Brent v Road Transport Authority (Appeal)
[2018] ACAT 37
•29 March 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BRENT v ROAD TRANSPORT AUTHORITY (Appeal) [2018] ACAT 37
AA 22/2017 (AT 5/2017)
Catchwords: APPEAL – administrative review – driver licence – refusal to grant licence – whether person does not comply with required medical standards – whether person’s ability to drive safely is impaired by an illness, injury or incapacity – interpretation of ‘may refuse’
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 82
Legislation Act 2001 ss 6, 146
Road Transport (General) Act 2000 ss 90, 90A, 95
Subordinate
Legislation cited: Road Transport (Driver Licensing) Regulation 2000 ss 5, 15, 70, 87, 88
Cases cited: Bergild v Road Transport Authority [2017] ACAT 80
Fox v Percy (2003) 214 CLR 118
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
Legal Practitioner v Council of the Law Society of the ACT [2015] ACTSC 316
Legal Practitioner RH v Council of the Law Society of the ACT [2016] ACAT 94
Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41
The Tenant v Commissioner for Social Housing [2016] ACAT 49
List of
Texts/Papers cited: Austroads and the National Transport Commission, Assessing Fitness to Drive for commercial and private vehicle drivers, 2016, Medical standards for licensing and clinical management guidelines (October 2016)
ACT Older Drivers’ Handbook
Tribunal:Acting Presidential Member R Orr QC
Member D Lucas
Date of Orders: 29 March 2018
Date of Reasons for Decision: 29 March 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 22/2017
BETWEEN:
BERN BRENT
Appellant
AND:
ROAD TRANSPORT AUTHORITY
Respondent
TRIBUNAL:Acting Presidential Member R Orr QC
Member D Lucas
DATE:29 March 2018
ORDER
The Tribunal orders that:
1.The appeal application be dismissed.
………………………………..
Acting Presidential Member R Orr QC
Delivered for and on behalf of the Tribunal
REASONS FOR DECISION
1.Bern Brent (Mr Brent or appellant) applied for a driver licence in about March 2015 and on further occasions. His previous licence had been cancelled on medical grounds in relation to his vision.[1] On 16 December 2016, the Road Transport Authority (RTA, Authority or respondent) confirmed in effect that his application for a licence was rejected. In summary this decision was based, first, on a finding that Mr Brent’s vision did not meet the required medical standards to hold a licence and, second, that a driving test on 20 August 2015 also indicated that Mr Brent’s vision was impairing his ability to drive safely.[2] Mr Brent had sought a licence to do some refresher training before the driving test, but that request had been denied.[3]
[1] Appeal Book pages 252-253, decision of tribunal dated 14 March 2014
[2] Appeal Book pages 34-36 and 187-189
[3] Appeal Book page 46, Reasons for applying for a review
2.Mr Brent sought a review of this decision in the ACT Civil and Administrative Tribunal (tribunal). At a hearing on 4 May 2017, Presidential Member McCarthy (Original Tribunal or Presidential Member McCarthy) affirmed the decision under review and declined to grant Mr Brent a driver licence (Original Tribunal decision).[4] The Original Tribunal decision considered the first ground, that Mr Brent’s vision did not meet the required medical standards, but made no finding on this.[5] The Original Tribunal was satisfied that the Authority was right to refuse the licence on the second ground, namely because Mr Brent’s ability to drive safely was impaired by his incapacity to see.[6] The decision noted that Mr Brent complained about not being given a refresher training lesson before the driving test, which he argued may have better prepared him for it, but found that the evidence was that refresher training would not have made any difference, nor would further training, because the reason he failed the driving test was he could not see where he was going.[7]
[4] Transcript of Original Tribunal decision on 4 May 2017 pages 1-9; Appeal Book pages 7-15. The full transcript of the hearing at Appeal Book pages 93-162 indicates that the hearing was held on the morning of 4 May 2017, and the decision given in the afternoon
[5] Transcript of Original Tribunal decision on 4 May 2017 page 5, lines 1-4; Appeal Book page 11
[6] Transcript of Original Tribunal decision on 4 May 2017 page 5, lines 4-8; Appeal Book page 11
[7] Transcript of Original Tribunal decision dated 4 May 2017, page 7, lines 12-15; Appeal Book page 13
3.Mr Brent now appeals the Original Tribunal decision.
Summary of the decision in the appeal
4.A key issue in the appeal was Mr Brent’s argument that there was a miscarriage of justice when he was not allowed to have refresher training before his driving test. The Original Tribunal did not believe this was a miscarriage of justice, unlawful or inappropriate, and this Tribunal on appeal does not think that this decision involved an error of fact or law.
5.It is true that the RTA could have allowed a refresher training session before the driving test, but even at that point there was evidence that Mr Brent should not be granted a licence, even a learner licence, to enable him to do so. It was open to the RTA to wait for the further information provided by the driving test before making this decision. After the driving test, the opinion of those conducting it was that Mr Brent should not have a licence, even a learner licence, and that earlier refresher training would have been of limited assistance to him, as would further training. Mr Brent strongly disputed these views, but the Original Tribunal preferred the evidence of those who conducted the test, and medical evidence presented by the RTA. This evidence indicated that Mr Brent, even as part of refresher training, could not drive safely and would pose a significant risk to others using the roads. This Tribunal sees no error of fact or law in the decision of the Original Tribunal.
6.Mr Brent raised a range of other issues, but this Tribunal does not think that they provide a basis for overturning the Original Tribunal decision.
7.This Tribunal therefore orders that the appeal be dismissed, and the order of the Original Tribunal is confirmed.
Legislation
8.Section 5 of the Road Transport (Driver Licensing) Regulation 2000 (Driver Licensing Regulation) provides for the basic forms of driver licences, namely (a) learner licences; (b) provisional licences; (c) full licences; (d) restricted licences; and (e) probationary licences. There is also provision for a conditional licence that is subject to a condition (section 6).
9.Section 70 then provides:
70 When applications for issue and certain variations of driver licences can be refused
(1) The road transport authority may refuse an application for the issue or variation of a driver licence under this part (other than an application for a condition variation) if the authority is satisfied on reasonable grounds that—
…
(d) the person does not comply with the required medical standards; or
(e) the person’s ability to drive safely is impaired by—
(i) an illness, injury or incapacity suffered by the person; or
(ii) the effects on the person of treatment (including the taking of a drug) for an illness, injury or incapacity suffered by the person; or
…
10.In relation to cancellation of a licence, section 87(1) provides that the RTA may vary, suspend or cancel a person’s driver licence on its own initiative under section 88 of the Regulation if the Authority is satisfied on reasonable grounds of the same matters set out above in section 70(1), in particular that the person does not comply with the required medical standards (section 87(1)(d)) or the person’s ability to drive safely is impaired by an illness, injury or incapacity suffered by the person (section 87(1)(e)(i)). Section 15 of the Driver Licensing Regulation provides that “required medical standards” as used in sections 70(1)(d) and 87(1)(d) are set out in the publication Assessing Fitness to Drive as published from time to time. The relevant publication is Assessing Fitness to Drive for commercial and private vehicle drivers 2016; Medical standards for licensing and clinical management guidelines published by Austroads and the National Transport Commission (October 2016) (Fitness to Drive Standards).
