Liu v Golden Lotus Valley Pty Ltd
[2020] VCC 2008
•17 December 2020
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-19-03294
| VAISIMA LIU | Plaintiff |
| v | |
| GOLDEN LOTUS VALLEY PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 November 2020 | |
DATE OF JUDGMENT: | 17 December 2020 | |
CASE MAY BE CITED AS: | Liu v Golden Lotus Valley Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2008 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Liability – factual dispute – conflicting versions of events
Cases Cited:Nominal Defendant v Smith [2015] 73 MVR 257; Effem Foods v Cumberline (1999) 161 ALR 599; Fox v Percy (2003) 214 CLR 118; Jones v Dunkel (1959) 101 CLR 298; Payne v Parker [1976] 1 NSWLR 191; Ronchi v Portland Smelter Services Ltd [2005] VSCA 83; Queensland v Masson [2020] HCA 28
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | D McWilliams with C O’Sullivan | Rennick Briggs |
| For the Defendant | C Blanden QC with P Bourke | Solicitor to the Transport Accident Commission |
INDEX
A. Introduction................................................................................................................................... 2
B. Relevant non-contentious facts............................................................................................... 3
C. Vaisima Liu’s case....................................................................................................................... 5
D. What were the circumstances under which Vaisima Liu left the workshop?............. 9
i. Why did the Scania 1501 AC bus break down?.................................................................. 10
ii. What was said in the 11.00am call between Mr Ye and John Li?................................... 11
iii. What was said in the 11.08am call between Vaisima Liu and John Li?.......................... 13
E. What happened when Vaisima Liu arrived at the scene of the broken down bus? 21
Filling the fuel tank................................................................................................................... 22
ii. Who sat in the driver’s seat?.................................................................................................. 24
iii. When did Mr Ye leave the scene?......................................................................................... 28
F. Did John Li admit fault to Nika Liu?..................................................................................... 32
HIS HONOUR:
1 Mr Vaisima Liu is a qualified diesel mechanic. He was injured in horrendous circumstances on 19 March 2016 when the bus he was working underneath commenced to roll dragging him underneath.
2 At that time, he was working on a broken down Scania tour bus, registration 1501 AC. The Scania 1501 AC bus was owned and operated by Golden Lotus Valley Pty Ltd (“GLV”), the defendant. At the time the bus broke down, it was being driven by Mr Ye, an employee of GLV. The bus had broken down on the side of the M1 freeway in the Melbourne bound lane near the Waurn Ponds exit. Mr Ye called his employer John Li who arranged for Vaisima Liu, the contract bus mechanic, to attend at the site of the broken down bus with a new bus. As Vaisima Liu worked under the broken bus, it commenced to roll, and he became entangled in the undercarriage. By this stage Mr Ye had left the site in the new bus. Vaisima Liu was dragged underneath the broken down bus for some 800 metres. He lost consciousness, believing he would die. He was airlifted from the scene and remained in ICU for some time. How Vaisima Liu came to be working under the broken bus by himself is at the heart of this case. That requires a factual determination by this Court over several areas of real contention between the parties. These can be broken into the following categories:
(a)What were the circumstances under which Vaisima Liu left his workshop to go to where the broken down bus was?
(b)What did Vaisima Liu and Mr Ye do once Vaisima Liu arrived at the site of the broken down bus?
(c)What did Vaisima Liu and Mr Ye discuss before Mr Ye left the scene?
(d)What did John Li, a director of GLV, discuss with Mrs Nika Liu at the hospital on the night of the accident?
3 In this case, there is little to no forensic evidence which can be used to determine the factual disputes before the Court. Rather, the case for both parties is built, almost solely, on testimony from witnesses alone. For the plaintiff, this was evidence from himself and his wife, Nika Liu. For the defendant, this was evidence given by Mr Ye and John Li, the company director who spoke to Vaisima Liu during the course of the day to inform him of the broken down bus.
4 In assessing this testimonial evidence, I must first weigh the competing evidence. This involves an assessment of credibility of each witness at the initial stage of their evidence and then an assessment of the reliability of that evidence. This necessarily involves an overlap with the second requirement on the Court, which is to assess the viva voce evidence against the objective facts, motives and overall probabilities.[1] This Court must do more than simply assess the demeanour of the witnesses and come to a view of which of their versions is to be accepted or rejected. Rather, the task must be broader so as to encompass an evaluation of all the evidence.[2]
[1]Nominal Defendant v Smith [2015] 73 MVR 257, Leeming JA at paragraphs 77 and 91
[2]Effem Foods v Cumberline (1999) 161 ALR 599 at 603 [15-16], see also Fox v Percy (2003) 214 CLR 118 at [28]
Relevant non-contentious facts
5 Beginning with the non-contentious matters. The plaintiff was employed by a company named Liu Auto Services and Transport (“Liu Auto Services”) as a qualified diesel mechanic. His wife, Nika Liu, was the director of this company. It employed Vaisima Liu as the qualified tradesman, and two apprentices. Nika Liu did bookkeeping and administrative work for the business. The primary work of Liu Auto Services was the servicing and maintenance of tour buses. Particularly, they worked on buses operated by two companies, being Jinling Coaches and also GLV, the defendant. Vaisima Liu had first begun work for Jinling Coaches as a diesel mechanic. His work was good and he was recommended by the owner of Jinling to Mr John Li, one of the directors of GLV. Over time, the relationship developed. In about May 2015,[3] Liu Auto Services took up a lease on workshop premises at a site operated by GLV at Makland Drive, Derrimut. Not only was the Liu Auto Services workshop on this site, but it was also the site of the GLV operations and had parking for GLV’s fleet of buses. As at March 2016, GLV had a fleet of 25 to 28 buses, ranging from small buses up to 52 seaters.[4] After the business of Liu Auto Services moved to the Derrimut site, it did 70 per cent of its work on GLV vehicles and 30 per cent on Jinling vehicles. In addition to the regular maintenance and servicing, Vaisima Liu also performed roadside assistance services for GLV in the event a bus broke down.[5] If Vaisima Liu could not fix the vehicle at the roadside, it would be towed by a third party back to the Derrimut depot where it would be fixed.
[3]Transcript (“T”) 35, Line (“L”) 11
[4]T133, L26, T38, L6-7
[5]T133, L16-24
6 When attending to such a roadside callout, Vaisima Liu would take the callout vehicle.[6] He described this as a ute which he had bought from GLV. It was a Ford ute with a tool box on the back for breakdowns.[7] In addition, it had lights on the top to flash when parked on the side of the road, marking cones, and four chocks for lodging under the wheels of the broken down vehicle.[8] He gave evidence that prior to 19 March 2016, every time he had attended a GLV roadside callout, he had taken the callout ute.[9]
[6]T39, L31
[7]T40, L9
[8]T40
[9]T40, L29-31
7 GLV provides bus services for Chinese tour groups. The group arrives in Melbourne with a tour guide. GLV then provide the bus services to take them to various sites such as the Great Ocean Road, Twelve Apostles, Sovereign Hill, city tours and the like.
