Tag: Statutory Interpretation

#34 – Threshold Injury Found Not to Apply to Public Transport Accidents

Decision

 Russell v Allianz Australia Insurance Limited [2026] NSWPIC 129 

Sixty-Second-Or-Less Read

A Claimant is injured whilst riding a bus. The bus route in question was part of the public bus network. The bus, however, was privately owned and was deployed by Transport for NSW pursuant to a contract.

Are the Claimant’s damages regulated by Chapter 5 of Motor Accidents Compensation Act 1999 (MACA) or by Part 4 of the Motor Accident Injuries Act 2017 (MAIA)?

In Russell v Allianz, a PIC Member found that an accident is a “public transport accident” within the meaning of s 121(3) of the Transport Administration Act 1988 (TAA) even where the bus is privately owned. The key question was whether the bus was being used for public transport. It followed that the Claimant’s damages were regulated by Chapter 5 of MACA, pursuant to s 121(1) of the TAA. The whole of Part 4 of MAIA was displaced, including s 4.4 which normally precludes damages were the only injuries are threshold injuries.

Principles

✅ 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

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.

My Perspective

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.

PJH

#20 – Consequential Surgery is not an “Injury” in the Absence of Harm

Decision

Allianz Australia Insurance Limited v Mandoukos [2025] NSWPICMP 844

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A motor accident causes a threshold injury to the Claimant’s cervical spine. The Claimant, however, subsequently undergoes cervical surgery which involves the removal of some bone.

Does the consequential surgery constitute a non-threshold injury?

In Allianz v Mandoukos, the Review Panel concluded that, in general terms, consequential surgery does not constitute an “injury“, as defined by s 1.4 of the Motor Accident Injuries Act 2017 in the absence of some detriment to the Claimant. In this dispute, the surgery was not an “injury” because the Claimant consented to the procedure and it resulted in a reduction of pain and an increase in function. The surgery was to the Claimant’s benefit rather than his detriment.

Principles

✅ A Claimant is not entitled to ongoing statutory benefits or common law damages if their only injuries are threshold injuries as defined by section 1.6 of the Motor Accident Injuries Act 2017 (MAIA).

✅ Physiological changes caused by consequential surgery cannot constitute an “injury”, as defined by section 1.4 of MAIA, in the absence of some detriment to the Claimant.

Facts

On 8 January 2019, the Claimant swerved to avoid a motor vehicle which made a turn in front of his vehicle and collided with a light post.

The accident caused a cervical strain and aggravation of pre-existing C5/6 degenerative disc disease.

The Claimant, however, subsequently underwent a C5/6 foraminotomy, which involved removing a segment of bone.

The primary Medical Assessor concluded that the consequential surgery resulted in injury to bone and the partial or complete rupture of ligaments and tendons. The primary Medical Assessor proceeded to certify that the injuries sustained during the consequential surgery were not threshold injuries.

The Insurer successfully sought referral of the threshold injury dispute to the Review Panel.

The Review Panel’s Reasons

The Review Panel accepted that the foraminotomy procedure was reasonable and necessary and caused by the injuries sustained in the motor accident.

The Review Panel, however, concluded that the changes to the Claimant’s body, caused by the surgery, did not constitute an “injury“, as defined in section 1.4 of MAIA, for the following reasons:

🟪 Section 1.4 of MAIA defines “injury” to mean “personal or bodily injury” before proceeding to include psychological injuries, pre-natal injuries and injuries to artificial members, aids and equipment.

🟪 The Court of Appeal made obiter comments in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 that it is doubtful that consequential surgery could constitute an “injury” in the absence of any detrimental impact on the Claimant’s symptoms or functioning.

🟪 Whilst clause 6.113 of the Motor Accident Guidelines provides that the effect of surgery is to be included in the assessment of permanent impairment, “impairment” and “injury” are not the same thing. “Impairment” is a consequence of “injury“.

🟪 The outcome might be different if the surgery is performed negligently or causes an additional injury. In this case, the surgery was performed competently and improved the Claimant’s symptoms.