RTA decision
11.Unfortunately, there is some complexity and confusion in relation to the decision under review.[8] But in summary the position is as follows. Mr Brent had previously had his driver licence cancelled, a decision which was the subject of proceedings in the tribunal in 2014 (2014 tribunal). On 14 March 2014 the 2014 tribunal ordered that the RTA’s decision on 29 November 2013 to cancel Mr Brent’s licence, upheld on internal review on 12 December 2013, was confirmed. The order of the 2014 tribunal made it clear that this was on the basis of failure to comply with the required medical standards concerning vision.[9]
[8] Submissions of the respondent, part B; transcript of appeal proceedings on 28 September 2017, page 37
[9] Appeal Book pages 252-253
12.Mr Brent made what was treated as a new application for a driver licence in about March 2015. There was a Driver Licence Medical form completed by Dr Liu on 18 March 2015.[10] This medical form indicated Mr Brent was then 92 years old, and stated that Mr Brent’s visual acuity was “as per Dr Chang’s report”. Under the heading visual problems, Dr Liu wrote “MD [which appears to mean macular degeneration] with L [which appears to mean left] visual impairment stable” and he ticked “no” to the question “Does this affect his or her ability to drive?”. Dr Liu ticked the statement “Meets the relevant medical criteria for an unconditional licence” and stated “Restrict: no night driving limit to 150 kms from home”. Other evidence indicates that Dr Andrew Chang, Vitreoretinal Surgeon, had been treating Mr Brent for macular degeneration. The relevant report of Dr Chang is dated 13 March 2015[11] and stated: “Visual acuity in the right eye was 6/15 left eye 6/60. Visual fields are full to confrontational testing. In my professional opinion I believe that Mr Brent would be suitable to hold a restricted driver’s licence limited to 150 kilometres from his home”.
[10] Appeal Book pages 227-228
[11] Appeal Book page 229
13.Pursuant to the application Dr Catherine Sansum, a Staff Specialist at the Clinical Forensic Medical Services, Canberra Hospital and Health Services, provided a medical report dated 23 June 2015.[12] This report had regard to a range of other medical reports, including the report of Dr Chang noted in the previous paragraph, and a clinical consultation. Dr Sansum stated: “Mr Bern Brent does not currently meet the requirements to hold an unconditional licence. Whilst Mr Bern Brent just meets the visual requirements … to hold a conditional licence and has a letter from Dr Chang supporting his request for a licence, I have significant concerns with regard to his functional visual ability and his ability to see adequately in order to react quickly enough to drive safely”. Some examples of his limited abilities were given in support of this concern, namely that Mr Brent was not able to see the diagrams used in the medical consultation without the aid of an illuminating magnifying glass, and that he told Dr Sansum that he was unable to read street signs or number plates. Dr Sansum stated that if the RTA considered Mr Brent to be suitable to hold a conditional licence, that this be subject to a satisfactory on road assessment, and other conditions. The report noted that a number of alternatives to driving a motor vehicle are available.
[12] Appeal Book pages 219-222
14.Mr Brent undertook a driving assessment on 20 August 2015. Mr Brent’s evidence, which was not contested, was that he wanted to have a refresher driving course before the driving test because he had not driven for about two years but “… when I asked for my learners driving licence two or three days before the test, I was told by the lady at the Woden office of the RTA, who consulted her computer, that they had instructions not to issue me with a learners driving licence until the day of the test”.[13]
[13] Application, Appeal Book pages 22 and 46; transcript of appeal proceedings on 28 September 2017, page 9, where Mr Brent suggests it may have been a man who served him at the Woden office
15.The test was conducted by Susan Humphries and Brian McKinnon and a report of the results issued.[14] The report noted that Mr Brent was observed to use a magnifying glass to complete some of the off road activities including identifying road signs and road hazards. It said that Mr Brent admitted he was unable to view the speedometer and other dashboard instrumentation, however he stated he always drove considerably slower than the sign posted speed limit and was able to judge the speed that the vehicle was travelling. The report concluded in relation to the off road assessment that evidence indicated “that visual deficits may impact on his ability to drive safely including monitoring speed and observing hazards”.
[14] Appeal Book pages 213-215
16.The decision was made to progress to on road testing. It was a sunny day and the drive was undertaken in a local, quiet and familiar area in Mr Brent’s vehicle which had manual transmission. However, during this drive it is reported that Mr Brent “drove the vehicle on the wrong side of the road”; “his speed was noted at between 60-70km/hour in the 50km/hr speed zone”; “he approached a parked vehicle … that he appeared not to have observed as he needed to make a sudden correction … to avoid a collision”; “for a right hand turn, he positioned the vehicle over the painted islands and we were heading for a concrete island … with a keep left sign (pedestrian refuge)” and “the driving instructor was required to intervene to ensure the safety of the vehicle”; at another point “his speed was noted at 70km/hr in the 60 km/hr speed zone”; at another turn “his approach was fast and consequently his vehicle position was over the centre line of the road”; he selected “neutral a considerable distance from corners and intersections … [which] caused the speed of the vehicle to increase and he was unable to compensate for this, resulting in reduced control of the vehicle”. The assessment was terminated as it was considered unsafe to continue. The report concluded: “It would appear from off and on road testing that the noted deficits in his visual acuity are impacting on his ability to drive safely… Given the issues seen both off and on road a reassessment is unlikely to achieve a different outcome as his visual defect cannot be treated or cured … he will not benefit from using vehicle modifications or driver retraining therefore we recommend that his licence be cancelled.”[15]
[15] Appeal Book pages 213-215
17.In a letter from Peter Gibbs to Mr Brent dated 27 August 2015 Mr Brent was advised that following the recent assessment, “the RTA has been advised that your driving is not of the required standard to hold a driver licence”.[16] It stated that the report of the road test concluded that as the deficits in Mr Brent’s driving performance are related to his condition, he would not benefit from using vehicle modifications or driver retraining. The letter stated that the RTA had now cancelled the driver licence that was issued to Mr Brent to allow this assessment to be undertaken. By implication this is also a decision not to grant a further learner licence, or any other type of licence.
