Chang v McTye

[2024] NSWDC 218

District Court

New South Wales

Medium Neutral Citation:

Chang v McTye [2024] NSWDC 218

Hearing dates:

6 June 2024

Date of orders:

14 June 2024

Decision date:

14 June 2024

Jurisdiction:

Civil

Before:

Russell SC DCJ

Decision:

(1)   The separate question posed in the Notice of Motion filed on 19 March 2024 is answered as follows:

The plaintiff’s damages are to be assessed under Chapter 5 of the Motor Accidents Compensation Act 1999 (NSW) pursuant to the operation of s 121 Transport Administration Act1988 (NSW), and not under Part 4 of the Motor Accident Injuries Act 2017 (NSW).

(2)   Order the defendant to pay the plaintiff’s costs of and incidental to the Notice of Motion filed on 19 March 2024.

Catchwords:

CIVIL PROCEDURE – determination of a separate question – applicable statutory regime for assessment of damages

STATUTORY INTERPRETATION – hodge-podge of legislation and amendments – no detectable rational reason explains the difference in categories of claimants – any legislative purpose impossible to determine with any degree of reliability – contextual purpose construction is not possible – linguistic construction preferable

MOTOR ACCIDENT LEGISLATION – public transport accident – which legislation governs assessment of damages

Legislation Cited:

Civil Liability Act 2002 (NSW)

Interpretation Act 1987 (NSW), ss 34(2)(a), 35(2)

Motor Accidents Compensation Act 1999 (NSW), Chapter 5, ss 3, 3AA, 122, 123, Sch 3.14, Sch 4.15

Motor Accident Injuries Act 2017 (NSW), ss 1.8, 2.3, 4.1, 4.2, Sch 5.9, Sch 5.13

Motor Accidents Act 1988 (NSW), ss 68, 69

Motor Vehicles (Third Party Insurance) Act 1942 (NSW), ss 4, 5(1), 28(2)(b)

Motor Vehicles (Third Party Insurance) Amendment Act 1984 (NSW), ss 35B, 35C, 35D, Sch 3

Transport Accidents Compensation Act 1987 (NSW), ss 3, 4

Transport Act 1930 (NSW)

Transport Administration Act 1988 (NSW), s 121

Workers Compensation Act 1987 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Cases Cited:

Landon v Ferguson [2005] NSWCA 395; (2005) 64 NSWLR 131

State Of New South Wales v Ball [2007] NSWCA 71; (2007) 69 NSWLR 463

Category:

Procedural rulings

Parties:

Ching Yu Chang BHT Leo Alexander Birch (Plaintiff)
Iain McTye (Defendant)

Representation:

Counsel:
B Kelleher SC / B Jones (Plaintiff)
J Catsanos SC / G Pecelj (Defendant)

Solicitors:
Stacks Goudkamp (Plaintiff)
McInnes Wilson Lawyers (Defendant)

File Number(s):

2022/244564

Judgment

Introduction

1. This judgment concerns the identification of the statutory regime which applies to the assessment of damages when a person is injured by a public transport bus.

The Amended Statement of Claim

2. The plaintiff Ching Yu Chang is an infant who sues by his tutor Leo Alexander Birch. By an Amended Statement of Claim filed on 15 February 2024 the plaintiff alleges as follows:

1. At about 5.30pm on 21 October 2019 the plaintiff was an infant seated on the back of a bicycle being ridden by his mother on Liverpool Street, Sydney.

2. The defendant was the driver of a Mercedes State Transport Authority bus travelling on Liverpool Street, Sydney.

3. The bus collided with the bicycle, causing severe injury to the plaintiff’s right foot.

3. The Amended Statement of Claim pleads that the collision was caused by the negligent driving of the defendant. In the alternative, the plaintiff pleads that if there was no negligence on the part of the defendant, then the accident constituted a “blameless motor vehicle accident” within the scope of the Motor Accident Injuries Act 2017 (NSW) (the MAI Act).

4. The plaintiff pleads that his damages are to be assessed pursuant to the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act) rather than under the MAI Act. In this regard the Amended Statement of Claim pleads as follows:

1. Members of the public were being transported in the bus.

2. The bus was a form of public transport.

3. The collision was caused by or arose out of the use of the bus.

4. The collision was a public transport accident as defined in s 121 of the Transport Administration Act 1988 (NSW) (TA Act).

5. Thus Ch 5 of the MAC Act applies in respect of the award of damages to the plaintiff for the injuries he sustained in the collision.

The Defence

5. A Defence to the Amended Statement of Claim was filed on 18 March 2024. The defendant admits that there was a collision between the bicycle and the bus and admits that the plaintiff suffered a severe injury to his right foot. The defendant also admits that the driver was negligent. Because negligence is admitted, there is no scope for the operation of the “blameless motor vehicle accident” provisions.

6. The defendant admits that members of the public were being transported on the bus and that the bus was a form of public transport. The defendant does not admit that the collision was caused by or arose out of the use of the bus. The defendant denies that the collision was a public transport accident as defined in s 121 of the TA Act. The defendant says that damages are not governed by Ch 5 of the MAC Act but are to be assessed according to the MAI Act.

Separate Question to be Determined

7. The plaintiff filed a Notice of Motion filed on 19 March 2024 seeking the determination of a separate question pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

8. The separate question to be determined is:

“Are the plaintiff’s damages to be assessed under Chapter 5 of the Motor Accidents Compensation Act 1999 pursuant to the operation of s 121 Transport Administration Act 1988 or Part 4 of the Motor Accidents Injuries Act 2017?”

9. The Notice of Motion also seeks an order for the defendant to pay the plaintiff’s costs of and incidental to the Notice of Motion.