Vaisima Liu’s case
8 Vaisima Liu’s case, on his pleadings, was that on 19 March 2016, a GLV Scania bus, registration 1501 AC, was being driven with a load of 25 tourists from Torquay to Sovereign Hill in Ballarat when it broke down. It is alleged in the Statement of Claim at paragraph 4(c) that it ran out of diesel, and at 4(d), ceased to operate.
9 This pleading was refined in opening as Mr McWilliams, leading counsel for Vaisima Liu, put it that the bus had “… run out of diesel and it was on the Geelong Road.”[10] This assertion was made on the basis that John Li had called Vaisima Liu and “… tells Mr Liu that one of these buses had run out of diesel on the Geelong Ring Road and asks Mr Liu to take some diesel out to the bus which has broken down.”[11]
[10]T4, L23-24
[11]T 5 L5-10
10 Turning back to the Statement of Claim, at Plaintiff’s Court Book (“PCB”) 4 (paragraph [5] of the Statement of Claim), it was then alleged that Vaisima Liu drove another of the defendant’s buses to the site of the broken down bus, He was to inspect the broken bus and, if possible, repair it. This allegation was substantially widened in opening by Mr McWilliams. Plaintiff’s counsel opened that upon receiving the phone call from John Li, Vaisima Liu went to the callout ute with some empty fuel cans and drove to a nearby service station where he filled the fuel cans with diesel.[12] After leaving the service station, counsel opened that John Li called Vaisima Liu and asked him to take a replacement bus down with diesel.[13] The defendant stated that it was surprised by this allegation in opening.[14]
[12]T5, L26
[13]T6, L11
[14]T147 L1-3
11 Turning back to the Statement of Claim, it alleges that after arriving with the new bus at the scene of the broken down bus, Vaisima Liu determined that in order to inspect the starter motor, he had to go under the bus.[15] Prior to doing this, it is alleged that Vaisima Liu spoke to Mr Ye and told him to sit in the driver’s seat and, further, to make sure the handbrake was engaged.[16] Vaisima Liu then went under the broken down bus. However, it was pleaded “… whilst the plaintiff’s body was beneath the bus, the bus driver departed the scene” in the new bus.[17] Diagram 1 shows the positioning of the 2 buses according to the pleadings at the start of the case, but before the opening.
[15]PCB 5, Statement of Claim at [7]
[16]PCB 5, Statement of Claim at [8]
[17]PCB 5, Statement of Claim at [9]
DIAGRAM 1
12 This was substantially broadened during counsel’s opening. First, it was said that after Vaisima Liu arrived with the new bus at the scene, he had a conversation with Mr Ye where Mr Ye told him that the new bus had run out of fuel.[18] Vaisima Liu then poured some diesel into the tank and asked Mr Ye to try to start the broken down bus.[19] This did not work and the bus would not start. At that point, Vaisima Liu formed the view that he needed to access the fuel filter (not the starter motor as pleaded). This reflects a peculiarity of diesel engines, which is that once dry, they require the fuel lines to be fully primed with fuel before they will start. This makes them different to a petrol engine. Having made the decision to go under the broken down bus to check the fuel filter, Vaisima Liu searched the broken down bus, but could not find any chocks.[20] As a result, it is alleged that he got back into the new bus and drove it around to the front of the broken down bus so that it was about a metre from the front of the broken down bus: It was to stop the broken down bus moving too far if it rolled.[21] As noted this movement of the new bus was not pleaded. A diagram shows the positioning of the 2 buses according to the opening.
[18]T9, L4
[19]T9, L18
[20]T10, L29
[21]T11, L1-9
DIAGRAM 2
13 It is alleged Vaisima Liu then spoke to Mr Ye and told him to stay in the driver’s seat and keep the brake on.[22] With those safeguards against the bus rolling while he was underneath it, Vaisima Liu was said to go to the rear of the broken down bus and climb underneath it. His body was positioned with his legs pointing to the kerb and his head behind the right side (driver’s side) rear wheels. The broken down bus was straddling the emergency lane in the left-most lane of the freeway.[23] Vaisima Liu was under the bus, it is alleged, for a short period.[24] During this time, Vaisima Liu alleged that Mr Ye and three to four passengers on the broken down bus left it, got into the new bus and drove away. [25] This left Vaisima Liu underneath the bus, working by himself. As Vaisima Liu worked, the broken down bus began to roll and, with no handbrake on, no driver to apply the brake, and the removal of the new bus as a stopper, the broken down bus rolled on. Vaisima Liu became entangled under the bus. In this wedged position, he was dragged along the roadway for some 800 metres until the broken down bus struck a barrier. Vaisima Liu was thrown out at this stage and the broken down bus careened off for another 300 metres before coming to a stop.
[22]T11, L14
[23]T11
[24]T12, L1
[25]T12, L6-11
14 Quantum was agreed between the parties so it is not necessary to detail in great depth Vaisima Liu’s injuries, but they were extensive:
(i)scarring and degloving injuries over his entire body, but particularly about the back of the skull;
(ii)complex bone injuries to all limbs and the spine;
(iii)psychiatric injury;
(iv)bowel and bladder injuries; and
(v)psychiatric injuries involving PTSD and a period of post-traumatic amnesia. Relevantly, this post-traumatic amnesia was said to begin shortly after the bus began to roll and extended for the entirety of the time that Vaisima Liu was trapped under the bus.[26]
[26]T276, L9-12; T278 L10-13
15 The plaintiff’s case in negligence as opened was:
(A) That the defendant was vicariously liable for the actions of Mr Ye in:
(i)not complying with Vaisima Liu’s direction to stay in the driver’s seat;
(ii)failing to keep the brake on;
(iii)driving the new bus away while the plaintiff was working underneath the broken down bus.[27]
(B)That the defendant had dispatched Vaisima Liu to the scene of the broken down bus without the callout ute that had the chocks, which were essential to restraining the broken down bus while he was working underneath it.
[27]T16, L10
16 Lastly, it was alleged that after Vaisima Liu had been taken to hospital and sometime that evening, John Li attended at the hospital and spoke with Nika Liu. At that time, Mrs Liu said that John Li asked her to sign a form in which Vaisima Liu accepted the accident was his fault. John Li denied this.
17 While the pleadings and the opening do not constitute the evidence on which the case is decided, I have set out these matters for two reasons. First, in this case, nearly all the matters referred to above are hotly disputed. Without some overall narrative to begin the analysis, it is difficult to understand the areas of dispute. Second, the way the case was pleaded and opened sheds light on the consistency or otherwise of the plaintiff’s case by the time it was closed. The same could be said of parts of the defendant’s case. However, it would be unduly repetitive and confusing to deal with that at this stage of the judgment and it is more easily referenced during a discussion of the facts and my fact finding.
