Lazovski v Transdev Melbourne Pty Ltd
[2021] VCC 192
•16 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-17-05585
| BLAGOJA LAZOVSKI | Plaintiff |
| v | |
| TRANSDEV MELBOURNE PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE PILLAY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8, 9, 10, 11,12, 15, 16, 17, 18 and 22 February 2021 |
| DATE OF JUDGMENT: | 16 March 2021 |
| CASE MAY BE CITED AS: | Lazovski v Transdev Melbourne Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 192 |
REASONS FOR JUDGMENT
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Subject: NEGLIGENCE
Catchwords: Workplace accident – injury to lumbar spine – whether bus driver seat was defective – whether plaintiff received adequate training – adverse credit – argumentative and non-responsive answers
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 Cases Cited: Jones v Dunkel (1959) 101 CLR 298
Judgment: Claim dismissed.
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| APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr C W R Harrison QC with Ms K Karadimas | Arnold Thomas & Becker |
For the Defendant | Mr P D Elliott QC with Mr P Bourke | Solicitor to the Transport Accident Commission |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
HIS HONOUR:
1In 2015, Blagoja Lazovski was employed as a bus driver with the defendant, Transdev Melbourne Pty Ltd (“Transdev”). On 9 July 2015, he climbed into bus 651 at about 7.28pm, just opposite the Keysborough depot. He alleges the driver’s seat was defective; It was missing two buttons, which meant the seat suspension was not working properly. He attempted to call the Operations Control Centre (“OCC”) to report this defect but received no response. With a passenger already onboard and a schedule to keep, he drove off. At about 9.30pm that night, the bus went over a depression in the road causing it to jump. Mr Lazovski alleges this caused the driver’s seat to collapse to the floor with force causing serious injury to his back. He alleges he called the OCC again but received no response. Nevertheless, he drove on to the end of his shift just before midnight. After returning to his home depot at Reservoir, he completed an injury form and then went home. He has not worked since.
2Mr Lazovski’s case in negligence against Transdev requires me to answer the following questions:
(a)Was the driver’s seat in bus 651 defective? and, if so,
(b)Was Mr Lazovski properly trained in the use of the radio system and defective vehicle reporting system?
3The first question must be answered in the negative: Mr Lazovski cannot prove on the balance of probabilities that the driver’s seat in bus 651 was defective.
4Having answered that question, it is not necessary to go to Question (b); however, the chronological unfolding of Mr Lazovski’s case makes it more comprehensible to deal with his training prior to the incident involving the
allegedly defective seat. Findings made during my assessment of Mr Lazovski’s arguments about a failure of training also bear upon the findings as to whether the driver’s seat was defective as alleged.
Background
5Mr Lazovski was born in the Macedonian town of Prilep in January 1960. He went to Kiril and Metódij University in Skopje and completed a Bachelor of Engineering in Electronics. He worked in that field in Macedonia before coming to Australia in 2004. He worked for Sky Electronics for three years until it closed and then worked in repairs with Samsung for about a year. He was rendered unemployed when Samsung moved its operations to Japan. He then worked as a process worker and a bus driver for the Northern Bus Company in 2009. This was short lived as they also closed down after a year or so. He became unemployed in about 2010. He then did numerous courses in English, a Diploma in Retail Management, a Diploma of Business and a real estate course. This history reveals an intelligent, educated and industrious man.
6In September 2014, Mr Lazovski obtained work with Transdev. They operate four hundred to five hundred buses in metropolitan Melbourne, servicing public bus routes under government contract. He did his training for about one month at the Doncaster depot and was then transferred to the Reservoir depot. This is a “satellite” depot with about twenty buses.1
7
As part of his training, Mr Lazovski received a handbook known as the Transdev Driver Handbook Guide to Corporate Policy for Transdev Melbourne 2013 (“the 2013 Driver Handbook”).2 In addition, he was inducted in the policies and procedures that went with the role of being a bus driver. He completed tests to ensure he was familiar with the various policies and procedures.3 Specifically, he correctly identified the way the two-way radio
Transcript (“T”) 542, Line (“L”) 17-18
Defendant’s Court Book (“DCB”) 100
DCB 96
operated4 and that the driver’s seat must be checked at the start of a shift.5 He also signed a new driver induction training declaration which certified he had had a discussion regarding occupational health and safety, two-way radio use and the 2013 Driver’s Handbook.6 That handbook specified that all safety defects should be reported. 7 Specifically, it required that prior to departure, a driver must do a pre-departure check to ensure, inter alia, the bus had a working two-way radio.8 Where a defect occurred at the stop point, or on the road, defects were required to be reported to maintenance or the depot.9 Mr Lazovski understood this system. He gave evidence that he had to call the depot to report various defects at various times.10 He gave evidence that the depot would give him instructions on what to do. There was also a requirement to file a Defective Vehicle Report (“DVR”). Mr Lazovski knew of these and filed numerous such DVR forms.11 In these DVR forms Mr Lazovski nominated defective seats on three occasions, being 27 November 2014, 10 December 2014 and 18 March 2015.
8I find, as a result of the abovementioned materials, and Mr Lazovski’s evidence in respect of his education, training and experience, that he was well versed in the process of identifying seat defects, the process for recording them via DVR and the use of the two radio systems as at the end of 2014.
