Commins and Civil Aviation Safety Authority
[2004] AATA 1330
•14 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1330
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1303
GENERAL ADMINISTRATIVE DIVISION ) Re
Aidan Commins
Applicant
And
Civil Aviation Safety Authority
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date14 December 2004
PlaceSydney
Decision The application under s 41(2) of the Administrative Appeals Tribunal Act 1975 for an order to stay the decision of the respondent made on 22 September 2004 is refused.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
APPLICATION FOR STAY ORDER – CIVIL AVIATION – decision that medical certificate issued to the applicant be accompanied by a condition that the applicant fly as or with a co-pilot – examination of the applicant’s medical condition – examination of the risks to public safety – whether there will be prejudice to the applicant if the stay is not granted – whether there will be prejudice to the respondent if the stay is granted – examination of the prospects of success of the application – found that the application might have some prospects of success, there would be no hardship to the respondent if a stay were granted and whilst the applicant would suffer inconvenience and added expense there is no evidence that he could not manage his business or conduct his business – found that the risk to the public cannot be regarded as insignificant and that safety concerns weigh against the grant of a stay – found that a stay is not necessary to ensure the effectiveness of the hearing – stay application is refused.
Civil Aviation Act 1988 s 9A
Civil Aviation Safety Regulations 1998 Parts 67.015, 67.155, 67.195, 67.180(2)(e)(ii)
Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 375
Re Hall and Civil Aviation Safety Authority [2004] AATA 21
Re Window and Civil Aviation Safety Authority [1999] AATA 525
United States v Carroll Towing Co (1947) 159 F 2d 169
REASONS FOR DECISION
14 December 2004 Professor GD Walker, Deputy President
Summary
1. The applicant, Aidan Commins, aged 56, applied for the renewal of his Class 2 medical certificate under Regulation 67.180 of the Civil Aviation Safety Regulations 1988.
2. On 22 September 2004, a delegate of the respondent, the Civil Aviation Safety Authority (“CASA”), decided to refuse Mr Commins’ application on the ground that he failed the medical standard for that certificate owing to his history of renal calculi (kidney stones). This is the decision to be reviewed by the tribunal and is the subject of the current application for a stay order by the tribunal.
Background
3. Mr Commins was born on 4 June 1948 and is aged 56. In 2002, Mr Commins was diagnosed with kidney stones. He was the holder of a Class 2 medical certificate issued to him by the CASA. Towards the end of May 2004, Mr Commins applied for renewal of that certificate.
4. On 8 June 2004, Mr Commins received notification from CASA that his application for renewal of his Class 2 medical certificate was refused on the grounds that he failed to meet the medical standards for this certificate because of his kidney stones. CASA also indicated that it might be prepared to grant him a special medical certificate to fly “as or with co-pilot” for a 12 month period upon receipt of a recent medical report from his urologist regarding the presence, size, location of the stones and any symptoms.
5. On 7 September 2004, Dr Stuart Porges wrote to Dr J Putland, the Director of Aviation Medicine, CASA, a letter which stated inter alia:
I note on Page 59 of the Medical Examiners’ Handbook that applicants may be considered medically fit when free of symptoms and investigation indicates recurrence is unlikely.
I believe that this applies in Mr Commins’ case.
I refer to safety Regulation Part 67.1552.18 and I believe that this does not apply. I also refer to Paragraph 2.20 and in view of the fact that the calculi was in the kidney and not in the ureter there is no evidence of significant obstruction and therefore 2.20 does not apply.
In view of this I believe that the co-pilot restrictions which you stated needs to be applied is not necessary and ask you to reconsider this man’s situation and I believe that he is medically fit to obtain a normal Class 2 Medical Certificate without co-pilot restriction.
6. Dr Porges also enclosed a medical report from a urological surgeon, Dr Timothy Nicholson, dated 28 May 2004, addressed to Dr Porges, stating that the applicant had had no problems from kidney stones within the past two years and stating, inter alia, that “I am happy to send a note to Dr James Ross at CASA saying that it is extremely unlikely he will have problems from the stones”.
