McTye v Ching Yu Chang by his tutor Leo Alexander Birch [2025] NSWCA 3
Key Principles
- A claim for damages arising out of a motor vehicle accident, which involves a state operated bus, will be assessed in accordance with chapter 5 of the Motor Accident Compensation Act 1999 (NSW) regardless of whether it occurred before or after 1 December 2017.
- While damages from such accidents are to be assessed in accordance with the 1999 Act, a Claimant will retain their entitlement to statutory benefits, as outlined by part 3 of the Motor Accident Injuries Act 2017 (NSW).
Background
On 21 October 2019 the plaintiff, Master Ching Yu Chang, was injured when a State Transit Authority (‘STA’) bus collided with the bicycle his mother was riding with him. The plaintiff was four years old at the time, and sustained a severe injury to his right foot, resulting in an amputation.
Proceedings were later commenced by the plaintiff (via his tutor) in the NSW District Court seeking damages. A dispute arose as to which legislative framework and manner of assessment of damages should apply, with the defendant arguing that provisions under the Motor Accident Injuries Act 2017 (NSW) (‘2017 Act’) applied, and the plaintiff arguing that the Motor Accident Compensation Act 1999 (NSW) (‘1999 Act’) applied. Generally, any injury arising out of a motor vehicle accident occurring after 1 December 2017 is to be dealt with under the 2017 Act.
However, in the first instance, Judge Russell SC determined that damages were to be assessed in accordance with the 1999 Act on the following bases:
- The accident fell within the definition of a public transport accident.
- In accordance with the Transport Administration Act 1988 (NSW), and the 1999 Act, the assessment of damages in connection with an accident which refers to a public transport accident shall be assessed under the 1999 Act principles, regardless of whether or not the accident occurred before or after 1 December 2017.
Notably, the definition of a ‘public transport accident’ excludes air transport, public transport operated primarily for tourists, recreational activities, historical interest, or as an amusement device. As the subject accident involved a bus which was operated by the State Transit Authority, these exclusions were not engaged.
As the judgment delivered by Judge Russell SC was an interlocutory judgment, the defendant sought leave to appeal the decision to the NSW Court of Appeal.
Issues
The case was argued on the construction of s 121(1) of the Transport Administration Act 1988 (NSW) (as amended in 2017), which states:
“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 [2017] Act.”
The defendant, on appeal, submitted that the phrase highlighted above indicated that the section did not apply to claims for damages arising out of motor vehicle accidents, but only to public transport accidents not involving motor vehicles. The defendant’s position was that the subject accident involved a motor vehicle, and as a result, should be dealt with under the 2017 Act.
Noting that it was necessary to seek leave to appeal, the defendant accepted that the argument he intended to run on appeal had not been put to the primary judge in the same terms. The plaintiff objected to the new argument being raised.
Decision
While the Court granted the defendant leave to appeal from the interlocutory judgment in the District Court, the appeal was ultimately dismissed.
Basten AJA and Griffiths AJA, with Bell CJ in agreement, concluded that the phrasing of section 121 was intended to maintain the function of the 1999 Act for accidents involving public transport vehicles that had not been specifically excluded.
The Court went on to clarify this by outlining two distinct categories of public transport accident:
1. Generic Public Transport Accidents
This includes an accident caused by or arising out of the use of any form of public transport in NSW, including passenger railway, water ferry or taxi, but excluding the types of transport within the ‘specific public transport accident’ category.
If a person is injured in a public transport accident of this nature, damages will be assessed under the 1999 Act.
2. Specific Public Transport Accidents
This includes an accident caused or arising out of the use of any form of public transport such as public air transport, transport for tourists, recreational activities, historical interest, or is an amusement device.
If a person is injured after 1 December 2017 in a public transport accident of this nature, damages will be assessed in accordance with the 2017 Act, so long as the accident falls within the scope of a motor vehicle accident defined by section 1.4.
The Court was satisfied that an accident of this nature, involving a registered bus being operated by the State Transit Authority, fell within the definition of a motor vehicle accident.
The Court also concluded that bus accidents of this nature fell within the category of a ‘generic public transport accident’; therefore damages were to be assessed in accordance with the 1999 Act.
However, the Court acknowledged that accidents involving privately operated bus services may fall within the definition of a ‘specific public transport accident’, and that this would create an anomaly. Nevertheless, Basten AJA was of the view that it was not necessary to consider whether this anomaly arose in this particular case.
Basten AJA noted that it would have been open to the Government to modify the statutory framework regarding state operated bus services during the preparation of the 2017 Act, but did not elect to do so, instead leaving the issue to be dealt with under the 1999 Act.
Why this decision is important
This decision affirms the rule that personal injury claims concerning a motor vehicle accident involving state operated buses, regardless of whether they occur before or after 1 December 2017, will have damages assessed in accordance with the 1999 Act. Notably, under the 1999 Act, an injured person may seek damages for the costs associated with treatment and care which is not permissible under the 2017 Act.
Under the 2017 Act, an injured person would normally be entitled to statutory benefits for costs associated with treatment and care.
The Court acknowledged that the competing legislative framework may give rise to an anomaly whereby an injured person may seek to recover the cost of treatment and care as a head of damage pursuant to the 1999 Act, while retaining their right to treatment funding as a statutory benefit under the 2017 Act. Most notably, section 3.40 of the 2017 Act allows for the recovery of statutory benefits paid under division 3.3 (weekly wages), but does not address recovery of treatment and care benefits. Ultimately, the Court was of the view that the construction of section 3.40 was not an issue to be dealt with within current proceedings.
Griffiths AJA also highlighted that this case did not deal with the circumstances where an injury occurs in a public transport accident involving a privately operated bus. Noting that continued litigation of the issue would be costly in terms of the parties’ time and resources, he suggested that it be referred to a body such as the NSW Law Reform Commission or the State Regulatory Authority for review. This is of relevance, given that public buses in NSW are operated by various private contracts rather than by the state directly.
Given Griffiths AJA suggested the various legislative frameworks be reviewed, it is likely that the construction of section 3.40 of the 2017 Act will be revisited to prevent an injured person making a ‘double claim’ for treatment and care costs as a statutory benefit, and as a head of damage.
Further information
This article was written by Solicitor Allisa Hollier and reviewed by Principal, Andrew Gorman. For further information or advice on any related matters please contact Andrew.
Disclaimer: This information is current as of February 2025. This article does not constitute legal advice and does not give rise to any solicitor/client relationship between Meridian Lawyers and the reader. Professional legal advice should be sought before acting or relying upon the content of this article.
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