10. The parties agreed upon the following facts (PX 1) to assist in the separate determination:

1. The plaintiff is a minor having been born on 7 December 2014.

2. At all material times the defendant was the driver of a Mercedes State Transit Authority bus (the bus) bearing New South Wales registration number 1907ST travelling westbound on Liverpool Street, Sydney, a public street in the State of New South Wales.

3. The bus was owned by Transport for NSW.

4. The bus was operated by Transit Systems West Pty Ltd.

5. The defendant was an employee of Transit Systems West Services Pty Ltd and was driving the bus in his capacity as an employee of Transit Systems West Services Pty Ltd.

6. At all material times the plaintiff was seated on the back of a bicycle (the bicycle) being ridden by his mother on Liverpool Street, Sydney.

7. At or about 5.30pm on 21 October 2019 the bus collided (the collision) with the bicycle, causing severe injury to the plaintiff’s right foot.

8. The said collision was caused by the negligent driving of the defendant.

9. Members of the public were being transported as passengers in the bus.

10. The bus was a form a public transport.

11. At all material times, the bus was subject to coverage under a third party policy of insurance in accordance with s 2.3 of the MAI Act.

11. Damages assessed under Ch 5 of the MAC Act would be assessed on a different basis to damages assessed under the MAI Act. I find that it is appropriate to separately determine the question posed in the Notice of Motion. This will enable the parties to prepare appropriate evidence and it will also facilitate any future settlement discussions. There should be a consequent saving in costs to both parties. The facts are agreed and expressed in clear terms. Both parties agreed that this court should determine the separate question.

History of Damages for Public Transport Accidents

12. Until 1984 in NSW, damages for any type of transport accident were assessed at common law. This was so whether the victim was injured arising out of the use of a private motor vehicle, or any form of public transport, be it a bus, a train or a ferry.

Transport Act 1930

13. The Transport Act 1930 (NSW) included a provision requiring the owner of any “motor omnibus” to insure, during the currency of the registration certification, against all sums for which they may become liable by way of damages in the case of injury to persons or property. No motor omnibus was to be registered under the Transport Act 1930 for the carriage of passengers unless and until the owner had obtained a policy of insurance insuring against liability to the extent of at least 5,000 pounds in respect of the motor omnibus.

Motor Vehicles (Third Party Insurance) Act 1942

14. Compulsory insurance for motor vehicles (apart from motor omnibuses) was not introduced in NSW until the Motor Vehicles (Third Party Insurance) Act 1942 (NSW) (the 1942 Act). This was an Act requiring owners and drivers of motor vehicles to be insured against liability in respect of the death of or bodily injury to persons caused by or arising out of the use of motor vehicles. Prior to the 1942 Act, any person injured by a motor vehicle (apart from a bus after 1930) was left to recover their damages against the personal assets of the defendant sued. This meant that some injured plaintiffs established a claim in negligence for damages but were unable to recover the fruits of their judgment.

15. Section 5(1) of the 1942 Act contained the following definition:

“‘Motor vehicle’ means any motor car, motor carriage, motor cycle or any other vehicle propelled wholly or partly by any volatile spirit, steam, gas, oil or electricity, and by any means other than human or animal power, and includes a trailer, but does not include any vehicle used on a railway or a tramway.”

16. Thus, buses and taxis had to take out a policy of compulsory third party (CTP) insurance under the 1942 Act. The need for buses to have CTP insurance was confirmed by s 28(2)(b) of the 1942 Act. Damages for the victim of an accident involving a motor vehicle (including a bus) were still assessed at common law. Successful claimants were paid by the CTP insurer.

17. Damages for other public transport accidents, such as accidents occurring on a train, tram or a ferry, were also assessed at common law.

Motor Vehicles (Third Party Insurance) Amendment Act 1984

18. The first restriction on common law damages for transport accidents was brought in by the Motor Vehicles (Third Party Insurance) Amendment Act 1984 (NSW) (the 1984 Act). Schedule 3 to that Act contained amendments to the 1942 Act relating to the awarding of damages. The changes were as follows:

1. Discount rate applicable to certain awards of damages – s 35B.

2. Maximum amount of damages for provision of certain services – s 35C.

3. Payment of interest – s 35D.

19. These restrictions on common law damages applied in relation to an accident involving any vehicle covered by the CTP insurance scheme. There was no change to the definition of “motor vehicle” and thus public transport in the form of buses or taxis had to be covered by CTP insurance, and any victim of an accident involving a bus or a taxi had their damages governed by the 1984 Act.

20. Persons injured on a train, a tram, a ferry, or any other form of public transport, were entitled to common law damages unrestricted by any statute.

Transport Accidents Compensation Act 1987

21. In 1987 a scheme known as TransCover was introduced by the Transport Accidents Compensation Act 1987 (NSW) (the 1987 Act). The preamble to the 1987 Act stated as follows:

“An Act to enable the provision of benefits to a person who suffers bodily injury which is caused by or arises out of a transport accident and to the dependants of a person whose death is caused by or arises out of a transport accident.”

22. The 1987 Act provided statutory benefits for pain and suffering, medical expenses, and capped weekly economic loss benefits. It was a fault-based scheme. A “motor vehicle” was defined in s 3 of the 1987 Act in the same terms as it was defined under the 1942 Act.