7. On 22 September 2002, CASA notified Mr Commins that it considered the new information did not give any reasons why the restrictions were inappropriate and affirmed the decision.
8. On 11 October 2004, Mr Commins lodged an application for a review of that decision by the tribunal, together with an application for a stay order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (“the Act”). On 20 October 2004, CASA made representations to the tribunal that it opposed the stay application stating inter alia:
CASA has decided that a medical certificate to be issued to Mr Commins should be accompanied by a condition requiring that Mr Commins fly as or with a co-pilot.
This is because CASA has decided that Mr Commins’ medical condition (Kidney stones) is likely to endanger the safety of air navigation if Mr Commins were allowed to fly without a copilot. The kidney stones may cause sudden renal colic. If Mr Commins were to be affected by sudden renal colic while piloting an aircraft, the copilot would be able to take control of the aircraft.
CASA relied in particular on the assessment of Dr Timothy Nicholson, Urological Surgeon, in the attached letter of 28 May 2004 to CASA’s Dr James Ross, about “the tiny stones he has present in both kidneys”. Dr Nicholson said:
“I estimate a 95% chance that these tiny stones will not cause sudden renal colic and a 5% chance that they will within the next year.”
That is CASA’s reason for insisting on the “co-pilot” condition. For the same reason, CASA opposes the application for a stay.
…
CASA’s assessment is that without the “co-pilot” condition Mr Commins does not satisfy the legislative test for the issuing of a medical certificate. Without the “co-pilot” condition, to allow Mr Commins to pilot an aircraft is likely to endanger the safety of air navigation (Civil Aviation Safety Regulations 1998, paragraph 67.180(1)(e)(ii)).
9. At the hearing of this stay application, the applicant appeared in person and the respondent was represented by Greg Parkin, solicitor, of the Office of Legal Counsel, CASA. Mr Commins gave oral evidence in person.
Applicable Legislation
10. The tribunal is empowered to make a stay order in proceedings before the Tribunal pursuant to s 41(2) of the Act. This states:
(2)The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceedings before the Tribunal (in this section referred to as the relevant proceedings), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relate or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
11. The principal legislation is the Civil Aviation Act 1988 (“the Act”). Section 9A of the Act provides:
(1) In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.
(2) Subject to subsection (1), CASA must exercise its powers and perform its functions in a manner that ensures that, as far as is practicable, the environment is protected from:
(a) the effects of the operation and use of aircraft; and
(b) the effects associated with the operation and use of aircraft.
12. The necessity to consider safety is reflected in the issuing of medical certificates. Regulation 67.180 of the Civil Aviation Safety Regulations 1998 states that CASA must issue a medical certificate to an applicant provided the applicant satisfies certain requirements including, pursuant to paragraph (2)(c), meeting “the relevant medical standard”, or if the applicant does not meet the relevant medical standard, “the extent to which he or she does not meet the standard is not likely to endanger the safety of air navigation” (paragraph (2)(e)). Regulation 67.195 empowers the Authority to issue a medical certificate “subject to any condition that is necessary in the interests of the safety of air navigation, having regard to the medical condition of the person”.
13. The relevant medical standard in the case of private pilot licenses is medical standard 2. The criteria for medical standard 2 are set out in Table 67.155. In respect of the genitor urinary system, the following criteria are stated:
Genito urinary system
2.18 Is not suffering from any safety relevant disease of the genitor urinary system
2.19Has no safety-relevant sequelae of disease or surgical procedures on the kidney or urinary tract
2.20Kidneys and urinary tract are free of significant obstructions
2.21If there is any personal history of syphilis – provides evidence that adequate treatment has been completed and that there are no safety-relevant sequelae of the infection.
14. Regulation 67.015 states:
A medically significant condition is safety-relevant if it reduces, or is likely to reduce, the ability of someone who has it to exercise a privilege conferred or to be conferred, or perform a duty imposed or to be imposed, by a licence that he or she holds or has applied for.
