Extended Application of MACA to State Authority Buses

McTye v Ching Yu Chang by his tutor Leo Alexander Birch [2025] NSWCA 3

In Brief

• Where a claimant is injured in a motor accident involving a public bus, their damages are assessed pursuant to Chapter 5 of the Motor Accidents Compensation Act 1999, even if the accident occurred after the commencement of the Motor Accident Injuries Act 2017 on 1 December 2017.

Facts

The Court of Appeal handed down its decision in McTye v Ching Yu Chang by his tutor Leo Alexander Birch [2025] NSWCA 3 on 4 February 2025.

The infant Claimant suffered severe injury when the bicycle on which he was a passenger was hit by a State Transit Authority bus. The accident occurred in 2019. Liability was admitted.

The parties disagreed on whether, under a proper construction of s 121(1) of the Transport Administration Act 1988 (as amended in 2017) (TAA 1988), the Claimant’s damages should be assessed under Chapter 5 of the Motor Accident Compensation Act 1999 (MACA 1999) or Part 4 of the Motor Accident Injuries Act 2017 (MAIA 2017). This question was brought before the Supreme Court and then to the Court of Appeal.

Court of Appeal’s Reasons

Acting Justice Basten (Bell CJ and Griffiths AJA agreeing) conducted the following analysis.

His Honour found that a textual consideration of s 121 of TAA 1988 does not resolve the question of construction and turned to the legislative history of the section.

His Honour noted that the categorisation of transport accidents commenced with the Transport Accident Compensation Act 1987 (NSW) (the Transcover Act). Section 4(1) of the Act listed various categories of transport accidents, including, relevantly for the present dispute, “(a) motor vehicles registered … under … the Transport Act 1930 …” and “(d) any form of transportation or conveyance operated by the Urban Transit Authority or the State Rail Authority“.

His Honour noted the reference to public authorities in paragraph (d) and concluded that privately operated bus services fall within paragraph (a) whereas those operated by the State authority fall within paragraph (d).

The Transcover Act was replaced by the Motor Accidents Act 1988 (NSW) (MAA 1988).

For the award of damages, MAA 1988 identified two categories of accidents:

• Generic MVAs – accidents involving “motor vehicles” as defined by s 3(1) of MAA 1988.
• Transport Accidents – as defined by s 4(1) of the Transcover Act.

His Honour observed that the term “motor vehicle” is used in both s 3(1) of MAA 1988 and paragraph (a) of s 4(1) of the Transcover Act. As his Honour found above, paragraph (a) of s 4(1) did not include State authority buses, because they fell under paragraph (d) of that subsection. Therefore, the term “motor vehicle” in s 3(1) of MAA 1988 also did not include State authority buses.

When MAA 1988 came to be replaced by the Motor Accident Compensation Act 1999 (NSW) (MACA 1999), s121 of the TAA 1988 (as amended) extended the operation of Chapter 5 of MACA 1999 to the award of damages for public transport accidents.

His Honour found that accidents involving State Transit Authority (STA) buses fell within the concept of Transport Accidents rather than Generic MVAs, for the following reasons:

1. The definition of “public transport accident” in s121(3) of the TAA 1988 reflects the inclusions and exclusions found in s4(1) of Transcover 1987.
2. The purpose of s121 of TAA 1988 is similar to s69(2) of MAA 1988 in extending the statutory form of damages to those injured in Transport Accidents.
3. The term “public transport accident” is apt to include forms of transportation operated by the State.
4. The fact that this construction leads to a different damages assessment for those injured by STA buses than those injured in a Generic MVA to which MAIA 2017 applies, is not a reason for rejecting this construction.
5. This construction of s 121 TAA 1988, resulting in a more generous award of damages from the negligent operation of an STA bus, is consistent with the principal purpose of MAIA 2017, which was to reduce CTP premiums for drivers.

His Honour found that the operation of s121 of TAA 1988 remained the same following the introduction of MAIA 2017 and the minor amendment made to s 121 of TAA 1988 in 2017 which added that Chapter 5 of MACA 1988 “so applies even though the public transport accident occurred after the commencement of the Motor Accident Injuries Act 2017“.

Consequently, whilst an STA bus is a motor vehicle, it falls within the category of State operated transport services covered by TAA 1988, and Chapter 5 of the MACA 1999 applies when it comes to the assessment of damages.

Why this Case is Important

The Court of Appeal has confirmed in McTye that where a claimant is injured by a public bus in NSW, their damages are assessed pursuant to Chapter 5 of MACA 1999, even if the accident occurred after the commencement of MAIA 2017 on 1 December 2017.

This finding is clearly problematic given that:

• Chapter 5 of MACA 1999 permits damages for past and future treatment, past and future paid care and past and future gratuitous care, in addition to damages for non-economic loss and past and future loss of earning capacity.
• Part 4 of MAIA 2017 only permits the recovery of damages for non-economic loss (Div 4.3) and economic loss (Div 4.2).
• Part 3 of MAIA 2017 permits the recovery of treatment and paid care as a statutory benefit. Whilst s 3.40 of MAIA 2017 permits the recovery of weekly wage loss payments from a subsequent award of damages, it is silent about the recovery of treatment and care already paid as a statutory benefit.
• Neither Part 3 (statutory benefits) nor Part 4 (common law damages) of MAIA 2017 allows for the recovery of damages for past or future gratuitous care.

Furthermore, whilst public buses in NSW are provided by the STA, they are typically outsourced to private bus companies. It remains unclear whether public buses operated by private bus companies remain public transport.