23. Section 4 of the 1987 Act was headed “Transport accidents” and was in the following terms:

“4. (1) In this Act, a reference to a transport accident is a reference to an accident caused by or arising out of the use of-

(a)   a motor vehicle-

(i) which is registered, or required to be registered, under the Motor Traffic Act 1909, the Transport Act 1920 or the Recreation Vehicles Act 1983; or

(ii) registered in New South Wales under the Interstate Road Transport Act 1985 of the Commonwealth,

not being a motor vehicle engaged, at the time of the accident. in a sporting activity conducted otherwise than on a public street on which, at the time the activity is conducted, other motor vehicles, not so engaged, were being driven;

(b)   a motor vehicle which is not registered as referred to in paragraph (a)   (whether or not it is required to be so registered) on a public street in New South Wales, not being a motor vehicle engaged, at the time of the accident. in a sporting activity conducted otherwise than on a public street on which. at the time the activity is conducted, other motor vehicles, not so engaged, were being driven;

(c)   a motor vehicle on a public street in New South Wales the identity of which motor vehicle cannot, after due inquiry and search, be established;

(d)   any form of transportation or conveyance operated by the Urban Transit Authority or the State Rail Authority; or

(e)   a water ferry or water taxi or any other form of public transport in New South Wales, not including air transport,

and includes a reference to an accident of a class or description of accidents prescribed to be a transport accident for the purposes of this subsection, but does not include a reference to an accident of a class or description of accidents prescribed not to be a transport accident for the purposes of this subsection.

(2) in this Act, a reference to a transport accident, in relation to a person, is a reference to the transport accident which caused or out of which arose the bodily injury suffered by the person.”

24. For the first time, by virtue of s 4(1)(d) and (e) of the 1987 Act, damages for a person injured in a rail or ferry accident were limited. It was the same limitation which applied to any person injured in an accident caused by or arising out of the use of a motor vehicle, which of course included a bus. Further, government buses were operated by the Urban Transit Authority, and thus damages for a government bus accident were also restricted, by virtue of s 4(1)(d) of the 1987 Act.

25. It is to be noted that between 1984 and 1987 persons injured in a bus accident were entitled to modified common law damages, whereas persons injured in a train, tram or ferry accident were entitled to unrestricted common law damages. The 1987 Act put all victims on the same footing, so that any person injured in a “transport accident” was only entitled to the restricted damages permitted by the 1987 Act.

Motor Accidents Act 1988

26. The TransCover scheme was short-lived. It was replaced by the scheme introduced by the Motor Accidents Act 1988 (NSW) (the 1988 Act). That Act also contained restrictions on various heads of damage.

27. Part 6 of the 1988 Act dealt with “Awarding of Damages”.

28. Part 6 of the 1988 Act commenced with s 68, which contained the following definitions:

“motor accident includes a transport accident referred to in s 69(2).

motor vehicle includes (except in s 69) a form of transportation or conveyance included, immediately before the date of commencement of Part 2, within s 4 of the Transport Accidents Compensation Act 1987.”

29. Section 69 of the 1988 Act provided as follows:

“69. (1) This Part applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.

(2) This Part also applies to and in respect of an award of damages which relates to the death of or bodily injury to a person caused by or arising out of a transport accident (within the meaning, immediately before the date of commencement of Part 2, of the Transport Accidents Compensation Act 1987), not being an award of damages to which subsection (1) applies.”

30. The 1987 Act dealt with those injured in an accident arising out of the use of a motor vehicle, or arising out of other means of transport, by lumping all such events into the category of a “transport accident”. Section 69 of the 1988 Act achieved the same result in a different way.

31. Section 69(1) provided that the provisions in Part 6 of the 1988 Act applied in respect of an award of damages relating to the death or injury of a person arising from a motor vehicle accident. All such motor vehicles had to have CTP insurance. This included buses, and in particular, government buses.

32. Section 69(2) of the 1988 Act applied the damages restrictions in Part 6 to all non-motor vehicle accidents. It did this by initially saying that Part 6 “also applies to” a claim arising out of a transport accident, when such accident was not an accident arising out of the use of a motor vehicle ie “not being an award of damages to which sub-section (1) applies”.

33. Since an injury caused in an accident arising out of the use or operation of a bus was dealt with by s 69(1) of the 1988 Act, the effect of s 69(2) was to extend the Part 6 damages provisions to all other transport accidents which were not accidents caused by the fault of the owner or driver of a motor vehicle in the use or operation of a vehicle. The obvious examples are train and ferry accidents.

34. Thus s 69 of the 1988 Act achieved the same effect as the 1987 Act – whether a victim was injured in a motor vehicle accident or in a non-motor vehicle accident (providing it was a transport accident as defined) the same damages restrictions applied.

Motor Accidents Compensation Act 1999

35. The 1988 Act was replaced by the MAC Act. Chapter 5 of the MAC Act dealt with “Award of damages”.

36. Within Ch 5, s 122 of the MAC Act provided as follows:

“122    Damages in respect of motor accidents (cf s 69(1) MAA)

(1)   This Chapter applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.

(2)   This Chapter does not apply to or in respect of a motor accident occurring before the commencement of this Act.

Note. See Motor Accidents Act 1988 for motor accidents occurring before the commencement of this Act. See section 121 of the Transport Administration Act 1988 for the application of this Chapter to railway, ferry and other public transport accidents.”

37. Section 123 of the MAC Act provided as follows:

“123   General regulation of court awards (cf s 70 MAA)

A court cannot award damages to a person in respect of a motor accident contrary to this Chapter.”

38. Section 3 contained a definition of “motor vehicle” as follows:

“motor vehicle means a motor vehicle or trailer within the meaning of the Traffic Act 1909

Note. The Traffic Act 1909 defines a motor vehicle to mean a vehicle (within the meaning of that Act) that is built to be propelled by a motor that forms part of the vehicle. That Act defines vehicle to mean any description of vehicle on wheels (including a light rail vehicle) but not including other vehicles used on railways or tramways.”