Evidence and reasons
15. The issue for the tribunal to determine in this case is whether, pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975, it is desirable to make a stay order “for the purpose of securing the effectiveness of the hearing and determination of the application for review”. There are four sub-issues which the tribunal considers relevant to the determination of a stay order: first, the prospect of success or otherwise of the application; secondly, whether there will be prejudice to the parties if the stay is not granted; thirdly, the public interest, in particular the safety concerns which flow from this decision and fourthly, whether the review application, if successful, will be rendered nugatory if the stay is not granted (Re Griffiths Grif-Air Helicopters PtyLtd and Civil Aviation Authority (1993) 31 ALD 380 at 385).
16. The question whether there is a reviewable decision in this case is not entirely free from doubt, but the respondent indicated that it would not take any jurisdictional point at this stage. That would not be enough to give the tribunal jurisdiction if none existed, but in view of the conclusion I have reached on the merits of a stay, it is not necessary to canvass that issue. It is probably sufficient to say at this stage that the respondent has reached a concluded view that it will issue a Class 2 medical certificate to Mr Commins only with a co-pilot condition.
17. Taking first the application’s prospects of success, there is no dispute that Mr Commins has had a history of renal calculi for approximately ten years. He has had treatment for the condition and the calculi still remaining are small. The recent consideration of this problem has gone through three stages, the first of which was a radiology report dated 30 April 2004 (T36 p85), reporting the existence of small calcifications. That led to a letter to Mr Commins from Dr Ross, CASA Director of Medicine on 14 May 2004 (T38 p87) offering a certificate with the co-pilot restriction. Next came a review of Mr Commins’ condition by Dr Nicholson, a urological surgeon. His report dated 28 May 2004 offered the opinion that the small stones still in position had a 95 per cent chance of not causing sudden renal colic over the coming year and a five per cent chance of causing it. Following that report, Dr Ross reaffirmed the offer of a certificate only with a co-pilot condition on 8 June 2004 (T42 p92). The third stage of the discussion occurred when Dr Porges, a consultant surgeon and designated aviation medical examiner, wrote to the CASA Director of Aviation Medicine expressing the view that the co-pilot restriction was unnecessary and asking CASA to reconsider Mr Commins’ situation on the basis that he was medically fit to obtain a Class 2 medical certificate. That letter was written on 7 September 2004 (T43 p94). Dr Ross reviewed the medical evidence and wrote to Mr Commins on 22 September 2004 (T44 p96) stating his view that the original decision was correct and saying that it would stand.
18. At the hearing of the stay application, a further letter from Dr Nicholson, dated 15 November 2004, was tendered (Exhibit A2). The letter supported Mr Commins in his application for a solo license and explained that his estimate that there was a five per cent risk of an attack of renal colic over the next year referred to the whole year. As he would not be flying for the whole year, the risk of such an episode when he is flying would be one per cent or less. Having sought instructions from the respondent, Mr Parkin stated that CASA’s position was unaltered, as the respondent had at all times proceeded on the basis that the five per cent estimate related to the whole year, not to the time when airborne.
19. As evidence of the incapacitating effect of renal calculi on a pilot in control of an aeroplane, the respondent relied on two aviation medicine texts (T15 pp34-36, T16 pp37-41). Those texts stated that the concern was about renal stones’ ability to produce sudden incapacity in flight through the development of acute renal colic. If an aviator had retained renal calculi, it was said, disqualification would be the prudent course of action mainly because of the risk of severe pain. “Many types of flight operations would be conducive to growth and movement of a stone because of the dehydrating effects of hot weather and low humidity cockpit environments in flight. Thus it is possible that the stone may move at any time, causing significant discomfort particularly if it is in the ureter” (T16 p41).
20. The respondent argued that Mr Commins’ condition was likely to endanger the safety of air navigation within the meaning of regulation 67.180, and the cases established that “likely” in that context means only “a substantial or real, not a remote chance”, and did not require that an outcome be more likely than not (Re Window and Civil AviationSafety Authority [1999] AATA 525, paragraph 60, and Re Hall and Civil AviationSafety Authority [2004] AATA 21, paragraph 36). Mr Commins contended that Dr Porges’s report showed that there had been no change in the last four years and that the stones left after the removal procedures are tiny and are trapped in post-operative tissue. He stated in his evidence that he had never suffered from sudden renal colic and argued that there have been no known cases of accidents caused by that condition.