18 Before embarking on the analysis of the factual disputes, I bear in mind that it is the plaintiff who bears the onus of proving his case on the balance of probabilities.
What were the circumstances under which Vaisima Liu left his workshop on 19 March 2016 to go to the scene of the broken down bus?
19 It is uncontroversial that on this Saturday morning, Vaisima Liu was at the workshop by himself. His two apprentices worked Monday to Friday and not Saturday. John Li was not present. In fact, this was a busy time for GLV as it was the high tourist season. As a result, John Li was himself driving a tour bus in Melbourne.
20 On 18 March 2016, Mr Ye had been with the tour group at the Great Ocean Road. They had driven to Torquay and stayed the night there. At around 10.15am on 19 March 2016, Mr Ye left the Torquay hotel with his tour group in the Scania 1501 AC. He had about 25 passengers including one tour guide. The timing of when he left is unclear and largely irrelevant. The bus being driven by Mr Ye was a 1995 Scania coach with 44 seats and a rear engine.[28] The vehicle was being serviced every 10,000 kilometres,[29] and appears to have been serviced immediately prior to the accident. Those services were done by Liu Auto Services. In late February 2016, it had received a 10,000 kilometre service at the hands of Liu Auto Services.[30] At that time, a fuel filter was replaced and the vehicle was road tested and passed.
Why did the Scania 1501 AC bus break down?
[28]PCB 77
[29]PCB 80 and 82
[30]PCB 79
21 The first point of contention between the parties arises over what caused the Scania 1501 AC to break down. As can be seen above, the plaintiff’s pleadings left open whether the breakdown was because of a mechanical problem or whether it had simply run out of fuel. In opening, however, and throughout the evidence in chief of Vaisima Liu, and cross-examination of Mr Ye and John Li, the plaintiff’s case was that the Scania 1501 AC had run out of fuel. However, Mr Ye denied that he knew why the Scania 1501 AC stopped and John Li, who received the phone call from Mr Ye, denied being told that the Scania 1501 AC had run out of fuel and was the cause of the breakdown.
22 As the plaintiff spent some time opening and developing this point, I will deal with it. The plaintiff gave evidence as to the events on the morning of 19 March 2016. He received a phone call from John Li, who said to him that he had a bus (Mr Ye’s Scania 1501 AC) which had:
“… run out of fuel, please make sure it’s going with a bottle of fuel, a container of fuel of diesel and go and help them to get back on the road.” [31]
[31]T41, L20
23 The content of that call is disputed and I will return to that, but it is necessary to examine what information John Li had about the breakdown so as to understand whether that recounting of the content of the phone call by Vaisima Liu is correct. This is because I find John Li is likely to have passed on information which was consistent with the knowledge that he had at that point in time.
What was said in the 11.00am call between Mr Ye and John Li?
24 It is clear from the phone records of John Li that at 11.00am on 19 March 2016, John Li called Mr Ye.[32] What is not clear is when Mr Ye first called John Li to tell him that the Scania 1501 AC had broken down. Mr Ye recalls driving the Scania 1501 AC “… and then suddenly the bus just stopped.”[33] He called John Li.[34] He was not sure if he got through to him or how many times it took to speak to him.[35] Finally, they spoke. I find that the call from John Li to Mr Ye at 11.00am was the first time they spoke about the breakdown. I make this finding on the basis of the phone records at Exhibit D1 and also noting John Li was at the time himself driving a tour bus and most likely would have limited scope to answer the phone while driving. This finding is also more likely because the phone records show numerous calls from John Li’s phone at that time, which supports the view that he was on a short break and could make calls. The content of that call is in dispute. Mr Ye’s evidence was that he simply explained the “bus situation” to John Li.[36] By that, I infer that he did not know the cause of the bus stopping consistent with what he had said earlier.[37] However, in cross-examination he conceded that he probably told John Li that there was a problem with getting fuel into the engine or a fuel problem. John Li denied being told by Mr Ye that the Scania 1501 AC had run out of fuel.[38] The importance of making a finding on this point is that, by inference, it impacts on what was said by John Li to Vaisima Liu when they spoke at 11.08am, which is the very next call John Li made on his phone after speaking to Mr Ye.
[32]Exhibit D1 at p9
[33]T200, L24-25
[34]T201, L19-20
[35]T201 L21-24
[36]T201, L30
[37]T200, L25
[38]T171 L10-11
25 I must first note that there is, in fact, little discrepancy between Mr Ye’s and John Li’s versions of events. Mr Ye had never experienced a bus stopping because it had run out of fuel.[39] He admitted he thought there was some sort of fuel problem. John Li’s evidence sits comfortably with that. He gave evidence that Mr Ye had said to him that he could feel the engine suddenly stop, but he did not know what had caused the engine to stop. This is consistent with Mr Ye’s statement as well.[40] However the report to Bus Safety Victoria filled out by John Li on 21 March 2016 recorded that the “…engine suddenly stop, sounds like the problem of fuel supply…”.[41]
[39]T211, L5
[40]PCB 117. The statement of Mr Ye was made on 21 March 2016 as part of the Defendant’s reporting obligations to Bus Safety Victoria. There was objection to it being tendered by the Defendant on the basis of s. 45 of the Evidence Act 2008 (Vic) (“Evidence Act”). I admitted it pursuant to s. 64(3) and (4) and also as a business record pursuant to s. 69 of the Evidence Act.
[41]PCB 115
26 It was suggested that the fuel records for the Scania 1501 AC showed that it had not been refuelled for some days prior to the breakdown. This argument was based on the fuel card records and odometer readings for the Scania 1501 AC.[42] However, John Li gave categorical evidence that there was sufficient fuel in the Scania 1501 AC at the time of the breakdown.[43] While the fuel card shows the Scania 1501 AC was not filled in the two days prior to the breakdown, the arithmetical calculation John Li performed to show the bus still had at least 300 kilometres to run (conservatively) is compelling.[44] I accept it. The notification of bus incident to Bus Safety Victoria dated 20 March 2016, completed by John Li contemporaneously, also records “… driver Mr Liang [this is Mr Liang Ye the bus driver] complained engine suddenly stop, sounds like the problem of fuel supply.”[45] Weighing all that evidence, I find that Mr Ye was uncertain why the Scania 1501 AC had broken down. Even assuming he considered the bus may have run out of fuel, as an employee of GLV, he was unlikely to tell his boss, John Li, that he had forgotten to fill the bus with fuel as this would mark him as incompetent. It is more likely that he tried to explain the situation in the way described, as a problem with fuel supply and the engine suddenly stopping. This is consistent with his oral evidence and the information provided to Bus Safety Victoria. As a result I find that Mr Ye told John Li the Scania 1501 AC stopped suddenly and he was unsure why, but considered it could be a problem with fuel supply.