39. Section 3 of the MAC Act defined “motor accident” to mean “an accident or incident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the motor vehicle which causes the death of or injury to a person”.

40. Having regard to these definitions, a bus is clearly a motor vehicle. Other forms of public transport, such as a train, a tram or a ferry, are not motor vehicles. An accident caused by the fault of the owner or driver of a bus is thus a motor accident.

41. Schedule 3.14 of the MAC Act amended s 69 of the 1988 Act by inserting at the beginning of the section the following:

“(1A)   This Part does not apply to or in respect of motor accidents occurring after the commencement of the Motor Accidents Compensation Act 1999.”

42. The 1988 Act continued to apply to accidents which occurred before the commencement of the MAC Act.

42. The amendment of s 69 of the 1988 Act meant that the damages provisions in the 1988 Act did not apply to regulate damages for accidents after the commencement of the MAC Act, whether such accidents were motor vehicle accidents (governed until then by s 69(1) of the 1988 Act) or transport accidents which were not motor vehicle accidents (governed until then by s 69(2) of the 1988 Act).

43. Thus, by s 122 of the MAC Act, any motor accident occurring after the commencement of the MAC Act was governed by Part 6 of the MAC Act, which regulated the award of damages. It was thus necessary for the MAC Act to spell out whether or not there was any restriction on the award of damages for a non-motor vehicle transport accident. The MAC Act did this, not by including any such restriction within the MAC Act itself, but by amending the TA Act to insert a new s 121. This was referred to in the “Note” to s 122 of the MAC Act, which has been reproduced above.

Amendment of the Transport Administration Act 1988

45. The original form of the TA Act ended with s 120. Schedule 4.15 of the MAC Act added a completely new Pt 9 Div 5 into the TA Act. In the form introduced by the MAC Act it provided:

“Division 5 Miscellaneous provisions relating to common law damages for public transport accidents

121   Application of common law damages for motor accidents to railway and other public transport accidents (cf ss 68, 69 (2) MM)

(1) Chapter 5 (Award of damages) of the Motor Accidents Compensation Act 1999 applies to and in respect of an award of damages which relates to the death of or bodily injury to a person caused by or arising out of a public transport accident, not being an award of damages to which that Chapter applies.

(2)   Accordingly, in that Chapter:

(a)   a reference to a motor accident includes a reference to a public transport accident, and

(b)   a reference to a motor vehicle includes a reference to any vehicle or vessel used for public transport.

(3)   For the purposes of this section, a public transport accident is an accident caused by or arising out of the use of any form of public transport in New South Wales, including public transport in the form of a passenger railway or a water ferry or taxi, but not including:

(a)   public transport in the form of air transport,

(b)   public transport that is operated primarily for tourists, the purposes of recreation or historical interest or that is an amusement device, or

(c)   an accident for which, or to the extent to which, a person is liable otherwise than in the capacity of the owner or driver of, or other person in charge of, the vehicle or vessel used for public transport.

A public transport accident, however, includes an accident of a class declared by the regulations to be a public transport accident, but does not include an accident of a class declared by the regulations not to be a public transport accident.

(4)   This section does not apply to or in respect of public transport accidents occurring before the commencement of the Motor Accidents Compensation Act 1999.

Note. For damages that may be awarded for accidents occurring before that commencement, see Part 6 of the Motor Accidents Act 1988.”

46. It will be recalled that s 69 of the 1988 Act dealt with motor vehicle accidents in 69(1) and with non-motor vehicle transport accidents in s 69(2). By contrast, s 122 of the MAC Act dealt only with motor vehicle accidents. It was thus necessary to have a provision elsewhere to impose a restriction on damages for a non-motor vehicle transport accident. The MAC Act achieved such a restriction on damages by amending the TA Act to add s 121. Had that not been done, damages for a train or ferry accident would have reverted to unrestricted common law damages.

Motor Accidents Injuries Act 2017

47. The MAC Act scheme was replaced in 2017 by the MAI Act. Section 1.8 of the MAI Act provides that the MAC Act did not apply to or in respect of a motor accident occurring before the commencement of the MAI Act.

48. Part 4 of the MAI Act deals with “Award of damages”. Section 4.1 of the MAI Act provided as follows:

“Damages in respect of motor accidents (cf S 122 MACA)

(1)   This Part applies to and in respect of an award of damages that relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.

(2)   This Part applies to and in respect of:

(a)   the award of damages by a court, and

(b)   the assessment of the amount of damages by a claims assessor.

A reference in this Part to the award of damages includes a reference to any such assessment of the amount of damages.

Note. See Motor Accidents Act 1988 for motor accidents occurring before the commencement of the Motor Accidents Compensation Act 1999. See Motor Accidents Compensation Act 1999 for motor accidents occurring before the commencement of this Act.

See section 121 of the Transport Administration Act 1988 in relation to the application of Chapter 5 of the Motor Accidents Compensation Act 1999 or this Act to railway, ferry and other public transport accidents.”

49. Section 4.2(1) of the MAI Act provided that “damages cannot be awarded to a person in respect of a motor accident contrary to this Part”.

50. Part 3 of the MAI Act provides motor accident victims with a range of statutory benefits, including statutory benefits for at-fault victims. This is very different to the benefits available under the MAC Act. Further differences are as follows:

1. Damages available under the MAI Act are limited to cases not involving threshold injuries.

2. Damages recoverable under the MAI Act are only available for non-economic loss and economic loss.

3. There is no obligation to repay statutory benefits paid in respect of treatment expenses.

4. Rights to statutory benefits for treatment expenses continue under the MAI Act, despite recovery of damages.

51. Schedule 5.9(1) inserted a new s 3AA into the MAC Act. Section 3AA is as follows:

“3AA Motor Accident Injuries Act 2017

(1) Subject to subsection (2), this Act does not apply to or in respect of a motor accident occurring after the commencement of the Motor Accident Injuries Act 2017.

