McTye v Ching Yu Chang by his tutor Leo Alexander Birch

Court of Appeal (NSW)|2024-10-08|Before: Bell CJ

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

BELL CJ: The question posed by the separate question underpinning this application for leave to appeal, namely whether the plaintiff's damages fell to be assessed under Ch 5 of the Motor Accidents Compensation Act 1999 (NSW) ("1999 Act") or under Pt 4 of the Motor Accident Injuries Act 2017 (NSW) ("2017 Act"), is one that a member of the community would hope and reasonably expect would be capable of a simple answer. Regrettably, it is not. The answer to the question, as explained in the reasons of Basten AJA and Griffiths AJA, only emerges from a detailed consideration of some seven separate pieces of legislation, many of which cross refer to each other. The complexity of the analysis is rendered greater still by the fact that the provision, the proper construction of which is central to the analysis, in fact appears in an earlier 1988 Act, namely section 121(1) of the Transport Administration Act 1988 (NSW), which, as a result of amendments made to it, in fact makes references to two later pieces of legislation, namely the 1999 Act and the 2017 Act. While I agree with the reasons of Basten AJA and the orders his Honour proposes, I also agree with the observations of Griffiths AJA as to the desirability of, and need for, legislative simplification in this area.
BASTEN AJA: On 21 October 2019 Ching Yu Chang (the plaintiff), then just short of five years of age, was seated on the back of a bicycle ridden by his mother in Liverpool Street, Sydney, when a State Transit Authority (STA) bus collided with the bicycle. The boy's right foot was severely injured and later amputated. In 2022, he commenced proceedings (by his tutor) in the District Court seeking damages for his injury. The bus driver (the defendant) admitted liability.
Prior to a trial limited to determining the award of damages, a dispute arose as to whether the plaintiff's damages were to be assessed under Ch 5 of the Motor Accidents Compensation Act 1999 (NSW) (1999 Act) or under Pt 4 of the Motor Accident Injuries Act 2017 (NSW) (2017 Act). On 19 March 2024, the plaintiff sought that this be determined as a separate question pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 28.2.
On 14 June 2024, Judge Russell SC determined that the plaintiff's damages were to be assessed under Ch 5 of the 1999 Act. [1] The defendant challenged that decision. As it was an interlocutory judgment, leave is required to appeal, pursuant to the District Court Act 1973 (NSW), s 127(2)(a).
For the last 40 years, since the commencement of the Motor Vehicles (Third Party Insurance) Amendment Act 1984 (NSW) (1942 TPI Act), general law principles relating to the assessment of damages in motor vehicle accidents have been the subject of statutory regulation. There have been four changes to the scheme of regulation since it was first introduced. The first change came with the introduction in 1987 of a scheme known as TransCover, pursuant to the Transport Accidents Compensation Act 1987 (NSW) (1987 TAC Act), which abolished common law damages for a wide range of transport accidents. That scheme was, as the primary judge said, "short-lived", being replaced by the Motor Accidents Act 1988 (NSW) (1988 Act), which reinstated common law damages subject to various caps and limitations. It will be necessary to return to the terms of the 1987 TAC Act which adopted a classification of transport accidents which carried through, at least in part, to later legislation.
The nature of the restrictions on awards of damages imposed by the 1988 Act is not presently relevant. It was superseded by the 1999 Act, providing a new regime for the assessment of damages which did not apply to accidents occurring before its commencement, a criterion of application which was repeated when the 1999 Act was replaced by the 2017 Act. The effect of the 2017 Act, which commenced on 1 December 2017, was to remove the right to damages in cases involving only "threshold injuries", replacing damages with a set of statutory benefits, which were not dependent upon establishing fault on the part of the defendant. Further, where damages were recoverable, they were limited to non-economic loss and economic loss.
The plaintiff accepted that damages available under the 1999 Act were more valuable than the statutory benefits and the limited damages which he might obtain under the 2017 Act. However, in accordance with the general criterion as to the application of the new legislation, the 2017 Act replaced the 1999 Act with respect to accidents which occurred after its commencement on 1 December 2017. The plaintiff's accident occurred after that date and, according to the general principle, recovery of loss would be governed by the 2017 Act.
The defendant's case was that the 2017 Act applied to the plaintiff's claim for damages. The plaintiff's case was that, on the proper construction of the transitional provisions, in relation to an accident involving an STA bus, the 1999 Act continued to apply to the assessment of his damages. The primary judge upheld the plaintiff's construction of the statutory scheme.

Leave to appeal

The principles governing grants of leave to appeal will vary according to the nature of the reason for requiring leave. Many cases require leave because they fall under the monetary threshold for bringing an appeal as of right. That is not this case: the present case requires leave because there has been no final judgment from which a general appeal could be brought challenging, amongst other things, interlocutory decisions made along the way. The Court is reluctant to allow interlocutory appeals which may disrupt the trial process and eventually prove unnecessary.
On the other hand, the formulation of a separate question may reveal the benefits in determining a particular matter before a full trial, where the answer to the question may significantly affect the nature of the issues and the evidence to be adduced. This is such a case. The key facts were few and were agreed. The question was one of law, involving the interpretation of a complex legislative scheme. Although the judgment of the District Court judge was clear and well-reasoned, there were, as he recognised, factors supporting a different conclusion from that which he reached. Further, the answer to the separate question would only have been rendered unnecessary were there a separate issue as to liability. There was not: that the accident was caused by the negligent driving of the defendant was an agreed fact.
The defendant accepted that the case he wished to run on appeal had not been put in the same terms to the primary judge. Although the plaintiff objected in written submissions to a new argument being raised, the issue was purely a question of law which could not have been addressed by evidence. The failure to raise it below could, however, have consequences for the costs of an appeal.
In these circumstances, there should be a grant of leave to appeal.

