Christopherson v Road Transport Authority (Administrative Review) - [2023] ACAT 69

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CHRISTOPHERSON v ROAD TRANSPORT AUTHORITY (Administrative Review) [2023] ACAT 69

AT 93/2022

Catchwords: ADMINISTRATIVE REVIEW – review of decision – Road Transports (Driver Licensing) Regulation 2000 – Medical standards for licensing and clinical management guidelines – definition and interpretation of “Assessing fitness to drive” in the Guidelines – whether the applicant meets the standard required by the Guidelines for the horizontal extent of her visual field – decision confirmed – application for interim or other orders dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Road Transport (Driver Licensing) Act 1999 ss 6, 7
Road Transport (General) Act 1999 s 16

Subordinate

Legislation cited: Road Transports (Driver Licensing) Regulation 2000 ss 78A, 87

Cases cited:Bergild v Road Transport Authority (No 2) [2018] ACAT 8
Bergild v Road Transport Authority [2017] ACAT 80
Construction Occupations Registrar v B&T Constructions (ACT) Pty Ltd & Ors [2015] ACAT 24
Kelly v Roads Corporation (VicRoads) [2016] VMC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Rajak v Road Transport Authority [2008] ACTAAT 18
Thomson v ACT Planning and Land Authority [2009] ACAT 38

List of

Texts/Papers cited: Austroads, Assessing fitness to drive for commercial and private vehicle drivers (2022)

Tribunal:Member W Hawkins
Date of Orders:  10 November 2023
Date of Reasons for Decision:      10 November 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 93/2022

BETWEEN:

JOANNE CHRISTOPHERSON
Applicant

AND:

ROAD TRANSPORT AUTHORITY
Respondent

TRIBUNAL:Member W Hawkins

DATE:10 November 2023

ORDER

The Tribunal orders that:

The decision under review dated 10 November 2022 is confirmed.
The applicant’s application for interim or other orders is dismissed.
………………………………

Member W Hawkins

REASONS FOR DECISION

Introduction and Background

Joanne Christopherson (the applicant) sought review of a decision of the Road Transport Authority as decision maker (the respondent) to confirm, on internal review, its original decision to suspend her driver licence (the decision under review) pursuant to section 87 of the Road Transport (Driver Licensing) Regulation 2000 (the Regulation).
The applicant sought to have her driver licence reinstated, with the condition of an annual review by an ophthalmologist to assess her ability to retain a driver licence, and to have all reasonable transport costs incurred by her during the period of the suspension to be reimbursed to her by the respondent.[1] The applicant did not press for the reasonable transport costs during the hearing and limited her application to the review.[2]
[1] Application for Review of a Decision dated 4 November 2022, page 2
[2] Transcript of proceedings dated 18 August 2023, page 7, line 20-page 8, line 35
The applicant, whilst visiting the United States, was diagnosed with bilateral retinitis pigmentosa following a routine optometry visit to obtain new frames in September 2021. Retinitis pigmentosa is a degenerative eye condition that bilaterally results in progressive loss of vision, including visual field loss, impaired contrast, and light sensitivity.[3] The diagnosis of retinitis pigmentosa was not of itself in dispute between the parties, rather there was disagreement about the application and interpretation of the “Assessing fitness to drive, Medical standards for licensing and clinical management guidelines, 2022 edition” (the Guidelines). In particular, whether the applicant meets the standard required by the Guidelines for the horizontal extent of her visual field. The applicant argued that her horizontal visual field meets the standard required for an unconditional licence, whereas the respondent countered that it did not meet the standards either for an unconditional or a conditional (or restricted) licence.[4] This will be discussed and considered further below.
[3] Attachment 7 – ‘Forensic Medical Services Report of Professor V Parekh’ dated 29 June 2022 to Exhibit A1 – ‘Applicant’s bundle of documents’ dated 16 June 2023 (Applicant’s Submissions), page 76
[4] Applicant’s submissions, page 9 at [52]; and Exhibit R2 – ‘Respondent’s submissions’ filed 14 July 2023 (Respondent’s submissions) at [18]
Upon her return to Australia, the applicant consulted an optometrist (Ms Duong) on 14 December 2021, and later consulted an ophthalmologist (Dr Mendis) on 21 December 2021.[5]
[5] Attachment 1 – ‘Optometrist Referral of Ms J Duong’ dated 14 December 2021 to Applicant’s submissions; and Attachment 2 – ‘Ophthalmologist Report of Dr B K R Mandev’ dated 21 December 2021 to Applicant’s submissions
Dr Mendis confirmed the diagnosis of bilateral retinitis pigmentosa and was of the opinion that the applicant’s vision was not compatible with the published criteria required to hold a private vehicle licence. However, given the extent of her field, he referred the applicant to the “driving assessment team” at the respondent to seek their opinion about whether the applicant could obtain a conditional driving licence.[6]
[6] Attachment 2 – ‘Ophthalmologist Report of Dr B K R Mandev’ dated 21 December 2021 to Applicant’s submissions
On about 2 May 2022, the applicant’s general practitioner(Dr Lee) provided a Driver Licence Medical to the respondent and advised the respondent that the applicant met the medical criteria for a conditional licence with conditions of annual ophthalmological review.[7]
[7] Attachment 3 – ‘Report of Dr Y K Lee’ dated 2 May 2022 to Applicant’s submissions
On about 29 June 2022, Professor Parekh of the Fitness to Drive Medical Clinic (FTDMC) of Canberra Health Services, wrote a report for the respondent. The FTDMC report stated that, due to her bilateral retinitis pigmentosa, the applicant should be restricted to driving in daylight hours only; be reviewed by the FTDMC in six months; wear prescribed corrective lenses while driving; and undergo an annual medical review with an ophthalmologist addressing the medical standards for driving pertaining to vision.[8]
[8] Attachment 7 – ‘Forensic Medical Services Report of Professor V Parekh’ dated 29 June 2022 to Applicant’s Submissions
On about 13 July 2022, the applicant attended for further testing including contrast sensitivity testing at the Canberra Hospital Eye Clinic (CHEC) as part to her fitness to drive investigations.[9] On 2 August 2022, the CHEC proposed a conditional licence with conditions, namely drive by day only; drive within 20 kilometres of home only; annual review by an ophthalmologist; and for the ophthalmologist to provide a report to the respondent annually.[10] The changed conditions could be activated by the applicant immediately or would automatically activate on 23 August 2022.[11]
[9] Attachment 49 – ‘Full summary of events’ to Applicant’s submissions,
[10] Attachment 9 – ‘Letter from Dr K Reid’ dated 2 August 2022 to Applicant’s submissions
[11] Attachment 10 – ‘Email correspondence between the applicant and respondent’ dated 8 August 2022 to Applicant’s submissions
On 30 August 2022, at the applicant’s request, a second ophthalmologist (Dr Barry) provided a report. Dr Barry recommended a restricted licence. The restrictions were that the applicant could drive up to 50 kilometres from her point of commencement of her journey whether that be in Canberra or Port Macquarie, New South Wales (to allow for caring responsibilities for the applicant’s mother who resided in Port Macquarie); avoid driving a night or in densely populated areas and school zones; and an annual review.[12]
[12] Attachment 13 – ‘Report of Dr R Barry’ dated 30 August 2022 to Applicant’s submissions
On 2 September 2022, the applicant attended a third ophthalmologist (Professor Grigg). Professor Grigg believed that the applicant met the vision standard for driving for both visual acuity and visual fields, but that she should be reviewed each 12 months.[13] The applicant forwarded a copy of the report to the respondent.
[13] Attachment 15 – ‘Report of Professor J Grigg’ dated 6 September 2022 to Applicant’s submissions
On 27 September 2022, the respondent wrote to the applicant and advised that it had determined that the applicant no longer met the required medical standards to drive a motor vehicle and accordingly that the respondent proposed to cancel the applicant’s licence on 18 October 2022.[14] On about 6 October 2022, the applicant requested an internal review of the determination.
[14] Attachment 17 – ‘Letter from the respondent to the applicant’ dated 27 September 2022 to Applicant’s submissions
On 10 November 2022, the respondent issued a ‘notice of decision at internal review’ (the decision under review or decision). The decision under review upheld the decision to cancel the applicant’s licence.[15]
[15] Attachment 20 – ‘Notice of decision at internal review’ dated 10 November 2022 to Applicant’s submissions
On 9 November 2022, the applicant filed an application for review of a decision (the application). Although the application predated the decision under review, the tribunal ordered that the decision of 10 November be taken as the decision under review.[16]
[16] See Orders dated 7 December 2022
A hearing was held on 18 August 2023. Subsequent to the hearing, the applicant filed an application for interim or other orders (interim application). Directions were made concerning the filing of evidence and submissions concerning the interim application. In essence, the interim application sought payment of part of Dr Beaumont’s fees for giving evidence at the hearing. The interim application will be considered more fully below. In addition to the interim application, the applicant filed an invoice from Professor Grigg related to his giving evidence at the hearing, and the respondent filed submissions on 29 September 2023.

