Dunster v Lowe

[1989] TASSC 118

Serial No B40/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Dunster v Lowe [1989] TASSC 118; B40/1989

PARTIES:  DUNSTER, James Sherwood
  v
  LOWE, Robert James

FILE NO:  LCA 86/1989
DELIVERED ON:  6 October 1989
JUDGMENT OF:  Cox J

Judgment Number:  B40/1989
Number of paragraphs:  16

Serial No B40/1989
File No LCA 86/1989

JAMES SHERWOOD DUNSTER v ROBERT JAMES LOWE

REASONS FOR JUDGMENT  COX J

6 October 1989

1. Notice to review the dismissal of an application pursuant to the Traffic Act 1925, s36, for an order authorising the granting to the applicant of a restricted licence. He had been convicted on the 28 July 1989 of an offence against the Road Safety (Alcohol and Drugs) Act 1970, s6, the reading in question being 0.17 grams of alcohol in 100 millilitres of blood and had been sentenced to a fine of $350 and disqualification for holding or obtaining a licence to drive a motor vehicle for a period of 15 months.

1. The applicant is a married man, presently aged 44 years with two grown up sons. He is a self–employed person in partnership with his wife and operates the business of a log haulier and carter of other heavy loads. The applicant owns six trucks and employs five other drivers, driving the sixth vehicle himself. He is in the habit of working exceedingly long hours and in addition to driving does all the paperwork and accounts associated with the business and is constantly on call in relation to repairs to the trucks and in addition does the regular maintenance on the whole of his fleet. Part of his commitments include a contract with Brambles Ltd. to cart logs to the woodchip mill at Triabunna and it is a term of that contract that he personally drive the truck in question.

1. On the day upon which the offence was committed, namely the 16 February 1988, the applicant had risen at 3.00am, eaten nothing for breakfast and then driven from Brighton to Launceston where he arrived at about 5.30am. He unloaded some containers of wool at Launceston and then departed for Burnie at about 6.00am, arriving there at about 8.00am. He had had nothing to eat or drink at Launceston apart from a hot drink. He departed from Burnie at approximately 8.15am with an empty truck. At Burnie he had consumed two sandwiches, a couple of biscuits and a cup of coffee. He drove to the Railton Cement Works and loaded at Railton and left there at about 10.15am with 24 tonnes of cement which he took through to Geeveston arriving there at about 4.00pm, having made one stop only at Campbell Town where he took some diesel on board. Having unloaded at Geeveston he returned to his home at Brighton at about 5.30pm. He changed his truck trailer for a log trailer and then drove to Raminea south of Dover arriving at about 7.30pm where the truck was loaded with the help of two other persons with whom he then relaxed for a short time and consumed two half bottles or "stubbies" of beer. On the way home he stopped at the Kermandie Hotel and purchased a six pack of stubbies, intending to consume them on his arrival home. However, on the way home he decided to commence drinking the stubbies and he had consumed four of them in the course of driving home to Brighton when he was pulled up at Bridgewater by the arresting police officer at about 11.00pm.

1. That officer gave evidence that he was on motor cycle patrol travelling on the Northern Outlet when he observed a prime mover fully loaded with logs. The vehicle was travelling at approximately 80 kilometres per hour and was continually wandering within its lane. It was observed to cross double parallel lines on three occasions and then wander back to the left side of its lane crossing the white border line on the left of its lane. The vehicle crossed the Bridgewater causeway and on several occasions the trailer nearly came into contact with the steel railing on the side of the road. It was intercepted on the Midlands Highway where the officer detected a strong smell of intoxicating liquor on the applicant's breath and directed him to submit to a breath analysis test which was subsequently carried out and produced the reading mentioned above. The substance of this account was not challenged in cross–examination, nor did the accused give or call any evidence by way of defence.

1. The applicant has a number of previous convictions, the only one of which is of any significance for present purposes is one dated the 31 October 1984 for a similar offence, the reading on that occasion being .10%. It appears that the offence itself the subject of that conviction had occurred on the 14 September 1984. On that occasion the applicant had been fined $175 and awarded four demerit points.