21. On the evidence as it stands, it appears more likely than not that the review application will be unsuccessful, but as there is some division of medical opinion it is possible that it might have some prospect of success, at least if Mr Commins is able to adduce further medical evidence.
22. On the question of hardship to the parties, Mr Commins testified that he is the owner and operator of a quarrying and crushing business with bases in Orange and Parkes, New South Wales. He flies from an airstrip on his property near Orange and is often required to use his aeroplane, a twin-engine Piper Seneca, at short notice for such purposes as delivering spare parts, taking charge of repair operations for equipment that has broken down and supervising blasting. He uses the aeroplane up to four times a week, sometimes twice in one day, and flies as far afield as Darwin and Perth. His business has some substantial bank loans outstanding and he must work hard to survive in a competitive market. He depends on being able to use his aeroplane and says that he is no safety risk, partly because he has never suffered sudden renal colic, and also because he would simply not fly if he did not feel well. Mr Commins did not indicate in his evidence that he had made enquiries about the availability of a possible twin-engine rated pilot in the Orange area or had investigated the practicability of making an arrangement with such a pilot or pilots. Nevertheless, it is likely that Mr Commins will suffer some hardship in the form of inconvenience and added expense in conducting his business. The evidence does not, however, indicate that he would not be able to manage or to conduct his business in a successful way. There is no issue of hardship towards the respondent except in so far as the grant of a stay might hamper its discharge of its responsibilities to safeguard the safety of air navigation. That factor is more appropriately considered under the third sub-issue, the public interest, in particular the safety concerns that flow from the decision.
23. The medical evidence establishes that there is a five per cent risk that Mr Commins will suffer sudden renal colic in the course of the coming year, or a one per cent risk he will do so while actually piloting an aeroplane. It is not entirely clear what a one per cent risk means in this context. It might be taken to mean that if he undertakes 100 flights, there is a strong chance that he will suffer renal colic in the course of one of them, or that if he flies 100 hours, it is likely he will experience a bout of sudden renal colic. Or it might have some other statistical meaning. As a practical matter, though, when a person flies an aeroplane as much as Mr Commins does, a one per cent risk cannot be regarded as insignificant. The fact that he flies far afield, sometimes in busy control zones, in a relatively high performance twin-engine aeroplane would tend to make the risk more significant, than for example, if he were a grazier flying a Cessna 152 only for the purpose of cattle operations on a large property. Hand J expressed this correlation well in a famous passage in United States v Carroll Towing Co (1947) 159 F 2d 169 when discussing the duty of a barge owner to take precautions against the risk that the barge will break from its moorings:
the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B ≤ PL.
24. Safety concerns, therefore, are a significant public reason weighing against the grant of a stay in this case.
25. The fourth sub-issue is whether the review application, if successful, will be rendered nugatory if the stay is not granted. As the tribunal said in Re Griffiths (supra), the question is whether the refusal of a stay is likely to cause Mr Commins or his company serious irreparable harm (irreparable in the sense that no recompense for it can be obtained if the application for review is successful) and so affect adversely the effectiveness of the hearing and the determination of the application under review. The only evidence relevant to that sub-issue is that referred to above under the heading of hardship, and it falls far short of establishing any risk of irreparable harm. There is no basis for concluding that the company’s business cannot continue until the hearing if Mr Commins does not have the medical certificate, or if the cost and inconvenience involved in arranging for a co-pilot would prove ruinous to the business. Mr Commins simply did not adduce any evidence on that point.
26. I therefore find that on balance, a stay is not needed for the purpose of ensuring the effectiveness of the hearing and determination of the application for review.
27. The stay applied for should therefore be refused.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 18 November 2004
Date of Decision 14 December 2004
Representative for the Applicant Self-representedRepresentative for the Respondent Mr G Parkin, Office of Legal Counsel, CASA
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