9In 2015, however, there were substantial changes at Transdev to some of these systems. The first occurred when a new driver’s handbook was introduced (“the 2015 Driver’s Handbook”).12 It bears the date July 2015, but evidence was given by Mr Wicks, the driver manager at Reservoir, that it began to be introduced in early 2015. He said it was a binder which was
DCB 96, Question 4
DCB 97, Question 9
DCB 98
DCB 105 at paragraph [4.2]
DCB 116 at paragraph [6.2]
DCB 113 at paragraph [6.15]
T205-206
DCB 234 and 235
DCB 118
given to each driver; however, he was only at the Reservoir depot from June 2015. Mr Peter Bester gave evidence that it was handed to all drivers, and there was a copy in the office for drivers to look at.13 Mr Lazovski denied ever receiving the 2015 Driver’s Handbook.14 I find that Mr Lazovski did receive the handbook, consistent with the evidence of Mr Wicks and Mr Bester. I have set out the reasons for this below.
10The 2015 Driver’s Handbook introduced the OCC.15 It was explained in this way:
“The Operations Control Centre (OCC) is the central contact point of the business. The OCC oversees the operations of every bus from when they leave the depot to when they return.”
11This represented a change from the old system where drivers called back to their depots, either Keysborough or Airport West, to report defects and receive instruction. The 2015 Driver’s Handbook16 required the driver to report all defects and faults.17 There was instruction on how to set up the driver’s seat.18 The pre-departure check required a check of the two-way radio similar to the 2013 Driver’s Handbook.19 It had a specific section on using the two- way radio and in diagram form set this out.20
12This two-way radio system was part of the changes introduced by Transdev in 2015. During May 2015, Transdev fitted new Motorola digital radio consoles to its entire bus fleet, and specifically bus 651.21 Before detailing the new system, something must be said about the operation of the old system. The old system had a handheld microphone with a “press to talk” (“PTT”) button. A driver wanting to talk to the depot would lift the handset, press the PTT and speak. This allowed the driver to speak to the depot operator and report a
T657, L31 – T658 L2
T332, L18-29
DCB 130
DCB 134, p 11
DCB 221 (page 91)
DCB 167 (page 41)
DCB 193 (page 65 to check the radio and page 84 diagram and instruction on radio use)
DCB 212
DCB 362
problem. The new system worked differently, but there was a period of transition before its implementation; from the date of the installation to the date the system went live on 7 June 2015. In the period after the installation and until 7 June 2015, the Motorola console worked as the old system did, with the driver picking up the handset, pressing the PTT and talking directly to the depot. However, on 7 June 2015, the defendant alleged the system ceased to operate in this way. From that date, the only way a driver could contact the OCC (no longer the various depots) was by pressing one of four buttons on the Motorola radio console face, being buttons P1, P2, P3 and P4, or the emergency button. Each button, and the duration it was depressed for, sent a pre-coded message to the OCC identifying the reason the driver was attempting to communicate. For example a P3 short press sent a message indicating a bus defect. Once received by the OCC, there was an aim for the OCC to call back the driver within 60 seconds.22 Only after the OCC had initiated the voice call could the driver lift the handset, press the PTT and talk to the OCC.
13The new Motorola console was introduced alongside new processes in the OCC as well, particularly the introduction of software known as TRBOnet which tracked the operation of each Motorola console. The TRBOnet software tracked when the Motorola console came online, automatically when the bus was started and off when the bus was turned off. Each button press on the Motorola console was logged so it could be seen which button had been depressed and why. It also recorded the OCC-initiated calls and the duration of the call.
Training in the new systems
14To understand this point something must be said about the history of the matter. The case was opened by Mr Harrison QC, who appeared with Ms Karadimas for the plaintiff on 8 February 2021. At that time, the pleadings
T99, L25 – T100, L1
had been in an unamended form since the date of issue on 28 November 2017. They made very broad allegations of negligence only. They were entirely non-specific. They proceeded on the basis that the seat was defective when the plaintiff entered bus 651. They did not allege any fault with training in the use of the new Motorola console or the DVR reporting system. In fact they made no allegation that after entering bus 651 on 9 July 2015, Mr Lazovski had attempted to make two unsuccessful calls to the OCC.
15Nevertheless, Mr Harrison opened with some specificity in the following terms.
“So the protocol is, and part of the training is, that what you’re supposed to do is called (sic) on the two-way radio and advise of the problem. So he calls on the two-way radio and there’s no answer, no one picks up.”23
16Mr Harrison continued.