(2) Chapter 5 (Award of damages) of this Act applies to an award of damages as provided for by section 121 (Application of common law damages for motor accidents to railway and other public transport accidents) of the Transport Administration Act 1988 whether or not the accident concerned occurred before the commencement of the Motor Accident Injuries Act 2017.”

Further Amendment of the Transport Administration Act 1988

52. Schedule 5.13 to the MAI Act made amendments to the TA Act. Schedule 5.13(1) added the following words to the end of s 121(1) of the TA Act:

“That Chapter so applies even though the public transport accident occurred after the commencement of the Motor Accident Injuries Act 2017.”

53. Schedule 5.13(2) of the MAI Act added a new subs 2A to s 121. The new subs 2A is as follows:

“The regulations may:

(a)   apply the provisions of the Motor Accident Injuries Act 2017 (with or without modifications) relating to the award of damages or statutory benefits to public transport accidents, and

(b)   exclude the application of subs (1) in connection with those public transport accidents.”

54. So amended, the post-2017 version of s 121 of the TA Act provides:

“Application of common law damages for motor accidents to railway and other public transport accidents (cf ss 68, 69(2) MAA)

(1) Chapter 5 (Award of damages) of the Motor Accidents Compensation Act 1999 applies to and in respect of an award of damages which relates to the death of or bodily injury to a person caused by or arising out of a public transport accident, not being an award of damages to which that Chapter applies. That Chapter so applies even though the public transport accident occurred after the commencement of the Motor Accident Injuries Act 2017.

(2) Accordingly, in that Chapter—

(a) a reference to a motor accident includes a reference to a public transport accident, and

(b) a reference to a motor vehicle includes a reference to any vehicle or vessel used for public transport.

(2A) The regulations may—

(a) apply provisions of the Motor Accident Injuries Act 2017 (with or without modifications) relating to the award of damages or statutory benefits to public transport accidents, and

(b) exclude the application of subsection (1) in connection with those public transport accidents.

(3) For the purposes of this section, a public transport accident is an accident caused by or arising out of the use of any form of public transport in New South Wales, including public transport in the form of a passenger railway or a water ferry or taxi, but not including—

(a) public transport in the form of air transport, or

(b) public transport that is operated primarily for tourists, the purposes of recreation or historical interest or that is an amusement device, or

(c) an accident for which, or to the extent to which, a person is liable otherwise than in the capacity of the owner or driver of, or other person in charge of, the vehicle or vessel used for public transport.

A public transport accident, however, includes an accident of a class declared by the regulations to be a public transport accident, but does not include an accident of a class declared by the regulations not to be a public transport accident.

(4) This section does not apply to or in respect of public transport accidents occurring before the commencement of the Motor Accidents Compensation Act 1999.

Note—

For damages that may be awarded for accidents occurring before that commencement, see Part 6 of the Motor Accidents Act 1988.”

55. In relation to s 121(2A) of the TA Act, there are no relevant regulations.

Submissions for the Plaintiff

56. The contest between the parties is this:

1. The plaintiff submits that damages are governed by Ch 5 of the MAC Act.

2. The defendant submits that the MAC Act is inapplicable and that damages are governed by the MAI Act.

57. Senior Counsel for the plaintiff put forward Written Submissions (MFI 1) and made oral submissions. His submissions can be summarised as follows:

1. Section 3AA of the MAC Act, introduced by Sch 5 of the MAI Act, “clearly preserves the operation of the MACA for motor vehicle accidents occurring after the commencement of the MAIA otherwise falling within the scope of s 121”.

2. That conclusion is confirmed by the Note to s 4.1 of the MAI Act which refers to s 121 of the TA Act “in relation to the application of Chapter 5 of the Motor Accidents Compensation Act 1999 or this Act to railway, ferry or other public transport accidents”.

3. This Note to s 4.1 of the MAI Act forms part of the Act – see s 35(2) of the Interpretation Act 1987 (NSW). Even if not part of the Act, it can be considered – see s 34(2)(a) of the Interpretation Act.

4. If the plaintiff can bring himself within the operation of s 121 of the TA Act, then this is the provision which governs the assessment of his damages.

5. The proper construction of a legislative provision should be conducted by reference to consideration of text, context and purpose having regard to the mischief to which it was directed. That context must be understood in a broad sense and considered in the first instance and not at some later stage when ambiguity arises. A construction which promotes the purpose or object underlying the provision is to be preferred to one that would not. The task of the court in applying accepted principles of statutory construction is to discern what Parliament is taken to have intended.

6. The question of the interpretation of the section and the scope of its cover was determined by the Court of Appeal in Landon v Ferguson [2005] NSWCA 395; (2005) 64 NSWLR 131. This decision is analysed separately below.

7. The word “accident”, which occurs in the phrase “public transport accident” is not defined by the TA Act. It was submitted that on any view of the term “accident”, what occurred in these proceedings was plainly an accident caused by the negligent driving of the defendant, a matter which was admitted. Thus, it was submitted, on the agreed facts the subject accident fell squarely within the operation of s 121.

8. It is not inconsistent or incongruous to permit damages to be assessed pursuant to the MAC Act, when the CTP policy covering the bus was issued pursuant to the MAI Act. Such a concern was inconsistent with the reasoning in Landon v Ferguson.

