Mr Watson argued other points but these in essence were reiterations of one or other of the three factors mentioned above.
16 I would accept Mr Watson's proposition that, generally, one would expect an accident in which a worker was injured in the course of her duties as a train guard to be covered by a workers compensation statutory regime rather than a motor accident statutory regime. But, this is as far as the point goes.
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.
19 I do not accept the submission that the ordinary and natural meaning of the words used in s 121 is such that they exclude an accident to the driver or operator of the vehicle or train or ferry or other means of transporting the public. Indeed, s 121 creates no distinction between various classes of persons who might suffer the death or injuries that are the subject of the section. The section governs, simply, any "award of damages" which relates to the death or bodily injury to a person caused by or arising out of a public transport accident.
20 Any other result would give rise to incongruous and unfair consequences. Take, for example, an accident that results in injuries to the driver of a passenger train and some of the passengers being conveyed. It would be an incongruous and unfair result if it were to be held the driver was not injured in a public transport accident (because he was driving the train), but the passengers were (because they were members of the public being conveyed). Another such example would be a ferry carrying passengers that collides with a small yacht operated by a single yachtsman. Assume that the pilot of the ferry, some passengers and the yachtsman were injured. It would be incongruous and unfair if the passengers' claims were to be governed by the Motor Accidents Compensation Act (because they were actually being conveyed in the ferry), the claim of the pilot by the Workers Compensation Act (because he or she was a worker, working on the ferry at the time), and the yachtsman's claim by the Civil Liability Act (because he was neither being conveyed by the ferry nor a worker subject to the Workers Compensation Act). It is to be presumed, prima facie, that the legislature intended that persons injured in the same accident should be treated in the same way.
21 According to the ordinary and natural meaning of s 121, the section applies to awards of damages where bodily injuries are caused by or arise out of a public transport accident and it is not restricted in its application to awards of damages to persons who are injured while being conveyed by public transport.
22 I do not accept that, because public transport workers were not specifically excluded from the operation of the Workers Compensation Act, it is to be inferred that the legislature intended their claims for common law damages to be governed by that Act and not the Motor Accidents Compensation Act. The omission to exclude public transport workers from the operation of the compensation provisions of the workers compensation legislation says nothing as to whether they are to be excluded from the operation of the common law damages provisions in that legislation. The latter is a separate question of statutory construction.
23 Accordingly, I do not accept Mr Watson's primary submission.
24 To understand better Mr Watson's alternative submission, it is helpful to read s 121(1) and s 121(3) together by substituting the words used in s 121(3) to define "public transport accident" for that phrase in s 121(1). Making due allowance for the exigencies of the proper use of language, the combined section would read:
"Chapter 5 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 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 …"
25 It is not in dispute that, until the train on which Ms Ferguson was working stopped at Redfern station and all passengers disembarked, it was being used as a form of public transport. The question raised by Mr Watson's alternative submission is whether Ms Ferguson's injury was caused by or arose out of the use of a form of public transport, even though it occurred while the train was empty of passengers and otherwise than for the purposes of conveying them.
26 The references in s 121(3) to passenger railway, water ferry, taxi and air transport indicate that "form" of transport is a reference, generally, to "mode" of transport and not to the particular means of transport being used. Thus, in context, a "water ferry" or "taxi" does not connote the particular individual ferry or taxi that is being used but rather, the mode of transport.
27 I accept that, in determining whether a particular means of transport was used as a form of public transport, regard must be had to the purpose for which it was used. While a "form" of public transport might be passenger railway or water ferry or taxi or air transport, any of these forms of transport could be used for private purposes and not for the purpose of conveying members of the public. It would offend common sense, for example, to classify as a public transport accident an accident involving a driver of taxi who was using the taxi, alone, to make a social visit to a personal friend. It does not, however, necessarily follow that, for a form of transport - at a given time - to constitute "public" transport, members of the public must be conveyed thereby.
28 It is significant that the phrases, "caused by" and "or arising out of", are both used. In this context, "arising out of" has a wider connotation than "caused by" and has an "extensive import": NSW Government Insurance Office v R J Green & Lloyd Pty Ltd (1966) 114 CLR 437 at 442-443 (per Barwick CJ); see also Menzies J at 445, Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80, Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385 per McHugh J at 397.
29 Meagher JA in NSW Insurance Ministerial Corporation v Handford (1994) 35 NSWLR 187 said (at 188) that the expression "caused by or arose out of the use of a motor vehicle" in the Motor Vehicles (Third Party Insurance) Act 1942 is to be interpreted "according to broad and practical conceptions". I see no reason why the similar phrase in s 121 should not be similarly construed.
30 In my view, the phrase "caused by or arising out of" in the expression "an accident caused by or arising out of the use of any form of public transport" connotes more than an accident that occurs while members of the public are actually being conveyed by a form of public transport. In my view, it encompasses things that are incidental to the conveyance of the public by such means.
31 In my opinion, whether an accident was caused by or arose out of the use of any form of public transport depends upon whether the accident was a consequence, not remote, of such use: cf the remarks of Windeyer J in NSW Government Insurance Office v R J Green & Lloyd Pty Ltd at 447.
32 A helpful illustration of the reach of the phrase can be seen from Lamont v Motor Accidents Board (1983) 1 VR 88. In this case the plaintiff was injured when his bicycle collided with a parked vehicle. Tadgell J (at 96) held that the plaintiff's injuries were caused by or arose out of the use of the parked motor vehicle because "the injuries would not have been sustained as they were had it not been for the fact that the car had been brought in the course of its ordinary use to the place where it was at the time of the accident." These remarks were quoted with approval by Handley JA (with whom Sheller JA agreed) in NSW Insurance Ministerial Corporation v Handford at 191; see also Clement v Clement (1984) 1 MVR 435 per Foster J.
33 In my opinion, the driving of the passenger train from the point where passengers' journey ended to the rail yards so that it could be cleaned was incidental to its use as a form of public transport. On that basis, Ms Ferguson's accident was caused by or arose out of the use of the train as public transport. Moreover, in my opinion, Ms Ferguson's accident was caused by or arose out of the use of the train as public transport as the accident was not a remote consequence of its use involving the conveyance of the public.
34 Accordingly, I would not uphold Mr Watson's alternative submission.
35 I would uphold the application for leave to appeal but dismiss the appeal with costs.