[16] Appeal Book pages 206-207
18.There was a range of further communications in which Mr Brent sought to be reassessed and to be granted a learner licence. A request for a learner licence to a customer service officer, presumably made orally, was refused as set out in a letter dated 1 December 2016 from Tony Spasenoski, Manager, Licensing and Infringements, Road User Services, in the Chief Minister, Treasury and Economic Development Directorate of the ACT Government to Christopher McKeown, who was then a lawyer for Mr Brent.[17] In a letter dated 9 December 2016 from Mr Brent to Brett Swale (Mr Swale), Senior Manager, Transport, Access Canberra, in the Chief Minister, Treasury and Economic Development Directorate Mr Brent stated that he wanted his appeal heard by ACAT. He stated that his reason for appealing was: “… I believe there was a miscarriage of justice when you would not agree to me having a refresher driving course despite your own Older Drivers Handbook recommending such a course”.[18]
[17] Appeal Book pages 192-194
[18] Appeal Book page 191
19.In a letter dated 16 December 2016, Mr Swale, replied to Mr Brent’s letter of 9 December 2016 and stated that he treated that letter as a request for an internal review.[19] Mr Swale indicated that a refresher course would not improve the impact his vision was having on his driving and that the vision results indicated that he did not meet the required medical standards to hold a licence. He stated that Mr Brent’s sight did not fit within the medical standards as set out in the Fitness to Drive Standards. He indicated that the driving assessment on 20 August 2015 also indicated that Mr Brent’s vision was impairing his ability to drive safely. He concluded: “Given the clear evidence that your vision does not meet the required medical standards and that your vision is impairing your ability to drive safely I have decided to uphold the decision to refuse to issue you with a learner licence”.[20]
[19] Appeal Book pages 34-36 and 187-189
[20] Appeal Book pages 34-36 and 187-189
20.As noted there is some confusion about the specific nature of the relevant decision. In the letter of 16 December 2016 it is stated that it is a reconsideration of a decision not to issue a learner licence.[21] This is the principal decision considered by the Original Tribunal and this Tribunal. But in some of the materials there is reference to a decision not to grant a licence of any kind[22]; the Tribunal takes the view that on the basis that such an application were made, the decision and its reconsideration implicitly refuses that application. Some of the materials focus on the cancellation of Mr Brent’s earlier learner licence, in particular in the letter of 27 August 2015 which stated that the decision was one to cancel the driver licence that was issued to Mr Brent to allow his assessment to be undertaken;[23] on the basis that this was the original decision, the reconsideration also resulted in a confirmation to cancel any such licence. Nothing turns on this because it is clear that there was a relevant decision not to grant a learner licence, and in effect any licence, in the letter of 16 December 2016 and earlier related decisions not to grant a learner licence several days before the driving test, to grant a licence to enable the driving test, and to cancel the learner licence which enabled the test. As noted above at paragraph [10], the grounds for refusing a licence and for cancelling a licence are much the same.
Review by the Original Tribunal
[21] Appeal Book pages 34-36 and 187-189
[22] Letter of 1 December 2016, Appeal Book pages 192-194
[23] Appeal Book pages 206-207
21.The reconsideration decision is reviewable in the tribunal under sections 90, 90A and 95 of the Road Transport (General) Act 1999, and regulations 11-12 and item 21 of Schedule 1 Part 4.1 of the Road Transport (General) Regulation 2000. No issue was raised by the RTA that the matter was outside the tribunal’s jurisdiction. Given the history of decision-making set out above, it is clear that the RTA has taken a generous approach to allowing Mr Brent to seek reconsideration and review of the decision.
22.Mr Brent made an application for review of a decision to the tribunal dated 19 January 2017 (Application).[24] In attachment 1 to this Application he stated that the reasons for the Application “is that I believe there was a miscarriage of justice when [Mr Swale] … would not agree for me to have a refresher driving course”.[25] In attachment 3, headed “Reasons for applying for a review”, Mr Brent stated that: “Had Mr Swale been disinterested in the outcome of my driving test, he would have allowed me revisionary driving lessons before the test …”. He also stated that at the time of his test his sight was what it had been for years, indeed going by recent eye test results it was better.[26]
[24] Appeal Book pages 17-56
[25] Appeal Book page 22
[26] Appeal Book page 46
23.In another document in the Application headed “Details of reviewable decision” Mr Brent stated that he wanted his appeal heard in connection with the refusal to allow him to have refresher lessons before the driving test. He put forward a range of issues in response to the report of the driving test. This included that driving on the wrong side of the road was at the relevant point “what most people …do. Had I had a revisionary lesson, I would have been instructed to keep to traffic rules no matter what.” He stated that the “warning of one of the testers before we set off not to drive too slowly, kept running in his ears”, apparently an explanation of his speed. As to the incident with the parked car he stated: “I think there was another car in front of me as I drove and when I saw the parked car I had the choice of either to brake or to veer to the right. I did the latter since I knew there was no car behind me and no car coming the other way. It is the sort of thing that could happen to anyone.” He said he could see the road markings, but that he did not blame his testers for believing that he could not, “in their shoes I would have believed the same”, but that his driving was “a clear indication of how badly I was ‘shook up’ during the test, not having been behind the wheel for such a long time”. He denied that he would have collided with anything but for the tester’s intervention.[27]
[27] Appeal Book pages 28-29; transcript of proceedings on 4 May 2017, esp. pages 20, 42-45, and 49-52, Appeal Book pages 112, 134-137 and 141-144; see also transcript of appeal proceedings on 28 September 2017, esp. pages 9-12 and 25-28
24.Mr Brent stated that the orders he sought were: “To reissue me with a learner’s permit enabling me to re-sit the driving test and have revisionary lessons as recommended by the RTA.”[28]
[28] Appeal Book page 47
25.The Application was heard on 4 May 2017 by Presidential Member McCarthy. A range of additional evidence was before the tribunal in that hearing. This is set out in the transcript of the proceedings[29] and exhibits in those proceedings. In summary the following is noted.
