Glover and Civil Aviation Safety Authority

[2024] AATA 3597

Glover and Civil Aviation Safety Authority [2024] AATA 3597 (10 October 2024)

Division: GENERAL DIVISION

File Number(s):       2023/4834

Re: Peter Glover

APPLICANT

AndCivil Aviation Safety Authority

RESPONDENT

DECISION

Tribunal:Deputy President I Hanger AM KC 

Date:10 October 2024

Place:  Brisbane

Pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal orders that the decision of 16 June 2023 be set aside and the matter remitted to the respondent for consideration to take into account my finding that the applicant can meet the safety relevant standards with the imposition of the following conditions:

(a)he should not carry passengers unless he has a co-pilot who can take over in the event of an emergency;

(b)his flight should be limited to attending to his farms;

(c)it should be along an agreed flight path with stops at agreed points; and

(d)his medical condition should be monitored quarterly by his treating doctors and a report thereon be provided to the respondent within one week of his medical appointment

..........................[SGD]......................

Deputy President I Hanger AM KC

Catchwords

CIVIL AVIATION – Class 2 Medical Certificate – where applicant has prostate cancer, metastatic pleomorphic liposarcoma pulmonary metastases and coronary artery disease – safety relevant condition – medical opinion – where there is a remote risk of sudden incapacity when flying – where remote risk can be mitigated by granting licence subject to conditions – decision set aside and remitted

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Civil Aviation Act 1988 (Cth)
Civil Aviation Safety Regulations (Cth)

Cases

Bush and Civil Aviation Safety Authority Safety Authority [2021] AATA 2821

Window and Civil Aviation Safety Authority [1999] AATA 525

REASONS FOR DECISION

Deputy President I Hanger AM KC

10 October 2024

1. By notice dated 16 June 2023, the respondent affirmed the decision to refuse to reissue the applicant’s Class 2 Aviation Medical Certificate dated 16 June 2023. The applicant seeks review of that decision.

2. The respondent raised a preliminary issue about the Tribunal’s jurisdiction to deal with this matter or utility in dealing with it, given the passage of time since the applicant underwent a medical examination for the purpose of issuing a Class 2 Medical Certificate on 26 May 2022. The respondent noted that if the tribunal decided that a Class 2 Medical Certificate ought to be issued, it could not be issued with an expiry date later than 26 May 2023 or more than one year from the expiry of the old certificate. The respondent submitted that it was appropriate in the circumstances for the tribunal to dismiss the application under section 42B of the Administrative Appeals Tribunal Act 1975 (Cth). The applicant argued that given the delays inherent in the tribunal’s processes, it may be that the applicant could never get a matter heard. I urged the parties to find a way around this problem and to their credit, the following direction was made with consent:

   Upon the undertaking of the applicant to complete an updated Class 2 Medical Application, if the Tribunal sets aside the decision dated 16 June 2023, the parties agree the Tribunal will remit the decision to the Civil Aviation Safety Authority for reconsideration in accordance with any directions or recommendations of the Tribunal.

3. The matter proceeded on that basis.

   THE LAW

4. Section 9A of the Civil Aviation Act 1988 (Cth) (The Act) provides that in exercising its powers and performing its functions, the respondent must regard the safety of air navigation as the most important consideration.

5. The issuing of medical certificates is governed by Part 67 of the Civil Aviation Safety Regulations1998 (Cth) (CASR). The respondent may not issue a Medical Certificate unless the applicant meets the ‘relevant medical standard’.[1] But the respondent can issue a medical certificate subject to any condition that it considers necessary in the interest of safety of air navigation.[2]

   [1] Regulation 67.180 of the CASR.

   [2] Regulation 11.056 of the CASR

6. The ‘relevant medical standard’ is set out in the table found in regulation 67.155 CASR and relevantly provides as follows:

   Abnormalities, disabilities and functional capacity

   2.1 Has no safety-relevant condition of any of the following kinds that produces any degree of functional incapacity or a risk of incapacitation:

   (a) an abnormality;

   (b) a disability or disease (active or latent);

   (c) an injury ;

   (d) a sequela of an accident or a surgical operation

   2.2 Has no physical conditions or limitations that are safety relevant

   Cardiovascular system

   2.9 Has no safety-relevant heart abnormality

   2.11 Has no significant functional or structural abnormality of the circulatory tree

   Respiratory system

   2.12 Is not suffering from a safety-relevant condition of the respiratory system

   Reticulo-endothelial system

   2.16 Is not suffering from an enlargement of the spleen that causes a significant displacement below the costal margin

   2.17 is not suffering from a safety-relevant condition of any of the following kinds:

   (a) localised or generalised enlargement of the lymphatic nodes

   Genito-urinary system

   2.18 Is not suffering from any safety relevant disease of the genito-urinary system.

7. Regulation 67.015 of the CASR provides that a condition is “safety-relevant” if it is likely to reduce the ability of the person to exercise the privileges conferred by the licence.