The hearing 18 August 2023

The applicant represented herself with the assistance of her sister, Judy Swann. The respondent was represented by Dean Ager, of counsel who was instructed by Brad Marler of the ACT Government Solicitor’s office. Also in attendance was Rebecca Wilson and Guiseppe Mangeruca on behalf of the respondent.
The Tribunal’s function on review is to consider anew the question whether the applicant’s licence should be cancelled, based upon the evidence presented at the hearing. For this reason, the Tribunal received evidence in addition to the evidence available at the time the decision under review was made regarding the applicant’s suitability to hold a driver licence.
The additional documentary or further evidence included:
(a)Tribunal Documents filed 25 November 2022.
(b)Applicant’s bundle of documents, including submissions and attachments, filed 16 June 2023 (some documents were available at the time of the decision and were considered, and additional documents were not available at the time and will be separately referred to where necessary).
(c)A statement/further report from Dr Beaumont dated 10 July 2023.
(d)Respondent’s submissions filed 14 July 2023.
(e)Professor Grigg and Dr Beaumont both gave oral evidence and were cross examined.
Ultimately, the primary issue concerned the opposing ophthalmological opinions of Professor Grigg and of Dr Beaumont. The applicant relied upon Professor Grigg, who was of the opinion that the applicant met the standards for a licence, whereas the respondent relied upon the opinion of Dr Beaumont, who did not. The opinions of Professor Grigg and of Dr Beaumont are further considered below.