Statutory scheme

It is convenient to identify the focus of the issue by reference to the presently applicable statutory provisions. However, in order to resolve a linguistic doubt as to their proper construction, it will be necessary to have regard to the statutory predecessors to the present provisions.
The present regime has the following components. First, Div 1.3 of the 2017 Act is headed "Application" and commences with the following provision: 1.8 Application of Act to motor accidents occurring after commencement of Act This Act does not apply to or in respect of a motor accident occurring before the commencement of this Act.
The phrase "motor accident" is defined to mean "an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person …". The term "motor vehicle" is defined to mean "a motor vehicle or trailer within the meaning of the Road Transport Act 2013". [2] Why the simple definition in the Road Transport Act was not repeated in the 2017 Act is unclear: the Road Transport Act defined "motor vehicle" to mean "a vehicle that is built to be propelled by a motor that forms part of the vehicle". [3] The term "vehicle" is also defined by way of description in the following terms: [4] vehicle means- (a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or (b) any description of tracked vehicle (such as a bulldozer), … that is not used exclusively on a railway or tramway, or (c) any other description of vehicle prescribed by the statutory rules.
There was no dispute that a bus is a motor vehicle for the purposes of the 2017 Act.
Secondly, the award of damages is governed by Pt 4 of the 2017 Act, which commences with Div 4.1 "Application", which includes the following provisions: 4.1 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. … 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. 4.2 General regulation of award of damages (cf s 123 MACA) (1) Damages cannot be awarded to a person in respect of a motor accident contrary to this Part. …
The third element in the current statutory scheme is that referred to in the second note to s 4.1, namely s 121 of the Transport Administration Act 1988 (NSW). Because it is a critical provision, this section should be set out in full and currently reads as follows: 121 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. [Emphasis added.] (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.
It was the last eleven words in the first sentence in subs (1) (italicised) which lay at the heart of the dispute. Their effect, according to the defendant, was to confine the operation of s 121, so that it gave to Ch 5 an extended operation, beyond that falling within its express terms. It was only that extended operation, the submission continued, which operated with respect to accidents occurring after 1 December 2017.
Section 121 predated the commencement of the 2017 Act. It was amended with the introduction of the 2017 Act in two respects. The first was to add the last sentence in subs (1) confirming that the section continued to operate with respect to accidents which occurred after the commencement of the 2017 Act; the second amendment was to insert subs (2A) which allowed for variation of subs (1) by regulation. The only significance of subs (2A) is the existence of the power to make regulations: no regulations have been made pursuant to that power.
Two observations should be made with respect to these provisions. First, with respect to the provisions of the 2017 Act and s 121 of the Transport Administration Act, there is no hierarchy established, nor is there a basis for implying paramountcy of one over another. That is, none is said to be "subject to" other provisions; none is said to operate "notwithstanding" other provisions. This observation leads to two further propositions. First, it is necessary to read the provisions harmoniously; secondly, some assistance may be gained from the general principle that a special or specific provision will prevail over a standard or general provision. [5] On that view, the specific provision is that found in s 121, which may be understood to qualify, so far as it operates, the general application provisions in the 2017 Act. That approach is arguably confirmed by the note to s 4.1 of the 2017 Act, which acknowledges the separate operation of s 121. Those propositions are largely uncontroversial. The defendant did not seek to suggest otherwise; rather, his submissions were directed to the proper construction of s 121.
Secondly, and before turning to the construction of s 121, the reference in the heading to s 121, (cf ss 68 and 69(2) of the 1988 Act) should be noted. As will be seen, these provisions constituted the predecessor to s 121 (when the 1988 Act was in operation) and are material to the particular construction of s 121 considered below.