What was said in the 11.08am call between Vaisima Liu and John Li?
[42]T188, T195
[43]T188, L13-22
[44]T188, L15-17
[45]PCB 115
27 As such, what John Li said to Vaisima Liu at 11.08am in their first phone call is unlikely to be as Vaisima Liu described. That is, that he was told by John Li that the Scania 1501 AC had simply “… run out of fuel”.[46] The evidence tends to suggest that the conversation was not so confined. John Li’s evidence is that in his call with Vaisima Liu at 11.08am, he said of this conversation “I can’t tell him [Liu] the reason because the driver not sure what caused the bus, the engine stop, yeah. But I don’t remember exactly the details of the conversation …”[47] Accepting this, I find John LI said words to the effect that the engine had suddenly stopped and it sounded like a problem of fuel supply.
[46]T41, L20
[47]T136, L15
28 To summarise those findings made above, I find that:
(a) the Scania 1501 AC broke down sometime between 10.15am and about 11.00am on 19 March 2016;
(b) the reason for the breakdown was unclear to Mr Ye;
(c) Mr Ye called John Li to inform him of the breakdown sometime before 11.00am but was unable to get through;
(d) at 11.00am, John Li called Mr Ye back and they spoke about the breakdown, the cause of which was unclear but may have been a problem of fuel supply;
(e) at 11.08am, John Li called Vaisima Liu and told him that Mr Ye’s bus had broken down and the reason for that was unclear but may have been a problem with the fuel supply.
29 Turning then to the remainder of the telephone call between John Li and Vaisima Liu at 11.08am. A major dispute arose between the parties. On Vaisima Liu’s version, the following was communicated to him:[48]
[48]T41, L19-22
(a) the bus had broken down;
(b) it had run out of fuel;
(c) take a container of fuel;
(d) help them get back on the road.
30 On John Li’s version,[49] he rang Vaisima Liu:
[49]T135, L26-31, T136 L15-28
(a) to tell him the bus had broken down from an unknown cause but may be
a problem with the fuel supply;
(b) to discuss what they were going to do and they had a discussion;
(c) Vaisima Liu suggested there was another bus parked at the yard so he (Vaisima Liu) could take that new bus to the breakdown site;
(d) he would go to site to try and fix the broken down bus;
(e) if the broken bus could not be fixed then Mr Ye would take the new bus and go on with the tour;
(f) John Li agreed with this course and told Mr Vaisima Liu to set off.
31 The two versions are diametrically opposed. However, during the course of John Li’s evidence on the second day of trial, his phone records for 19 March 2016 were tendered. They had not been discovered previously. The explanation for this was that until plaintiff’s Counsel opened the case, the defendant was unaware on the pleadings that there was an allegation of the phone call from John Li to Vaisima Liu calling him from the service station back to the depot to pick up the new bus. No objection was taken to this material being tendered. What the records showed was that there was a call from John Li to Vaisima Liu at 11.08am. This reinforced John Li’s assertion that it was at that time that the overall plan was hatched; that Vaisima Liu would take the new bus and go to the broken down bus site to try and effect repair. It ran against Vaisima Liu’s version because he alleged that after the first call at 11.08am, there was another call shortly after (after he had filled up the fuel tanks and was about to get onto the freeway – from John Li to him), asking him to return to the depot and pick up the new bus which meant he could not use the callout vehicle.
32 Faced with the phone records, application was made to recall Vaisima Liu. That was permitted. In his evidence, he then admitted that after seeing the phone records it made him feel stressed,[50] because it did not show the two calls in sequence that he recalled. As a result (and because the trial was broken by a weekend), he had taken a work truck and driven the route from the Derrimut depot to the service station and then the freeway,[51] to recreate his version of events. He said that this exercise jogged his memory and he recalled that the second phone call occurred as he had called John Li just as he was about to enter the freeway. [52] On his version, this explained why Exhibit D1 – being John Li’s outgoing calls – did not show the second phone call to him directing him back to the Derrimut depot to pick up the new bus.
[50]T153, L28
[51]T154, L3-10
[52]T154, L5
33 John Li was adamant, however, that such a second call in close proximity to the one at 11.08am did not occur. The evidence points both ways and is not absolutely definitive. Both Vaisima Liu and John Li gave evidence in a manner which showed they were attempting to recall matters as best they could. They appeared diligent in listening carefully and answering directly. Their demeanour was open and honest. I could not make a negative finding on demeanour alone as to whether evidence should be accepted or not. The overall evidence must be assessed and the probabilities weighed as part of the fact finding task.
34 Turning to each of the pieces of evidence called in aid by the parties. The phone records of John Li are of substantial weight. They show only one call at 11.08am from John Li to Vaisima Liu. It lasts only one minute however, which seems a very short time to have a discussion about the potential cause for the breakdown of the Scania 1501 AC, to make a plan for Vaisima Liu to take the new bus and inform him where the keys were kept for it. What is known, however, is that John Li called Mr Ye at 11.13am – five minutes later. This is undoubtedly the call to inform him of the plan made by John Li in concert with Vaisima Liu. This is because it is the only call from John Li to Mr Ye between 11.00am and 12.45pm, when Vaisima Liu was almost at the site of the broken bus, a point agreed by all parties.[53] If the 11.13am call is to inform Mr Ye of the plan, then Vaisima Liu’s version becomes improbable – that is, that he had put the fuel cans in the ute, driven to the service station, filled them up, paid and was driving to the freeway when he called John Li and received alternative instructions. This simply could not have happened in the space of five minutes from 11.08am to 11.13am. The second phone call is also not pleaded, despite assuming real significance in the plaintiff’s case in opening and his evidence. It is difficult to reconcile the two things. It is another, reasonably minor, point that goes toward casting doubt on the plaintiff’s version of events.
[53]T155, L21-24
35 What is inexplicable on John Li’s version, however, is how, within that one minute call at 11.08am, all the information was communicated and plans made. This is particularly so because the new bus did not belong to GLV but was operated by John Tong Buses.[54] John Li gave evidence that, at the time he received Mr Ye’s call at 11.00am, he did not know the John Tong bus was at the depot.[55] He was told this by Vaisima Liu and decided to use this bus. How he could use another company’s bus so easily was not adequately explained. John Li said he was unable to explain how he came to use this new bus.[56] This is curious. It is also curious that between 11.08am, when John Li says Vaisima Liu told him the John Tong new bus was in the yard, and 11.13am, there are no calls out from John Li’s phone. Similarly, there are no text messages. It is entirely uncertain how John Li felt able to take the John Tong bus in circumstances where it could potentially be used all that day, when John Li had no idea what, if any, use John Tong may have planned for it. It could be expected that a call was made during this period of time from 11.08am to 11.13am to make such arrangements with John Tong management, but apparently none was.