9. Justice Ipp in Landon v Ferguson recognised at [17] that the law relating to workers compensation and common law damages was a “hodge-podge” and that a consistent thread of principle could not be found. There was no detectable rational reason to explain the difference in categories of cases governed by a particular statute.

10. Justice Ipp in Landon v Ferguson described the search for distinctions as difficult and sometimes illogical, saying that the safest course was to apply a linguistic construction – at [18]. His Honour found that it was not possible to reliably discern a broader contextual construction.

Submissions for the Defendant

58. Senior Counsel for the defendant relied upon Written Submissions (MFI 2) and made oral submissions. The written submissions accepted that the plaintiff’s injuries were caused by or arose out of a public transport accident for the purposes of s 121 of the TA Act.

59. The submissions for the defendant emphasised the phrase “not being an award of damages to which that Chapter applies” which occurs in s 121(1) of the TA Act. That phrase was in s 121 both before and after the passing of the MAI Act. The effect of the phrase when a claim was made before the passing of the MAI Act is referred to above.

60. Senior Counsel for the defendant pointed to s 122 of the MAC Act and submitted that “it is clear then from s 122 that in order for Ch 5 MACA to apply, the accident must involve a motor vehicle”. It was submitted that Ch 5 of the MAC Act did not in its terms apply to public transport accidents involving transport by train, tram or ferry, but s 121(1) of the TA Act operated to apply Ch 5 of the MAC Act to the assessment of damages “in that limited category of public transport accident which does not fall within the terms of s 122 MACA”. It was thus submitted that all other public transport accidents, namely those involving motor vehicles as defined by the legislation, are outside the terms of s 121(1) of the TA Act and are dealt with “in the normal way in accordance with the prevailing motor accidents legislation governing those accidents”.

61. It was submitted that this achieved “legislative symmetry” in that all victims of any motor vehicle accident were dealt with in the same way in accordance with the legislation in place at the time of the accident. It was submitted that the Note to s 122 of the MAC Act contemplated that train and ferry accidents fell into a different category of public transport accident.

62. Further, prior to the commencement of the MAI Act on 1 December 2017, there was no need for the TA Act to provide for the application of the MAC Act to the assessment of damages for motor accidents, because the MAC Act obviously applied to such accidents. It was submitted that the wording added to s 121(1) of the TA Act after the enactment of the MAI Act (ie that Chapter so applies even though the public transport accident occurred after the commencement of the Motor Accident Injuries Act 2017) confirmed that Ch 5 of the MAC Act continued to apply to non-motor vehicle public transport accidents.

63. Senior Counsel for the defendant further submitted that if s 121(1) of the TA Act operated to require damages to be assessed under Ch 5 of the MAC Act for all public transport accidents occurring after the commencement of the MAI Act, then that would not affect the victim’s entitlement to statutory benefits under the MAI Act. The basis for this submission was that there was a clear delineation between statutory benefits available under the MAI Act, and damages which were an additional benefit conferred by the MAI Act.

64. The written submissions of Senior Counsel for the defendant concluded as follows:

“27. Clearly, the legislature never intended s 121(1) of the TA Act to be interpreted as suggested by the plaintiff.

28.   The authorities make it clear that in interpreting legislation it is important to achieve statutory coherence. As Bell P (as his Honour then was) observed, drawing on well-established principle in Will v Brighton [2020] NSWCA 355 at [47]:

‘In its approach to statutory construction, the Court should endeavour, so far as possible, to secure a coherent and harmonious operation of statutes dealing with a common or overlapping subject matter.’”

65. In oral submissions, Senior Counsel for the defendant submitted that the construction urged for the plaintiff would result in motor vehicle accident victims being dealt with differently, depending upon whether they were injured by a bus or a private car.

66. That is so, but it could equally be said that the defendant’s construction would mean that victims of a public transport accident would be dealt with differently depending upon whether they were injured by a bus or taxi, in contrast to being injured by a train, a tram or a ferry. Prior to the MAI Act, all victims of a public transport accident (whether it involve a bus, a train or a ferry) were assessed on the same basis, under the 1987 Act, then the 1988 Act, then the MAC Act.

Consideration

Landon v Ferguson

67. In this matter the claimant Ms Ferguson was a train guard who was injured when she fell between a moving train and the platform. Mr Landon was the train driver. At the time Ms Ferguson was working as a train guard, but the train was not carrying passengers as it was travelling away from a station where it had terminated. The issue in the case was whether the claim for damages was governed by the Workers Compensation Act 1987 (NSW) (WC Act) or by Ch 5 of the MAC Act, because the accident was a public transport accident as defined by s 121(3) of the TA Act.

68. The defendant had submitted before the District Court, and again before the Court of Appeal, that:

1. The phrase “public transport” in s 121 means that Ch 5 of the MAC Act only applies where injury to a person is caused by or arises out of that person’s use of the mode of transport for public transport. As Ms Ferguson was not a passenger, her claim failed.

2. In the alternative, the phrase “public transport” in s 121 means that Ch 5 only applies when at the time of the relevant injury, the means of transport giving rise to injury was being used for the purposes of public transport. On this argument Ms Ferguson was not injured when the train was being used to convey passengers and thus it was not being used for the purposes of public transport.

69. The leading judgment before the Court of Appeal was given by Justice Ipp. Justice Hodgson and Justice Santow agreed with the decision of Justice Ipp. Justice Ipp said at [17] and [18]:

“17 The statutes in this State relating to workers compensation and common law damages claims by workers against their employers and others can be described as a hodge-podge. No consistent thread of principle can be detected. For example, the caps on damages under the Workers Compensation Act are lower than the caps under the Motor Accidents Compensation Act. Some workers’ injuries occur in circumstances where the workers are required to bring their claims under the Workers Compensation Act. In other circumstances workers are required to bring their claims for damages under the Motor Accidents Compensation Act. In yet other circumstances neither Act applies, but other legislation governs the claims. No detectable rational reason explains the difference in categories. In some cases it is difficult to discern under which particular statute the case falls, and difficult and sometimes illogical distinctions have to be drawn.