Construing s 121

The plaintiff contended that the collision between a bus and his mother's bicycle was a "public transport accident" within the terms of s 121(3). He relied upon the breadth of the definition of that term as an accident caused by or arising out of the use of "any form of public transport". He submitted that s 121(1) was thereby engaged and his damages were to be assessed in accordance with the 1998 Act, Ch 5.
The defendant accepted that the plaintiff was injured in a "public transport accident" but nevertheless submitted that s 121(1) was not engaged. That was because the purpose of s 121 (prior to 1 December 2017) was merely to extend the operation of Ch 5 of the 1999 Act to accidents to which it did not, in its own terms, apply. Chapter 5 of the 1999 Act, the submission continued, like Pt 4 of the 2017 Act, applied in respect of damages caused by the fault of the driver of a motor vehicle. A bus was a motor vehicle and was thus covered by the express terms of s 122 of the 1999 Act, which applied Ch 5 to all motor vehicle accidents.
The defendant submitted that the last eleven words in the first sentence of s 121(1) of the Transport Administration Act ("not being an award of damages to which that Chapter applies") indicated that the section did not apply to damages arising out of motor vehicle accidents, but only to public transport accidents not involving motor vehicles. There were, the defendant submitted, supporting reasons arising from the statutory context which confirmed that this was the correct construction of s 121.
The primary judge confronted the eleven words of confinement in s 121(1) by observing that the construction adopted by the defendant no doubt applied prior to 1 December 2017, but not thereafter. [6] Observing that the words were cast in the present tense, the judge noted that the 1999 Act no longer applied to any motor vehicle accident occurring after the commencement of the 2017 Act,, as confirmed by s 3AA of the 1999 Act, inserted by the 2017 Act. [7] Section 121(1) was not to be read, the judge concluded, as if it referred to the operation which Ch 5 "would have had" had it still operated, nor as referring to an award of damages to which Pt 4 of the 2017 Act applied. [8]
As a matter of principle, it may be accepted that a statutory provision is to be taken as "always speaking" in the present. [9] It may also be accepted that the meaning of a term may change as a result of changes to the statutory context so that the words, in the present, must be read as "a combined statement of the will of the legislature". [10]
There were two amendments which potentially had such an effect. The first was the inclusion in s 121(1) of the Transport Administration Act, of a second sentence, namely that Ch 5 applied "even though the public transport accident occurred after the commencement of the [2017 Act]". [11] The second amendment was the inclusion in the 1999 Act of the following provision: [12] 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.
The consequence of the construction adopted by the primary judge was that even if the assessment of damages for an injury resulting from an accident involving a State authority bus [13] did not fall within the extended operation of Ch 5 of the 1999 Act before 1 December 2017, thereafter it did. That construction is hard to reconcile with the apparent purpose of the amendments, which was simply to remove a temporal limitation on the extended operation of the provision. Otherwise, the general intention was that damages for post-commencement motor vehicle accidents would be assessed under Pt 4 of the 2017 Act. This was the approach contended for by the driver in this Court, a contention which should be accepted. However, that conclusion simply takes one back to the original question: was a State authority bus accident treated as a motor vehicle accident for the purposes of either the 1988 Act or the 1999 Act?
It may be noted that the primary judge's approach led him to conclude that the contested clause in s 121(1) (not being an award of damages to which that Chapter applies), "has no work to do and serves no purpose". [14] By a notice of contention, the plaintiff submitted that its purpose was to pick up s 3AA of the 1999 Act. However, s 3AA merely confirmed the continuing operation of s 121 of the Transport Administration Act, which did not give the contested clause in that provision any independent function. As the reasoning of the primary judge giving a changed meaning to s 121(1) in 2017 is not accepted, the apparent loss of function does not arise.

Textual considerations

The purpose of s 121 is to maintain the system for assessing awards of damages applied by the 1999 Act to accidents occurring after the commencement of the 2017 Act, where the accident is a "public transport accident": so much is evident from the express terms of s 121(1). The critical step in the defendant's case is that the term "public transport accident", as defined in subs (3) by reference to "the use of any form of public transport", must be read down as not applying to forms of public transport involving the use of motor vehicles. Taken in isolation, in their ordinary meaning, those words are apt to include buses. Further, there can be no doubt that buses are a significant part of the system of public transport; their use has a long history, and would readily be recognised by any person as a form of public transport.
Next there are the inclusions and exclusions. Each has separate significance. First, the use of "including" which would ordinarily indicate a non-exhaustive definition to follow. As explained in Herzfeld and Prince: [15] "The words 'means' and 'includes' are commonly used in definitions. As would be expected, those terms have the same meaning as they do when used in statutory definitions: see [3.70]. The word 'means' indicates an exhaustive definition. The word 'includes' is ordinarily non-exhaustive. It is principally used to bring within the defined term things not within its natural and ordinary meaning or to remove doubt that those things fall within the defined term irrespective of its natural and ordinary meaning. When used non-exhaustively, it does not restrict the natural and ordinary meaning of the defined term."
That statement should be accepted and is consistent with the apparent purpose of the term "including" in s 121(3). What follows does not refer to buses, but rather to trains, ferries and taxis, which may be limited to water taxis or extend to motor vehicles, although the latter seems unlikely given the context.
Herzfeld and Prince further note that "in some contexts the word 'includes' can be construed as equivalent to 'means and includes'", in which case the form of definition is exhaustive.
With respect to the exclusions, the negative is again ambiguous: it is possible that the combination of the inclusive part and the exclusive part was intended to create a definitive statement of the scope of the defined term. However, that reading is strained.
Examples of the operation of these principles are no more than that. However, an example having resonance in the present circumstances is the judgment of the Court of Criminal Appeal in R v McN, [16] a case concerning a charge of unlawful possession of a vehicle, the vehicle being a bus. The definition of "vehicle", in the Crimes Act 1900 (NSW) was "includes any cart, wagon, cab, carriage, aeroplane or other aircraft, motor car, caravan, trailer, motor lorry, motor or other bicycle …". A majority of the Court (Herron CJ and Manning J) held that "includes" was a word of extension and not restriction and that a bus was a vehicle for the purposes of the offence. [17] The joint reasons of the majority stated: "It is manifest that the word 'includes' is an expression which is not synonymous with 'means and includes'. On the contrary, the construction of a provision in a statute in a way that substitutes 'means and includes' for 'includes' is prima facie a direct negation of the language used. Or, to put it simply, the use of the word 'includes' means what it says and no more."
The joint reasons went on to consider whether the definition was, nevertheless, exhaustive, stating: "In determining such a question it is proper in the first instance to have regard to the nature of the legislation, the language used, the evil sought to be remedied and the nature of the offences specified. The purpose of the section in question is clearly to protect private property … In its general terms the section is clearly aimed at preventing the illegal use of means of transportation of the kind mentioned."
There is no doubt that the purpose of the provision and the statutory context are important. Several factors are significant in relation to s 121. First, the primary part of the definition is "any form of public transport", language which is inconsistent with a restriction to the forms expressly included. Secondly, the purpose of excluding air transport would be incoherent if public transport were relevantly limited to the included elements. Thirdly, the exclusion of "public transport that is operated primarily for tourists" would have little work to do if buses were not covered. Finally, the third exclusion, relating to the capacity in which the defendant was said to be liable, referred to an accident involving "the vehicle or vessel used for public transport". The term "vehicle" is undoubtedly capable of a broader meaning than "motor vehicle", but absent some indication to the contrary, would be understood as including motor vehicle and thus motor vehicles used for public transport, including buses.
Whilst each step of this reasoning taken in isolation might permit a different inference to be drawn, in combination they provide the statutory context which strongly suggests that the definition embracing "any form of public transport" was not to be read down by the words which followed it, other than the express exclusions.
However, there remains the apparent inconsistency between that reading of s 121 and the concluding eleven words in the first sentence of s 121(1), which require that it engages a further category of accidents not otherwise within the terms of Ch 5 of the 1999 Act, which was restricted to motor vehicle accidents. If buses are motor vehicles for that purpose, they do not fall within the additional category. It is thus clear that a textual consideration of s 121 reveals the problem, but not the solution. As the defendant accepted, the solution may lie in the legislative history.