[29] Appeal Book pages 93-162
26.Dr Chang gave evidence for Mr Brent. He stated that on his last examination of Mr Brent his visual acuity “in the right eye was six over 15, and the left three over 18 … the eye itself was stable, in particular, the macular degenerative changes were quiet and well treated”. He said he found Mr Brent highly intelligent, highly considered, logical, consistent, reliable, and that he had attended every visit, by which we think he meant appointment. He considered Mr Brent suitable for a conditional licence.[30] He agreed Mr Brent had monocular vision and appears to agree that he did not meet the medical standards.[31] Asked whether Mr Brent should be subject to a driving test he replied: “I think that’s for you to decide. In terms of what I would normally do … I would probably say they could hold a licence for up to 50ks from home. … He’s very close to the six 15, very close to an unrestricted licence in New South Wales, in a different setting he’d be given a five year licence if he wasn’t 94.”[32]
[30] Transcript of proceedings on 4 May 2017 page 31, Appeal Book page 123
[31] Transcript of proceedings on 4 May 2017 page 32, Appeal Book page 124
[32] Transcript of proceedings on 4 May 2017 page 33, Appeal Book page 125
27.Brian McKinley provided a statement dated 24 March 2017.[33] Mr McKinley had carried out the driving test. He stated that he was an accredited driving instructor and workplace training assessor and had been in this role for 15 years. His statement confirmed the report of the driving test in particular that: Mr Brent acknowledged that he could not see the speedometer; he drove on the wrong side of the road “for a considerable distance”; he put the car into neutral on approach to intersections and corners; Mr Brent had to take evasive action to avoid a collision; and that he, Mr McKinley, was forced to take control of the car to avoid an obstacle. In relation to this last incident Mr McKinley stated: Mr Brent “ … positioned the vehicle, aiming towards a concrete median strip with a yellow metal ‘keep left’ sign mounted on it. I was forced to take control of the car to steer Mr Brent away from the obstacle. I formed the opinion that, once again, he had not seen the obstacle”.[34]
[33] Appeal Book pages 275-279
[34] Appeal Book pages 275-277
28.Mr McKinley stated that he informed Mr Brent that the deficits in his driving performance would not be sufficiently addressed by driver training or the inclusion of vehicle modifications/aids. He stated that in making his recommendation he “considered the possibility of training, vehicle modification, the lack of recent driving experience and the granting of a restricted licence” and he “formed the opinion that the granting of a restricted licence to Mr Brent would be of no benefit to him, as he demonstrated extremely unsafe driving in his local area.”[35] In oral evidence Mr McKinley stated that from his experience the things that Mr Brent demonstrated are not things that a prudent or reasonable driver would do, so he concluded that it was because Mr Brent was unable to see that he made the errors, and considering also Mr Brent’s vast driving experience he would not expect him to be demonstrating the matters set out in the report.[36] Mr McKinley also indicated that he had not made a conclusion about not granting Mr Brent a learner licence until after the assessment.[37]
[35] Appeal Book page 278
[36] Transcript of proceedings on 4 May 2017 page 45, Appeal Book page 137
[37] Transcript of proceedings on 4 May 2017 page 46; Appeal Book page 138
29.Susan Humphries also carried out the driving test and provided a statement dated 7 March 2017.[38] She is an occupational therapist whose role involves assessing drivers’ ability to learn, continue or resume driving with various medical conditions, a position she has held since 2005. Her statement also confirmed the report of the driving test. She stated that Mr Brent sped, drove on the wrong side of the road, narrowly avoided a parked car and was driving towards an island with bollards when Mr McKinley was forced to grab the steering wheel. She concluded that Mr Brent’s functional vision was not suitable for the driving task and that he “demonstrated difficulty perceiving hazards and observing the speedometer in local familiar areas on a good driving day.” In making the recommendation she considered the possibility of training, vehicle modification, the lack of recent driving experience and the granting of a restricted licence.[39]
[38] Appeal Book pages 281-285
[39] Appeal Book pages 281-285
30.In her oral evidence, in response to a question about whether Mr Brent’s issues could be remedied by aids, Ms Humphries stated: “So we always consider if there’s something else we can put in the car. We always consider training. And unfortunately, it was a brief assessment, we were only on the road for two minutes, because it was probably the scariest drive we had been in, in our experience. … So Brian and I had a consultation about whether there were aids, whether there was training, we were aware Mr Brent hadn’t driven for a couple of years before we did the assessment … And our role as an occupational therapist and in the Driver Assessment Service in particular, is we want to increase people’s independence, and we know how important driving is. And unfortunately, we weren’t able to – and we feel helpless when we’re – we haven’t got anything to offer someone. So we did give Mr Brent some information about other ways of getting around Canberra, and problem solving some of the issues he had …”[40]
[40] Transcript of proceedings on 4 May 2017, page 51, Appeal Book page 143
31.A report was also provided by Associate Professor Vanita Parekh dated 6 March 2017.[41] Dr Parekh stated that her report was based on the discussion by the Fitness to Drive Medical Clinic Panel (FTDMC panel), the assessment by Dr Sansum, the driver assessment report, the reports of Dr Chang and other information. She stated that Mr Brent’s vision in his right eye fluctuated between 6/15 to 6/30; the vision in his left eye fluctuated between 6/45 to worse than 6/60; he was functionally monocular in his left eye and his visual acuity in his right eye did not meet the standard for a monocular driver, that is Mr Brent did not meet the visual standard for driving (see below at paragraph [60]). She concluded: “2. Mr Bern Brent is functionally monocular … and does not meet the medical standard for driving. … 3. The DARS assessment … indicates Mr Bern Brent is not safe to drive or hold any type of driver’s licence. … 4. Review of the case … is conclusive in that he cannot be recommended for any type of driver’s licence, this is the view of the FTDMC panel. There are significant risks in Mr Bern Brent and the community should he be granted any type of driver’s licence”.[42] Dr Parekh also gave oral evidence before the Original Tribunal.
