Bergild v Road Transport Authority (No 2) (Administrative Review)

[2018] ACAT 8

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BERGILD v ROAD TRANSPORT AUTHORITY (No 2) (Administrative Review) [2018] ACAT 8

AT 34/2017

Catchwords:              ADMINISTRATIVE REVIEW – review of decision to cancel driver licence – vision disorders – Assessing Fitness to Drive Guidelines – extreme visual field defects  – on-road driver test not a safe or reliable method for testing visual field defects – decision under review confirmed

Subordinate

Legislation cited:      Road Transport (Driver Licensing) Regulation 2000 s 87

Cases cited:               Bergild v Road Transport Authority [2017] ACAT 80

Texts/papers cited:   Austroads, Assessing Fitness to Drive for commercial and private vehicle drivers, 2016, Medical standards for licensing and clinical management guidelines

Tribunal:                   Presidential Member G McCarthy

Date of Orders:  8 December 2017

Date of Reasons for Decision:         5 February 2018

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )                   AT 34/2017

BETWEEN:

JASON BERGILD

Applicant

AND:

ROAD TRANSPORT AUTHORITY

Respondent

TRIBUNAL:Presidential Member G McCarthy

DATE:8 December 2017

ORDER

The Tribunal orders that:

1.The decision under review dated 26 May 2017 is confirmed.

…………Signed………………..

Presidential Member G McCarthy

REASONS FOR DECISION

1.By application made on 5 June 2017, Mr Jason Bergild applied to the Tribunal for review of a decision made by the respondent, the Road Transport Authority (the RTA), to cancel his driver licence.

2.I heard the application on 1 August 2017. Mr Bergild appeared for himself. Ms J Noble from the office of the ACT Government Solicitor appeared for the RTA.

3.On 29 September 2017, I published reasons for my decision to adjourn the matter for further hearing among other things.[1] On the evidence then before me, I was not satisfied that there was good and sufficient reason to cancel Mr Bergild’s licence. I had evidence from Dr Walker, a specialist registration specialist, who stated that Mr Bergild is aware of his limitations and conscientious about his driving and that with his current vision he “would be safe on the limited distance of driving and still allow him to work and care for his father.” As Dr Walker put it “I think he deserves an on-road test and if he fails that well he fails.”[2]

[1] Bergild v Road Transport Authority [2017] ACAT 80

[2] Bergild v Road Transport Authority [2017] ACAT 80 at [40] - [42]

4.I also had evidence from Dr Kuzniarz, ophthalmologist, that Mr Bergild “may be suitable for a conditional/restricted driver licence” and that he “should undergo a driving assessment through the Canberra Teaching Hospital”.[3]

[3] Bergild v Road Transport Authority [2017] ACAT 80 at [32] - [33]

5.Several optometrists expressed the opinion that his vision was suitable for a conditional driver licence.

6.Dr Parekh[4] from the ACT Health Fitness To Drive Medical Clinic, although of the firm opinion that Mr Bergild’s driver licence should be cancelled and that he should not have a licence of any kind, described an on-road driving test as the “gold standard test”.

[4] Now Dr Parekh AM, following her appointment as a Member of the Order of Australia on 26 January 2018

7.I recognised that Mr Bergild might not pass an on-road driving test but I was not persuaded that he should not even be given the opportunity to try, especially where he has an unblemished driving record, with daily driving since at least 2005, and where Dr Walker described Mr Bergild as a sane, sober, careful individual who is well aware of his limitations and conscientious about his driving.[5]

[5] Bergild v Road Transport Authority [2017] ACAT 80 at [118]

8.However, I also recognised that I had not given the RTA an opportunity to comment on whether I had power on review of the primary decision to order that the RTA provide Mr Bergild with an on-road driving test or, if I did have that power, whether I should exercise it. I also raised the option of the RTA arranging an on-road test with Mr Bergild by agreement, the results of which could be added to the evidence in relation to whether his driver licence should be cancelled or made conditional.

9.The RTA responded that it would not agree to providing Mr Bergild with an on-road driving test and, with leave, filed further witness statements from Dr Beaumont AM, ophthalmic surgeon, A/Prof Odell from the Victorian Institute of Forensic Medicine and Ms Susan Humphreys, occupational therapist with Driver Assessment and Rehabilitation Services attached to the ACT Health Directorate. Each of the statements was directed to the appropriateness of Mr Bergild taking an on-road driving test; whether the results of that test would assist in determining whether Mr Bergild could (or should) be issued with a conditional driver licence; and, if so, the conditions to be placed on that licence.