The applicant’s submissions

For convenience, the Tribunal generally adopts the headings used by the applicant. The Tribunal summarises the submissions as follows.
Respondent’s application of the Guidelines
First, the aim of the Guidelines is to achieve a balance between minimising any driving related road safety risks for the individual and the community posed by the driver’s permanent or long-term injury or illness and maintaining the driver’s lifestyle and employment related mobility independence. The applicant argued that the respondent did not attempt to balance these considerations when deciding to cancel her licence on the basis of one recommendation or opinion whereas, at the time of the decision, she had five recommendations for a conditional licence, and at the time of the hearing, nine.[17]
[17] Applicant’s submissions at [41]
Second, the respondent did not consider her functional ability to drive apart from her visual field. The applicant referred to the Guidelines and in particular, its references to the key question of whether there is a likelihood that the person will be unable to control the vehicle and/or be unable to act or react to the driving environment in a safe, consistent, and timely manner. She said that the respondent at no time considered her functional ability to drive or any other factor other than visual field.[18]
[18] Applicant’s submissions at [42]-[44], quoting Guidelines, page 7
Third, the respondent did not consider all factors that should be considered in their assessment. The applicant quoted from the Guidelines and argued that the Guidelines recognised methods of measuring visual fields are limited, particularly in the Guideline’s ability to resemble the demands of the “real world driving environment where drivers are free to move their eyes as required and must sustain their visual function in variable conditions.”[19] As a result, there are additional factors that should be considered that include, but are not limited to; kinetic fields conducted on a Goldmann machine; binocular Esterman visual fields conducted without fixation monitoring (roving Esterman); contrast sensitivity and glare susceptibility; medical history (including duration, prognosis and effectiveness of treatment); driving record before and after occurrence of the “defect”; and the nature of the driving task including the type of vehicle, roads and distances travelled; concomitant medical conditions, such as cognitive impairment or impaired rotation of the neck.[20] The applicant then argued that the respondent had not included the additional factors because the applicant’s visual fields were less than the 90-degree threshold. The applicant argued that on a number of assessments that she had met the 90-degree threshold.[21] The applicant examined each of the additional factors and made detailed submissions as to how she met or exceeded each of the factors.[22]
[19] Guidelines, page 205
[20] Applicant’s submissions at [46], quoting Guidelines, page 205
[21] Applicant’s submissions at [52]-[53]
[22] Applicant’s submissions at [56]
Fourth, the applicant contended that the respondent did not adhere to the intent of the Guidelines when making its decision. The applicant referred to the Guidelines’ stated aim of determining fitness to drive is to achieve a balance between minimising road safety risk, and maintaining the driver’s lifestyle and employment related mobility independence.[23] The applicant submitted that the respondent, at the time of making their decision, did not meet the requisite standard of proof, primarily because the respondent considered only one ophthalmologist’s report (Dr Beaumont) and largely ignored others, and did not have appropriate regard to maintaining the impact upon the applicant. Further, she countered that it ignored recommendations from other experts that she should have a conditional licence, and that the applicant otherwise met all cognitive, physical, and functional requirements contained within the Guidelines.[24]
[23] Applicant’s submissions at [57], quoting Guidelines, page 7
[24] Applicant’s submissions at [57]-[59]
Fifth, the applicant maintained that, based upon Professor Grigg’s opinion, she met the criteria for a New South Wales licence, and this highlighted the importance of consistent application of the Guidelines across all states and territories.
Human rights
In cancelling her licence, the respondent had denied her human rights.[25]
Meeting the criteria of the guidelines
[25] Applicant’s submissions at [60]-[61]
The applicant addressed the Guidelines, particularly visual fields and the factors to be considered. The applicant referred to the following extract from the Guidelines:
For the purposes of this publication, visual fields are defined as a measure of the extent of peripheral (side) vision.[26]
…
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
…
Such defects need to be assessed by an optometrist or ophthalmologist for a conditional licence to be considered. They should be managed as an exceptional case to the standard with consideration for duration and evidence of visual adaptation …[27]
[26] Applicant’s submissions at [62], quoting Guidelines, page 204
[27] Applicant’s submissions at [64], quoting Guidelines, page 204
The applicant referred to the following under the heading ‘Horizontal extent of the visual field,’ of the Guidelines:
In the case of a private vehicle driver, if the horizontal extension of a person’s visual fields are less than 110 degrees but greater or equal to 90 degrees, an optometrist or ophthalmologist may support the granting of a conditional licence by the driver licensing authority.[28]
[28] Applicant’s submissions at [63], quoting Guidelines, page 205
Under the heading, ‘Assessment method,’ the applicant referred to the following:
Any person who has, or is suspected of having a visual field defect, should have a formal perimetry-based assessment.
…
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.[29]
[29] Applicant’s submissions at [65], quoting Guidelines, page 204
The applicant maintained that Dr Beaumont did not consider the opinions or findings of Professor Grigg. After she received Dr Beaumont’s report, she obtained a further six opinions, three opinions from ophthalmologists and three opinions from optometrists. For each of the opinions, the findings were that when the applicant’s visual field was measured in accordance with the Guidelines, the applicant satisfied the 110 degrees threshold.[30]
The respondent did not properly exercise its discretion
[30] Applicant’s submissions at [66]-[68]
The applicant referred to regulation 87 and 88 of the Regulation and submitted that the use of the word “may” (following Bergild v Road Transport Authority (Bergild)[31]) meant that denying the discretionary power that is afforded to the respondent would be an error of law. Further, the respondent, by not considering all of the factors outlined in the medical standards and considering irrelevant matters such as whether the applicant had night-time driving restrictions, had considered irrelevant considerations and had acted in a punitive manner towards the applicant.[32]
Reliance on expert opinion
[31] [2017] ACAT 80
[32] Applicant’s submissions at [69]-[73]
The applicant contrasted the opinion of Professor Grigg (and other expert opinions) with that of Dr Beaumont and challenged whether Dr Beaumont was an “independent expert primarily upon the basis that he had done previous assessments for the respondent.”[33]
[33] Applicant’s submissions at [74]-[76]
The applicant made detailed submissions as to why Professor Grigg’s opinion should be preferred to Dr Beaumont. The applicant advanced the following contentions in respect of Dr Beaumont:
(a)Although he has published a number of papers, he has not published in relation to the applicant’s condition of retinitis pigmentosa.
(b)He did not accept, and actually recalculated, findings of other specialists the applicant had attended.
(c)He declined to conduct a roving test when he examined the applicant on 5 January 2023.
(d)His opinion is contrary to the Guidelines.
(e)He examined the applicant on one occasion only. He expressed opinions in his report of 5 January 2023 that were incorrect, such as the retinitis pigmentosa had been progressing all of the applicant’s lifetime, whereas it was only diagnosed in September 2021, despite earlier examinations extending from at least 2007.
(f)He was of the opinion that the applicant’s past driving history was of little value.
(g)He ignored driving tasks in coming to his conclusion.
(h)He adopted a rigid interpretation of the Guidelines, ignored other aspects of the Guidelines when interpreting the Guidelines and, unlike other experts, did not exercise his discretion afforded in the Guidelines for a conditional licence.[34]
[34] Applicant’s submissions at [77]-[84]