The Review Panel, therefore, certified that the surgery did not constitute an “injury” as defined by s 1.4 of MAIA.

If followed that whether the surgery constituted a threshold injury or not did not arise.

Pete’s Perspective

The Scope of the Dispute

At the outset, it is critical to understand that the decision in Mandoukos is not about causation.

The Review Panel specifically accepted that the Claimant’s foraminotomy procedure was caused by the accident.

If the Claimant ultimately demonstrated a non-threshold injury, the defendant would be liable for the full consequences of the surgery in the normal way (absent grossly negligent medical treatment). Those consequences might include, depending on the evidence, an increased WPI assessment and additional economic loss.

The issue in dispute, in Mandoukos, however, related the statutory interpretation of the gateway provisions to ongoing statutory benefits and common law damages.

Namely, whether the Claimant’s surgery constituted an “injury” as defined by s 1.4 of the MAIA. This was critical to the Claimant’s entitlements because the Claimant could not demonstrate a non-threshold injury if the surgery did not even amount to an injury in the first place. And, without a non-threshold injury, the Claimant could not proceed through the statutory gateway and recover ongoing statutory benefits or any common law damages.

So, When Does a Physiological Change Constitute an “Injury”?

At paragraph 131 of its Reasons, the Review Panel helpfully set out indicia of physiological change which might constitute an “injury“:

🟪 The change was unintentional.

🟪 The change was caused by an external force outside the control of the affected person.

🟪 The change is neither planned nor deliberate.

🟪 The change would have an adverse effect on the individual.

🟪 A reasonably minded individual would not consent to the change.

In this dispute:

🟪 The Claimant’s decision to undergo the surgery was deliberate and considered.

🟪 The aim of the surgery was to provide relief to the Claimant’s cervical spine symptoms.

🟪 The surgery did, in fact, improve the Claimant’s pain and function.

What About Treatment Which Goes Wrong?

The Review Panel’s decision in Mandoukos deals with a case where the Claimant’s surgery went to plan.

The outcome is likely to be different if the surgery (or other treatment) does not go to plan and the Claimant suffers further harm, either because the existing injury is exacerbated or a new injury is caused.

There have been some recent Review Panel decisions which concluded that additional harm caused by consequential treatment can constitute a non-threshold injury.

🟪 In Gibbin v AAI Ltd t/as GIO [2025] NSWPICMP 523, the Claimant sustained a rotator cuff tear during a manipulation under anaesthetic procedure. The Review Panel found that the tear was a non-threshold injury caused by the motor accident. My Case Note on Gibbin can be found here.

🟪 In Allianz Australia Insurance Limited v Miles (No 3) [2025] NSWPICMP 565, the Claimant suffered leg weakness following a cortisone injection. The leg weakness caused a fall which caused a right rotator cuff tear. The Review Panel found that the rotator cuff tear was a non-threshold injury caused by the motor accident. My Case Note on Miles can be found here.

What distinguishes these decisions from Mandoukos is that the consequential treatment resulted in detriment to the Claimant. It followed, in each case, that the detrimental physiological change caused by the treatment constituted an “injury” as defined by s 1.4 of MAIA. In these two examples, the injuries in question – rotator cuff tears – fell outside the definition of “threshold injury” in s 1.6.

What About WPI Assessments?

The decision in Mandoukos only relates to whether consequential surgery constitutes an “injury” pursuant to the definition in s 1.4 of MAIA.

As the Review Panel correctly pointed out, when it comes to the assessment of permanent impairment, clause 6.113 of the Motor Accident Guidelines provides that the effect of surgery is to be included in the assessment.

So, this is (yet another) potential anomaly in the legislation.

Consequential surgery which goes to plan and does not cause any additional detriment to the Claimant is not an “injury” pursuant to the definition in s 1.4.

If, however, the Claimant has a non-threshold injury, the effects of surgery related to that injury does count when assessing the Claimant’s permanent impairment.

PJH