Legislative history

The first step in a receding history has been noted: the current form of s 121 remains as it was prior to the enactment of the 2017 Act, subject only to the minor amendments noted above. There is nothing in the legislative scheme to suggest that it did not operate in the same manner prior to 1 December 2017 as it presently does, except that what continues is only the additional operation in respect of public transport accidents which occur after the commencement of the 2017 Act.
The structure of the 1988 Act was somewhat different. Sections 68 and 69 of the 1988 Act read as follows: [18] 68 Definitions In this Part: motor accident includes a transport accident referred to in section 69(2). motor vehicle includes (except in section 69) a form of transportation or conveyance included, immediately before the date of commencement of Part 2, within section 4 of the Transport Accidents Compensation Act 1987. … 69 Application (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.
The structure of these provisions is significant. The definition of "motor vehicle" in s 68, to include a form of transportation or conveyance within s 4 of the 1987 TAC Act, operates throughout Pt 6 (headed "Awarding of damages"), except in s 69. The definition of motor vehicle contained in s 3(1) of the 1988 Act must therefore operate for the purposes of s 69(1), namely: "motor vehicle" means a motor car, motor carriage, motor cycle or other vehicle propelled wholly or partly by any volatile spirit, steam, gas, oil or electricity, or by any means other than human or animal power, and includes a trailer, but does not include a vehicle used on a railway or tramway. This definition mirrors that in the 1942 TPI Act, omitting only an exclusion of Commonwealth vehicles, and in the 1987 TAC Act.
Thus, for the purposes of Pt 6 of the 1988 Act generally, the definition found in s 4 of the 1987 TAC Act operated, which read (omitting exclusions of use for sporting activities) as follows: Transport accidents 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 1930 or the Recreation Vehicles Act 1983; or (ii) registered in New South Wales under the Interstate Road Transport Act 1985 of the Commonwealth, … (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, … (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.
Finally, it is necessary to refer to the Transport Act 1930 (NSW), referred to in s 4(1)(a)(i) above, which made provision for the administration of public transport services, including bus services, by Trusts. The term "transport service" was defined to mean "tramway, motor omnibus service, or other service owned by the Trust, but shall not include a railway": s 4. A Trust was established for the County of Cumberland: s 9. The Act required registration of each "motor omnibus" and required that the owner have insurance prior to obtaining registration: ss 144, 154. A "motor omnibus" was defined to mean "any motor vehicle fitted or equipped or constructed so as to seat more than eight adult persons, and in respect of which payment is received for the conveyance of any passengers along a public street …": s 4. Thus, buses were the first form of motor vehicle to be subject to compulsory insurance, which only became a general requirement under the 1942 TPI Act.