The applicant advanced the following argument in respect of Professor Grigg:
(a)He is an expert in relation to inherited retinal diseases and the author of a number of papers, including the applicant’s condition of retinitis pigmentosa.
(b)He examined the applicant on three occasions.
Professor Grigg’s evidence and opinions
As previously mentioned, Professor Grigg wrote a number of reports; provided a statement/report for the proceedings dated 13 June 2023 (Professor Grigg’s report);[35] and gave evidence.
[35] Witness statement of Professor J Griggs dated 13 June 2023
In Professor Grigg’s report, he said:
(a)He initially consulted with the applicant in September 2022 and took a relevant history of the applicant’s diagnosis of retinitis pigmentosa. He found that it was “mild late onset”.
(b)He conducted an Esterman visual field test with both the fixation and the roving form. The test with fixation was “borderline”, and the roving test showed 130 degrees, which met the standards for a driver licence in New South Wales.
(c)That due to the retinitis pigmentosa, he would limit driving to daylight hours.
(d)That, after discussing the Guidelines, driving is a “dynamic process with the head and eyes continuingly scanning the environment”.
(e)After considering a 2022 study of the predictive value of the Esterman Visual Field test on the on-road driving test, that they were not conclusive, and that this highlighted that fitness to drive requires measuring the functional peripheral vision. The aim of measurement is to assess whether an individual can drive safely and be aware of their environment and hazards. This assessment of peripheral vision relies upon normal movement of the head and eyes.
In Professor Grigg’s oral evidence at the hearing on 18 August 2023, he said:
(a)After referring to the Guidelines and a consideration of the visual field criteria, the requirement for an “open” licence is 110 degrees on the estimate, and if the result is less than that, then consideration can be given for a “restricted” licence.
(b)If there is an estimate of binocular visual field with fixation and the assessment is 90 degrees, then that result automatically leads to a restricted licence.
(c)If other circumstances need to be taken in account, there are a number of tests described in the Guidelines that may be considered in order to determine whether a person is safe to drive with a restricted licence. One of the tests is the binocular Esterman visual field. Important is central visual vision and that is different from what is measured with monitored fixation.
(d)On the fixed test, the applicant had at least 70 degrees on the horizontal, but she had 110 degrees vertically. The applicant had very well-preserved central vision, so when the functional test of the roving Esterman was considered, the applicant met the criteria for a restricted licence, but with a main restriction of not driving in the evening.
(e)Retinitis pigmentosa has an individual progression and can progress slowly. Although it was once thought to only develop during teenage years and early twenties, it is now accepted that it can develop at any age including in the 50 to 70 years age bracket. The normal progression is over decades rather than weeks, months, or years.[36]
[36] Transcript of proceedings dated 18 August 2023, page 82, line 24-page 83, line 42
In Professor Grigg’s cross examination, he:
(a)Agreed that when he commenced treatment of the applicant in about September 2022, the issue of her fitness to drive had already arisen and, when he expressed an opinion that she met the vision standards on both visual acuity and visual fields, he was referring to the roving test.[37]
[37] Transcript of proceedings dated 18 August 2023, page 87, line 1- page 89, line 31
(b)Confirmed that when the applicant returned to Australia following the diagnosis of retinitis pigmentosa in about December 2021, she underwent a fixed visual field test in Canberra and that it was around 90 degrees, which was “borderline” for a restricted licence.[38]
[38] Transcript of proceedings dated 18 August 2023, page 89, line 39-page 90, line 16
(c)Confirmed that when he saw the applicant, he performed the roving Esterman visual field test because of the result of the fixed visual field test.[39]
[39] Transcript of proceedings dated 18 August 2023, page 90, lines 24-47
(d)Confirmed he was not originally aware that the result was 60 degrees on the fixed visual field test but became aware following receipt of reports from Dr Beaumont.[40]
[40] Transcript of proceedings dated 18 August 2023, page 91, lines 4- 40
(e)Confirmed he then conducted a fixed visual field test, and the result was 70 degrees.[41]
[41] Transcript of proceedings dated 18 August 2023, page 92, lines 1-14
(f)Found, where the fixed visual field test has a result of 70 degrees, even though it was less than 90 degrees, you can consider other methods of assessing – such as the roving estimate – to determine whether the criteria are met.[42]
[42] Transcript of proceedings dated 18 August 2023, page 92, lines 10-35
(g)Said, when pressed about “borderline”, said that both 60 degrees and 70 degrees are borderline[43]
[43] Transcript of proceedings dated 18 August 2023, page 92, line 37-page 93, line 13
(h)Said that the Guidelines permit the use of the roving Esterman and that the applicant scored above 110 degrees using the roving Esterman.[44]
(i)Agreed that the applicant’s fitness to drive is based on the assumption as to how the Guidelines are to be applied and that the roving Esterman can be used in all cases.[45]
(j)Agreed that when assessing the applicant’s fitness to drive under the Guidelines, the decision maker has to have regard to the additional factors which he said better replicate driving conditions.[46]
(k)Disagreed that there is no scientific basis for measuring a visual field without fixation as it depended upon the context of driving a motor vehicle or function more generally.[47]
(l)Said the rate of progression of Retinitis pigmentosa is difficult to predict, that it is a non-linear progression, and that the applicant will be aware of the loss in her visual field if it impacts on her central vision.[48]
(m)Said he was aware of one evaluation of the Roving test conducted by the Queensland University of Technology School of Optometry.[49]

The respondent’s submissions

[44] Transcript of proceedings dated 18 August 2023, page 93, lines 1-11
[45] Transcript of proceedings dated 18 August 2023, page 93, lines 13-24
[46] Transcript of proceedings dated 18 August 2023, page 95, lines 1-6
[47] Transcript of proceedings dated 18 August 2023, page 97, lines 11 -26
[48] Transcript of proceedings dated 18 August 2023, page 97, line 28-page 98, line 5
[49] Transcript of proceedings dated 18 August 2023, page 98, lines 31-42