10.On 8 December 2017, I conducted a further hearing in relation to the application. Again, Mr Bergild appeared for himself and Ms Noble appeared for the RTA. Having regard to the further evidence, at the conclusion of the further hearing I was satisfied that Mr Bergild should not be issued with a licence of any kind and therefore ordered that the decision under review dated 26 May 2017 to cancel his driver licence be confirmed. I said I would publish my reasons, and now do so.

Consideration

11.Mr Bergild has been a diabetic since childhood. His diabetes has led him to develop a condition known as diabetic retinopathy. Mr Bergild managed that condition for many years in a manner that enabled him to continue driving, but in July 2016 his (then) treating ophthalmologist, Dr Dunlop, wrote to the RTA reporting on the results of his testing of Mr Bergild’s eyesight for the purpose of ongoing treatment. Dr Dunlop reported that as a result of those tests Mr Bergild had stated his agreement to surrender his driver licence even though he did not fully agree with the decision. Mr Bergild then changed his mind and did not surrender his licence, which led to an interchange with the RTA resulting in the decision under review made on 26 May 2017 to cancel Mr Bergild’s licence. The details of that interchange are set out in my previous decision.[6]

[6] Bergild v Road Transport Authority [2017] ACAT 80 at [13] - [25]

12.On review, the Tribunal was required to consider the matter afresh based on the evidence before it, which included five further reports regarding Mr Bergild’s eyesight the details of which are set out in my previous decision.[7]

[7] Bergild v Road Transport Authority [2017] ACAT 80 at [26] - [54]

13.For the reasons given in my earlier decision, I concluded that the only relevant issue was whether Mr Bergild’s vision was sufficient to enable him to hold a driver licence, conditional or otherwise.[8] In that respect, I noted that section 87(1)(d) of the Road Transport (Driver Licensing) Regulation 2000 (the Regulation) provides that the RTA (and the Tribunal on review) may cancel a person’s driver licence if satisfied on reasonable grounds that the person does not comply with the required medical standards.[9]

[8] Bergild v Road Transport Authority [2017] ACAT 80 at [71]

[9] Bergild v Road Transport Authority [2017] ACAT 80 at [13] - [14], [56]

14.Under section 15(1) of the Regulation, the ‘required medical standards’ for the purposes of section 87(1)(d) are set out in the document entitled “Assessing Fitness to Drive for commercial and private drivers, 2016, medical standards for licensing and clinical management guidelines” (the Guidelines).[10]

[10] Bergild v Road Transport Authority [2017] ACAT 80 at [60] - [65]

15.The medical standards tabulated in the Guidelines relevant to vision address three issues: visual acuity, diplopia and visual field/s.

16.Visual acuity is concerned with the person’s clarity of vision, with or without glasses or contact lenses, and is tested using a standard visual acuity chart with five letters from the 6/12 line. The RTA accepted that Mr Bergild meets the medical standards in relation to visual acuity.

17.Diplopia is a more formal term for double vision, meaning that a person sees simultaneously two images of a single object. There was no suggestion that Mr Bergild suffers from or has experienced diplopia.

18.Visual field (or fields) is concerned with the extent of a person’s peripheral (or side) vision. Section 10.2.2 of the Guidelines relevantly states:

For the purposes of this publication, visual fields are defined as a measure of the extent of peripheral (side) vision. Normal visual field is: 60 degrees nasally, 100 degrees temporally, 75 degrees inferiorly and 60 degrees superiorly. The binocular field extends the horizontal extent from 160 to 200 degrees, with the central 120 degrees over lapping and providing the potential for stereopsis…

Peripheral vision assists the driver to be aware of the total driving environment. Once alerted, the central fovea area is moved to identify the importance of the information. Therefore peripheral vision loss that is incomplete will still allow awareness; this includes small areas of loss and patchy loss. Additionally, affected drivers can adapt to the defect by scanning regularly and effectively and can have good awareness. Patients with visual field defects who have full intellectual/cognitive capacity are more able to adapt, but those with such impairments will have decreased awareness and are therefore not safe to drive.

A long-standing defect, such as from childhood, may lead to visual adaption. Such defects need to be assessed by an ophthalmologist/optometrist for a conditional licence to be considered. They should be managed as an exceptional case to the standard.

