In the news this week has been the long anticipated trialling of the eastern suburbs light rail trams in George Street. According to a Sydney Morning Herald report[1], at 67 metres the eastern suburbs light rail trams are almost the longest in the world and twice as long as the inner west trams.

Of course these trams will be running up and down George Street, perhaps one of the busiest parts of the Sydney CBD. Pedestrians are said to be fearful of the size of the new trams and on radio this morning some callers were wondering about the potential for accidents. The good news is that in Melbourne where trams (short ones) abound there have been no major accidents in the last three years, although our southern cousins have been contending with trams on their roads for many, many years.

As an inquisitive personal injury lawyer I want to know what would happen if there was an accident injuring a passenger on a tram, or a pedestrian or other road user injured in a collision with a tram? After treatment and recovery, what if someone has long term damage, impairments or disabilities as a result of an accident involving a light rail tram. What sort of claim would they make? Who would they make their claim against? What would they be entitled to claim?

The only thing I am certain of is that the answer to all the above questions is that it would depend on whether the light rail tram is a motor vehicle or not. If the light rail tram is a motor vehicle then all of the provisions of the Motor Accident Injuries Act (MAI Act) apply. If the light rail tram is not a motor vehicle then only a portion of the Motor Accidents Compensation Act (MAC Act) apply.

Section 1.4 of MAI Act defines ‘motor vehicle’ as a motor vehicle or trailer within the meaning of the Road Transport Act which in turn defines ‘motor vehicle’ as a vehicle propelled by a motor that is part of the vehicle. The light rail trams, although powered by an external electrical supply they have motors and wheels therefore it would appear that the light rail trams are motor vehicles.

The definition of ‘vehicle’ in the Road Transport Act does not include a ‘vehicle used on a railway or tramway’ but does include a ‘light rail vehicle’ and any other vehicle identified in the ‘statutory rules’. Road Rule 15 poses the question ‘what is a vehicle’ and answers it by saying a motor vehicle, trailer or tram but not a train. While it is by no means clear I think a light rail vehicle is a motor vehicle within the meaning of the MAI Act.

The inquisitive greenslip nerd in me now wants to know if a light rail vehicle is a motor vehicle, do they have to be registered, who provides the greenslip and how much is that greenslip per vehicle?

If light rail vehicles are motor vehicles within the meaning of the MAI Act and you are injured in an accident involving such a vehicle then you would make your claim upon the relevant insurer (which in this case by virtue of s 3.2 and in the absence of a greenslip insurer would probably be the Nominal Defendant) and you would be entitled to claim statutory benefits for lost income as well as your treatment and care needs. You would be entitled to those benefits for the first 26 weeks regardless of whether you were at fault (for example if you had your head in your smart phone while crossing the tram tracks). If you were not at fault and had more than a minor injury you would be entitled to make a claim for common law (lump sum) damages at a point in time 20 months after the accident.

If the light rail trams are not motor vehicles then the MAI Act would not apply and any claim arising from any injuries sustained in an accident involving the light rail vehicle would be governed by the Transport Administration Act which applies to accident involving ‘railways and other forms of public transport’. That Act then applies the damages provisions of the MAC Act  to the claim. That would mean you have no entitlement to statutory benefits but, if you were not at fault, you would be entitled to make a claim for lump sum common law damages against the owner or operator of the light rail vehicle.

The NSW Centre for Road Safety is running a road safety program raising awareness of the presence of trams on our roads because, after all, no one wants to be injured in any accident, motor vehicle or not.

Written by Belinda Cassidy

Belinda Cassidy holds the position of Special Counsel at Stacks Goudkamp. She had previously held the position of Principal Claims Assessor at the State Insurance Regulatory Authority (SIRA) for 18 years, and currently holds an appointment as a Claims Assessor under the Motor Accidents Compensation Act.