The respondent emphasised that its power in exercising its driver licensing functions must be exercised in accordance with the Road Transport (Driver Licensing) Act 1991. Regulation 87 gives rise to a discretionary power to vary, suspend or cancel a person’s driver licence in certain circumstances. One of those standards is that the person does not comply with required medical standards. The required medical standards are those set out in the Guidelines.[50] For convenience, the Tribunal generally adopts the headings used by the respondent. The Tribunal summarises the submissions below.
Applying the assessing fitness to drive guidelines
[50] Respondent’s submissions at [4]-[9]
Regulation 87(1)(d) is sufficiently met if the Tribunal is satisfied, on reasonable grounds, that a single applicable or relevant requirement of the Guidelines is not met. The words “comply with the required medical standards” means “full compliance.”[51]
[51] Respondent’s submissions at [14]
The issue between the parties is whether the applicant met the standard required by section 10.2.2 of the Guidelines for the horizontal extent of her visual field. The standard for an unconditional private driver requires the binocular visual field to have a “horizontal extent of a least 110 degrees within 10 degrees above and below the horizontal midline.”[52] The Guidelines permits support for a conditional licence if the horizontal extension of visual fields are less than 110 degrees but greater or equal to 90 degrees.[53] The issue on dispute largely turns on how the Guidelines permit testing of the horizontal visual field, which in turn depends upon the construction of the Guidelines. The applicant also relies on each of the additional, non-exhaustive and more subjective considerations to which the respondent can have regard to in assessment of the visual field.[54] Although the applicant argued that her horizontal visual field meets the standard required for an unconditional licence, the respondent argued that the applicant did not meet either the standards for a conditional licence or an unconditional licence.[55] The respondent argued that the additional considerations do not arise unless and until it is necessary for the assessor to consider making a recommendation for a conditional licence, and they are not enlivened and serve no purpose in assessing a driver’s horizontal visual field.[56]
Fixed versus roving Esterman binocular visual field testing
[52] Respondent’s submissions at [15](a)
[53] Respondent’s submissions at [15](b)
[54] Respondent’s submissions at [19]
[55] Respondent’s submissions at [18]
[56] Respondent’s submissions at [20]
Section 10.2.2 of the Guidelines – ‘Visual fields’ – prescribe how the driver’s visual field is to be tested. The applicant’s progressive retinitis pigmentosa requires assessment by a binocular Esterman visual field.[57]
[57] Respondent’s submissions at [21]
The respondent argued that the Guidelines provide the following:
(a)The test must be done on a Humphrey visual field (or equivalent).
(b)The test must be fixed. The tester must monitor and record fixation on the test.
(c)Any alternative testing device must be able to monitor fixation and stimulate the same spots as a standard binocular Esterman.
(d)The treating optometrist or ophthalmologist may determine whether the person tested may or may not wear corrective lenses while performing the test.[58]
[58] Respondent’s submissions at [22]
The results of a roving Esterman test are one of the discretionary factors which the assessor may take into account and attribute the appropriate weight in considering whether to make a recommendation for a driver to be issued with a conditional licence. That is, it only comes to be considered in an assessment of a private vehicle driver for that sole purpose, where the driver’s horizontal visual field is between 90 and 110 degrees.[59]
[59] Respondent’s submissions at [23]
The assessments must meet the Guidelines in all instances, and a roving Esterman does not meet the Guidelines for assessing a driver’s horizontal visual field.[60] The Guidelines require rigid adherence to the numerical standards and do not permit any consideration other than the results of the fixed binocular Esterman.[61]
[60] Respondent’s submissions at [25]
[61] Respondent’s submissions at [24]
Dr Beaumont did not agree with Professor Grigg’s assessments, as all of Professor Grigg’s assessments were conducted using a roving Esterman; and similarly, Dr Beaumont did not agree with the other assessments that were done using a roving Esterman. Professor Grigg’s opinion that a visual field can be measured without fixation has no scientific basis.[62] Professor Grigg’s assessments are not to be accepted in preference to Dr Beaumont; and Professor Beaumont accepts that there may be improvement over repeated testing using the non-fixed Esterman test.[63]
Dr Beaumont’s evidence and opinions
[62] Respondent’s submissions at [31]-[33]
[63] Respondent’s submissions at [40]
Dr Beaumont provided a number of reports and his most comprehensive was his statement/report dated 10 July 2023. Dr Beaumont conveniently attached his earlier reports in the matter, as well as other documents which will be referred to as necessary. In each of his reports, Dr Beaumont expressed the opinion that the applicant did not meet the standard for her horizontal visual field.[64] In the report/statement, Dr Beaumont said:
(a)The Guidelines are specific that where a subject has any significant field defect or a progressive eye condition, they require a binocular Esterman visual field for assessment, and the fixation monitoring must be performed and recorded on the test. The Guidelines are also specific that for a private vehicle driver, if the horizontal fields are less than 110 degrees but greater or equal to 90 degrees, an optometrist or ophthalmologist may support the granting of a conditional licence by the driver licensing authority.[65]
(b)A number of additional factors may be considered by the driver licensing authority in assessing patients with defects in visual field, and some of these factors are listed in the Guidelines.[66]
(c)After referring to the applicant’s two Esterman binocular threshold tests that had been certified (by the ophthalmic assistant on each occasion), he found that one was performed on 13 July 2022, and a second on 5 January 2023. Each test showed a horizontal extent of 60 degrees, which is “substantially less” than the 90 degrees required to support the granting of a conditional licence.[67]
[64] Respondent’s submissions at [26]
[65] Exhibit R3 – Witness statement Dr Paul Beaumont dated 10 July 2023 at [7]-[8]
[66] Exhibit R3 – Witness statement Dr Paul Beaumont dated 10 July 2023 at [9]
[67] Exhibit R3 – Witness statement Dr Paul Beaumont dated 10 July 2023 at [10]
In Dr Beaumont’s oral evidence at the hearing on 18 August 2023:
(a)After considering his earlier report of 5 January 2023 to the applicant’s general practitioner, Dr Lee, he corrected the applicant’s horizontal visual field to 60 degrees from 70 degrees (found on a monitored test and hence a valid test with fixation).[68] Dr Beaumont then referred to the 60 degrees in his report dated 20 September 2022 to Dr Reid, ophthalmologist. In that report, he advised that it was “very difficult to make a recommendation that goes against the existing driving guidelines.”[69]
(b)Some visual field tests (including some of the applicant’s), can be discounted or ruled invalid if not certified that fixation was used; or where there were errors in the assessment, or interpretation.[70]
(c)He explained “fixation” as keeping the eye still so the point relates to the point you are fixing, and if you are not fixing, then you do not know where the point is relative to your fixation. If you don’t know where the eye is looking, then you don’t know that a point is some number of degrees to your right or to your left side. That is, you are measuring to the point of fixation and if you are not fixating, then you cannot measure it. When using fixation, the eye is monitored by video.[71]
(d)The fixation is done by two people. One is the person conducting the test and the other is monitoring, usually an ophthalmic assistant. The monitoring and certification are an essential requirement of the Guidelines. If the test is not certified, then it is not a valid test.[72]
(e)A roving Esterman test is where the person can move their eye about, “hoping to catch stimuli with their seeing part of the field and hide the area that they can’t see in.” A roving Esterman cannot reliability measure a person’s visual field.[73]
(f)When asked what conditions he would impose if the applicant was to be given a conditional licence, he said that it was “extremely difficult”, but if she had 85 degrees (and not 60), one of those would be “daylight only”, but ultimately said that he could not.[74]
(g)Was asked about consistency of tests, he said that some people improve on the roving Esterman test by practice, and thereby defeat its ability to show what the true visual field is.[75]
[68] Transcript of proceedings dated 18 August 2023, page 37, line 29-page 40, line 14, referring to annexure 11 –‘Report of Dr P Beaumont to Dr Y K Lee’ dated 5 January 2023 to witness statement of Dr P Beaumont dated 10 July 2023
[69] Transcript of proceedings dated 18 August 2023, page 40, lines 16-47, referring to annexure 12 – ‘Report of Dr P Beaumont to Dr K Reid’ dated 20 September 2022 to witness statement of Dr P Beaumont dated 10 July 2023, page 2
[70] Transcript of proceedings dated 18 August 2023, page 46, line 25-page 47, line 22
[71] Transcript of proceedings dated 18 August 2023, page 45, lines 5-36
[72] Transcript of proceedings dated 18 August 2023, page 46, line 24-page 48, line 29
[73] Transcript of proceedings dated 18 August 2023, page 48, line 31-page 49, line 14
[74] Transcript of proceedings dated 18 August 2023, page 75, line 22-page 76, line 12
[75] Transcript of proceedings dated 18 August 2023, page 79, line 31-page 80, line 10
In Dr Beaumont’s cross examination, he:
(a)Maintained his opinion that some tests performed on the applicant were valid and other tests were not. This was dependent upon whether they were fixed or roving; whether they were certified or not; and whether this was a requirement of the Guidelines.[76]
(b)When asked about the test results attached to his report to Dr Lee of 5 January 2023, where he described the fixation monitor as being “off”, said that, because the Esterman is binocular, it cannot monitor a person’s blind spot and cannot monitor fixation if it is turned off.[77]
(c)When asked about his recalculation of Dr Reid’s findings, he said that when he actually examined the points, they came to 60 degrees.[78]
(d)When asked whether the 12 reports and recommendations were wrong when they concluded that the applicant could have at least a conditional licence, he was reluctant to say that they were wrong, but if the findings were 60 degrees, then in such a situation the applicant should not qualify for a licence according to the Guidelines.[79]
(e)When challenged on how many reports that he may have written for licensing authorities, he said that he had done over 200, and said that he had also done reports for patients and is mindful of his duty as an expert.[80]
Correct construction of the guidelines
[76] Transcript of proceedings dated 18 August 2023, page 50, line 27-page 51, line 3
[77] Transcript of proceedings dated 18 August 2023, page 56, lines 26-31
[78] Transcript of proceedings dated 18 August 2023, page 57, line 38-page 58, line 2
[79] Transcript of proceedings dated 18 August 2023, page 58, lines 4-27
[80] Transcript of proceedings dated 18 August 2023, page 72, line 18-page 74, line 17
The respondent maintained that in cases requiring a binocular Esterman visual field, assessments must meet all the requirements imposed by 10.2.2 of the Guidelines, including fixation monitoring.[81] This interpretation is the correct interpretation because:
(a)The Guidelines use imperative language to describe the assessment methods, including use of the words “require” and “must;”
(b)The other subjective considerations (which are not exhaustive) are only to be referred to in assessing whether to recommend issuing a conditional licence, in the particular circumstances of each case where there is assessment consistent with the Guidelines. Meeting or satisfying the subjective considerations cannot be relied upon to artificially inflate the subjective considerations’ import.[82]
The exercise of the discretion
[81] Respondent’s submissions at [41]
[82] Respondent’s submissions at [42]
The respondent argued that where the precondition is achieved (that is compliance or non-compliance with the Guidelines), then it is open to the tribunal to exercise the power to vary, suspend or cancel the applicant’s driver licence under regulation 87(1) of the Regulation. There is a residual discretion due to the use of the word “may”.[83]
[83] Respondent’s submissions at [47]