[54]T136, L9
[55]T136, L3
[56]T137, L31
36 John Li explained this anomaly in several ways. First he suggested he called the GLV bus manager, Riki Li, to get him to arrange with John Tong Buses to take the new bus.[57] However, his phone records do not show this call. Next, he suggested that Riki Li had called him and he “really remember[ed]”[58] talking to Riki Li about taking the new bus. This would seem to be a remarkably fortuitous piece of timing for that phone call to have occurred between 11.08am, when he talked to Vaisima Liu, who advised him of the presence of the John Tong bus, and 11.13am when he called Mr Ye. I consider this unlikely. The third reason proffered was that in urgent situations sometimes there was no need to ask John Tong because the two companies sought to help each other.[59]
[57]T173, L22
[58]T173, L29
[59]T174, L7-10
37 The variety of answers do not assist in a resolution of this matter. In fact they highlight the fact that the memory of each of the witnesses was imperfect in recall. Despite this, I could not on this discrepancy alone find John Li was not a witness of truth. I find the last reason is plausible and most likely given the overall state of the evidence and the probabilities as to how the John Tong new bus came to be taken. This is primarily because of the fact that the new bus was in fact taken, with no evidence this was confirmed with John Tong management and the speed with which the decision to take it was made. It is consistent with the fact that, at the time of the 11.08am call, John Li was away from the depot. His phone records show that at 11.00am,[60] he was in Sunshine West and away from the Derrimut depot. Further, he gave evidence that he was with a tour group that day driving them around. He did not know at 11.00am that the John Tong new bus was at the depot. He gave evidence that he was told of that fact by Vaisima Liu. It was suggested that John Li knew of the presence of the John Tong new bus because:
[60]Exhibit D1, p 9
(a) he had been at the depot that morning; and
(b) he had access to CCTV of the depot on his mobile phone.
38 While he had been at the depot that morning, there was no evidence of when this was or if the John Tong bus was there at that time. It would be pure speculation to find that the John Tong bus was at the depot when John Li was there. Second, he could not recall looking at the CCTV footage on his phone prior to 11.08am.[61] No reason was suggested as to why he would be monitoring it, especially when it was not doubted that he was driving a tour group around the city that morning.
[61]T183 L25
39 On balance, I find that John Li was told by Vaisima Liu at 11.08am that the John Tong new bus was at the depot when he called.
40 Turning to whether John Li or Vaisima Liu made the suggestion for Vaisima Liu to drive the new bus to the breakdown site. There is once again controversy. Vaisima Liu gave evidence that John Li told him to take the new bus.
41 John Li said it was Vaisima Liu who suggested that he take the new bus.[62] I find John Li’s version unlikely. This is for the following reasons. First, John Li had had the discussion with Mr Ye and understood not just the mechanical condition of the broken down bus but also the situation with the tour group’s itinerary and their luggage. Vaisima Liu simply did not have these latter pieces of information. What is relevant about these matters is that John Li knew that the broken down bus was due to go to Sovereign Hill that afternoon and then take the tour group to Melbourne afterwards.[63] There was an element of speed required to get the tourists to Sovereign Hill for a tour, but also it was relevant that the luggage could be sent directly to their hotel in Melbourne.
[62]T174, L19-20
[63]T137, T182
42 It is also to be recalled that Vaisima Liu had never attended a breakdown in any vehicle other than the breakdown ute. In these circumstances, there is no reason that he would suggest the use of the John Tong new bus. Rather, I find that it was John Li who suggested that the John Tong new bus be used. This is consistent with John Li’s knowledge of the tour group’s itinerary. It meant that if the broken down bus could not be quickly fixed, the new bus could take the tour group to Sovereign Hill. It could then bring them back to Melbourne. This would mean the John Tong new bus could be returned to the depot for the use of John Tong the next day, rather than staying overnight with the tour group.
43 Vaisima Liu gave evidence that the plan he discussed with John Li was that if he could not fix the broken down bus, he would board the new bus with the tour group and they would drive him back to Derrimut and then go to Sovereign Hill.[64] I find this improbable and unlikely. This is because of the time limits imposed on the tour group. The breakdown had robbed them already of about two hours (about 10.45am to 12.45pm) by the time that Vaisima Liu arrived in the new bus. From that point, a direct drive to Ballarat was about an hour or so. However, to detour to Derrimut and then to Ballarat would add about another hour.[65] I find that unlikely and, overall assessing the probabilities, I find it is more likely to be the case that if the broken down bus could not be fixed, then a tow truck would be called to take the broken down bus and Vaisima Liu back to the Derrimut depot.
[64]T93, L15
[65]I take judicial notice of the general distances from the Waurn Ponds exit and routes to Ballarat or back to Derrimut.
44 To summarise those findings, I find that in the 11.08am phone call John Li made to Vaisima Liu, it was Vaisima Liu who identified the John Tong new bus in the depot. I find John Li asked Vaisima Liu to take the new bus to the breakdown site. I find John Li advised Vaisima Liu that if the broken down bus could not be fixed quickly, then Mr Ye would take the new bus and depart with the tour group.[66] I find further that Vaisima Liu understood that if the broken down bus could not be fixed, then a tow truck would be called and it would take him and the broken down bus to the Derrimut depot.
[66]T202, L2-5
45 Having made those findings, I turn to Vaisima Liu’s actions in preparing to depart the depot. He removed a tool box from the callout vehicle and moved it to the new bus. He did not take cones or chocks. He gave evidence that the main types of work he would be involved in for roadside assistance was flat tyres, running out of fuel or electrical problems.[67] He did not check the new bus for tools or safety equipment before he left the Derrimut depot.[68] He assumed the broken down bus had equipment, including chocks (and cones) in it,[69] but he did not know this definitively.
[67]T64, L3-4
[68]T65, L8
[69]T65, L4
46 Quite clearly from the photographs and the evidence of both Vaisima Liu and Mr Ye, diesel in a fuel container was also taken down to the breakdown site. On the version of the phone call at 11.08am that I have preferred, it must also be assumed that such diesel was already on site at the depot and filled by Vaisima Liu prior to departing or obtained en route.
47 In any event, not much turns on this, for the next definitive matter is that around 12.45pm, phone calls indicate Vaisima Liu and the new bus were about to arrive at the site of the broken down bus. Exhibit D1 shows three calls from 12.43pm to 12.45pm, which broadly correlate with first John Li calling Vaisima Liu to find out where he was. Then from John Li to Mr Ye to inform him of the imminent arrival of Vaisima Liu, and then from John Li to Vaisima Liu again to confirm the location of the broken down bus.