[41] Appeal Book pages 287-295
[42] Appeal Book pages 292-293
32.The decision of the Original Tribunal can be summarised as follows. Consideration was given as to whether the licence could be refused under section 70(1)(d) of the Driver Licensing Regulation on the basis that Mr Brent did not comply with the required medical standards. Given his monocular vision it was held that Mr Brent could not hold an unconditional licence.[43] There was some evidence about and consideration of whether he could hold a conditional licence, but no finding was made on this.[44] The Original Tribunal did hold that failure to comply with the required medical standards enabled the RTA to refuse a licence, but failure to comply did not require the RTA to refuse a licence, rather the RTA had a discretion to refuse on this basis or grant a licence.[45]
[43] Original Tribunal decision page 3, lines 26-27, Appeal Book page 9
[44] Original Tribunal decision page 5, lines 1-4, Appeal Book page 11
[45] Original Tribunal decision page 4, lines 3-6, Appeal Book page 10; see below at paras [61]-[67]
33.The Original Tribunal was satisfied that the Authority was right to refuse the licence under section 70(1)(e) of the Driver Licensing Regulation because Mr Brent’s ability to drive safely was impaired by his incapacity to see.[46] This finding was based on the evidence of Dr Parekh, who was of the view that Mr Brent was not fit to hold a driver licence of any kind,[47] and Mr McKinley and Ms Humphries who conducted the driver assessment.[48]
[46] Original Tribunal decision page 5, lines 4-8, Appeal Book page 11
[47] Original Tribunal decision page 5, lines12-14, Appeal Book page 1
[48] Original Tribunal decision page 5, line 26 to page 6, line 24, Appeal Book page 11
34.The decision indicated that Dr Chang did not say Mr Brent should be given a licence, but Dr Chang simply gave evidence of Mr Brent’s visual acuity.[49] It noted that Mr Brent complained about not being given a revisionary lesson before the assessment, which he argued may have better prepared him for it.[50] But the evidence of Mr McKinley and Ms Humphries was that they took account of the fact that Mr Brent had been off the road for some time, and they were of the view that refresher training would not have made any difference because the reason he failed the test was he could not see where he was going.[51] In this regard the Original Tribunal preferred the evidence of Mr McKinley and Ms Humphries to that of Mr Brent.[52] It was noted that Mr Brent provided no evidence, apart from his own opinion, that a refresher lesson would have made a difference.[53]
Appeal
[49] Original Tribunal decision page 7, lines 16-24, Appeal Book page 13
[50] Original Tribunal decision pages 7-9, Appeal Book pages 13-15
[51] Original Tribunal decision page 7, lines 12-15, Appeal Book page 13
[52] Original Tribunal decision page 8, lines 21-22, Appeal Book page14
[53] Original Tribunal decision page 9, lines 6-8, Appeal Book page 15
35.Mr Brent lodged an application for appeal dated 19 June 2017.[54] He was granted an extension of time to do so.[55] An Appeal Book was prepared by the respondent.
[54] Appeal Book pages 1-3
[55] Order of 3 July 2017
36.The application for appeal sought that the original orders be set aside and substituted by an order that Mr Brent should have been given a learner licence before his test to enable him to have the refresher lessons.[56] The reasons for the appeal were said to be as follows: “The Presidential Member McCarthy did not primarily respond to my appeal. For instance, not a single time during the hearing did he ask Mr B Swale of RTA the obvious question: why did you refuse to issue Mr Brent with a learner’s drivers licence 1 or 2 days before his driving test?”[57]
[56] Appeal Book page 2
[57] Application for Appeal, Appeal Book page 3
37.Mr Brent provided the following submission like documents.
(a)Comment dated 14 August 2017 which deals with statements in the Original Tribunal decision.
(b)Letter dated 11 September 2017 containing further examples of errors of fact and law.
(c)Letter dated 21 September 2017 attaching relevant documents.
38.The respondent provided a document entitled ‘Submissions by the respondent’ dated 11 September 2017. This responded to the appeal and also challenged the finding of the Original Tribunal that not meeting the relevant medical standard did not necessarily preclude grant of a licence under section 70(1)(d). It also dealt with 10 grounds of appeal which were formulated from Mr Brent’s materials.
39.This appeal was dealt with under section 82(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) as a review of the original decision, not as a new application.[58] In such a case the appellant must show an error of fact or law that justifies the Original Tribunal decision being varied or reversed.[59] There is no requirement that the error be manifest, obvious or other than an error discernible by a proper assessment of the evidence and the law.[60] But Mr Brent must show some factual or legal error.
[58] Transcript of proceedings on 28 September 2017, page 5
[59] Section 79(3) of the ACAT Act; Legal Practitioner RH v Council of the Law Society of the ACT [2016] ACAT 94 at [19]-[20]; quoting The Tenant v Commissioner for Social Housing [2016] ACAT 49
[60] Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [35]-[38]
40.A hearing was held on 28 September 2017. The Authority provided further additional submissions in October 2017, as did Mr Brent in an email dated 12 November 2017.
Failure to allow refresher training before the driving test
41.A key issue in the original Application and the appeal was Mr Brent’s claim that there was a miscarriage of justice when he was not allowed to have a refresher driving course before his driving test. In relation to this Mr Brent’s evidence as set out in his Application was as follows: “… when I asked for my learners driving licence two or three days before the test, I was told by the lady at the Woden office of the RTA, who consulted her computer, that they had instructions not to issue me with a learners driving licence until the day of the test. By refusing to allow me a revisionary lesson, the RTA, via Mr Brett Swale, made sure that I was almost certain to fail.”[61]
[61] Appeal Book page 46, and see also page 22; appellant’s comment dated 14 August 2017, esp. pages 1, 3, 4, 6; appellant’s letter dated 11 September 2017, esp. pages 1 and 2; transcript of appeal proceedings on 28 September 2017, esp. page 9, where Mr Brent suggests it may have been a man who served him at the Woden office, and pages 8-12, 14, 23, 25, and 26-27
42.Mr Brent particularly relied on a RTA publication, Older Drivers Handbook, which had a section headed “Preparing for the practical driving assessment”. This included statements such as: “Refresh your road knowledge to ensure you’re up to date with any new road rules …”. Most significantly it stated: “It may be helpful to have a practice session with a qualified instructor (look in the yellow pages) or someone else you consider to be a good driver, prior to the practical driving assessment.”[62] The existence of these statements was not denied by the respondent.
[62] Application, Appeal Book page 46
43.The Original Tribunal clearly and expressly dealt with this issue and stated: “… I also make a finding in relation to the grounds upon which Mr Brent brings his appeal, that there was no obligation to provide a refresher lesson beforehand to Mr Brent – especially in circumstances where he did not hold a licence to enable that to occur. And even if that would have been of some assistance in his mind, the evidence of Mr McKinley and Ms Humphries is to the effect that it would not have made a difference. And had they been of the view that it would have assisted, they would have persevered with the assessment.”[63]
[63] Original Tribunal decision page 9; Appeal Book page 15
44.Mr Brent argued that: “I should have been given a learner’s licence before the day of my test, to enable me to take revisionary lessons. It was something that the previous Tribunal member did not realise.”[64] In this regard he relied on the hearing before the Original Tribunal where Presidential Member McCarthy noted that it was a matter for Mr Brent to go and have revisionary lessons.[65] However, Presidential Member McCarthy then commented that “you need a licence to do that”. We think it is clear from the decision of Presidential Member McCarthy that he realised a licence was necessary for Mr Brent to drive, even when undergoing driver training. Indeed the decision focusses on the decision to refuse to grant a licence to Mr Brent. This Tribunal takes a similar approach. However we also note that other types of revision, such as of the road rules and safe driving practices, do not require actual driving.