“It’s not a digital system at that time, it’s just a two-way radio and if no one picks up that’s the end of it.”24
17At the conclusion of opening, Mr Harrison framed the plaintiff’s claim of negligence in the following way:
“So, in terms of negligence, the plaintiff’s case focuses on essentially the failure to have a system to ensure that the two-way radio would be responded to - failing to have a system which provided for a backup, if there were a situation with the two-way radio for whatever reason – it wasn’t manned or, that there wasn’t some other alternative system of notification … .”25
18This prompted Mr Elliott QC to express some surprise at first, given the lack of notice that such calls were made and further, the fact that there were no pleadings as to those facts. However, in response, Mr Elliott ddiscovered for the first time documents, being the TRBOnet readout for bus 651 for the period 8 to 11 July 2015.26 These allegedly showed that on the date of injury, bus 651 had the new digital Motorola console installed, it was online at 7.28pm on 9 July 2015, that the console buttons had been pressed and were
T8, L17-20
T12, L10-12
T38, L3-9
DCB 277-280
working during the previous driver’s shift but had not been pressed by Mr Lazovski at any time during his shift. Mr Harrison objected to the TRBOnet material on the grounds that it was expert material. I ruled against that objection after a voir dire was held.27 During that voir dire, Mr Fernando, the OCC manager, gave evidence consistent with that set out above as to the matters shown by the TRBOnet printout. I accept that evidence
19After that ruling, Mr Lazovski was called. Broadly, he gave evidence that he was unaware of the new Motorola radio consoles being installed and had not been trained in their use. As a result of this, Mr Harrison applied to amend the Statement of Claim to allege failures to train Mr Lazovski properly in the use of the Motorola radio consoles and the new OCC processes, specifically the manner in which defects were to be reported by pressing the P3 button. I ultimately allowed the late amendment.28 I have set out this history, because it demonstrates a change in the way the case has been put by the plaintiff. While Mr Lazovski is not the author of the pleadings, the change in the way the case is put overall has a bearing on the authenticity and veracity of the story being told. Inconsistency in versions of events, late remembered facts and convenient lapses of memory can undermine a party’s case. This very significant recasting of Mr Lazovski’s case at this extremely late stage has a significant effect, in my assessment, of the strength of the evidence said to support Mr Lazovski’s pleading in negligence.
The 2015 Handbook and flyers
20
Turning back then to consider the training regime in 2015. As indicated earlier, Mr Lazovski gave evidence that he was not trained in the 2015 Driver’s Handbook and was not trained in the use of the new Motorola digital radio consoles prior to 9 July 2015. The defendant argues otherwise. They first called in aid the evidence of Mr Malcolm Wicks. From 2014 to June 2015, Mr Wicks worked as the driver manager of the North Fitzroy depot. He moved
T178 – T183
T443, L25-27
to the Reservoir depot in June 2015.29 He gave evidence that the 2015 Driver’s Handbook was in a binder and handed to each driver.30 He could not say if that happened with Mr Lazovski or if the process was the same at the Reservoir depot as it was at the North Fitzroy depot. He gave evidence that training was conducted by Toolbox meetings with drivers one to two times per calendar month, after which each driver signed on as acknowledging the training.31 In addition, he said that relevant memos were pinned on notice boards for drivers to read. As examples of this, he gave evidence about where safety alerts were issued regarding driving with defective seats and the process for DVR.32 He further gave evidence that the flyer with the diagram of the new Motorola console and the instructions on its operations were posted on the notice boards.33 Mr Bester was also called by the defendant and he gave evidence consistent with Mr Wicks, but as he was stationed at the Reservoir depot during all of 2015, his evidence was more relevant.34
21As to the 2015 Driver’s Handbook, Mr Bester said that it was handed out to the drivers, although he could not recall when. He gave evidence that it had changed a bit from the previous 2013 edition.35
22Mr Lazovski denied seeing the 2015 Handbook, any safety alerts on the notice board, or the diagram of the new Motorola console pinned to the notice board. Mr Wicks and Mr Bester also gave evidence that the status button message card was installed in each bus at the time the Motorola console being was installed. That card clearly identifies the operations of the console, and buttons P1 to P4 and how they should be operated.36 Mr Lazovski denied seeing this card in any bus that he drove, and specifically bus 651, prior to his
T542, L1
T571-572
T543, L4-5
T584, L23 referencing Safety Alert for reporting defective driver seats at DCB 256 and a DVR Process Safety Alert on 18 June 2015 at DCB 257
T560, L13-30
T671, L15-19
T657, L29
T560, L27-30, the sticker is shown at DCB 281
injury.37
Toolbox talks
23In addition to the evidence from Mr Wicks and Mr Bester, notes of Toolbox talks were also tendered. They showed that Toolbox talks relevantly occurred on three occasions: 25 February 2015,38 15 May 201539 and 3 July 2015.40
24The process of Toolbox talks was described by Mr Bester. He was employed by Transdev, commencing in 2013 as a driver. Later that year or in early 2014, he became a supervisor and reported to the area manager, being Mr Wicks, at the relevant time. He gave evidence of how Toolbox talks were given. He explained that he gathered drivers as they came in for the start of their shifts into small groups of a few at a time. He handed them a sheet on which was printed the record of the Toolbox meeting which listed the topics for discussion. If there were associated materials he handed those out as well. He then talked to the drivers about these issues. At the end, he asked if they had any questions. He was adamant in evidence and said repeatedly that if a driver had questions or was unsure, then they should ask questions, and should not sign off on the sheet unless they were sure of the matters discussed. He said his Toolbox talks went for ten minutes or so.41
25The first relevant Toolbox talk was said to have occurred on 25 February 2015.42 It was conducted by Ramandeep Singh. He was another supervisor at the Reservoir depot. This sheet was signed by Mr Bester and allegedly Mr Lazovski. It was signed by Mr Bester as one of the drivers who was trained by Mr Singh in the topics under discussion. It dealt with “securely parking the bus”. The topic is not germane to the current proceedings but was tendered by the defendant in furtherance of its argument that training was a regular
T269, L8-10
DCB 351
DCB 353
DCB 355
T660, L18-19
DCB 351
feature at the Reservoir depot and that Mr Lazovski participated in such training. The Toolbox talk for this date is signed by numerous drivers.