…

Subjects with any significant field defect or a progressive eye condition require a binocular Esterman visual field for assessment. This is classically done on a Humphrey visual field analyser, but any machine that can be shown to be equivalent is accepted. … For an Esterman binocular chart to be considered reliable for licensing, the false positive score must be no more than 20 per cent.

19.The medical standards in relation to visual field/s for a person with monocular vision (and Mr Bergild in this case) state:

Monocular vision

A person is not fit to hold an unconditional licence:

·     if the person is monocular.

A conditional licence may be considered by the driver licensing authority subject to two-yearly review, taking into account the nature of the driving task and information provided by the treating optometrist or ophthalmologist as to whether the following criteria are met:

·     The visual acuity in the remaining eye is 6/12 or better, with or without correction; and

·     The visual field in the remaining eye has a horizontal extent of at least 110 degrees within 10 degrees above and below the horizontal midline. (emphasis in original)

20.For the reasons given in my earlier decision, I was not persuaded that the criteria for granting a conditional licence are mandatory. Rather, they are circumstances that the RTA should take into account, together with the nature of the proposed driving task, when deciding whether to issue a conditional licence and, if so, what conditions to impose.[11]

[11] Bergild v Road Transport Authority [2017] ACAT 80 at [87] – [98]

21.A consideration therefore was whether Mr Bergild complied with the criterion concerning visual field/s and, if not, the extent to which he did not comply, when deciding whether he could (or should) be issued with a conditional driver licence. For the reasons given in my earlier decision, I was satisfied that Mr Bergild did not meet the visual field/s criterion.[12]  Questions remained however about the the significance of him not meeting that criterion, and the extent to which he did not meet it.

[12] Bergild v Road Transport Authority [2017] ACAT 80 at [84] – [86]

22.In his statement dated 25 October 2017, A/ Prof Odell explained the importance of visual field as follows:

An adequate visual field is essential for safe driving. Driving is a very complex and unnatural task and depends on the ability to take in a large amount of rapidly changing information about the driving environment, process it together with other sources of information or plans, make rapid decisions based upon it and then translate that to actions to control the vehicle. The most important source of environmental information for a driver is vision. Central vision is essential for perception of the road ahead and this is largely a function of the visual field above the horizontal meridian. Peripheral vision is essential for perception of oncoming traffic, other moving and turning vehicles, parked vehicles, pedestrians, road signs, traffic signals and immovable objects such as poles and trees.

23.The primary means for testing a person’s visual field is the Esterman test. In very simple terms, as I understood it, the test involves the subject person viewing a lit hemisphere through a scope and then clicking a handpiece every time the person sees a spot appearing somewhere in the hemisphere. By this means, the results record the ability of the person to pick up the spots appearing in their peripheral vision although the test has capacity for false negatives or false positives.  

24.A false negative occurs when the person saw the spot but does not press the button. A/Prof Odell explained that this can occur when a person gets ‘fixation’. A false positive occurs when the person pressed the button when there was no spot.

25.The hemisphere is quartered by horizontal and vertical midlines. For a person with monocular vision to meet the second criterion, as I understood it, the person must have a total of 110 degrees of peripheral vision left and right of the vertical midline within a band 10 degrees above and below the horizontal midline.[13]

[13] I understood from the evidence of Dr Beaumont that there needs to be vision 10 degrees above the horizontal midline and 10 degrees below the horizontal midline, rather than 10 degrees in total provided there is some peripheral vision above and below the horizontal midline

26.A/Prof Odell acknowledged that the Esterman test is not perfect, but commented that it is “as scientific as it can be” and as “realistic as we can get” when testing the extent of a person’s peripheral (or field of) vision. As he pointed out, vision itself is subjective: a person could only register what they see because it registers in the brain. He agreed that the Esterman test is not “100 per cent correct”, but considered it was “at least 95 per cent correct”.

27.Dr Beaumont commented on the results of Mr Bergild’s Esterman test as follows:

Dr Dunlop has supplied two Esterman Binocular Suprathreshold Visual fields [concerning Mr Bergild]. The first done on the 26/4/2016 had no false-positives. This field did not have one point where all the spots tested for 10 degrees above and 10 degrees below the horizontal midline were seen. The horizontal extent of a visual field is measured from the last point on the left to the last seen point on the [right] where all the spots tested for 10 degrees above and 10 degrees below the horizontal midline were seen right (sic). As there were no points fully seen the horizontal extent of the visual field is zero.