Resolving the construction issue

The legislative history reveals that the categorisation of transport accidents commenced with a statute (the 1987 TAC Act), the purpose of which was to abolish common law damages for victims of transport accidents and provide in their place a system of statutory benefits. Unsurprisingly, when that policy was reversed by the 1988 Act, Pt 2 of which was headed "Restoration of common law rights", the separate provisions for the awarding of damages (under Pt 6 of the 1988 Act) operated retrospectively from the date of commencement of the 1987 TAC Act, and applied to a "transport accident" as defined in s 4 of that Act. [19]
The 1988 Act, in common with the 1999 Act and the 2017 Act, dealt with motor accidents, rather than transport accidents. However, when it came to dealing with awards of damages, it sought to encompass all transport accidents as defined in the 1987 TAC Act. Hence the need to adopt the two categories approach revealed in s 69 of the 1988 Act. It was fundamental to the defendant's case that buses fell within the first category of "motor vehicle" expressly covered by the 1988 Act, and not within the additional category of vehicles (other than motor vehicles) giving rise to transport accidents.
That buses were motor vehicles and were intended to fall within par (a) in s 4(1) of the 1987 TAC Act was demonstrated by the express reference in that provision to registration "under … the Transport Act 1930 …". As has been noted, the 1930 Act provided for the registration of motor omnibuses. However, as the defendant also accepted, some buses also fell within par (d) as a form of "transportation or conveyance operated by the Urban Transit Authority …", a predecessor to the STA.
Under the 1987 TAC Act, there was no occasion to determine whether buses operated by the Urban Transit Authority, which undoubtedly fell within par (d) of s 4(1), also fell within par (a). Further, although the 1988 Act (and the 1999 Act) dealt with the two categories (of motor vehicles and other forms of transport) separately, it relevantly prescribed the same system for each. It was only with the enactment of the 2017 Act that it became necessary to determine into which category an STA bus fell, if not both.
The defendant submitted that a bus was a "motor vehicle" within the general definition in s 4 of the 1988 Act and was therefore excluded from the operation of s 69(2) because it was covered by s 69(1). However, that reasoning should only be accepted if it is consistent with the proper construction of s 4 of the 1987 TAC Act, which is picked up by s 69(2), subject to the exclusion. It is therefore necessary to determine the operation of s 4(1) of the 1987 TAC Act.
In s 4(1), pars (a), (b) and (c) of the definition of "transport accident" each referred to a "motor vehicle", being a motor vehicle which is registered, ought to be registered or cannot be identified. By contrast, par (d) referred to "any form of transportation or conveyance", rather than motor vehicle, but it did so because it included such transport operated by the State Rail Authority and the definition of motor vehicle excluded vehicles used on a railway or tramway. Similarly, par (e) eschewed reference to motor vehicle, referring to "a water ferry or water taxi or any other form of public transport". Although the reference to "any other form of public transport" could be read as meaning other than a water ferry or water taxi, in context, that phrase should also be understood as excluding forms of transportation or conveyance operated by the public authorities referred to in par (d).
Reading s 4(1) as a whole, although Urban Transit Authority buses could be included within par (a), their specific reference in par (d), a paragraph dealing with State operated public transport, suggests otherwise. Privately operated bus services would therefore fall within par (a), but not those operated by the State authority, which clearly fell within par (d).
This reading of s 4(1) is consistent with the principle of statutory construction that specific provisions derogate from general ones and general provisions do not derogate, undermine or detract from special provisions. [20] That is not to say that buses generally are not within the category of motor vehicles, but only that for the purposes of s 4(1) buses operated by a State government authority do not fall within that category. If they did, the reference to the Urban Transit Authority would have been otiose unless, which was not suggested, it also ran other conveyances which were not motor vehicles.
There may be two objections taken to this approach. First, the principle of statutory interpretation should only be applied where the context permits. When s 4 was enacted in 1987 there was no need to determine whether the categories overlapped or were self-contained. While that is true, once the definitions are incorporated into legislation where it is necessary, as it now is, to understand the interrelationship of the various elements in s 4(1), that issue must be resolved.
Secondly, it may be objected that the extended operation provided by s 69(2) of the 1988 Act is defined by the operation of subs (1), which is not expressed in terms drawn from s 4(1) of the 1987 Act, but simply refers to accidents involving "a motor vehicle". Textually, that proposition may be accepted: however, the definition of "motor vehicle" in the 1987 TAC Act was identical to that in the 1988 Act. If the use of that term in par (a) of s 4(1) of the 1987 TAC Act did not include State authority buses, because they fell within another paragraph, and in circumstances where the 1988 Act adopted the categorisation in s 4(1), the term "motor vehicle" should be given the same operation in s 69 of the 1988 Act as in s 4 of the 1987 TAC Act.
In the final analysis, the correct approach must take account, not only of these considerations, but also the statutory context in which the issue now arises, namely the proper construction of s 121 of the Transport Administration Act. There are five matters which support the conclusion that accidents involving State authority buses fall within the extended operation of Ch 5 of the 1999 Act, and not within its general operation with respect to motor vehicle accidents.
First, the language of s 121(3), in the definition of "public transport accident", reflects the inclusions and exclusions found in s 4(1) of the 1987 TAC Act.
Secondly, the purpose of s 121, as with s 69(2) in the 1988 Act, is inclusive in the sense that it extends the limited form of damages available to those injured in transport accidents to avoid the application of common law principles of assessment of damages, by default.
Thirdly, the use of the term "public transport accident" is apt to include forms of transportation operated by the State or its authority. It is true that the phrase "any form of public transport" in s 121(3) could also cover privately operated bus services, which may seem anomalous. Nevertheless, if the context provided by the legislative history creates such an anomaly, it may equally be accepted as a restriction on the generality of the phrase, so that it does not include privately operated services. It is not necessary in this case to consider whether the anomaly arises.
Fourthly, the conclusion that damages for State authority bus accidents are to be assessed under a different scheme from that applying under the 2017 Act is not itself a reason for giving s 121, which was subject only to minor amendments in 2017, a reading which did not apply prior to the 2017 amendments. As noted above, the defendant embraced that view, which was said to flow from the application of s 68(3) of the Interpretation Act 1987 (NSW). That is, the reference in s 121 of the Transport Administration Act to Ch 5 of the 1999 Act applied to that Chapter, after 1 December 2017, unchanged except as to the temporal extent of its operation. If Ch 5 applied in its unextended operation to State authority bus accidents before 1 December 2017, so it did after that date. So much may be accepted; it is not necessary to engage with reliance on s 68(3) of the Interpretation Act to achieve that result, which is simply a matter of construction in any event.
The defendant also contended that if the plaintiff's submissions are accepted, a separate anomaly will arise: he will obtain the benefits of the statutory scheme under the 2017 Act, but have damages assessed under the 1999 Act, with no provision for repayment of the value of the statutory benefits out of the award of damages.
This counterargument carries limited weight. It assumes that the injured plaintiff, who would not have fallen within the ordinary operation of Ch 5 of the 1999 Act, is covered by Pt 3 of the 2017 Act for the purposes of the statutory benefits. The basis for that conclusion was not addressed. Further, it assumes that s 3.40 of the 2017 Act, which provides for recovery of statutory benefits from damages, does not apply if the damages are assessed pursuant to Ch 5 of the 1999 Act. Again, the operation of s 3.40 was not addressed in submissions and is not a matter that need be determined in this proceeding. Finally, the defendant pointed out that the plaintiff is in fact in receipt of benefits under the 2017 Act: however, that fact is irrelevant to the proper construction of Pt 3 of the 2017 Act, which is not in issue in these proceedings.
Fifthly, this construction of s 121 is not inconsistent with the principal purpose of the 2017 Act. As the Minister for Finance, Services and Property (Mr Dominello) explained in the Second Reading Speech for the Motor Accident Injuries Bill 2017: [21] "As a result of the [new compulsory third party insurance scheme], the owners of the 5.3 million registered vehicles across New South Wales will see a significant reduction in their premiums …. Motorists can expect to see a gradual reduction in green slip premiums throughout the course of this year with the full reductions to be felt from day one of the new scheme." The scheme was also intended to provide benefits to injured persons without the need to prove fault on the part of a driver.
If the primary purpose were the reduction of premiums for the driving population at large, that purpose is not undermined by providing those injured in accidents arising from the negligent operation of public transport by a State authority a more generous award of damages. Rather, it is consistent with the understanding of s 4(1) set out above, namely that public transportation operated by a State authority has been separately addressed. If that structural approach were thought no longer to be appropriate following the introduction of the 2017 Act, it was open to the Government to make that clear in the legislation, whilst facing the possible opprobrium of being seen to limit the benefits available to the victims of its own negligent operations. Rather than take that step, the legislation extended such benefits as were available under the 1999 Act, as it had during the course of operation of that Act, to those who suffer death or injury arising out of a "public transport accident" namely, "an accident caused by or arising out of the use of any form of public transport in New South Wales". There was no explanation that such benefits were now conferred on those who suffered injury from the operation of ferries or State railways, but not State buses. Indeed, the policy of continuing the availability of damages under the 1999 Act beyond 1 December 2017 with respect to public transport accidents is supportive of the conclusion that the extended regime was intended to apply to accidents involving State authority buses.
The conclusion to be drawn from the historical analysis, confirmed by a consideration of contextual issues and a purposive analysis of the 2017 legislative changes, is that, whilst a State authority bus is (and always was) within the statutory definitions of "motor vehicle", it did not fall within that term for the purposes of s 4 of the 1987 TAC Act, but rather fell within a separate category of State operated transport services. That classification was adopted without change in the 1988 Act and, by changes to the Transport Administration Act, in the 1999 Act. Accordingly, such accidents did not fall within the motor vehicle accident provisions dealing with the assessment of damages in that legislation, nor in the 2017 Act. Rather, they fell within the extended operation of those provisions and thus within the extended operation of Ch 5 of the 1999 Act. That scheme was not varied by the amendments in 2017 which had the effect of continuing the extended operation of Ch 5 beyond the cutoff date which otherwise applied, namely accidents occurring before 1 December 2017. It follows that the primary judge was correct in concluding that the plaintiff's damages were to be assessed in accordance with Ch 5 of the 1999 Act.