26Mr Bester explained that a Toolbox talk record was dated by the supervisor for the first date training was commenced and then signed by the drivers as they had their training. He explained that it was done this way as it was impossible to get all the drivers together at once because they were shift workers and also it was more difficult to talk to people in a large group.43 The Toolbox talk sheet for 25 February 2015 was also said to be important because it was allegedly signed by Mr Lazovski on 3 March 2015. Mr Lazovski denied that the signature on the sheet was his.
27The second Toolbox talk was dated 15 May 2015. It was an altogether more important document. The Toolbox talk itself was conducted by Mr Bester himself. The topics for discussion were listed as:
“… hygiene of lunchroom and amenities. Empty bins on buses when full.
New park brake warning system. New bus Radios.
New Operations control Room.”44
28Mr Bester gave evidence that he handed out the Toolbox talk record which had the above topics printed on it. Attached to this were a number of pages. First was a one-page document titled “Operating a radio – effective from 7 June”.45 It had a picture of the Motorola radio console and instructions on its use. There was also another flyer which contained the OCC phone number. Mr Bester gave evidence that he specifically remembered this Toolbox talk meeting. He gave evidence that Mr Lazovski was present and that after handing out the Toolbox talk record with the two attachments, he talked about each of the topics. He then walked with the group, comprising of Mr Lazovski and three others (Messrs Singh, Nawan and Rainer), out to a bus fitted with the new Motorola radio console. As he was walking, he had a discussion with
T661
DCB 353
DCB 63
Mr Lazovski about the fact they both owned Mercedes Benz’ vehicles and how to change the rear taillights. After arriving at the bus, Mr Bester showed the group the new Motorola radio console and the message button card fixed to the inside of the bus. He explained the operation of the console and its buttons in line with the card.46 He explained that there was a phase-in period during which the PTT would work normally and then it would be shut off so that communication would be via the P1-4 buttons.47 Mr Bester then gave evidence that he asked the group if they had any questions and told them that if they did he would answer them. He said he had extra sheets of the flyer48 if they wanted them. He made the point that as a driver himself he would not ask anyone to sign on if they were unhappy. At the end of the Toolbox talk he said that if a driver needed more time, then relief and standby drivers were available to take on their shifts. After that was done the drivers were asked to sign on. Mr Bester gave evidence that he did not see Mr Lazovski sign on. It was alleged that the sign-on sheet had Mr Lazovski’s signature.49 Mr Lazovski, as noted previously, denied attending this talk and denied signing the sheet. He denied the alleged signature was his. Mr Bester stated that even after the Toolbox talk the handouts were pinned to the noticeboard.50 Mr Lazovski gave evidence that he did not see such a sheet on the noticeboard.
29The third Toolbox talk occurred on 3 July 2015. The relevant topics for discussion were:
“FOLLOWING DVR PROCESS, CORRECTLY. SAFE DRIVING.
DEPOT SAFETY.”51
30Mr Bester conducted this meeting as well. He gave evidence that it was to introduce the new DVR process. This involved the use of a new computer
DCB 63
T662, L29 – T663, L9
DCB 63
DCB 354
T669, L19-22
DCB 355
kiosk (his term) in the driver’s lunchroom.52 It could be accessed by any driver using their swipe card at any time and they could log the DVR directly onto the computer system. He gave evidence that this new system operated side by side with the old system of DVR reporting for four to five months to ensure drivers understood the new process.53 The old system required drivers to fill in a DVR form at the end of their shift. These DVR forms were in a book located directly under the drivers’ sign-in machine. Mr Bester recalled Mr Lazovski at this Toolbox talk meeting also. He gave evidence that he remembered Mr Lazovski distinctly because he was talking to another driver, Frat, at that time. During this talk, he said he reiterated the message he gave to drivers at Reservoir, that if a bus had a defect, it had to be reported to the OCC and not driven until advice was received.54
31Turning then to assess Mr Lazovski’s allegation at sub-paragraph 6(ii) of the Amended Statement of Claim, that Transdev failed to “train or adequately instruct the plaintiff in the use and operation of the new digital two-way radio system in the event it was operational in bus 651 as at 9 July 2015”.55
32The first finding I make is that bus 651 was fitted with the new Motorola console on 18 May 2015. This console, I find, was operational as of 7 June 2015. I make these findings on the basis of the installation log56 and the TRBOnet log of calls tendered by the defendant through Mr Fernando. His evidence fortifies this finding. In addition, DCB 63 clearly envisages the new OCC going live as at 7 June 2015, and for that to occur the new Motorola radio consoles had to be fitted and operational. The document itself is headed “Operating the Radio - Effective from 7 June”. This is highlighted in a red banner at the top of the page. I find it was clear that the new system would become operational from that date and thereafter a driver contacting
T680, L9-14 and see DCB 223 “DVR on kiosk” process in the 2015 Handbook
T651, L6
T654, L9
Amended Statement of Claim dated 11 February 2021
DCB 362
the OCC would know that it must be done by depressing a button on the console rather than using the PTT.