[64] Transcript of appeal hearing on 28 September 2017, page 12
[65] Transcript of hearing on 4 May 2017, page 14, lines 31-32, Appeal Book page 106
45.Generally, this Tribunal thinks that there is no error in this aspect of the Original Tribunal decision, for the following reasons. First, Mr Brent did not identify any law which required that he be given a learner licence to enable him to undertake refresher training before the test.
46.Second, the comments in the Older Drivers Handbook are not such a law. They are general advice to persons preparing for an assessment. In their terms they are directed to people who have an appropriate licence to have a practice session. They do not suggest in our view that someone without an appropriate licence is entitled to have a practice session. Nor do they suggest in our view that everyone who wants to have a practice session will be granted a licence to do so.
47.Third, it is true that the RTA must make licensing decisions in accordance with the principles of procedural fairness (at times called natural justice). One element of the principles of procedural fairness is that a decision-maker must afford a person whose interests will be adversely affected by a decision, in this case Mr Brent, an opportunity to present his case. Here, Mr Brent was given the opportunity to present his case to the RTA, and he has been given a further opportunity in the tribunal.
48.Another element of the principles of procedural fairness is the bias rule, namely that a decision-maker must not have an interest in the matter to be decided or bring to the matter a prejudicial mind. Mr Brent made some suggestions that the RTA were prejudiced against him, including by refusing to allow him a revisionary lesson which made sure that he was almost certain to fail the driving test.[66] Whilst Mr Brent may have such views, the Tribunal does not see any evidence in support of an allegation that officers of the RTA were biased against Mr Brent.
[66] Application, Appeal Book page 46
49.It may be that procedural fairness, or a related concept, imposes on decision-makers a more general duty to act fairly. But even if there is such a more general duty to act fairly, we do not think that this extends to allowing training before the test. As noted above, in our view the Older Driver Handbook does not represent that someone without an appropriate licence will be able to have a practice session. If there had been such a representation then this may have given rise to an argument that the RTA was required to comply with the representation where it would be unfair not to do so.
50.Fourth, it is true that in many cases a learner licence is issued to enable a person to move towards a conditional or full licence. But the Driver Licensing Regulation allows rejection of an application for learner licence. In this case the RTA officers took the view that they would wait until after the driving test to decide whether to grant a learner licence, or continue the licence which enabled the test, or other form of licence to Mr Brent. This seems appropriate in light of the information which was before them, including that Mr Brent had previously had his licence cancelled on medical grounds, he had macular degeneration, and that Dr Sansum had advised that Mr Brent did not currently meet the requirements to hold an unconditional licence and that she had significant concerns with regard to his functional visual ability and his ability to see adequately in order to react quickly enough to drive safely. In these circumstances it seems an acceptable process for the RTA only to issue a learner licence to enable a road test, and that in light of the results of that road test, to make further licensing decisions.
51.Fifth, as noted by the Original Tribunal, the evidence of Mr McKinley and Ms Humphries was to the effect that Mr Brent should not be issued any licence and that a practice session would not have made a difference to this result.[67] Both Mr McKinley and Ms Humphries are very experienced in their relevant fields. It was open to the Original Tribunal to give weight to these views, and to discount Mr Brent’s own self-assessment. Mr Brent provided no independent evidence that a practice session would have made any difference.
[67] Original Tribunal decision page 9; Appeal Book page 15
52.Sixth, it is true that the RTA could have allowed a practice session. That is based on the analysis by the Original Tribunal and below at paragraphs [61]-[67] that the officers of the RTA had a discretion in this regard. But in exercising that discretion, the ‘rights’ and interests of Mr Brent needed to be balanced against the risks to him and, even if this is ignored, more significantly, the interests of and risks to other drivers, cyclists and pedestrians. Driving, including during training, is a dangerous activity which puts others at risk of injury. In light of this context, it was open for the RTA to give priority to the interests of other road users by denying Mr Brent the opportunity of a practice session given the doubts about his capacity to drive safely, even with an instructor. After the driving test, when there was further evidence of Mr Brent’s incapacity to drive safely, even with a highly experienced instructor, it was open to the RTA to deny him a licence. The Original Tribunal standing in the shoes of the decision-maker agreed with that decision.[68] The Original Tribunal put particular weight on the fact that Mr McKinley had to take the wheel to steer Mr Brent away from a concrete island or bollard. This Tribunal notes that if a friend or less experienced instructor had been in the car providing refresher training to Mr Brent an accident might not have been avoided. And as the Original Tribunal noted, if the concrete bollard had been an elderly person or a child or any person the result could have been catastrophic. The Original Tribunal “was not persuaded that the risk is acceptable, having regard to the significance and seriousness with which Mr Brent failed the driving test”, and found that Mr Brent, even as part of refresher training, could not drive safely and would pose a significant risk to others using the roads. This Tribunal is of a similar view. In the appeal Mr Brent said he based his arguments on logic, truth and justice,[69] but in doing so he did not adequately address the evidence of the risk to others which his driving with his medical condition posed, even when he was accompanied by an instructor.
[68] One issue raised by Mr Brent was that the Original Tribunal did not or should not stand in the shoes of the decision maker, see Appellant’s comments of 14 August 2017, page 1. This is however a traditional formulation of the role of a merits review tribunal, see Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41, Smithers J at 46
[69] Transcript of appeal hearing on 28 September 2017, pages 26 and 47
53.This Tribunal in reviewing the decision of the Original Tribunal is unable to find in relation to this issue an error of fact or law.
Operation of section 70(1)(d) of the Driver Licensing Regulation
54.Mr Brent seemed to argue that the Original Tribunal referred to irrelevant provisions of the Driver Licensing Regulation, including section 70(1)(d), and erred in relying on the Fitness to Drive Standards.
55.The decision and consideration of the Original Tribunal looked at section 70(1)(d) of the Driver Licensing Regulation. This provides that the RTA may refuse an application if it is satisfied on reasonable grounds that the person does not comply with the required medical standards. This is clearly a relevant provision, and the Fitness to Drive Standards are relevant to it.
56.As to whether section 70(1)(d) and the Fitness to Drive Standards provided a ground for the decision is another issue. The decision maker stated that Mr Brent’s sight did not fit within the medical standards as set out in the Fitness to Drive Standards. The letter of 16 December 2016 stated that the relevant standard was on page 128 of the Fitness to Drive Standards and provided that a driver licence will not be issued when visual acuity in the better eye is worse than 6/24 and that Mr Brent’s visual acuity in his better eye was 6/30, a poorer result, while his worse eye had an acuity of 3/18.
