Threshold injury found not to apply to public transport accidents

In Brief

• Part 4 of the Motor Accident Injuries Act 2017 (MAIA) and Chapter 5 of the Motor Accidents Compensation Act 1999 (MACA) provide for alternative regimes for the assessment of damages.
• Section 121(1) of the Transport Administration Act 1988 (the TAA) effectively provides that Chapter 5 of MACA governs a claim for damages arising from a "public transport accident" and displaces the damages regime in Part 4 of MAIA.
• Section 121(3) of the TAA includes a definition of "public transport accident" which contemplates transport services available for use by members of the public, as part of an ordinary passenger transport system, even where a privately owned vehicle is deployed pursuant to a contractual arrangement with Transport for NSW.
• Section 4.4 of MAIA, which precludes damages for a claimant who has only sustained threshold injuries, is found in Part 4 of MAIA and, therefore, has no application in a claim for damages arising from a "public transport accident".

Facts

The decision in Russell v Allianz Australia Insurance Limited [2026] NSWPIC 129 was delivered on 29 January 2026 and published on 13 March 2026.

On 19 August 2019, the Claimant was riding on a public bus from Campbelltown to Liverpool.

The owner and operator of the bus provided bus services pursuant to a contractual arrangement with Transport for NSW as part of the State's metropolitan bus network.

An issue arose between the parties as to whether the Claimant's claim for damages was governed by Part 4 of the MAIA or Chapter 5 of MACA. The question turned on the operation of section 121 of the TAA.

The outcome of this dispute was critical because it was agreed, between the parties, that the Claimant only sustained threshold injuries, as defined by s 1.6 of MAIA.

Putting it bluntly, if the damages claim was governed by Part 4 of MAIA, the Claimant was not entitled to damages by virtue of section 4.4. That prohibition might not apply, however, if the damages claim was governed by Chapter 5 of MACA.

The Member's Decision

The Member found that the damages claim was governed by Chapter 5 of MACA for the following reasons:

• As a matter of statutory construction, s 121(3) of the TAA denotes transport services available for use by members of the public, forming part of an ordinary passenger transport system, as distinct from transport used privately or for a restricted or specialised purpose.
• The key factor is whether the transport is part of a public system, not whether the vehicles in question are privately owned.
• In this claim, the bus may have been privately owned, but it was deployed, pursuant to a contractual arrangement, as part of a network of public transport.
• The claimant was, therefore, injured in a "public transport accident" within the meaning of s 121(3) of the TAA.
• By operation of s 121(1) of the TAA, the Claimant's damages are governed by Chapter 5 of MACA.
• Section 4.4 of MAIA is confined to the damages regime established by Part 4 of MAIA.
• Section 4.4, therefore, does not bar an award of damages governed by Chapter 5 of MACA.

Why This Case is Important

McTye v Chang

The Court of Appeal decided in McTye v Chang [2025] NSWCA 3 that an accident involving a public bus constituted a "public transport accident" within the meaning of section 121(3) of the TAA. Putting that another way, the Court of Appeal decided that an accident involving a bus was not absorbed by the prevailing motor accidents legislative scheme merely because the accident involved a motor vehicle.

The practical consequence of the McTye decision was that a claim for damages arising from the use or operation of a public bus was – in accord with section 121(1) of the TAA – governed by Chapter 5 of MACA even where the accident occurred after the commencement of MAIA.

The Court of Appeal, however, was not called upon to determine whether an accident on a public bus network was still a "public transport accident" where the bus in question was provided by a private company for use by Transport for NSW pursuant to a contractual arrangement.

The decision in Russell is important because it purports to fill that gap. The Member decided the key question was whether the bus route was part of a public bus network rather than whether the bus was State-owned or privately owned.

Precedent Value

It is important to note, however, that this is a decision of a single Member and holds no greater precedent value than the decision of any other Member. It will be interesting to see whether a Court is called upon to resolve this discrete question.

Availability of Statutory Benefits

It is equally important to note that this decision only impacts the assessment of damages in public transport accident claims.

Pursuant to the Court of Appeal's decision in McTye – as expanded by this decision – damages are assessed pursuant to Chapter 5 of MACA where a claimant is injured by a bus on a public bus network (irrespective of who owns the bus).

If the bus accident occurred after 1 December 2017, however, the hypothetical claimant may still recover statutory benefits pursuant to Part 3 of MAIA because they have been injured in a motor accident in NSW (thereby satisfying section 3.1 of MAIA).

How Part 3 of MAIA interplays with Chapter 5 of MACA remains a matter for conjecture.

If you would like to discuss this case note, please don't hesitate to get in touch with CTP Practice Group Leader Peter Hunt today.

Additional McCabes Resources

• MC PIC Decision of the Week
• MC MAIA Toolkit
• The Proper Lookout Podcast
• MC Ready Reckoner

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.