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Driver’s lack of credibility sinks claim

Judge found the driver’s evidence inconsistent, implausible and unreliable.
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Driver’s lack of credibility sinks claim

Driver’s lack of credibility sinks claim

1 April 2021

By Gaby Grammeno

A bus driver’s attempt to claim damages for a back injury failed in court, after the judge found the driver’s evidence inconsistent, implausible and unreliable.

The driver was suing his employer, alleging the driver’s seat was defective and that it had collapsed when the bus went over a depression in the road, causing his injury.

The incident with the ‘defective’ driver’s seat

The driver was employed by a Melbourne bus operator. In July 2015, he entered the bus to begin his evening shift. He said the driver’s seat suspension was not working properly, as it was missing two buttons.

He called his employer’s operations control centre to report this defect, but received no response. With a passenger already onboard and a schedule to keep, he drove off.

Later that night, the bus went over a depression in the road, causing it to jump. The driver claimed this caused the driver’s seat to collapse to the floor with force, causing serious injury to his back.

He said he called the control centre but again received no response. Nevertheless, he drove on to the end of his shift just before midnight. On returning to the depot he completed an injury form then went home. He has not worked since.

He sued the bus operator, alleging it was negligent because of the defective seat. He also claimed he had not been properly trained in the systems for radio communications and defect reporting.

The case was heard in the County Court of Victoria.

Evasive, rambling and argumentative

In court, things did not go well for the driver.

The court first needed to establish whether the driver’s seat in that bus was defective.

The employer required all safety defects to be reported. Drivers were instructed to carry out a pre-departure check to ensure, among other things, that the bus had a working two-way radio. Where a defect was identified, drivers had to report it to maintenance or the depot, and file a Defective Vehicle Report (DVR).

The driver’s evidence made it clear he was well versed in identifying seat defects, the process for recording them via a DVR and using the two-way radio system. He had filed many DVRs, including three for defective seats.

The driver claimed that on the night of the incident, the defective seat suspension control made the seat keep bouncing and bottoming out on uneven surfaces along the roadway. This would have been dangerous, as it would have meant his view in the front, side and rear mirrors was constantly changing.

However, on the DVR he filled out after the incident he’d made no mention of the bouncing seat or of his two failed attempts to get through on the radio.

Even more significantly, none of the other nine drivers who’d driven the bus after that evening were concerned enough to write a DVR. This cast strong doubts on the driver’s claim.

The court also examined the driver’s complaint that he had not been properly trained in the use of the radio system and defective vehicle reporting system.

When the communications procedure changed in 2015, the drivers were instructed in the new procedure at toolbox talks where they were given a handout with a picture of the new radio console and instructions in its use.

After each toolbox talk, the drivers signed a sheet recording their attendance. In addition, an information sheet on the new system was pinned on the noticeboard and a card with instructions for use fixed to the inside of the bus.

The employer presented evidence that the driver had signed a sheet showing his attendance at a toolbox talk on the new procedure, but the driver denied that the signature was his. The judge, however, was persuaded the employer’s training record was genuine.

The judge said there were serious questions about the driver’s credibility. He found the driver’s evidence to be ‘littered with inconsistency’ and unreliable overall.

He said the driver was an ‘evasive witness’, commenting that he’d had to ask him ‘on numerous occasions to stop rambling and providing argumentative answers’ and direct him to answer the question.

The judge found that the driver could not prove on the balance of probabilities that the driver’s seat in the bus was defective. He was also satisfied the driver had been adequately trained and instructed in the communications system.

The court dismissed the driver’s claim.

The bottom line: For a damages claim to succeed, the evidence must support it and the person making the claim must be credible.

Read the judgment

Lazovski v Transdev Melbourne Pty Ltd [2021] VCC 192 (16 March 2021)

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