The second test was performed on the 14/6/2017. There were 7/14 false-positives. A false positive is when the subject presses the button when he has not seen anything. A person who was totally blind, even to the point of being unable to perceive light, could keep pressing continuously and the printout would suggest he had seen all the points and had a totally normal field. For this reason, the [Guidelines] at section 10 page [125] under the heading Visual fields assessment method page 125 (sic) states “For an Esterman binocular chart to be considered reliable for licensing, the false positive score must be no more than 20 per cent.”

28.Dr Beaumont provided a copy of Mr Bergild’s visual field result performed on 14 June 2017. He observed that even with the 7/14 (50 percent) false positive result,[14] invalidating the reliability of the test, the visual field result recorded that the horizontal extent of Mr Bergild’s visual field is only 30 degrees, made up of 20 degrees to the left of the midline and 10 degrees to the right. As Dr Beaumont observed, that range of peripheral vision is substantially less than the 110 degrees (in total) required for a person to meet the second criterion stated in the medical standards for grant of a conditional licence to a person with monocular vision.

[14] A/Prof Odell commented that a 30 per cent false-positive result is ‘very high’

29.Dr Beaumont also commented on the results of an Esterman binocular vision field test conducted by Dr Walker on 20 July 2017. Dr Walker stated that Mr Bergild had some visual field in the upper right and lower left quadrants, but not in the lower right or upper left quadrants. Where the criterion requires peripheral vision within 10 degrees above and below the horizontal midline, Dr Beaumont regarded the results as showing that the horizontal extent of Mr Bergild’s visual field is zero degrees.

30.A/Prof Odell made substantially the same observation when he stated:

In this case Mr Bergild’s non-compliance with the visual field guidelines is not of a doubtful, minor or marginal nature but is quite extreme. Essentially he views the world with only one eye and that one effectively through a pinhole.

31.I am satisfied, from the evidence of Dr Beaumont and A/Prof Odell, and from a better understanding of the mathematical results of the three Esterman tests, that Mr Bergild’s peripheral vision is extremely poor. The results suggest that Mr Bergild has either poor or no horizontal peripheral vision beyond, at most, 20 degrees either side of a midpoint looking straight ahead. The results suggest to me that when driving a car Mr Bergild’s horizontal peripheral vision, or field of vision, would be (at most) the width of the road on which he was driving.

32.The question then became the significance of that visual field defect in relation to the grant of a conditional driver licence.

33.In simple terms, it would seem that Mr Bergild is able to drive a car without accident provided all relevant events occur within a narrow field, meaning on the road or at least within its width. This means, for example, he could see and respond to cars driving ahead of him and to cars approaching him in an adjoining lane on the road. I expect he could see whether cars were approaching from his left or right at intersections by turning his head in the applicable direction in order to change his visual field from the road on which he was driving to the road approaching the intersection.

34.My impression from the evidence is that for a person with normal vision the experience would be something similar to driving at night with one eye closed using a single beam of light where everything outside that beam of light was black or at least opaque. I recognise that with great care it would be possible to drive a car in this manner although it would be extremely fraught.

35.Dr Beaumont appears to acknowledge my impression, stating that from his reading of statistical literature concerning drivers with visual field defects “the majority of subjects with an unacceptably high risk of an at-fault motor vehicle crash, followed over a period of years, do not have a motor vehicle crash.” This would appear to be consistent with Mr Bergild’s evidence, which I accepted and still accept, that until his licence was cancelled he had been driving daily over small distances without incident for more than 10 years.[15]

[15] Bergild v Road Transport Authority [2017] ACAT 80 at [8] and [10]

36.The difficulty, as Dr Beaumont noted, is that a “significant proportion” of persons with visual field loss do have motor vehicle crashes “leading to death and/or disability of members of the public that could have been avoided.” He also notes that “the ones at greatest risk are likely to be children.”

37.In his oral evidence, Dr Dunlop made a similar observation:

I think that your driving record is admirable but it is utterly irrelevant if you actually hit a child.

38.The concern, as I understood it from the evidence, is that peripheral vision is essential for safe driving in order to respond (or at least try to respond) to unexpected actions, objects or circumstances in the driver’s peripheral vision that will all may have a consequence for the driver.

39.The obvious example is a child that runs from the side of a road onto the road without first checking for oncoming cars. School zones mandating a maximum speed of 40 km/h, with severe penalties for driving above this speed, are in part to address that possibility. At a slower speed, a driver is likely to see a child or children by the road within the driver’s peripheral vision and so have an opportunity to stop or slow if a child unexpectedly runs or even walks onto the road in front of an oncoming car.