33Next is the issue of whether Mr Lazovski was adequately trained or instructed in the use of the new Motorola radio console. I find that he was. In considering this allegation, I have also considered other elements of his training and induction which bear on his training as at 9 July 2015. The first time such training is alleged to have arisen is via the 2015 Driver’s Handbook. This was said to have been handed out in early 2015.
34I find, on the balance of probabilities, that Mr Lazovski did receive the 2015 Driver’s Handbook, though, in the end, not much turns on that finding. I make that finding with some reservation given Mr Lazovski denied receiving it and no-one actually gave evidence that they saw him receive it, and there was no record of him being given it. However, against this is the evidence of Mr Bester, who recalls that all drivers were given a copy of the folder at the Reservoir depot at least prior to 9 July 2015. Mr Wicks indicated this was also the case at the North Fitzroy depot. It fits more broadly with the substantial changes Transdev were making in 2015 to the OCC and radio systems. Obviously with a commencement date of 7 June 2015, it was imperative that the 2015 handbooks were distributed prior to this time. The handbook itself is titled “Employee Handbook”, so inferentially it makes sense that it was distributed to all employees, including bus drivers such as Mr Lazovski. This is not the strongest evidence on which to base my findings, however, it is supported further by my findings as to the credit of Mr Lazovski, Mr Bester and Mr Wicks, which is set out below. Further, it is not a particularly relevant finding given the way the defendant met the allegation of inadequate training: That was by the evidence of Mr Bester and the evidence of Toolbox talks in 2015 which detail very specific training in the new Motorola radio system and DVR process. The detail of those has been set out above and I consider it to be telling evidence against Mr Lazovski. I accept the evidence of Mr Bester
that the Toolbox talks of 15 May 2015 and 3 July 2015 were conducted in the manner he described. I accept his evidence that Mr Lazovski was at these two Toolbox talks and received adequate instruction in the use of the Motorola digital radio console. I find he was adequately instructed on the transition period between the old and new systems, particularly because I find he received the flyer57 that clearly identified the operative date. I find that he was adequately trained and instructed that after 7 June 2015, the PTT could not be used in the manner he allegedly attempted at 7.28pm on 9 July 2015. I find he understood the role of the OCC by reason of his training. These findings rest also on the following findings as to the credit of Mr Lazovski.
Credit findings
Inconsistency
35First, the credit of Mr Lazovski was put into serious question by the defendant. I consider there is much force in this attack and I find his evidence overall unreliable. Mr Lazovski’s evidence was littered with inconsistency. This starts with the allegation that he did not understand the operation of the two-way radio at the time he attempted the two calls as he alleges. The history of the attempted two calls is not in the Incident Form, the most contemporaneous record of the event. There is also no mention of the failed call attempts in his Statutory Declaration to the police,58 although it must be accepted that this was written to describe the accident in terms of problems with the road surface as required by Mr Wicks. There is then no history of the two call attempts in the WorkCover Claim Form. It is a history not recorded in any medical record or report before this date. It is not included in the Statement of Claim issued in November 2017. The first time the two call attempts are mentioned is in a letter of instruction written by Mr Lazovski’s solicitors to Mr Dohrmann, an expert engineer retained by the plaintiff. The letter of instruction is dated November 2019. Thus over four years from the date of
DCB 63
Plaintiff’s Court Book (“PCB”) 270
the injury, being 9 July 2015, to the letter of instruction in November 2019, passed before this allegation was ventilated in any form. That history illuminates a real inconsistency with the evidence of Mr Lazovski, who was adamant that he was aware of the need to notify the OCC of the defect, and although he tried twice, was unable to get through. This was, on his case, not only a vehicle defect problem, but also a failure of the protocol to advise the OCC of the defect. Mr Lazovski stressed during his evidence59 and his Counsel stressed in his closing60 that Mr Lazovski was a man driven by protocol. Why he did not mention the two call attempts before November 2019 then is entirely unclear and a large inconsistency that, I find, damages his credibility.
36Mr Lazovski gave evidence that he was a man of limited English who did not understand the requirement to divulge the events leading up to the actual bump in the road at about 9.15pm on 9 July 2015. This was the argument put by the plaintiff, but it is exposed by two factors: First, it is undoubted that Mr Lazovski knew that all bus defects had to be reported to the depot/OCC. This could be immediately, if it was a significant problem, or at the end of the shift via the DVR process. This is a certain fact, because Mr Lazovski demonstrated his knowledge and ability to comply with this protocol by the filing of three DVRs from the time he commenced employment in August 2014 to July 2015.61 In each of these DVRs he had recorded faults with the driver’s seat specifically. It must be remembered that Mr Lazovski’s evidence is that on climbing into bus 651 on 9 July 2015 at about 7.28pm, the driver’s seat was missing two buttons62 which controlled the suspension of the seat, such that he could not control the seat suspension, leaving the seat bouncing.63 This was from the moment he left the pick-up spot. From that time the seat
T266, L29 – T267 L4
Counsel’s address in closing (T783, L4-7) “He does what he is told … he dances to the tune, follows the line.”