The respondent relied upon Construction Occupations Registrar v B&T Constructions (ACT) Pty Ltd & Ors (Construction Occupations Registrar)[84] and Minister for Immigration and Citizenship v Li (Li),[85] which held that there are two principles in the exercise of discretionary power. In Construction Occupation Registrar, the tribunal held:
An appellate body may infer an error of law in the exercise of a discretion if the decision is ‘unreasonable or plainly unjust’ but there is a strong presumption in favour of the correctness of the decision.[86]
[84] [2015] ACAT 24
[85] [2013] HCA 18
[86] [2015] ACAT 24 at [462] citing Perry v Comcare [2006] FCA 33; House v The King (1936) 55 CLR 499, applied; Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
In Li, the High Court held that reasonableness in the exercise of a discretionary power is ascertained with reference to the scope and purpose of the legislation in which it originates.[87]
[87] [2013] HCA 18 at [72]
The respondent submitted that the power under regulation 87(1) is in the context of the respondent’s driver licensing function, and these are intended to be administered and enforced consistently throughout Australia.[88]
[88] Respondent’s submissions at [50] referring to the Explanatory Statement, Road Transport (Driver Licensing) Regulations 2000
The respondent contended that the application was different to Bergild. Bergild concerned a matter where the tribunal found that it was difficult to assess the extent to which the applicant in that case had “failed” the Guidelines’ criterion for visual fields. Unlike the facts in Bergild, the respondent submitted that it was not difficult to assess the extent to which the applicant failed to meet the required standard, or one in which an on-field driving test has been recommended to assess whether she is able to drive safely. The respondent argued that the applicant here was so far below the standard that a conditional licence cannot be considered under the Guidelines.[89] The applicant is effectively requesting the Tribunal exercise its discretion in such a way that it ignores the need to comply with the Guidelines, which she falls short of by a significant margin.[90]
Human rights
[89] Respondent’s submissions at [51], citing Bergild at [114]-[118]
[90] Respondent’s submissions at [52]
The respondent did not take issue that the tribunal is a “public authority” and therefore bound by the requirements of section 40B of The Human Rights Act, 2004, however it was not clear what right(s) were engaged by the decision under review. Further, the Human Rights Act, 2004, does not provide for an entitlement to a driver licence.[91]

Consideration and findings

[91] Respondent’s submissions at [54]-[56]