57.The Original Tribunal did not uphold the decision on this basis, but it is again raised by the respondent as a basis for the decision in this appeal.
58.Section 15 of the Driver Licensing Regulation provides that required medical standards, in relation to a person, are the medical standards set out in the publication Assessing Fitness to Drive. One relevant standard at paragraph 10.3 at page 128 states:
A person is not fit to hold an unconditional licence:
· if the person’s uncorrected visual acuity in the better eye or with both eyes together is worse than 6/12.
59.It goes on to say that a conditional licence may be considered in some circumstances and some discretion is allowed in application of the standard. However, a driver licence will not be issued when visual acuity in the better eye is worse than 6/24.
60.Another part of the standard at page 129 states:
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.
61.Before the Original Tribunal, the Authority took the position that if the Fitness to Drive Standards were not met, it could not grant a licence. The Original Tribunal found that Mr Brent had monocular vision but did not meet the requirement that visual acuity in his better eye was 6/12 or better.[70] However, the Original Tribunal held that not meeting the requirements in the Fitness to Drive Standards did not necessarily preclude a person from obtaining a licence, rather the Fitness to Drive Standards were factors that should be taken into account by a decision-maker when deciding whether to grant a licence. This approach has been confirmed in the decision of Bergild v Road Transport Authority [2017] ACAT 80 (Bergild). Further the Original Tribunal thought that for a range of reasons the more relevant criteria was that in section 70(1)(e), namely that Mr Brent’s ability to drive safely was impaired by an illness, injury or incapacity suffered by him.
[70] Decision of Original Tribunal page 3, Appeal Book page 9
62.The Authority maintained its position that if the Fitness to Drive Standards were not met, it could not grant a licence, in this appeal.[71] It also provided further additional submissions, in relation to this issue and the Bergild decision, in October 2017, as did Mr Brent in an email dated 12 November 2017.
[71] Submissions of the respondent, part F; transcript of proceedings on 28 September 2017, pages 6 and 38-47; Additional submissions of the respondent
63.This Tribunal generally agrees with the decision in Bergild on this issue. In that decision Presidential Member McCarthy looked to the approach of other tribunals in Australia which suggested that the Fitness to Drive Standards are considerations, and should be followed unless exceptional circumstances exist, but not mandatory rules of law.[72] The Authority argued that these decisions were made in different legislative contexts, and this is a relevant point.[73]
[72] Bergild at [88]-[92]
[73] Additional submissions of the respondent at [9]-[14]
64.But here the primary legislative context is section 70 of the Driver Licensing Regulation which provides that the Authority “may refuse an application” (emphasis added) for the issue of a driver licence if satisfied on reasonable grounds that various conditions are met. Section 87 is in similar terms. Presidential Member McCarthy in Bergild noted the important common law rule that ‘may’ is the language of authorisation and not of command, and that it lies with those who assert ‘may’ conveys a command to show that this is so.[74] But also importantly, and as the Authority itself noted, section 146(1) of the Legislation Act 2001 (Legislation Act) provides that in an Act or statutory instrument, “the word may, or a similar term, used in relation to a function indicates that the function may be exercised or not exercised, at discretion”. Section 146(2) in contrast provides that ‘must’ indicates that the function is required to be exercised. Section 146(3) then provides that section 146 is a determinative provision so far as it applies to an applicable law, which the Driver Licensing Regulation appears to be (see section 146(4)). Under section 6(2) this means that it “may be displaced expressly or by a manifest contrary intention”, in effect that it can only be displaced in this way. A determinative provision “indicates that it is the intention of the Legislative Assembly that, if the provision is to be displaced at all in a particular case, a more deliberate displacement is required than if the provision were a non-determinative provision” (section 6(4))”.
[74] Bergild at [93]-[97]
65.The Authority could not point to any express displacement of the presumption, in light of sections 6(2) and 146(1) of the Legislation Act, that ‘may’ in section 70 of the Driver Licensing Regulation indicates that where the required medical standards are not met a licence can be refused, or can be granted,. It suggested that the object of the Act suggested displacement, but provided no specific basis for this.[75] It suggested that the language and context evinced displacement, but referred only to some of the paragraphs of section 70(1) which it was said contain a number of criteria which are incompatible with a decision that a licence should be issued in the circumstances. One example given was section 70(1)(g) which provides that a licence may be refused where a provision of the Act prevents approval of the application. No such provision was identified. Any such provision would need to be interpreted in accordance with its terms and with consideration of the terms of section 70. This is not a strong argument for displacement of the discretion generally, and in particular under section 70(1)(d).
[75] Submissions of the respondent, at [5]
66.The Authority submitted that section 70(1)(d) was not a provision which permits the elements of discretion, but provided little textual or contextual basis for this. It is difficult to see how this assertion can support a “manifest contrary intention” in relation to sections 6(2) and 146 of the Legislation Act. It was stated that it would be an odd result if, where a person does not meet the required medical standard, a licence could still be granted. We disagree. We think it would be unremarkable if failure to comply with a medical requirement enabled but did not require a licence to be refused. There may be a wide range of other factors which are also relevant to granting a licence. This case demonstrates that. The Authority noted that at the time Mr Brent was granted a learner licence to undertake the driving test it thought Mr Brent met the requirements for a licence, based on the report of Dr Sansum.[76] But if not, it still may have been appropriate for Mr Brent to be granted a learner licence to allow him to undertake a driving test to assess his capabilities. This Tribunal thinks that in some circumstances the grant of a learner licence to enable a test where the person is close to the required medical standard would be useful and appropriate.
[76] Transcript of appeal proceedings on 28 September 2017 at page 33
67.In the Tribunal’s view it is clear that there is no express displacement nor any “manifest contrary intention” in relation to the operation of section 146(1) of the Legislation Act in relation to section 70(1)(d), and that section 70(1)(d) should therefore be read in accordance with section 146(1). In our view failure to comply with a required medical standard enables refusal of the application, but does not require that outcome. There was no error of law in the Original Tribunal reaching this view.
68.The Original Tribunal did not make a finding under section 70(1)(d) and the Fitness to Drive Standards, but did under section 70(1)(e), namely that Mr Brent’s ability to drive safely was impaired by an illness, injury or incapacity suffered by him, and affirmed the decision under review on this basis. This Tribunal does not think that there was an error of fact or law in the Original Tribunal not making a finding under section 70(1)(d) and the Fitness to Drive Standards in this context.