DCB 234-235
T221, L14
T221, L15-18
was going up and down and bottoming out on uneven surfaces along the roadway.64 This allegedly went on from 7.28pm to about 9.15pm, when the alleged incident occurred. On the plaintiff’s recounting of the defect, it was truly worrying.65 A driver of a passenger bus on an unstable seat, which meant his view in front and through side and rear mirrors was constantly changing, was a truly dangerous situation.66 Coming back to Mr Lazovski’s assertion then that he understood the incident form as only relating to the 9:15pm event. This seems implausible because the form asks for not only the particulars of the incident, but the “hazard identified”. Mr Lazovski’s entry makes no mention of the missing two buttons, the constant bouncing and bottoming out, that it went on for nearly two hours or the failure of the two radio call attempts to get through. His entry simply focuses on the incident at about 9.15pm. It is also implausible that he did not mention the broader outlines of the events in his meeting with Mr Wicks in the immediate days after the incident. While Mr Lazovski said he did not give an expansive account of events because of the focused nature of the questions on the form, such strictures did not hamper him in conversation with Mr Wicks and Ms McLean. I find his answers as to the reasons why he did not discuss these maters with Mr Wicks as unconvincing and inconsistent with the fact that he was trained in the DVR process and demonstrated his knowledge of that process by filing of previous DVR forms.
37It must also be considered that Mr Lazovski is an engineer. He has tertiary qualifications from a well-respected university in Macedonia. He also has completed numerous short diploma courses here in Australia. He is an intelligent man. I find that if the seat was as alleged by him and he made the two alleged call attempts, he would have recorded this in the incident form, or at some point before November 2019.
T253, L20-24
T219, L22-30
T219, L23-30
38This then leads to the second point where his evidence is inconsistent. He is an electronics engineer. He has worked in this field through most of his working life, yet he alleges he was not only untrained in the use of the new Motorola console, but that on the night of 9 July 2015, he did not recognise it as a new digital console, such that he attempted to use it as he had previously done by using the PTT. Further, no doubt on instructions, Senior Counsel for the plaintiff opened the case on the basis that the radio in situ on the night of 9 July 2015, was not a digital radio system. This to me does not seem a plausible version of events. I reject it.
39Mr Fernando gave evidence that any attempts to press the PTT on the new Motorola digital console would simply result in an engaged tone being transmitted to the operator.67 This is significant, because the old system did not give an engaged signal when the PTT was pressed. Rather, a channel was opened and in due course an operator would come on. I find it unbelievable that an electronics engineer would not understand this was not usual for the radio console.
Unreliable evidence
40On many topics, Mr Lazovski simply resorted to saying he did not remember. There were many instances when these answers were critical. Mr Lazovski was unable to recall which radio console and handset he used while driving the bus, whether people at work called him Blagoja or Bill and whether he had ever attended any safety meetings at Reservoir.68 In particular, when asked whether he had attended a meeting regarding the new Motorola radio system on 15 May 2015, he responded:
“I don’t recall being present at that meeting and if I was present, everyone should have been given, you know, further instructions about the new system.”69
41The answer has an air of unreality about it. It demonstrates the way Mr
T149, L10-12
T222, L21-28; T271, L1-8; T272, L22-23; T448; T449, L28; T452, L16-18; T457, L28-30
T453, L7-10
Lazovski’s case continued to change throughout the hearing. At this point in cross-examination, having recently amended his Statement of Claim to plead a failure to train him at all in the new Motorola system, he was confronted with the Toolbox talks records. His case went from “not being trained” to “not being adequately trained”.
42Mr Lazovski maintained answers when shown documents inconsistent with his version of events. For example Mr Lazovski initially stated that he started to experience erectile dysfunction shortly after the accident, although had taken Alprostadil on a couple of occasions for premature ejaculation. When it was put to him that there were recorded complaints over several years relating to erectile dysfunction, rather than premature ejaculation, Mr Lazovski explained that this was incorrectly recorded because of his limited ability to communicate with doctors in English. He was then shown the following note dated 8 April 2009 from Dr Calic, a Macedonian-speaking doctor:
“… erectyle [sic] dysfunction last few months … .”
43Mr Lazovski then gave the following evidence in cross-examination:
MR ELLIOTT:
Q:“I put to you that you’re speaking to this doctor in the language you understand better than English and this doctor says your problem is erectile dysfunction, do you see that?---
A: Yes, I see, but I never speak with him about erection. Q: You never spoke to him about erections?---
A: Yes.
Q: You’re saying this doctor, a different doctor who could speak the language with you has got it wrong again, it shouldn’t be erectile dysfunction, it should be premature ejaculation, is that what you’re telling us?---
A: Yes, premature ejaculation, but I don’t remember speaking with him about that.
