of the unanimous opinion of the occupational physicians. Given this finding, I do not vary the usual deduction for vicissitudes and consider 15% is the appropriate figure. In total, I assess the Plaintiff’s total future loss of earnings to age 67 as at 13 October 2021 as $459,754.20 and her loss of superannuation as $45,972.04. A total of $505,726.24 less 15% = $429,867.30.
43As to general damages, I would assess these in the amount of $250,000. I note that she suffered the injury at around the age of 45, being a reasonably young age. She had over 20 years of working life left. This has now been deprived to her. In addition, she walks with one crutch, she is in significant pain and taking medication currently of Tramadol, Allegron, Panadeine Forte, Panadeine Osteo, Crestor and Epilim.[110] She has attempted, on numerous occasions, to return to work, demonstrating a drive and vigour. There can be no suggestion that she is malingering or exaggerating her symptoms. In fact, having watched her in the witness box, I formed the impression that she was an entirely straightforward, honest witness. Though some criticism was made of her, there was no attack on her credit. It was said she had incorrectly recorded details in her claim form and not properly identified her injury to Mr Lording or to Dr Baynes. Overall, these are minor matters and are heavily outweighed by the corroboration of the other witnesses in the case of her description of events and amply supported by the medical material, none of which criticises her, save for Mr Rodney Simm. I consider his opinion to be an outlier and in contrast to the overall tenor of other medical material and I set it aside. Overall, under very detailed and thorough cross examination by Mr Smith, I found the Plaintiff to be willing to make concessions where necessary, and concede matters. This was even when they were against her interest. She impressed me as a witness and I accept her evidence. As to the effect of the injury on her life at home, she is now restricted significantly in her household and domestic tasks. She has a grandchild who she has difficulty caring for as a result of the injury. This injury will be with her for the rest of her life and is likely to necessitate ongoing medication, if not a total knee replacement in the future. These are very significant matters. Psychologically, it has also had an impact on the Plaintiff, as her daughter gave evidence about.
[110] PCB 84
44I find that there is no contributory negligence given Ms Golowka was simply performing her usual work duties in the manner permitted by her employer, despite numerous complaints about that system.
45In summary, then, I find for the Plaintiff by reason of her primary allegation that the Defendant has breached its duty of care to her. I further find there has been a breach of the Occupational Health and Safety Regulations. I find that those breaches have resulted or caused the Plaintiff’s injury. I find those injuries are injury to the left knee and left leg, resulting in very significant injuries and a total and permanent disablement. I find that this results in past and a total future loss of earnings. My awards for damages are set out below:
(a) Past loss of earnings as at 13 October 2021 $53,452.76 (Being $242,192.76 less retention of $188,740);
(b) Future loss of earnings as at 13 October 2021 $429,867.30;
(c) General damages $250,000 (less $50,585 pursuant to s 343(1)(b) of the Workplace Injury Rehabilitation and Compensation Act, totalling $199,415).
In total this is the sum of: $733,320.06[111]
[111] Subsequent to judgment the parties formulated orders to correctly reflect the amounts for pecuniary
loss as at date of judgment and interest. This is reflected in orders made on 3 December 2021.
46I will enter judgment for the Plaintiff. I will hear parties on the form of the orders.
Annexure A
Extracted from Plaintiff’s Court Book 100
10
0