1. On the hearing of the application the applicant produced a report from Dr M J Kilburn which had been procured by his solicitors on the 28 June 1989, some five weeks before the hearing of the application. In part that read as follows:–

"He started drinking alcohol at the age of 14 and admitted to heavy drinking for about 25 years particularly during his time in the Merchant Navy and also when he experienced a depressive illness associated with business problems four or five years ago. He underwent psychiatric treatment and counselling four years ago and has substantially decreased his alcohol intake since then. He drinks on an average three to nine stubbies of alcohol per week........ He drinks beer only, no wine or spirits. He tells me that he is aware of the potential problems of heavy alcohol intake, particularly relating to his business. .................

On examination he appeared to be in good health although mildly obese. In particular, there was no evidence of liver disease or any other alcohol related illness. I note however that recent liver function tests are abnormal – GGT 83 (11–50), AST 40 (0–37), and ALT 78 (0–40).

As we discussed, there seems little doubt that Mr Dunster has a medical problem with alcohol. Although physical examination is normal, the abnormal blood tests strongly suggests that there is liver disease. To determine the cause and assess severity, liver biopsy would be necessary, but at this stage the odds are very much in favour of it being alcohol related and mild to moderate, rather than severe. I would strongly recommend total abstinence and I have informed Mr Dunster that his present alcohol consumption, though considered only moderate by most standards, is inappropriate, possibly because of damage due to the heavy consumption in the past. I would recommend repeat liver function tests in four to six weeks following a period of abstinence, and if the tests remain abnormal then a liver biopsy would be advisable. ................... My opinion is that there is no significant physical or psychological dependence. Any regular drinker has some degree of physical tolerance to alcohol but physical dependence implies a need to drink regularly and often to maintain one's well being, and also an illness when alcohol is abruptly withdrawn. Mr Dunster may go up to a week without alcohol on a fairly regular basis and has shown no sign of alcohol withdrawal syndrome at times of surgery, which is usually a good guide to the degree of alcohol dependence. The question of psychological dependence is more difficult to judge and a psychiatrist or a specialist in alcohol and drug dependency would be better qualified to give an opinion on this. However, I believe he is not dependent, and faced with the very real need to give up drinking completely, will be able to successfully do so."

1. The learned magistrate directed that he be furnished with a report under the Alcohol and Drug Dependency Act 1968. In part that report read:–

"According to him he does not think he has a problem with alcohol. He said he may have had one two years ago when his business was in a very shaky position and as a result he was depressed and used to drink about $40 or $50 worth of alcohol a week. For the last two years he has been drinking $10 worth a week, consuming up to half a dozen beers.

He used to be a seaman in his younger days which lasted for eight years, again he was drinking much more then than at present. When he was drinking heavily he used to have a slight withdrawal syndrome but in the last few years he has not had any and has not been drunk for a long time. His job is not affected by alcohol, and he has a good marriage of 22 years, alcohol has never been a problem and his relationship with his wife is good. His business has actually expanded so much that it is worth two million dollars, according to him.

Physical examination revealed a slightly obese man, otherwise no other gross abnormalities found. Blood tests reveal a slightly elevated GGT.

Conclusion:

This man functions very well socially in all life areas. His slightly elevated GGT could well have been due to a long hard drinking history. I am prepared to say he is an alcohol abuser rather than an alcohol dependent person."

1. The Traffic Act 1925, s36(4) provides:–

"No order shall be made under this section unless the magistrate is satisfied –

(a)that the disqualification will impose or is imposing a severe and unusual hardship on that person or his dependants;

(b)that the powers of the section should be exercised for the purpose of mitigating or alleviating that hardship; and

(c)that the exercise of those powers for that purpose would not be contrary to the public interest."

1. As Underwood J said in Lowe v Mansfield, 65/88, the Road Safety (Alcohol and Drugs) Act 1970, s19, imposes three further restraints on the exercise of the discretion under the last mentioned section, namely:–

1no order can be made if within three years immediately preceding the conviction which gives rise to the application the applicant has been convicted of an offence contrary to ss4 or 6 of that Act; and

2the making of an order in favour of a person suffering from alcohol dependency within the meaning of the Alcohol and Drug Dependency Act 1968 is deemed to be contrary to the public interest; and

3unless the court is satisfied upon the evidence of a medical practitioner that the applicant is not suffering from such alcohol dependency the court may refuse to make an order under the Traffic Act, s36(1).