48 What happened when Vaisima Liu arrived at the scene of the broken down bus? At this point the parties agree that Mr Ye had let most of the tour group off the broken down bus with the guide to walk down the Waurn Ponds exit so that they could visit Bunnings. I find this left Mr Ye onboard with three to five passengers.[70] Vaisima Liu then drove up in the new bus and parked behind the broken bus. In photograph 121,[71] the positioning of the broken bus and the new bus was described as being under the sign suspended over the freeway left hand lane.[72] The broken down bus had its wheels straddling the solid white line demarcating the left hand lane from the emergency lane.[73]
Filling the fuel tank
[70]T23 L13-14
[71]PCB 195
[72]T48, L16
[73]T46, L8
49 Vaisima Liu parked the new bus directly behind the broken bus to provide, in his words, “cover” for the broken bus.[74] At this point, the parties are in agreement. Vaisima Liu then alighted from the new bus and went to discuss matters with Mr Ye. He walked down the left side of the broken down bus.[75] This placed him between the broken down bus and the kerb. He had a conversation with Mr Ye. On Vaisima Liu’s version, he was told by Mr Ye that the broken down bus had run out of fuel.[76] In response, Vaisima Liu said that he was going to fill up the tank.[77] The tank was on the driver’s side of the broken bus about halfway along. Vaisima Liu asked Mr Ye to come and help him.[78]
[74]T50, L16 – this positioning is shown in Diagram 1 at paragraph 11 above.
[75]T46, L12
[76]T49, L10
[77]T49
[78]T49, L28
50 As foreshadowed, these exact details are disputed. Mr Ye denies saying “no fuel” to Vaisima Liu at their first conversation.[79] However, he admitted that his memory was not exact and that he did not remember what was said.[80] Given my earlier findings as to the content of the call between Mr Ye and John Li at 11.00am, I find consistently that Mr Ye did not know definitively the cause of the breakdown, but did consider that fuel supply was a potential problem. To that extent, there was no doubt some communication consistent with Vaisima Liu’s evidence. This is fortified by a number of factors.
[79]T211, L7-8
[80]T211, L16
51 First, a fuel problem was a typical type of breakdown issue and somewhat at front of mind. Second, Vaisima Liu had brought fuel to address a fuel supply issue, so it was already a problem on the radar. Third, it was a quick problem to eliminate in establishing what exactly was wrong. It is also consistent with what happened next, which both Mr Ye and Vaisima Liu agree upon: they went to the driver’s side and Mr Ye helped Vaisima Liu refuel.[81]
[81]T203, L24; T50, L10
52 Vaisima Liu then gave evidence that he went to the pump at the rear of the broken bus and obtained access through the grate in the rear left panel.[82] This was to extract air from the fuel line and prime the lines. He gave evidence that Mr Ye, sitting in the driver’s seat, then tried to start the broken bus three times to no avail.[83]
[82]T51, L3
[83]T51, L1-9
53 Mr Ye’s version was different. He agreed that he assisted Vaisima Liu with filling the tank.[84] While he was not certain what task Vaisima Liu performed next, he did state that Mr Liu then did some work at the back of the bus.[85] He then gave evidence that Vaisima Liu climbed into the driver’s seat of the broken bus and tried to start it himself.[86] On his evidence Vaisima Liu did not go to the back of the broken bus to use the pump to extract air from the lines. This is a significant discrepancy because it is widely accepted by the parties that a diesel engine which has run out of fuel must have clear primed lines before it will start. A qualified diesel mechanic would not then simply fill the tank and try to start the bus. Rather I find that Vaisima Liu after filling the tank went to the rear of the bus and operated the pump to extract air. The failure to recall this event tells against Mr Ye and the acceptance of his evidence. However later in his evidence he did recount that after the filling of the tank Vaisima Liu then looked or went under the broken bus for a short time.[87] In cross examination, he gave a slightly different version which was that after the filling of the tank he went to sit in the driver’s seat and Vaisima Liu went to the rear of the bus to do some work.[88] It was after that failed that Vaisima Liu then came to sit in the driver’s seat. However even on this point Mr Ye’s evidence varied stating in cross examination that after filling the tank Vaisima Liu asked him to sit in the driver’s seat and try and start the broken bus again.[89] These variations reflect imperfect recall by Mr Ye of the sequence of events but of themselves they did not affect my assessment that he was an honest witness trying diligently to answer questions. I could not discard his evidence on the grounds of demeanour alone. The evidence, though imperfect, is not such as to be so inconsistent with the evidence overall as to be set aside. This is because it broadly accords with Vaisima Liu’s and is more probable than not when assessed with the overall likelihood of the events occurring as I have found. That is, after the filling of the fuel tank Vaisima Liu did something at the rear of the bus and then there was an attempt to restart the broken bus. On the version in cross examination, Vaisima Liu admitted that he performed this re-fuelling task and then after doing something at the rear of the broken bus, an attempt was made at restarting again. This much they broadly agree on. Who then sat in the driver’s seat became a point of real contention.
[84]T203, L25
[85]T219, L19
[86]T204, L4-5
[87]T205, L23-24
[88]T219, L18-19
[89]T219, L15
Who sat in the driver’s seat?
54 Causally, the resolution of this conflict is of little consequence because of the events which come next. However, the finding of fact does shed light on the overall acceptance of one party’s version rather than the other’s version. I accept Mr Ye’s recounting of events. First, it must be acknowledged that he does not speak English as a first language and used an interpreter to give evidence. He impressed me as a witness who tried to give his answers truthfully. He conceded where appropriate.[90]
[90]See, for example, T215, L19-24 and T217 L3-5
55 As I have said previously, Vaisima Liu was similarly an honest and forthright witness , but the events here being discussed occurred only very shortly prior to a near death experience of incredible trauma and suffering which has caused Post-Traumatic Stress Disorder and a recognised period of post-traumatic amnesia. While it could be said that such post-traumatic amnesia begins at a time after this event, in context, I consider some events immediately prior to the commencement of the bus rolling are recalled imperfectly on his behalf. This is no criticism of him. However, this is one of those instances.
56 It might be said Mr Ye had no reason to recall this matter in any great detail given, from his perspective, it was a relatively innocuous event as to who sat in the driver’s seat to try to start the bus. Against this, however, is the fact that he had never experienced a breakdown of this type previously. It was also a matter which was likely to stick in his mind, given that within a few hours he was informed of the awful events which followed it.
57 Plaintiff’s Counsel here called in aid the principles elucidated in Jones v Dunkel (1959) 101 CLR 298 arguing that the failure of the defendant to call any of the passengers on the broken down bus should result in an inference that their evidence would not have assisted the defendant’s case. Senior Counsel for the defendant resisted that proposition on the basis that the passengers were not known to the defendant, save for the passenger manifest, were in China and were difficult to access amid COVID 19. He called no evidence of steps taken by the defendant to get access to the passengers. I note that the passenger list was in the Court Book and tendered. It lists names and mobile phone numbers for some of the passengers.