18 The safest course, therefore, is to apply a linguistic construction, attempt to discern the ordinary natural meaning of the language used and then to apply that. It is not possible to discern, reliably, a broader contextual construction.”

70. Justice Ipp held at [19] that s 121 creates no distinction between various classes of persons who might suffer injury. The section governs any “award of damages” which relates to injury to a person caused by or arising out of a public transport accident. At [21] Justice Ipp held that according to the ordinary and natural meaning of s 121, that section applies to awards of damages where injuries are caused by or arise out of a public transport accident, and is not restricted to awards of damages to persons who are injured while being conveyed by public transport.

71. Justice Ipp considered the phrase “caused by or arising out of” which is used in the expression “an accident caused by or arising out of the use of any form of public transport”. He said that this phrase connotes more than an accident that occurs while members of the public are actually being conveyed by a form of public transport. His Honour said that it encompasses “things that are incidental to the conveyance of the public by any such means”.

72. The ultimate conclusion of Justice Ipp, expressed at [33] was that the driving of the passenger train from the point where the passengers’ journeys ended, to the railyards so that it could be cleaned, was incidental to its use as a form of public transport. Thus, the accident to Ms Ferguson was caused by or arose out of the use of the train as public transport.

73. While the decision in Landon v Ferguson, to determine the ordinary and natural meaning of s 121, required (at [29]) the section to be interpreted “according to broad and practical conceptions”, the actual ratio of the decision is not relevant to the present case. It is clear beyond argument, and it is conceded by the defendant in these proceedings, that the injury to the plaintiff was caused by or arose out of the use of public transport, being the bus.

74. Thus, while Landon v Ferguson is an authority to give one illustration of the broad and practical approach to construction of s 121, it is not a binding authority in relation to whether or not public transport accidents, and in particular bus accidents, occurring after the commencement of the MAI Act are events where damages are governed by Ch 5 of the MAC Act.

75. As recited above, Justice Ipp thought that the search for a contextual construction, in the “hodge-podge” of legislation under consideration, was pointless. His Honour theorised at [20] that if there was an accident between a ferry and a sailing boat, it could be argued that damages for the ferry skipper were governed by the WC Act, damages for the ferry passengers were governed by the TA Act, and damages for the sailor were governed by the Civil Liability Act 2002 (NSW) (CL Act). Thankfully his Honour did not extend this thought experiment to the injured parties being transported to hospital in an ambulance which was then involved in a collision with a taxi, or with wandering cattle.

76. Because the search for a contextual construction was futile, the safest course is to apply a linguistic construction.

77. After referring to Landon v Ferguson, Justice McColl in State of New South Wales v Ball [2007] NSWCA 71; (2007) 69 NSWLR 463 said at [10], that in trying to determine whether the WC Act or the CL Act had primacy in the determination of damages:

“It is impossible, in my view, in this context, to arrive at a contextual purpose. The different legislative regimes that have application to civil liability, generally, render any legislative purpose in regard to provisions such as 3B(1)(f) impossible to determine with any degree of reliability. A linguistic construction must be applied.”

Contextual Construction

78. The approach mandated by Landon v Ferguson and State of New South Walesv Ball means that one of the submissions for the defendant must be rejected straight away. This is the submission that one can discern from the legislative hodge-podge, that Parliament must have intended that damages for all accidents arising out of any kind of a motor vehicle accident should be the damages and benefits provided by the MAI Act.

79. While there is an available argument that all motor accidents claims should be treated the same, the counter argument is that between 1987 and 2017 a person injured on a bus recovered damages under the same regime as a person injured on a train or a ferry. The fact is that for all of the years between the invention of the motor vehicle and 1984, and for 30 years between 1987 and 2017, both categories of public transport accident claims were assessed on the same basis. So, runs the counter argument, why should that change now?

80. Neither approach, while tenable, is a reason to prefer one outcome over the other.

Linguistic Construction

81. The starting point for any linguistic analysis is the plaintiff’s submission that the definition of “public transport accident” in s 121(3) of the TA Act refers to an accident caused by or arising out of the use of any form of public transport. The accident in this case involved probably the most common form of public transport, being a government bus. As recited above, the written submissions of Senior Counsel for the defendant accepted that the plaintiff’s injuries were caused by or arose out of a public transport accident for the purposes of s 121 of the TA Act.

82. Further, s 121(3) speaks of “any form of public transport in New South Wales, including public transport in the form of a passenger railway or a water ferry or taxi” (emphasis added). This inclusive provision is an indication that other types of public transport, besides trains and water ferries or (water) taxis, are to be subject to Ch 5 of the MAC Act. This is an answer to the defendant’s submission that one can discern that Ch 5 is only to apply to trains and ferries and not to motor vehicles such as a bus.

83. Another linguistic indication in s 121(3) that “any form of public transport” means all forms of public transport, is that part of the subsection which excludes three categories of transport, being:

“(a) public transport in the form of air transport, or

(b) public transport that is operated primarily for tourists, the purposes of recreation or historical interest or that is an amusement device, or

(c) an accident for which, or to the extent to which, a person is liable otherwise than in the capacity of the owner or driver of, or other person in charge of, the vehicle or vessel used for public transport.”

84. It would have been a simple matter for Parliament to add buses (and vehicular taxis) to these exclusions, but it did not do so.