The respondent is a statutory authority.[92] Its powers include the issuing, cancelling or suspending of driver licences, and imposing conditions on them.[93] Those powers are to be exercised in accordance with the Road Transport (Driver Licensing) Act 1999 and Regulation 87 of the Road Transport (Driver Licensing) Regulation 2000. The Regulation provides a discretionary power to the respondent to vary, suspend or cancel driver licences. Relevant to the application for review, the Regulation provides:
87 When authority may vary, suspend or cancel driver licences
(1) The road transport authority may vary, suspend or cancel a person’s driver licence on its own initiative under section 88 (Procedures for variation, suspension or cancellation of driver licences) if the authority is satisfied on reasonable grounds that—
…
(d)the person does not comply with the required medical standards
…
[92] Road Transport (General) Act 1999 s 16
[93] Road Transport (Driver Licensing) Act 1999 s 6, 7
The required medical standards are those set out in the Guidelines which are published and periodically amended by Austroads.[94] The 2022 edition of the Guidelines apply in the current proceedings.
[94] Road Transport (Driver Licensing) Regulation 2000 s 78A
The Tribunal agrees with the respondent that the task for the Tribunal, in deciding the application, consists of two steps:
(a)The Tribunal must be first satisfied, on reasonable grounds, that the applicant does not comply with one (or more) of the standards within the Guidelines. It is only then that the discretion arises, pursuant to regulation 87 of the Regulation.
(b)The Tribunal must then decide whether, having regard to the first step, that it will or will not cancel the applicant’s driver licence.[95]
[95] Respondent’s submissions at [8]
The principal area of dispute between the parties is the first step. The applicant argued that she has met the standards of the Guidelines, whereas the respondent argued that the applicant has not. As it was expressed in Bergild:
The Tribunal is concerned with a circumstance: should Mr Bergild’s driver licence remain cancelled? Further evidence can lead to a different outcome without any suggestion that the decision under review was wrong or inappropriate at the time it was made.[96]
[96] [2017] ACAT 80 at [55]
The Tribunal has jurisdiction to review the decision under review.[97]
[97] ACT Civil and Administrative Tribunal Act 2008 s 68; and Road Transport (General)Regulation2000 s 11
The applicant argued that the purpose of the Guidelines is to provide individualised decision-making; they do not provide a “one size fits all” approach; and they are not mandatory.[98] The respondent, by contrast, argued that the Guidelines are a “required medical standard”; and that concepts such as “individualised decision-making and subjectivity” only “apply to the extent that the required standards allow them to”.[99]
[98] Transcript of proceedings dated 18 August 2023, page 102, lines 1-5
[99] Transcript of proceedings dated 18 August 2023, page 115, line 1-page 116, line 5
The applicant referred the Tribunal to Kelly v Roads Corporation (VicRoads) (Kelly).[100] In that matter, Magistrate Lesser found that the court must consider all the available evidence, including the medical experts at the hearing; and that the Guidelines provide persuasive assistance, rather than mandatory direction.[101] The applicant also referred to Rajak v Road Transport Authority (Rajak).[102] In that matter, Member Hatch held that the Guidelines were “not a model of clarity.”[103]
[100] [2016] VMC 1
[101] [2016] VMC 1 at [72]-[74]
[102] [2008] ACTAAT 18
[103] [2008] ACTAAT 18 at [5]
Both parties referred to Bergild. In that matter, Presidential Member McCarthy was not persuaded that the criteria for granting a conditional licence are mandatory, but rather they are circumstances that the respondent 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.[104] President McCarthy went on to conclude that Mr Bergild should be given an opportunity to participate in an on-road driving test, but because he had raised some issues that the parties had not had the opportunity to be heard on, Presidential Member McCarthy relisted the matter in order to hear from the parties on how they wished to proceed.[105] As it was, the matter was relisted, and in the interim, further medical evidence was obtained as to the appropriateness of an on-road driving test where a person had sufficient peripheral vision to hold a driver licence, conditional or otherwise. That further medical evidence caused Presidential Member McCarthy to conclude that an on-road test was not an appropriate method of assessing the sufficiency of a person’s visual field, and as a result, he was satisfied that the decision under review to cancel Mr Bergild’s driver licence should be confirmed.[106]
[104] [2017] ACAT 80 at [79]-[80]
[105] [2017] ACAT 80 at [131]-[133]
[106] Bergild v Road Transport Authority (No 2) [2018] ACAT 8 at [48]-[50]
Each of the above cases are of assistance. The Tribunal has considered all of the material before it and, at the very least, concludes that the Guidelines are “persuasive”, which necessitates close attention for proper interpretation. The circumstances in Bergild are different to those of the applicant. Mr Bergild was a person with “monocular vision”, or sight in only one eye with the sight in his other eye being “extremely poor” or “below blindness.”[107] Notwithstanding that difference, in Bergild, Presidential Member McCarthy considered the Guidelines with respect to visual fields and where a conditional licence “may” be granted, and in that respect, he found that the two criteria in the medical standards for the issue of a conditional licence were not mandatory.[108] It should be noted, however, that Presidential Member McCarthy had earlier found that the applicant in that case did not meet the visual fields criteria for a monocular driver, and what was in issue was whether the licensing authority’s power to suspend or cancel the licence remained discretionary.[109]
[107] Bergild v Road Transport Authority (No 2) [2018] ACAT 8 at [31]-[35]
[108] [2017] ACAT 80 at [76]-[79] and [87]
[109] [2017] ACAT 80 at [84] and [97]-[99]
Part A of the Guidelines provides general guidance of the fitness to drive principles and practices. Part B sets out the medical standards, and is divided into 10 chapters, each dealing with a different medical condition relevant to whether a person may hold a licence. Generally, each chapter considers the relevance of the medical condition in three sections. The first section considers the relevance of the condition to the driving task. The second provides general assessment and management guidelines. The third sets out the medical standards for licensing a person with the applicable condition. As previously discussed, the tenth chapter relates to vision and eye disorders.
In my view, compliance with the “required medical standards” does not mean that they are “mandatory”, but they are “persuasive”. This interpretation allows or permits some balance between minimising any driving related road safety risk for an individual and the community and maintaining the driver’s lifestyle and employment related mobility independence. As the applicant pointed out, there are a number of factors that should be considered in any assessment. The applicant also submitted that the Guidelines themselves point out their limitations in measuring visual fields, particularly the Guideline’s ability to resemble the demands of the real world. In an attempt to accommodate these demands, the Guidelines have listed a number of factors that should be considered, including, but not limited to, driving record, roads and distances, and concomitant medical conditions, such as cognitive impairment or impaired rotation of the neck.
However, the Guidelines are also prescriptive in how the “visual fields” are to be tested. It was not in dispute that the applicant’s progressive retinitis pigmentosa required assessment by a binocular Esterman visual field. What was in issue was whether it could be a roving Esterman, as advocated by the applicant and Professor Grigg (and others), or a fixed Esterman, as advocated by the respondent and Dr Beaumont. Secondary to whether it was roving or fixed was whether the test was certified or validated, and if not, whether any reliance could be placed upon it.
At section 10.2.2 – ‘Visual fields’, under the heading ‘Assessment method’, the Guidelines state:
Subjects with any significant field defect or a progressive eye condition require a binocular Esterman visual field for assessment.
…
Fixation monitoring must be performed and recorded on the test. Alternative devices must have the ability to monitor fixation …[110]
[110] Guidelines, page 204
Also, at 10.2.2, under the heading ‘Horizontal extent of the visual field’ the Guidelines state:
In the case of a private vehicle driver, if the horizontal extension of a person’s visual fields are less than 110 degrees but greater or equal to 90 degrees, an optometrist or ophthalmologist may support the granting of a conditional licence by the driver licensing authority…[111]
[111] Guidelines, page 205
At section 10.3 – ‘Medical standards for licensing’, the table ‘Medical standards for licensing’ states:
A person is not fit to hold an unconditional licence:
If the binocular visual file does not have a horizontal extent of a least 110 degrees within 10 degrees above and below the horizontal midline;[112]
[112] Guidelines, page 210 (emphasis in original)
In my view, the medical standards are prescriptive on the standards for persons to not hold an unconditional licence in relation to the visual fields.