1. In the present case the learned magistrate indicated that he was satisfied that disqualification would impose severe and unusual hardship on the applicant, but was not persuaded that the exercise of his powers to mitigate or alleviate that hardship would not be contrary to the public interest and accordingly dismissed the application. He referred to the contents of the medical reports and to the circumstances of the offence itself which he summarised as follows:–

"He was not driving a small sedan but a large laden log truck with a gross weight of 35 tonnes or more. He is seeking the restricted licence to drive a similar vehicle. At the time of apprehension he had been driving for some nineteen hours, eight hours or more than he is allowed by law. Most of the alcohol which contributed towards his reading of .17% was consumed whilst he was driving between Kermandie and his home and it is to be noted that the consumption of alcohol in a moving vehicle is itself a breach of the Road Safety (Alcohol and Drugs) Act 1970. He has not been charged with or convicted of a specific offence for that, but I cannot overlook his omissions under the circumstances. Whilst he is not alcohol dependent I am concerned about the fact he is labelled an alcohol abuser. Having regard to all these matters I am of the opinion that the applicant has not satisfied me that he would not be a source of danger on the road if he was driving pursuant to a restricted licence. Since it is for the applicant to satisfy the court on the question of public interest and since he has failed to do so I find that to exercise my powers to grant a restricted licence would be contrary to the public interest and accordingly I refuse the application."

1. It is clear from a number of decisions of judges of this Court (Neasey J in Hayes v Petersen [1972] Tas SR 86; Chambers J in Webb v Robertson, 13/74; Underwood J in Lowe v Mansfield (supra)) that primarily the public interest contemplated by the relevant provisions is the protection of the public from the danger created by those who drive motor vehicles whilst affected by intoxicating liquor and this involves a consideration (inter alia) of the likelihood of the applicant driving while his judgment is impaired by the consumption of alcohol. In my view matters relevant to such an issue would include the applicant's history of alcohol consumption, its physiological and psychological effects upon him, his willingness to modify his drinking habits and his sense of responsibility as a road user, as demonstrated by for example the existence or otherwise of any previous convictions and the general circumstances of the offence itself including the events preceding it.

1. The two substantive grounds of appeal advanced were that:–

"(a)The learned magistrate erred as a matter of fact and of law in holding that there was insufficient evidence to satisfy him that the granting of a restricted licence to the applicant would not be contrary to the public interest; and

(b)That he erred in law placing excessive reliance on the medical evidence in relation to the applicant's liver disease in assessing whether it would not be contrary to the public interest to grant the applicant a restricted licence."

1. In my view neither ground has been made out. The learned magistrate had evidence of a previous similar offence resulting in a conviction in September 1984, less than 3½ years before the offence which led to his disqualification on this occasion. He had evidence of past excessive consumption of alcohol and a continuing pattern of consumption which, having regard to the applicant's likely liver disease, the latter's own medical adviser regarded as inappropriate. That adviser had on the 28 June 1989 recommended that the applicant should totally abstain from drinking alcohol, but the applicant had not acted upon that recommendation prior to the hearing on the 28 July 1989, although he claimed to have modified his behaviour. Furthermore, the circumstances of the offence showed a remarkably irresponsible attitude towards his obligations as a road user. He drove a heavily laden vehicle with the potential, if uncontrolled, for causing grave injury to others lengthy distances while consuming alcohol at the wheel and after his own physical resources must have been sorely tested by 18 or more hours of almost continuous driving.

1. Before refusing the application the learned magistrate was not required to be satisfied that the applicant would be a potential danger to other road users if granted a restricted licence. What was required in the circumstances before he could grant such an application was satisfaction on his part that the applicant would not be a source of danger, actual or potential, to the public using the roads. One can never be satisfied of such a matter with absolute certainty, but the matters relating to the applicant's background which the learned magistrate properly took into account could reasonably be expected to deprive him of any confidence that he would not be such a danger.

1. The learned magistrate has not been shown to have erred in his determination of the matter. The decision he reached was reasonably open to him and there is no basis upon which this Court should interfere with it.

1. The motion is dismissed.