58 In order to invoke the principles in Jones v Dunkel it is necessary that the Plaintiff satisfy the Court that the “…the missing witness would be expected to be called by one party rather than another.”[91] It has been considered that the absent witness needed to have been “in the camp” of a party before the relevant inference could be made.[92] Here, the passengers were a tour group from China. They had their own tour guide. While they spent some time with GLV they had no ongoing relationship with GLV after the tour. The interaction between GLV and the passengers was brief, fleeting and transitory. The passengers returned to China. No evidence was led about the tour guide and where they were based. Both the case law and Cross on Evidence under the heading ‘The Rule in Jones and Dunkel,’ as discussed in Ronchi, make clear that the stronger the relationship between the party and the witness the more likely the inference will be drawn. So in the case of a company defending a civil claim in negligence the failure to call directors, senior safety managers and relevant line supervisors might well give rise to the inference. This is not such a situation. The plaintiff here had access to the passenger list and was as able as the defendant to make contact with them. In these circumstances I would not draw the inference as suggested by the plaintiff that the evidence of the passengers and tour guide would not have assisted the defendant.
[91]Payne v Parker [1976] 1 NSWLR 191 at 201-202 (CA), Glass JA .
[92]Ronchi v Portland Smelter Services Ltd [2005] VSCA 83 (“Ronchi”) at [33]
59 The other evidence to be considered on the question of who sat in the driver’s seat arises from the fact that in Vaisima Liu’s serious injury affidavit he states, “I filled up the bus with diesel and tried to start the bus but then realised that I needed to put some diesel in the filter.”[93]
[93]DCB 25 at paragraph 2
60 The purpose of the serious injury affidavit was not to delve too deeply into liability, so I accept it was not a definitive depiction of the events immediately preceding the rolling of the bus.[94] However, it does provide some slight support for Mr Ye’s version of events. Similarly, the plaintiff’s answers to interrogatories at [3] records simply that “I put some fuel into the bus”, [95] and then makes no mention of who, if anyone, then tried to start the bus. Once again, this suggests the issue of who was sitting in the bus seat when attempts were made to start it was not of great importance to Vaisima Liu. Even in the history taken by a medico legal psychiatrist Dr Weissman it is recorded “He told me that his last memory was that he filled up the bus with diesel and he tried to start the bus but then realised that he needed to put some diesel in the filter.”[96] When this was put to Vaisima Liu in cross examination he denied saying this and stated that Dr Weissman had recorded his history incorrectly.[97] It seems clear that Dr Weissman had taken the statement almost directly from the serious injury affidavit which was Vaisima’s Liu’s version of events on oath. Why Vaisima Liu would deny this recording as accurate is unclear given its origin. It casts doubt on the acceptance of his oral evidence on this point.There is no other contemporaneous record made by him in this regard, leaving it to his memory as the sole source of support for this assertion. His evidence on this point does not satisfy me that on the balance of probabilities it was Mr Ye who sat in the driver’s seat and tried to start the bus after it was refuled.
[94]In the recent case of Queensland v Masson [2020] HCA 28, Nettle and Gordon JJ state at [112] that “the oft unspoken reality that lay witness statements are liable to be workshopped, amended and settled by lawyers, the risk that lay and, therefore, understandably deferential witnesses do not quibble with many of the changes made by lawyers in the process – because the changes do not appear to many lay witnesses necessarily to alter the meaning of what they intended to convey – and the danger that, when such changes are later subjected to a curial analysis of the kind undertaken in this matter, they are found to be productive of a different meaning from that which the witness intended, means that the approach of basing decisions on the ipsissima verba of civil litigation lay witness statements is highly problematic. It is the oral evidence of the witness, and usually, therefore, the trial judge's assessment of it, that is of paramount importance.”
[95]PCB 36
[96]PCB 49
[97]T70, L6
61 Given the matters I have identified above, I would prefer Mr Ye’s evidence on this point. I find consistently that Vaisima Liu was in the driver’s seat attempting to start the bus. If necessary I would also draw support for this finding from Mr Ye’s contemporaneous statement which records that Vaisima Liu “….tried to start the engine several times but failed”.[98] This fortifies my view that Vaisima Liu did climb into the driver’s seat and attempt to start the broken bus as alleged by Mr Ye
[98]PCB 118
When did Mr Ye leave the scene?
Vaisima Liu’s version
62 Vaisima Liu then gave evidence that after the broken bus failed to start, he decided that he needed to fill the fuel filter with diesel first.[99] This necessarily required him to go under the broken bus.[100] However, before he could do that, he gave evidence that he checked the tool box located in the luggage compartment of the broken bus.[101] He found a tool box but no chocks. He also checked the new bus,[102] but he was limited because he did not have the key to give him access to the luggage compartment where tools and chocks would usually be stored.
[99]T51, L12
[100]T51, L19
[101]T51, L23-28
[102]T52, L4
63 In any event, he did not find any chocks. As the broken bus was on an incline, Vaisima Liu was concerned, he said, to ensure the broken bus did not roll while he was underneath it. Hence, he gave evidence that he moved the new bus to the front of the broken bus and parked it so that the rear of the new bus was about 1 metre from the front of the broken bus;[103] It would act as a stopper. Then he instructed Mr Ye, who, on his version, was in the driver’s seat of the broken bus, to stay there, and to keep the handbrake on, as he was going under the broken bus.[104]
[103]A diagram depicting the positioning of the buses is set out at paragraph 11 above.
[104]T52, L19-25
64 He proceeded to go under the bus. To do this, his feet were towards the kerb and his head towards the middle of the left lane of traffic. The fuel filter was located behind the right rear wheels (on the driver’s side). As he commenced work, and after a few minutes, the broken bus began to roll.
65 Mr Ye’s version is remarkably different. After filling the fuel tank he and the passengers were off the bus and Vaisima Liu was in the driver’s seat of the broken bus. He denied categorically that Vaisima Liu moved the new bus in front of the broken bus.[105]
[105]T220, L31-T221 L1 and T219, L21-22
66 Vaisima Liu then told Mr Ye and the passengers to push the broken bus, and they did – for 40-50 metres. It was not successful in starting the broken bus. At this point, Mr Ye gave evidence that Vaisima Liu was in the driver’s seat of the broken bus, and he asked him if he could now leave.[106] Vaisima Liu answered that he could leave.[107] From the time of Vaisima Liu’s arrival at the scene to this conversation with Mr Ye, it was estimated that 20-30 minutes had elapsed.[108] Mr Ye then left with the passengers on the new bus. Assuming arrival at 12.45pm, this puts their departure at 1.05-1.15pm.
[106]T205, L12
[107]T205, L13
[108]T205, 22
67 The competing versions of events are difficult to resolve. Overall I prefer the evidence which supports Mr Ye’s version of events. The first reason for this finding is the dangerous position he had to put himself into in order to remove the fuel filter, which seems unlikely. The fuel filter is behind the rear wheels on the driver’s side of the broken bus.[109] This means that Vaisima Liu was not in the path of the rear wheels if the broken bus commenced to roll. He could not get run over by the rear wheels as such. So, while the risk of rolling while working on the bus was obviously troubling, it was ameliorated by the fact that a rolling bus would roll away from him downhill. In fact, he was only covered by the bus for about 1 to 2 metres or so of the chassis, as he was near the rear end of the bus.