The same table goes on to describe in what circumstance a conditional licence may be considered, and states that it may be:
[C]onsidered by the driver licensing authority subject to annual review, taking into account the nature of the driving task and information provided by the treating optometrist or ophthalmologist.[113]
[113] Guidelines, page 210 (emphasis in original)
The applicant stressed the flexibility of the Guidelines, and particularly, the additional factors to be considered by the respondent in considering granting a conditional licence. The respondent agreed that there was some flexibility and that additional factors could be considered, but only to the extent that the required standards allow them to.[114] I agree with the submission of the respondent that it is necessary to first refer to the standards. The necessary step is to be in the region of 90 and 110 degrees, and only then might the opinion of a treating optometrist or ophthalmologist be considered. It would then also allow the consideration of any expert opinion that the licensing authority might obtain.[115] To do so permits some degree of flexibility to the Guidelines and to where the additional factors might be considered by the respondent. To do otherwise might result in a situation where a decision of a licensing authority is largely based upon a treating optometrist or ophthalmologist’s opinion, with little or no regard to any expert opinion from whoever the licensing authority might refer a driver.
[114] Transcript of proceedings dated 18 August 2023, page 115, lines 1-24
[115] Transcript of proceedings dated 18 August 2023, page 120, lines 15-36
Secondary to this conclusion is the issue of in what circumstances the additional factors might be considered.
There was some consensus between Professor Grigg and Dr Beaumont that a “borderline” result on an Esterman with fixation would allow consideration of the additional factors. There was no consensus however, on what horizontal visual field degree measurement might be a borderline result.
Professor Grigg, in his statement/report of 13 June 2023, stated that the applicant’s Esterman visual field with fixation was “borderline”, whereas the roving visual field showed a horizontal visual field of 130 degrees. In his evidence at the hearing, when he was pressed about what constituted “borderline”, he said that both 60 degrees and 70 degrees were borderline.[116] Dr Beaumont, by contrast was of the opinion that 60 degrees was “substantially” less than 90 degrees and therefore would not support the granting of a conditional licence. The respondent submitted that, even if the applicant scored as high as 80 degrees, there was still no occasion to consider a roving Esterman test.[117]
[116] Transcript of proceedings dated 18 August 2023, page 92, line 37-page 93, line 13
[117] Transcript of proceedings dated 18 August 2023, page 118, line 35-page 119, line 3
If Professor Grigg’s opinion is preferred, then the potential scope of considering the additional factors is increased. Importantly, the additional factors include conducting an Esterman visual fields test without fixation monitoring, and the applicant’s driving record before and since the occurrence of the ‘defect’. When the applicant was tested with the roving Esterman, her field range was greater and, even on Dr Beaumont’s testing, was measured at 110/120 degrees.[118]
[118] Attachment 11 – ‘Report of Dr P Beaumont to Dr Y K Lee’ dated 5 January 2023 to witness statement of Dr P Beaumont dated 10 July 2022
As noted above, when the applicant was tested with fixation that was certified on 13 July 2022 by Dr Reid at CHEC, the field range was 70/75 degrees, and a conditional licence was proposed.[119] As a result, the respondent determined that the applicant’s licence be varied to a conditional one which would automatically activate on 23 August 2022. The applicant sought the opinion of Dr Barry who wrote a report dated 30 August 2022, which described the horizontal field as “about 80 degrees”, but it is not known whether it was by fixed or roaming testing. Dr Barry does not report on his own testing, and he may have relied on the earlier testing by CHEC. The 75 degrees was described by him as “about 80 degrees.” Dr Barry also recommended a conditional licence, but with more generous conditions. It appears that Dr Reid at CHEC communicated with Dr Beaumont and sought his opinion. Dr Beaumont wrote to Dr Reid and recalculated the horizontal extent back to 60 degrees.[120] In Dr Beaumont’s report, he confirmed that the 60 degrees result precludes him from recommending that the applicant be granted a licence. Dr Beaumont also wrote to the applicant’s general practitioner, Dr Lee, on 5 January 2023, and similarly advised that there could not be a recommendation which allowed the granting of a conditional licence.
[119] Attachment 9 – ‘Report of Dr K Reid’ dated 2 August 2022 to Applicant’s submissions. For full report see Exhibit R1 – ‘Tribunal Documents’ dated 25 November 2022, page T67
[120] Attachment 18 – ‘Report from Dr P Beaumont to Dr K Reid’ dated20 September 2022 to Applicant’s submissions
The applicant relied upon several medical opinions, and generally submitted that Dr Beaumont’s opinion was an outlier. The applicant also relied upon the expertise of Professor Grigg in treating retinitis pigmentosa and his published output on the subject compared to Dr Beaumont. There was also discussion concerning the published papers on the roving and fixed Esterman. However, having found above that a certified fixed test is required rather than a roving test, the published papers and their evaluation is not something that the Tribunal is required to consider, and Dr Beaumont’s opinion is not diminished as a result.
Considered above was whether 60 or 70 degrees was “substantially” close to the minimum 90 degrees to possibly obtain a conditional licence. The word ‘substantial’ is ordinarily considered to be of a “corporeal or material nature” or “an ample or considerable amount, quantity or size.”[121] In my view, 60 or indeed 70 degrees is not borderline, and is substantially less than 90 degrees. Further, in my view, if the applicant had had a fixed result closer to 90 degrees, then possibly the additional factors might then have been able to be considered. As discussed above, the respondent argued that even 80 degrees was not substantially close to the minimum 90 degrees. Given my findings, it is not necessary for me to decide this point and I do not make any findings whether 80 degrees is substantially close to the minimum 90 degrees.
[121] Macquarie Dictionary (online) ‘substantial’ (def 1)
I find, therefore, that applying the Guidelines, the applicant is considerably below the minimum of 90 degrees and therefore is not able to hold a conditional licence.
There remains the exercise of my discretion and the human rights arguments. The applicant’s submission was largely based upon the respondent not properly considering all of the factors outlined in the medical standards and considering irrelevant matters. In other words, the respondent had erred because it formed the view that the applicant did not satisfy or meet the Guidelines. The Tribunal agrees with the respondent’s submissions in relation to the principles that should guide the Tribunal in exercising its discretionary power. The Tribunal further agrees with the respondent’s submission in relation to the differences in this matter and Bergild. A difficulty for the applicant is that this is not a case where it is difficult to assess the extent to which the applicant fails to meet the required standard or where an on-road driving test has been recommended to assess whether she is able to drive safely. I also note the statement at section 10.2.9 of the Guidelines:
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.
As Presidential McCarthy stated in Bergild v Road Transport Authority (No 2) (Bergild No 2):
[A]n 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.[122]
[122] [2018] ACAT 8 at [48]

The applicant raised her human rights but did not particularise in detail how they are relevant to the present proceedings. The argument was not pressed or argued further at the hearing. There were no oral submissions made. The Tribunal accepts the ACAT is a public authority and must act consistently with human rights.[123] However, it is not clear what particular right or rights were engaged by the decision under review. The Tribunal, nevertheless, has considered all relevant considerations and notes that the ACT Human Rights Act 2004 does not provide an automatic entitlement to a driver licence.

Conclusion

[123] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [34]-[35]

The Tribunal has found that the decision under review dated 10 November 2022 is the correct and preferable decision and is confirmed.
As a result of my decision, the applicant’s interim application is dismissed. If, however, the Tribunal is wrong or incorrect with regards to its findings in relation to the decision under review, the Tribunal agrees with the submissions made by the respondent filed 29 September 2023 and, as a result, would dismiss the applicant’s application for interim or other orders.

Orders

The decision under review dated 10 November 2022 is confirmed.
Applicant’s application for interim or other orders is dismissed.
………………………………..

Member W Hawkins

Date(s) of hearing:	18 August 2023
Applicant:	Self-represented with J Swann, authorised representative
Counsel for the Respondent:	Mr D Ager
Solicitors for the Respondent:	Mr B Marler, ACT Government Solicitor