Conclusion

For these reasons, there should be a grant of leave to appeal, but the appeal should be dismissed. The applicant should pay the respondent's costs.
Accordingly, the Court should make the following orders: 1. Grant the applicant leave to appeal from the interlocutory judgment in the District Court delivered on 14 June 2024. 2. Dismiss the appeal. 3. Order that the applicant pay the respondent's costs in this Court.
GRIFFITHS AJA: I have had the considerable benefit of reading Basten AJA's draft reasons for judgment. I agree with those reasons and with the orders proposed by his Honour.
I wish to add the following additional observations which are not intended to contradict any part of Basten AJA's analysis. For convenience, I will adopt his Honour's abbreviations.
The central issue posed by the separate question can be stated in beguilingly simple terms, namely, whether the plaintiff's damages are to be assessed under Ch 5 of the 1999 Act pursuant to the operation of s 121 of the Transport Administration Act or under Pt 4 of the 2017 Act.
As the reasons of both Judge Russell SC and Basten AJA reveal, the resolution of this seemingly simple question is far more complex and involves close consideration of the meaning of, and interrelationship between, provisions in a multitude of statutes dating back almost 100 years. This challenging task confronts not only Courts, but also individuals and institutions who are involved in or affected by the administration of legislation relating to compensation for injuries arising out of the use and operation of motor vehicles in this State, including buses used in public transport.
Given the widespread use of buses in this State as a major form of public transport and the inevitability that both passengers and members of the public will suffer injuries arising from the use and operation of this popular mode of transport, it might be assumed that the rights and entitlements of injured persons (and any liabilities of CTP insurers) would be relatively clear and straight-forward. These proceedings tellingly expose the naivety of any such assumption.
Both parties have invested considerable time and resources in seeking to assist the Court in resolving the complicated issues posed by the separate question, which relates to injuries caused by an STA-operated bus. As Basten AJA's reasons for judgment reveal, other equally complex issues of statutory construction have been left unresolved by this litigation. One issue which the present litigation may not resolve is which legislation applies to an award of damages where a person is injured in a public transport accident and the bus is not operated by the STA but rather under some contracted-out arrangement. The future resolution by Court processes of such issues will also be costly and demanding in terms of time and resources.
The experience of the present litigation highlights the need to simplify and make more coherent the tangled web of legislation which is potentially relevant in determining the rights and liabilities of injured persons and CTP insurers respectively concerning public transport accidents. Further clarification and rationalisation is needed if, for example, the administration of the 2017 Act is to achieve the stated policy objectives set out in s 1.3 of keeping all CTP premiums affordable and keeping the overall costs of the scheme within reasonable bounds.
It is respectfully suggested that it might be thought that the task is one which might be referred to a body such as the NSW Law Reform Commission or to the State Insurance Regulatory Authority (which was involved in reviews of the 2017 Act in 2020 and 2021).
It may be helpful if I now attempt to provide a brief synopsis of the main reasons for upholding the primary judge's conclusion that the plaintiff's damages are to be assessed in accordance with Ch 5 of the 1999 Act and not Pt 4 of the 2017 Act. This is not intended to be a substitute for Basten AJA's more detailed reasons and analysis.
First, s 121 of the Transport Administration Act as in force after 1 December 2017 (its terms are set out at [18] above) is critical in answering the separate question. Notably, it is headed "Application of common law damages for motor accidents to railway and other public transport accidents" (emphasis added). On its face, this includes accidents involving buses operated by the STA.
Secondly, for the purposes of s 121, "public transport accident" is defined as "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 excluding inter alia "public transport in the form of air transport" or "public transport that is operated primarily for tourists" (s 121(3)(a) and (b)) (emphasis added). There is no sound reason to read down the broad phrase "any form of public transport" in s 121(3) as not applying to forms of public transport involving the use of motor vehicles so as, for example, to exclude buses operated by the STA as a class. The term "including" is also significant and should be given its ordinary meaning and not be read as though it means "including and exhaustively".
Thirdly, it is made clear by the early part of the first sentence in s 121(1) that Ch 5 of the 1999 Act applies to an award of damages which relates to the death or bodily injury of a person caused by or arising out of a public transport accident as defined in s 121(3), but the question then arises as to the meaning of the latter part of that sentence, namely "not being an award of damages to which that Chapter applies" (the qualification).
Fourthly, at first glance, that qualification seems contradictory to the first part of the sentence in s 121(1). Thus, on the one hand it is said that Ch 5 applies to an award of damages, yet on the other hand the qualification excludes an award of damages to which Ch 5 applies.
Fifthly, legislative history assists in resolving the conundrum which is presented by the qualification, with particular reference to the fact that over several decades, the State has had several different statutory schemes relating to damages for injuries caused by the use and operation of motor vehicles, namely the 1987 TAC Act, the 1988 Act, the 1999 Act and the current 2017 Act. The Transport Administration Act needs to be read in that context. (It might be added that another potentially relevant statute, particularly in relation to public bus services which have been contracted out by the State, is the Passenger Transport Act 1990 (NSW), but neither party referred to this legislation, presumably because it is common ground that the plaintiff was injured by an STA bus and that the accident is a "public transport accident" as defined).