Operation of section 70(1)(e) of the Driver Licensing Regulation
69.As just noted, the Original Tribunal made a finding that the licence was properly refused under section 70(1)(e) of the Driver Licensing Regulation, namely on the basis that Mr Brent’s ability to drive safely is impaired by an illness, injury or incapacity suffered by him. The Original Tribunal affirmed the decision under review on this basis. Mr Brent seemed to argue that the Original Tribunal referred to irrelevant provisions of the Driver Licensing Regulation. This Tribunal thinks that section 70(1)(e) is relevant.
70.As to whether it provided a ground for the decision is another issue. The Original Tribunal relied on the evidence of Dr Parekh, Mr McKinley, Ms Humphries and Dr Chang in reaching its conclusion. This Tribunal sees no error of fact or law in the approach and conclusion of the Original Tribunal, and makes the following comments concerning specific issues about this evidence.
Evidence of Dr Chang
71.Mr Brent argued in summary that the Original Tribunal placed inadequate weight on Dr Chang’s recommendation that he be granted a conditional licence.
72.Dr Chang gave evidence of Mr Brent’s visual acuity and considered him suitable for a “conditional licence”, on the basis that he was very close, though below, the Fitness to Drive Standards’ requirement.[77] This was evidence that Mr Brent did not meet the first requirement for a conditional licence set out in paragraph [60] above. Dr Chang did not express a view as to whether Mr Brent should also be subject to a driving test.
[77] Transcript of hearing on 17 April 2017 page 31, Appeal Book page 123
73.The Original Tribunal clearly had regard to the evidence of Dr Chang. At page 3 of the decision (page 9 of the Appeal Book) it is noted that Dr Chang gave evidence that Mr Brent had a “monocular view” and had over the years a varying visual acuity range. This supported the Original Tribunal’s finding that Mr Brent had monocular vision. The Original Tribunal noted that in an assessment of the ability to drive safely, and applying the Fitness to Drive Standards, having a monocular view is a critical factor. At page 4 of the decision (page 10 of the Appeal Book) it is noted that in the Original Tribunal’s view Dr Chang was careful to make no comment about whether Mr Brent was otherwise able to drive a car, but was clear that his role was to define vision. The view of Dr Chang that while he is close, Mr Brent did fail to meet the relevant Fitness to Drive Standards is also noted.
74.But the Tribunal places this evidence in the context of the range of other evidence that Mr Brent’s ability to drive was impaired. This is in particular the evidence of Dr Parekh, Mr McKinley, and Ms Humphries. It was on the basis of all this evidence that the Original Tribunal found that Mr Brent’s ability to drive safely was impaired by an illness, injury or incapacity suffered by him. On this basis there is no error of fact or law in the decision.
Evidence of Mr McKinley and Ms Humphries concerning the driving test
75.As discussed, Mr McKinley and Ms Humphries gave evidence in relation to the driving test, and in particular the range of incidents which occurred during the on road assessment. They concluded that deficits in Mr Brent’s visual acuity were impacting on his ability to drive safely and that these would not have been improved by prior training, and would not be improved by subsequent training.
76.Mr Brent disputed many aspects of their evidence concerning the driving test, but principally argued that the incidents were not the result of deficits in his sight, but the result of other factors, and that prior training would have assisted him to pass the test.
77.The Original Tribunal preferred the evidence of Mr McKinley and Ms Humphries, supported by Dr Parekh, over that of Mr Brent. The Original Tribunal’s decision turned to some extent on an assessment of the evidence of witnesses. In these circumstances there are significant difficulties in Mr Brent being successful in an appeal relation to the Original Tribunal’s assessment of the evidence of witnesses.[78] At any rate this Tribunal does not think that Mr Brent has shown an error of fact or law in the Original Tribunals findings in this regard.
Evidence of Dr Parekh
[78] Fox v Percy (2003) 214 CLR 118; Legal Practitioner v Council of the Law Society of the ACT [2015] ACTSC 316 at [83]
78.Mr Brent also argued that the Original Tribunal placed undue weight on the evidence of Dr Parekh. Dr Parekh gave evidence that Mr Brent was functionally monocular in his left eye and his visual acuity in his right eye did not meet the standard for a monocular driver, that is did not meet the first requirement for a conditional licence set out in paragraph [60] above. This was similar to the evidence of Dr Chang. Dr Parekh also gave evidence that with a very unsatisfactory driving test (and on the basis of a range of medical reports, including some by Dr Chang) Mr Brent cannot be recommended for any type of driver licence, and that there are significant risks in Mr Brent and the community should he be granted any type of driver licence.[79] It is true that to this extent Dr Parekh’s evidence is inconsistent with the evidence of Dr Chang, who considered Mr Brent suitable for a conditional licence, but he did not have access to the results of the driving test.
[79] See above at paragraph [31]; Appeal Book pages 287-295; transcript of proceedings on 4 May 2017, pages 29 and 33-38
79.Mr Brent argued that Dr Parekh knew nothing about macular degeneration. In his words: “after three minutes I realised she didn’t know anything about macular degeneration … Absolutely zilch”.[80] The Tribunal notes that Dr Parekh has very significant qualifications and experience set out in annexure A to her statement, including in traffic medicine, road trauma, assessing fitness to drive and gerontology related to driving, and Dr Parekh relied extensively on the reports of Dr Chang in her report. Apart from Dr Chang, with whom Dr Parekh agreed except on one issue (see paragraph [78] above), Mr Brent provided no contrary expert evidence. It was open to the Original Tribunal to rely on the evidence of Dr Parekh. There was no error of fact or law in it doing so.
Other issues
[80] Transcript of appeal proceedings on 28 September 2017, page 29
80.Mr Brent raised a range of other mainly factual issues. This Tribunal’s consideration has addressed many of these above. None of them provide the basis for finding an error of fact or law in the Original Tribunal’s decision.
Conclusion
81.The Tribunal finds therefore that there is no error of fact or law identified in the Original Tribunal’s decision. In particular the Tribunal thinks that the decision not to allow Mr Brent to have a refresher lesson before the driving test, and the decision in effect not to confirm or grant any licence after the test, and later, were appropriate decisions, as found by the Original Tribunal. The appeal is dismissed, the decision of the Original Tribunal upheld, and therefore the decision of the Authority is upheld.
………………………………..
Acting Presidential Member R Orr QC
Delivered for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER:
AA 22/2017
PARTIES, APPLICANT:
Bern Brent
PARTIES, RESPONDENT:
Road Transport Authority
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
Ms Law-Jamieson
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
Acting Presidential Member R Orr QC
Member D Lucas
DATES OF HEARING:
28 September 2017
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