85. Section 121(2)(a) provides that in Ch 5 of the MAC Act, a reference to a motor accident “includes a reference to a public transport accident”. Section 121(3) defines public transport accident to mean an accident caused by or arising out of the use of any form of public transport. Thus an accident arising out of any form of public transport is deemed to be a motor accident, which means it is governed by Ch 5 of the MAC Act.

86. Section 121(2)(b) provides that a reference to a motor vehicle includes a reference to any vehicle or vessel used for public transport. Once again, Parliament could have said “excluding a bus” but it did not do so.

87. Senior Counsel for the plaintiff submitted that the insertion of subs 2A into s 121 of the TA Act was a linguistic indicator that all forms of public transport accident were to be subject to the damages provisions of the MAC Act and not the MAI Act, except those excluded by regulation. Subsection 2A provides that the regulations may apply the damages or statutory benefit provisions of the MAI Act to public transport accidents, and s 121(3) defines a “public transport accident” to mean an accident involving “any form of public transport”. If the MAI Act already applied to bus accidents then subs 2A could have been cast in much narrower terms.

88. It was common ground that there are no regulations made pursuant to s 121(2A).

89. The closing words of s 121(3) of the TA Act are another linguistic indication that there was no distinction between forms of public transport to be discerned in the words of the section, because Parliament gave itself power to add or subtract from the classes of public transport covered by s 121. Those words are:

“A public transport accident, however, includes an accident of a class declared by the regulations to be a public transport accident, but does not include an accident of a class declared by the regulations not to be a public transport accident.”

90. It was common ground that there were no regulations of that kind.

91. It is s 121(1) of the TA Act which makes provision for the application of Ch 5 of the MAC Act to public transport accidents. That Chapter applies even though the accident occurred after the commencement of the MAI Act, as is made plain by the last sentence of s 121(1) which states “[t]hat Chapter so applies even though the public transport accident occurred after the commencement of the Motor Accident Injuries Act 2017”.

92. Section 121(1) applies Ch 5 of the MAC Act to an award of damages arising from a public transport accident, “not being an award of damages to which that Chapter applies”. This phrase appeared in the original version of s 121 of the TA Act, which was added to the TA Act by the MAC Act itself. The phrase had work to do in that context. As previously recited, when the MAC Act was operative (because the accident happened after the commencement of the MAC Act and before the commencement of the MAI Act), all motor vehicle accidents (including those arising from buses) were covered by Ch 5 – see s 122(1) of the MAC Act. When s 121 of the TA Act said, in that context, that Ch 5 extended to public transport accidents “not being an award to which that Chapter applies”, it was saying in effect “Chapter 5 already applies to all motor vehicle accidents (including buses) but now it also applies to non-motor vehicle public transport accidents, such as rail or ferry accidents”.

93. It would be superficially attractive to take the approach that the phrase “not being an award of damages to which that Chapter applies” had the same meaning and effect in the post-2017 version of s 121 of the TA Act, however there are significant barriers to the adoption of the view.

94. Firstly, the phrase is cast in the present tense when it says, “not being an award of damages to which that Chapter applies”. Prior to the commencement of the MAI Act, it was correct to say that Ch 5 “applies” to damages for a motor vehicle accident victim, pursuant to s 122(1) of the MAC Act, which commences “[t]his Chapter applies to” motor accidents. Since the commencement of the MAI Act, the MAC Act no longer “applies” to any motor accident – see s 3AA of the MAC Act, which was inserted by the MAI Act.

95. Secondly, the construction of the phrase advocated by the defendant requires it to be read as “not being an award of damages to which that Chapter would have applied, if the accident had occurred before the commencement of the Motor Accident Injuries Act”. It does not say that.

96. Thirdly, the construction of the phrase put forward by the defendant requires it to be read as “not being an award of damages to which Part 4 of the Motor Injury Accidents Act 2017 applies”. It does not say that, and it cannot have that effect.

97. Having stated those matters, the question remains – what does the phrase in s 121(1) of the TA Act “not being an award of damages to which that Chapter applies” mean and in what circumstances does it operate? These words have been carried over from a time when they had a clear meaning, when any and all motor vehicle claims were subject to the MAC Act. But at the present time, when motor accidents are not governed by the MAC Act, my conclusion is that the phrase has no work to do and serves no purpose.

98. Thus, the linguistic construction of the legislation does not yield an entirely satisfactory result. Perhaps that is small wonder when one piece of legislation (the MAI Act) has amended another piece of legislation (the TA Act) to revive and incorporate part of a previous Act (the MAC Act), which otherwise has no application. There must have been a clearer way to do this. The language of the legislation concerning damages for public transport accidents has become more convoluted and less easy to decipher when one looks at the changes from the 1987 Act to the 1988 Act to the MAC Act to the MAI Act.

Conclusion and Orders

99. In spite of those misgivings, I find that the plaintiff’s damages are to be assessed under Ch 5 of the MAC Act. A contextual analysis is inappropriate, for reasons given by the Court of Appeal in Landon v Ferguson. A linguistic construction, while not entirely satisfactory, leads to the conclusion I have reached.

100. The orders of the court are:

1. The separate question posed in the Notice of Motion filed on 19 March 2024 is answered as follows:

2. The plaintiff’s damages are to be assessed under Chapter 5 of the Motor Accidents Compensation Act 1999 pursuant to the operation of s 121 Transport Administration Act 1988, and not under Part 4 of the Motor Accident Injuries Act 2017.

3. Order the defendant to pay the plaintiff’s costs of and incidental to the Notice of Motion filed on 19 March 2024.

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Decision last updated: 14 June 2024