Sixthly, the short-lived 1987 TAC Act abolished common law rights to claim damages for transport accidents and introduced a no-fault statutory scheme for the provision of benefits and compensation to a person who suffered bodily injury caused by or arising out of a "transport accident". "Transport accident" was defined in s 4(1) as a reference to a transport accident caused by or arising out of the use of inter alia a motor vehicle which is registered under, relevantly, the Transport Act 1930 (par (a)). This would include buses.
For the purposes of statutory construction, however, as Basten AJA has emphasised, it is significant that specific provision was also made in par (d) of the definition for any form of transportation or conveyance operated by the Urban Transit Authority (UTA). At that time the UTA operated State-owned buses. As noted above, its successor, the STA, operated the bus which caused the plaintiff's injuries (the STA subsequently ceased to carry on that function, and unsurprisingly the evidence does not address what arrangements are now in place for public bus operations).
The definition of "transport accident" also included a reference to an accident caused by or arising out of the use of a water ferry or water taxi or any other form of public transport in NSW, not including air transport (par (e)). The emphasised words were wide enough to include buses used in public transport, whether publicly or privately owned.
Thus, UTA-operated buses could fit within any of three parts of the definition of "transport accident" in s 4(1), but the most specific was that in par (d).
Seventhly, the 1988 Act repealed the 1987 TAC Act and restored common law rights as to damages, subject to some statutory limitations. Part 6 of the 1988 Act dealt with awarding damages for a "transport accident". Part 6 applied to and in respect of an award of damages relating 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 (s 69(1)). It was provided in s 69(2) that Pt 6 "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". This is a similar qualification to the qualification set out in s 121(1) of the Transport Administration Act. Part 6 of the 1988 Act applied to both motor vehicle accidents and public transport accidents. The reference to the 1987 TAC Act picked up the definition of "transport accident" in s 4(1) in that Act.
Eighthly, the 1999 Act replaced the 1988 Act. Chapter 5 deals with awards of damages. That chapter applies to and in respect of an award of damages relating 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 but does not apply to or in respect of a motor accident occurring before the commencement of the 1999 Act (see s 122(1) and (2)). A Note to s 122 directs attention to the 1988 Act applying to motor accidents occurring before the commencement of the 1999 Act. The Note also directs attention to s 121 of the Transport Administration Act for the application of Ch 5 "to railway, ferry and other public transport accidents".
Ninthly, the 2017 Act commenced on 1 December 2017. It establishes a new scheme of CTP insurance and provision of benefits and support relating to the death of or injury to persons as a consequence of motor accidents (see Pt 3). Part 4 of that Act provides for awards of damages. The Note to s 4.1 draws attention to the 1988 Act for motor accidents occurring before the commencement of the 1999 Act and also draws attention to the 1999 Act for motor accidents occurring before the commencement of the 2017 Act on 1 December 2017. The Note also refers to s 121 of the Transport Administration Act in relation to the application of Ch 5 of the 1999 Act or the 2017 Act "to railway, ferry and other public transport accidents".
Tenthly, the 2017 Act also amended s 121 of the Transport Administration Act. Subsection (1) retained the qualification in the original s 121(1) and added an additional sentence to the subsection which provides: "That Chapter so applies even though the public transport accident occurred after the commencement of the Motor Accident Injuries Act 2017."
The original definition of a "public transport accident" in s 121(3) was also retained (see at [18] above).
Eleventhly, the 2017 Act also amended the 1999 Act by inserting s 3AA (the terms of which are set out at [28] above). It provides that, subject to s 3AA(2), the 1999 Act does not apply to motor accidents occurring after the commencement of the 2017 Act, being 1 December 2017. Subsection (2) states that Ch 5 of the 1999 Act applies to an award of damages as provided by s 121 of the Transport Administration Act whether or not the accident occurred before 1 December 2017.
Twelfthly, the applicant's construction places undue emphasis on buses falling within the category of "motor vehicle" in par (a) of the definition of "transport accident" in s 4 of the 1987 TAC Act. This approach fails to give effect to the significance of the specific reference in par (d) of the definition to any form of transportation operated by the UTA, which would include buses operated by it (and its successor, the STA). The principle of statutory construction known as generalia specialibus non derogant applies to give primacy to par (d). Buses operated by the UTA were placed into a special and separate category from motor vehicles generally.
Finally, there are five additional reasons why accidents involving STA buses fall within the extended operation of Ch 5 of the 1999 Act and not within its general operation concerning motor vehicle accidents: 1. the definition of "public transport accident" in s 121(3) of the Transport Administration Act broadly reflects the inclusions and exclusions in s 4(1) of the 1987 TAC Act (which are picked up by s 69(2) of the 1988 Act); 2. the purpose of both s 121 of the Transport Administration Act and s 69(2) of the 1988 Act is inclusive in the sense that the intention was to extend the award of damages available to persons injured in "public transport accidents" and "transport accidents" as respectively defined; 3. the phrase "public transport accident" in s 121(3) of the Transport Administration Act and the phrase "transport accident" in s 69(2) of the 1988 Act are wide enough to include forms of transport operated by the State, including buses operated by the STA; 4. there is no basis for construing s 121 of the Transport Administration Act, as amended in minor ways by the 2017 Act, as bringing about any radical change; and 5. this construction of s 121 is not inconsistent with the principal purpose of the 2017 Act of reducing premiums for the driving population at large because public transportation operated by a State authority is separately addressed, consistently with how "transport accident" is defined in s 4(1) of the 1987 TAC Act and the specific reference in par (d) thereof of State-operated public transport, as opposed to the more general reference to "motor vehicle" in par (a) or "other form of public transport" in par (e).

