Author: Walter Zhang

Background
The facts in this case are relatively simple. A four-year-old boy was severely injured by a State Transit Authority (STA) bus, resulting in the amputation of his right foot. The STA admitted liability and this was not in dispute. However, the question before the Court related to which piece of legislation governed his damages.

Legislation
There exists a long history of legislation relevant to motor vehicle accidents. The main statutes relevant in this case are the following:#1. Transport Administration Act 1988 (NSW) (‘1988 Act’)
#2. Motor Accidents Compensation Act 1999 (NSW) (‘1999 Act’)
#3. Motor Accident Injuries Act 2017 (NSW) (‘2017 Act’)

The 1999 and 2017 Acts prescribe the damages for motor vehicle accidents. It is noted that the provisions of the 1999 Act are more favourable for the plaintiff as compared to the 2017 Act.

Section 121 of the 1988 Act holds that Chapter 5 of the 1998 Act applies to public transport accidents even if the accident occurs after the commencement of the 2017 Act, but only if the damages are not already covered by the 1999 Act.

121 Application of common law damages for motor accidents to railway and other public transport accidents
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.

Arguments


a) Plaintiff
The Plaintiff argued that because the accident involved an STA bus, this accident could be classified as a ‘public transport accident’. This consequently meant the 1999 Act applied due to the operation of S 121 of the 1988 Act and displaced the 2017 Act [23].


b) Defendant
The Defendant accepted that the incident was indeed a ‘public transport accident’ but argued that section 121 was not engaged [24]. They argued that the purpose of the section was to expand the ambit of the 1999 Act in cases where it did not apply. As the accident was a ‘motor vehicle accident’ involving a bus, this meant the 1999 Act could be applied independently of the 1988 Act [25].

In other words:
If the accident is a ‘public transport accident’ AND it is not a ‘motor vehicle accident’, then the 1999 Act applies.


Judgment
The Plaintiff’s construction held to be valid in first instance [8].


In the Court of Appeal, Basten AJA undertook a historical analysis of the legislation relevant to motor vehicle accident damages. He noted that whilst State Authority buses were generally and statutorily defined as ‘motor vehicles’, they did not fall within that term for the purposes of the 1988 Act [65]. State Authority buses instead fell under the category of ‘State operated transport services’. This meant such accidents by these services did not fall within the general motor vehicle accident provisions in the 1999 Act. Therefore, His Honour concluded that the Plaintiff’s damages were to be assessed via the 1999 Act in accordance with the extended operation arising from the 1988 Act.

Outcome
The Plaintiff was successful in claiming for the higher amount of damages permitted by the 1999 Act.

Practical Impact of this Case
If you are injured in a “regular” motor vehicle accident, not involving public transport, damages are governed under the 2017 Act. However, if you are injured in a public transport accident the more generous 1999 Act applies.

Assessment of damages is a complex task under either set of legislation. Strict time limits also apply in respect of lodgement of claims and claim forms. If you have been injured in a motor accident please contact one of our friendly lawyers for advice as soon as possible.

*McTye v Chang [2025] NSWCA 3