[109]T53, L26
68 Consequently, it seems inconsistent that he was concerned by the rolling of the bus to such a degree that he imposed three controls – the handbrake, the driver in the seat and using the new bus as a stopper, yet had no qualms about getting under the broken bus with his head lying on the roadway when there was no protection from traffic striking the broken bus from the rear. All that existed was the presence of hazard lights to control the risk of a car striking from behind. In that position, Vaisima Liu was terribly exposed if a car approached from behind – especially given the broken down bus protruded into the left hand lane of the freeway, requiring traffic coming over the rise to leave the left lane and merge right. It would seem more prudent with two controls, being the handbrake and the driver in the seat, to leave the new bus in position to act as protection from the rear. This tells against Vaisima Liu’s version as being more probable.
69 The second factor which makes Vaisima Liu’s version less compatible with the overall series of events is that, on his version of events, when he was under the bus, Mr Ye and the three to five passengers disembark, climb into the new bus and depart. As Vaisima Liu was working at the rear of the broken bus, and it was noisy (on his version), it was said he did not notice this occurring. It must be recorded that on Mr Ye’s evidence, he thought the road was not noisy at that time.[110]
[110]T212, L22-24; T213 L1-15
70 In my estimation, it is unlikely that the disembarkation of Mr Ye and the three to five passengers would have gone unnoticed by Vaisima Liu, especially as this was foot traffic on the bus and Vaisima Liu was working on the chassis at the time.
71 Thirdly and importantly is the fact that the handbrake on the broken bus was not engaged. This is shown in the photographs and as a matter of logic must be the reason the broken bus could roll. The position of the handbrake supposes that Mr Ye directly disobeyed two instructions given to him: to put the handbrake on and to stay in the driver’s seat. While there is a rational explanation for Mr Ye departing with the passengers – namely to keep on the tour schedule – there is no rational explanation for not putting the handbrake on or for then taking it off. This supports my finding that such instruction was not given and not in the circumstances as alleged by Vaisima Liu.
72 More broadly, the defendant suggested the photographs showed two toolboxes, a bottle jack and a fuel tank on the steps of the bus. The defendant suggested it was evidence that Vaisima Liu worked on the bus after Mr Ye had left in the new bus.[111] I am unable to accept this argument given no evidence was called from police to state the photographs were of the bus in an untouched state after the accident and secondly, it seems highly unlikely these items remained in situ when the bus struck a concrete barrier at speed after rolling at least 800 metres and then another barrier to halt it abruptly. These blows are most likely to have disturbed these items.
[111]T245, L14
73 Against this, it was suggested that in fact John Li (through Mr Ye) knew that Vaisima Liu was under the bus when he left the scene. This allegation came from the fact that at answer to interrogatory [10],[112] the defendant had answered “no” to an interrogatory which asked whether it was aware Vaisima Liu had gone under the broken bus. Clearly, when the case was opened and then when Mr Ye gave evidence, it was the defendant’s case that Vaisima Liu had gone under “quickly” once before, asking Mr Ye and the passengers to push. This discrepancy does not go to tarnish the evidence of John Li or Mr Ye to the extent that while the answer to interrogatory is clearly incorrect, it is about a secondary matter in that the incident occurred after Mr Ye had left.
[112]PCB 27
74 This finding necessarily leads to the conclusion that I am not satisfied, on the balance of probabilities, of the plaintiff’s version of events. I note that it is for the plaintiff to establish his version of events to the relevant standard. Specifically, and although the matter is not free from doubt, I cannot be satisfied on the balance of probabilities that Vaisima Liu instructed Mr Ye to sit in the driver’s seat with the handbrake on while he went underneath the broken bus. I also cannot be satisfied that Vaisima Liu took the action alleged, that of moving the new bus to the front of the broken bus to act as a stopper.
75 Given the matter is one decided almost solely on the testimonial evidence, regard must also be had to the alternative version put by the defendant. While this is not to reverse the onus of proof as Leeming JA points out, the overall probabilities as to the likely occurrences must be assessed in determining liability.[113]
[113]Nominal Defendant v Smith [2015] 73 MVR 257, Leeming JA at [77] and [91]
76 On Mr Ye’s version, after Vaisima Liu was in the driver’s seat trying to start the broken bus to no avail, he instructed Mr Ye and the passengers to push. This they did for 40-50 metres. During this time, the handbrake must have been off as it allowed the bus to roll forward. When the broken bus failed to start, Vaisima Liu brought it to a stop. At that point, Mr Ye departed the scene with the acknowledgment of Vaisima Liu. What is then likely, I find, is that Vaisima Liu went under the broken bus in a situation where the handbrake was off and with no chocks. This is consistent with the dangerous method he chose to try and remove the fuel filter – with no protection from cars from the rear. It must be remembered he was an extremely diligent, hardworking man widely praised for his work ethic, and I mean no disrespect to him, but in his desire to get the broken bus going, he likely took these actions which led to this series of unfortunate events.
Did John Li admit fault to Nika Liu?
77 I turn now to the last matter said to influence liability : that of the conversation between Mrs Liu and John Li on the night of 19 March 2016. Mrs Liu alleges that on that night, John Li approached her with a document “… to put Sima at fault of the accident”. [114] She went on to state that John Li told her as to the occurrence of the accident:
“after I had said no to signing the document I asked John Li what had happened and he told me that the driver was sitting behind the wheel holding the brake and then he had left the bus with the passengers and the accident had occurred.” [115]
[114]T111, L28
[115]T112, L6
78 The plaintiff advanced this as evidence that John Li was aware that Mr Ye had done the wrong thing and the only way such awareness could come about was through a conversation between John Li and Mr Ye that afternoon.
79 John Li denied both asking Mrs Liu to sign a document or recounting the circumstances of the accident in terms which put blame on Mr Ye.
80 However, in cross-examination, Mrs Liu made clear that, “I didn’t say that he left with my husband under the bus.”[116] With the evidence in that state, it sits comfortably with my findings above. It is also consistent with the fact that in the completed WorkCover forms,[117] she did not nominate the driver as blameworthy.[118] Of course, she was under tremendous stress at that time and only limited support can be drawn from this for the overall argument put by the defendant. However, her evidence after cross-examination leads me to conclude that the limited information she received from John Li was not such as to implicate Mr Ye in wrongdoing. It follows that I do not accept her evidence as to an alleged waiver form being proffered to her by John Li on the night for signing or as to the content of her alleged conversation with Mr John Li that night implicating Mr Ye in wrongdoing.
[116]T124, L5
[117]T124, L28
[118]DCB 20, 23
81 In all the circumstances, I find for the defendant and will hear the parties as to orders.
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