Hoptman v Red Bus Services: when closing bus doors is part of driving

Adam Hoptman alleged that he was injured on two occasions while boarding a bus: 8 July 2022 and 12 October 2022. The operator of the bus involved in the October incident was the second defendant. The pleaded case alleged negligence and was framed as a common law claim, but the operator argued that the October incident was a motor accident governed by the Motor Accident Injuries Act 2017 (NSW).

That distinction mattered immediately. Section 6.31 generally prevents a claimant from commencing court proceedings for a motor accident claim unless the Personal Injury Commission has issued the relevant certificate under section 7.34 or section 7.36. It was common ground that Mr Hoptman had not obtained either certificate. The Court therefore had to decide whether the incident was governed by the Act before deciding what procedural consequence followed.

The decision was interlocutory in character. It did not determine the medical extent of the injury, liability in negligence, statutory benefits, common law damages or the value of any claim. It decided the statutory character of the incident and the consequence of commencing court proceedings without satisfying the statutory precondition.

Section 1.9 applies the MAI Act to an injury resulting from the use or operation of a motor vehicle only if the injury is caused during the driving of the vehicle, a collision or evasive action, loss of control, or a dangerous situation caused by one of those events. The dispute focused on the phrase “during the driving of a motor vehicle” and whether pressing the door-control button while stationary was part of driving.

The Court distinguished a public transport bus from industrial vehicles such as forklifts and front-end loaders. Those vehicles may be used either for locomotion or for a separate loading or lifting function. A bus has one central function: conveying passengers for reward. Opening doors so passengers can enter, and closing them after boarding, are necessary parts of safely carrying out that function.

The Court rejected an approach under which a passenger would move between the MAI Act and ordinary common law rules merely because the bus had stopped. That would create an illogical result while a bus was approaching a stop, stopped, and beginning to move again. The bus remained under the driver’s control and was being operated for its transport purpose.

The reasoning was consistent with the authorities discussed in the judgment, including *Insurance Commission of Western Australia v Container Handlers Pty Ltd*, *QBE Insurance (Australia) Ltd v Smith*, *RG & KM Whitehead Pty Ltd v Lowe* and *Toll Pty Ltd v Harradine*. Those cases distinguish vehicle locomotion from the operation of a separate industrial mechanism, but they do not require every motor vehicle to be moving before an act can be part of driving.

The Court concluded that opening and closing a public transport bus door, including when the bus is stationary and the driver presses a button, can lead to an injury resulting from the driving of the bus. The operator’s motion therefore succeeded in showing that the MAI Act applied, but the immediate order was that the part of the amended statement of claim against the operator be dismissed because the statutory court precondition had not been met.

This distinction is important. A finding that an incident is a motor accident does not itself establish that the claimant will receive benefits or damages. The claimant still needs to identify the relevant CTP insurer, lodge the correct claim, prove the injury and its connection to the incident, and comply with the statutory process. If court proceedings are contemplated, the PIC assessment or exemption pathway must be checked before filing.

The proceedings continued against the first defendant. The costs outcome recorded an agreement that each party would pay its own costs if the operator succeeded and no appeal was brought. That costs arrangement was specific to the litigation and is not a general rule for CTP claims.

Hoptman does not mean every incident involving a stationary vehicle is a motor accident. The Court’s reasoning depended on the public transport bus’s function, the driver’s control and the role of door operation in carrying passengers. A forklift being used solely to lift goods, or a different stationary vehicle being used for a separate non-driving function, may require a different analysis.

It also does not decide whether the driver was negligent. The decision addressed the statutory character of the incident and the precondition for commencing court proceedings. A claimant must still prove what happened, why the door closed, what warning or safety system existed, what injury resulted and what losses are legally recoverable.

Finally, the case does not remove the need for prompt evidence. Bus CCTV, route and stop records, driver reports, passenger accounts and medical records can disappear or become difficult to obtain. A passenger should preserve the exact service, stop, time, boarding position and mechanism of injury as soon as possible.

A passenger injured by a closing door should record whether the bus was arriving, stopped or departing; which door was involved; whether any part of the person or belongings was caught; what the driver did next; and who witnessed the incident. This evidence can help distinguish a door-operation injury from a later account that merely says the passenger “fell on a bus”.

Ask promptly for preservation of CCTV and operator records. Keep the incident reference, route or service number, stop name, travel card or ticket information, photographs of any visible injury and the first medical records. If the insurer disputes that the event was a motor accident, the Hoptman reasoning may be relevant, but the evidence of the actual mechanism remains essential.

If an insurer has issued a decision, the next step may involve an internal review or a PIC process. A court claim should not be started simply because the injury is serious or because the insurer has not paid. The correct pathway depends on the type of dispute, the decision date and the current legislation.

The following material can help establish both the motor-accident mechanism and the claim pathway:

• bus route, service number, stop, direction of travel, date and approximate time
• ticket, travel-card, trip-history or other evidence identifying the service
• CCTV preservation request, operator incident report and driver or passenger witness details
• photographs of the bus door, boarding position, stop layout and any visible injury
• first GP, hospital or ambulance notes recording the mechanism in the claimant’s own words
• insurer correspondence, claim number, internal-review decision and any PIC documents
• medical certificates and treatment records connecting the injury to the door impact or fall