Q: Well, you could have, could you, have spoken to him about erectile dysfunction?---
A: ---(Indirect) I don’t remember.”70
44I consider this evidence entirely unreliable and it supports my finding that Mr Lazovski’s evidence overall could not be accepted. A further example of the unreliability of his evidence related to his use of Caverject, a medication injected into the penis. Mr Lazovski stated that the only medication he took prior to the accident for premature ejaculation was a tablet, Alprostadil. Upon being shown notes with a prescription for Caverject, a medication primarily used for the treatment of erectile dysfunction, Mr Lazovski said he had used it “maybe once or twice, I don’t remember”.71 When it was put to him that the treatment would not be something he would be likely to forget, given it involved self-injection into his penis, he continued to say that he could not remember the medication. I consider this entirely implausible. The records show use of Caverject over many, many years leading up to the date of the incident.72
Argumentative and non-responsive answers
45Mr Lazovski also gave several argumentative and non-responsive answers to questions, often answering with another question. For example when asked whether there was an emergency button on the bus, Mr Lazovski responded:
“Yes, did you give me procedure how I must doing that? Did you put in my locker that procedure? Was it sent to my email I had to read, and also can you please tell me when Transdev change the radios?”73
46When asked why, as an intelligent man, he needed to be directed about including information on his Claim Form, Mr Lazovski answered:
“Listen, mister, I will ask you do not mention ‘intelligent man’, because we are not discussing here about intelligent man. We are discussing here about the question - concrete question, and we are discussing about procedure … .”74
47I formed the impression that Mr Lazovski was being an evasive witness. I had
T375, L27 – T376, L9
T274, L16-17
DCB 340-343 in 2004, DCB 307 in 2009
T314, L12-15
T292, L21
to ask Mr Lazovski on numerous occasions to stop rambling and providing argumentative answers and direct him to answer the question posed.75
48Turning then to consider the evidence of Mr Bester and why his evidence is to be preferred to that of Mr Lazovski. First, Mr Bester’s evidence was given in an open and direct manner. It was not seriously challenged and there was no attack on his credit. It was suggested by the plaintiff that it is unlikely that Mr Bester would be able to recall the two Toolbox talks in 2015 of relevance out of the many conducted by him over the years. There are several points against this argument that Mr Bester touched on in his evidence. They lead me to the conclusion that his evidence should be accepted in preference to that of Mr Lazovski. For example in 2015, there was a major change in the introduction of the centralised OCC, computerised bus tracking, the new 2015 Handbook and the new Motorola radio console. This meant the Toolbox talks associated with these new processes were not run of the mill, but rather specialised unique topics which are more memorable. Further, at least the Toolbox talk of 15 May 2015 involved a demonstration of the new Motorola radio console. This was likely an odd feature of Toolbox talks that new equipment was being introduced. It was at this talk that Mr Bester remembered having a very specific conversation about changing rear taillights on Mercedes Benz vehicles with Mr Lazovski. Both he and Mr Lazovski had such cars and this was a unique feature of their work relationship, which makes Mr Lazovski stand out from the others Mr Bester worked with at Reservoir in 2015. Last, it is also the evidence that in the first part of 2015, Mr Lazovski was the only “Bill” at the Reservoir depot, once again making him slightly more memorable in Mr Bester’s memory.
49For these reasons I find it likely that Mr Bester did have an accurate memory of the Toolbox talks on 15 May 2015 and 3 July 2015.
50It was strongly put by the defendant that the signatures appearing on the sign-
T295, L14-21; T304, L25-27; T312, L7-12; T314, L16-19
on sheets for the Toolbox talk of 15 May 201576 and the Toolbox talk of 3 July 201577 were that of “Bill Lazovski”, the plaintiff. I find that they most likely are. I make this finding, not on any comparison of the signatures. Rather, as to the Toolbox talk on 15 May 2015, I accept the evidence of Mr Bester that Mr Lazovski was present, was handed the Toolbox talk sheet and flyers, and went onto a bus to see the new Motorola digital radio console. As to the Toolbox talk on 3 July 2015, I accept the sign-off sheet lists the name clearly as “Bill”, and as both Mr Wicks and Mr Bester gave evidence, there was only one “Bill” at the Reservoir depot, being the plaintiff. I accept that was Mr Lazovski. Lastly, Mr Bester remembers Mr Lazovski at the meeting. I accept that evidence.
51The defendant also called Mr Wicks, the area manager at the time. His evidence was largely irrelevant as to training of drivers in the lead up to 9 July 2015. This was because he arrived at the Reservoir depot in late June 2015. However, I accept his evidence that the 2015 handbook was handed out to drivers. He gave evidence in a clear and direct manner. He appeared to be trying his best to assist the Court. His credit was not challenged. I accept his evidence.
52
To summarise my findings as to the plaintiff’s case that the defendant breached its duty by failing to properly train Mr Lazovski in the use of the radio system and DVR system, I find in favour of the defendant. I find that Mr Lazovski was given the 2015 Handbook, attended two Toolbox talks on 15 May 2015 and on 3 July 2015, at which he was instructed in the OCC and the new Motorola console and the new DVR process. He was given a flyer which set this out. He was then taken to a bus and shown the physical console. He was informed, via the flyer, of the transition period. He was, I find, aware that after 7 June 2015, the old PTT system would no longer work and that he had to use the P1-P4 buttons to communicate with the OCC. I find this was
DCB 354
DCB 356
adequate training and instruction in the use of the new Motorola digital console prior to 9 July 2015.