Endnotes

Chang v McTye [2024] NSWDC 218 ("Chang").
2017 Act, s 1.4(1).
Road Transport Act, s 4(1).
Ibid.
See, eg, Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1, 29; [1948] HCA 24; The Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339 at [19] (Spigelman CJ, Handley JA and I agreeing); see also at [40].
Chang at [92]-[97].
Chang at [94].
Chang at [95], [96].
Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd (2021) 274 CLR 565; [2021] HCA 39 at [86] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ).
Ibid, quoting Commissioner of Stamps (SA) v Telegraph Investment Company Pty Ltd (1995) 184 CLR 453 at 463 (Brennan CJ, Dawson and Toohey JJ); [1995] HCA 44.
2017 Act, Sch 5.13 [1].
2017 Act, Sch 5.9 [1].
Prior to the creation of the STA in January 1989, buses in Sydney were run by the Urban Transit Authority.
Chang at [97].
P Herzfeld and T Prince, Interpretation (3rd ed, Law Book Co, 2024), [21.40] (footnotes omitted). Although found in Bk II Private Law, this passage mirrors that in [3.70] dealing with statutes, but in simpler language.
(1963) 63 SR (NSW) 186; [1963] NSWR 945; 80 WN (NSW) 608.
Brereton J dissented, holding that the definition was comprehensive and exhaustive, but nevertheless included a bus as a form of motor car.
Section 69(1A) was added on enactment of the 1999 Act to exclude accidents occurring after the commencement of that Act.
1988 Act, ss 5, 6, 7, 68.
Herzfeld and Prince, at [5.210]; Barnes, Dharmananda and Moran, Modern Statutory Interpretation: Framework, Principles and Practice (2023, Cambridge University Press) at [18.14].
NSW Legislative Assembly, Parliamentary Debates (Hansard), 9 March 2017, at 1. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 February 2025

Transport Accidents Compensation Act 1987(NSW)

Transport Act 1930(NSW)

Motor Vehicles (Third Party Insurance) Amendment Act 1984(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (13)

Cases Cited (9)