40.For a driver with poor or without peripheral vision, to drive at a slow speed is of much less benefit because the driver would not see the child until he or she was on the road in front of the car, by which time the driver may not be able to stop before striking the child.

41.The possibility of a child unexpectedly running onto a road just as Mr Bergild was approaching in his car, and him striking the child, may be slight or even remote, but that is not in my view a sufficient reason to grant him a conditional licence.

42.First, it is a consequence so serious that the risk of it occurring should not be taken. Were it to occur in Mr Bergild’s case, it would immediately be asked why he held a licence in the first place.

43.Second, a child running onto a road is not the only risk arising from a lack of peripheral vision. As Ms Humphreys noted in her evidence, drivers require peripheral vision to detect and respond to other vehicles and to warning signs and hazards beside the road, all of which impact on the person’s ability to drive safely on the road. For example, a driver requires peripheral vision to respond safely to cars merging into a single lane, or veering from a line, or warning signs to slow down for approaching roadworks or traffic hazards, or to see whether a person approaching a pedestrian crossing (often oblivious to approaching cars) is likely to use the crossing.

44.Returning to the reason for the adjournment, I am satisfied that the need for peripheral vision in order to respond to unexpected events explains why there is little (if any) purpose in conducting an on-road driving test. In all probability, an on-road driving test would be entirely uneventful because nothing would unexpectedly come onto the road. Put another way, Mr Bergild’s ability to respond to unexpected events happening or commencing in his peripheral vision relevant to his driving ability would remain untested.

45.Dr Beaumont explained:

If you consider a person whose risk of causing at fault injurious accidents was 10 times greater than normal [because of a poor visual field defect] he would on average have one such at fault [motor vehicle crash] every 45,400 miles. A typical on road driving test is for much less than 40 miles, so theoretically, on average he would have a 1/1000 chance of failing due to performing a manoeuvre that would cause an at fault accident. Clearly the subject may fail due to other possible manoeuvres during an on road driving test but the point is that an on road driving test will often be passed by someone who is a significant danger to the public.  There is no evidence base to suggest it is a valid test of assessing the effect of a significant visual disability on safe driving in the real world.

The only test used internationally for evaluation of the visual fields for recommending licensure is an Esterman.

46.Dr Beaumont’s evidence corresponds with the statement at section 10.2.8 in the Guidelines as follows:

A practical driver assessment is not considered to be a safe or reliable method of assessing the effects of disorders of vision on driving, especially the visual fields, as the driver’s response to emergency situations or various environmental conditions cannot be determined. Information about adaption to visual field defects can be gained from visual field tests such as the Esterman.

47.In my earlier decision, I noted section 10.2.8 but concluded that the statement needed to be put in context. In particular, in this case, I had evidence from two specialist ophthalmologists who were of the view that Mr Bergild’s circumstances (meaning his vision, cognition, attitude to driving age and drive history etc) meant that a conditional licence should be considered subject to him passing an on-road test.[16]

[16] Bergild v Road Transport Authority [2017] ACAT 80 at [128]

48.The further evidence of Dr Beaumont and A/Prof Odell persuaded me that an on-road driving test is not an appropriate means of testing whether a person has sufficient peripheral vision to hold a driver licence, conditional or otherwise, because it would only test the person’s ability to respond to an unexpected event in the periphery if it occurred. In all probability it would not occur.

49.From the further evidence of Dr Beaumont and A/Prof Odell, I also gained a better understanding of the extent of Mr Bergild’s visual field defects (which is extreme) and the significance of those defects.

50.With a better understanding of Mr Bergild’s visual field and an appreciation that an on-road test is not an appropriate method of assessing the sufficiency of a person’s visual field, I was satisfied that the decision under review to cancel Mr Bergild’s driver licence must be confirmed.

51.I recognise that this outcome is very disappointing for Mr Bergild. However unfortunately, as for all of us, wishes and aspirations sometimes need to give way as circumstances change.

………………………………..

Presidential Member G McCarthy

HEARING DETAILS

FILE NUMBER:	AT 34/2017
PARTIES, APPLICANT:	Jason Bergild
PARTIES, RESPONDENT:	Road Transport Authority
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	Ms J Noble
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Presidential Member G McCarthy
DATE OF HEARING:	8 December 2017