Jones v Dunkel78 inference
53The plaintiff called in aid the principles in Jones v Dunkel, arguing that the defendant’s failure to produce any records from the OCC TRBO records for the period 7 June 2015 to 8 July 2015, showing Mr Lazovski had used the new Motorola console, should result in an inference that this evidence would not have assisted the defendant’s case. This evidence may be reasonably expected from the defendant, given it would have shown Mr Lazovski was able to operate the Motorola radio console correctly.79 The defendant’s counsel accepted this,80 and I will draw the inference sought. However, for the reasons set out above, it does not change my findings in relation to the training received by Mr Lazovski given the weight of the evidence overall.
Was the driver seat defective as alleged?
54As set out above, when Mr Lazovski entered bus 651 on 9 July 2015 at 7.28pm, he alleges it was missing two buttons which adjusted the riding position, such that the seat bounced around, occasionally bottoming out. This occurred continuously throughout the shift which lasted from 7.28pm to about 11.52pm.81
55I do not accept that the plaintiff can prove on the balance of probabilities that the seat was defective as alleged. There are several reasons for this.
56First, the driver’s records82 show six drivers in bus 651 on 9 July from 4.52am in the morning to 7.28pm, when the plaintiff climbed into it. There are no DVRs recorded by any of these drivers. Then, from the end of Mr Lazovski’s shift at 11.52pm on 9 July 2015 to 16 July 2015 (when bus 651 had a
(1959) 101 CLR 298
Jones v Dunkel (ibid)
T772, L10-23
T296, L24-26
Which were summarised in a chronology titled “Bus 651 Movements Chronology 9-16 July 2015”
VicRoads roadworthy test), there were nine further drivers and no DVRs were made. As set out above, the condition of the seat as described by Mr Lazovski was highly dangerous. I find it extremely unlikely that none of the nine drivers after Mr Lazovski who drove the bus were concerned enough to write a DVR. This strongly suggests no problem with the seat existed at the time when it was used by Mr Lazovski of the nature he described.
57Second, on 14 July 2015, the mechanics at Transdev conducted a “pre-rego check over”. This includes a detailed seat inspection and a road test.83 No seat defect was noted by them.84
58Third, and most importantly, on 16 July 2015, Mr Stewart Hocking, a mechanic engaged by VicRoads, tested bus 651 for the purposes of issuing a Certificate of Roadworthiness. Specifically, that test included a check of “seat and belts”. Mr Hocking indicated on the form a test of “seat and belts” was done. Bus 651 was passed after a road test. A Certificate of Roadworthiness was issued.85
59Mr Harrison argued that as the exact nature of the testing is unknown both in the “pre-rego check” and by Mr Hocking, not too much faith could be placed in them as verifying the driver’s seat as working. I disagree. There is no reason, given the evidence of Mr Amarakoon, to doubt the thoroughness of the pre- rego check. This is even more so the case regarding the VicRoads test given it specifically mentions the “seat and belts” as being tested. There is no cogent reason to suppose that Mr Hocking did not take his duty seriously and conduct the inspection thoroughly.
60Fourth, Mr Lazovski himself knew of the process for filing a DVR. He had demonstrated that knowledge by filing numerous DVRs previously. He did not file a DVR here at any time. When pressed on this he gave evidence that
T709, L9-17
DCB 15
DCB 68
there were no forms available and that they were locked away.86 The evidence of Mr Bester was to the contrary, namely that there was an electronic kiosk available in the lunchroom for drivers to file DVRs at any time, or the forms were under the sign-in machine and freely available. As set out above, the evidence of Mr Lazovski was unreliable and on this point I do not accept his evidence that he did not know where the forms were kept after hours.
61Fifth, much was made by the plaintiff in pointing to seat repairs after 9 July 2015 and the introduction of a seat-replacement program. It was argued backwards that the constant seat problems recorded after 9 July 2015 made Mr Lazovski’s version of a defective seat on 9 July 2015 more likely. I do not accept that argument, primarily because of the evidence of Mr Amarakoon. He is a mechanic who, since about 2004, has worked with buses. He joined Transdev from Ventura when Transdev won the contract. He was a knowledgeable and direct witness. He gave evidence in a manner which was open, and attempted to assist the Court. His evidence was not seriously challenged. I accept it. When asked by plaintiff’s counsel about the frequent repairs to bus 651, he made the point that for buses such as bus 651, running long routes in service nearly every hour of every day, there was a need for nearly constant running and repairs.87 This evidence seems entirely logical. For example of six years of service, bus 651 had done over 500,000 kilometres at the date of the injury. Repairs, then, at one time are not necessarily indicative of a defect at 9 July 2015.
62
Mr Amarakoon was also taken to the bus-seat replacement project. At first it was suggested that this project began in January 2015, because the document bore the date “9/1/2015”. However, I find it is more likely that this date was written in American notation, and properly referred to 1 September 2015. This is consistent with all other dates written on the document. In any
T720, L6-13
T720, L10-13
event, Mr Amarakoon pointed out that the seats replaced were not the model in bus 651, but another model entirely.88
63In any event, I find it impossible to reason, as the plaintiff would have, that the later bus-seat repairs relate to a defect, as described by Mr Lazovski, on 9 July 2015. There is no sufficient evidentiary basis to make such an inferential finding.
64For all those reasons, I will deny the plaintiff’s claim. There will be judgment for the defendant.
65I will hear the parties in relation to costs.
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T723, L31 – T724, L5
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