8. Having regard to the context and purpose of the legislation and the regulations, the word ‘likely’ cannot be given its ordinary meaning to describe the probability of an event occurring. As noted in Window and Civil Aviation Safe Authority [1999] AATA 525 at [60] it: “is not a matter which can be assessed on statistical likelihood and certainly does not mean ‘more likely than not’, ‘odds on’ or ‘a more than 50% chance of a thing happening’. To adopt those latter three meanings would, in our view, be to place too little weight on the protection of public safety and too much on an individual's entitlements”. The respondent’s submission that ‘likely’ in this context means a ‘substantial or real and not remote change’ is consistent with the authorities.[3]

   [3] See also Bush and Civil Aviation Safety Authoritty [2022] AATA 2821.

   THE EVIDENCE

9. The applicant is a 79-year-old widower and retired farmer who owns his own light aircraft.  He still has a farm at Berrybank in Western Victoria which is currently tenanted. He lives at Yamba which is on the north coast of New South Wales. He predominantly flies between those two points. It is a seven-hour journey with one or two stops. He is required to stop for fuel In Echuca, Narromine or Gunnedah. He also does some recreational flying and occasional trips to other parts of the country.  He flies about 90 hours a year at present and has logged a total of about 1900 flying hours. There is no suggestion that he has ever had a safety or regulatory incident.

10. In cross-examination, the applicant was taken to the application for aviation medical certificate dated 26 May 2022, which appears to be incorrectly filled.[4]  For example, the form incorrectly notes the applicant’s last echocardiogram was  conducted on 20 May 2019.[5] In cross-examination, the applicant accepted that he ‘had a whole series of  stress tests… all the way up until 2022’.[6] There were a number of errors in the forms the applicant signed. The respondent argued that his incorrect completion of the relevant form was a ground for refusing to issue a certificate pursuant to Regulation 67.180 CASR. The form required to be filled out was a complex technical form and it would appear that it was probably completed by the designated aviation medical examiner (DAME) but signed by the applicant. I am not satisfied that he was guilty of any consciously misleading conduct.

    [4] Transcript, p. 49, lines 1– 5

    [5] Exhibit 1, T85, pp. 263

    [6] Transcript, p.49, lines 25-30.

11. The applicant has a significant medical history. He has been treated for heart disease, and various cancers. The respondent submits that his health, or his prognosis, is such that he suffers from ‘safety relevant conditions’ and he should not be issued with the certificate he seeks.

12. The case for the applicant is that while he has had significant medical conditions and continues to have them, his condition is presently stable and does not warrant refusal subject to conditions of a certificate. 

13. Two eminent doctors, Dr Peter Choong and Professor Michael Ng were called on behalf of the applicant who had treated and continue to treat the applicant. While there were some points of disagreement between doctors called on behalf of the applicant and doctors called on behalf of the respondent, there was mostly common ground. The specialists on behalf of the applicant eschewed specialist knowledge of aviation medicine – in particular, the effect of altitude on the various conditions suffered by the applicant. Dr Anthony Hochberg and Dr Patrica Beresford were called by the respondent for their expertise in aviation medicine, and Professor Richard Fox was called by the respondent on 2 October 2024 after the part hearing of this matter on 5 and 6 August 2024.The applicant’s medical condition falls into 3 categories. He suffers from:

    (a) prostate cancer;

    (b) metastatic pleomorphic liposarcoma and pulmonary metastases; and

    (c) coronary artery disease.

    Prostate cancer

    The Evidence of Professor Fox

14. Unfortunately, the applicant’s prostate cancer is progressing. It has metastasised to his lymph nodes and to his spine. The cancer is incurable and at present, the applicant has declined androgen deprivation therapy (ADT) to treat his prostate cancer. If treated, the prognosis is greatly improved. Professor Fox expressed the opinion that there was a greater than 50% chance that the applicant will experience various side-effects from the prostate cancer within several months to a year. Of course, what those side-effects will be cannot be foretold with accuracy.

15. Bone scans in May 2024 reveal a bony metastasis in the right pedicle at L1. Such a condition can cause pain and because the bones have been affected by the disease process, the spine is liable to a crush fracture. That might occur as a result of physical forces during turbulence or a rough landing causing the applicant to become incapacitated or disabled. The likelihood of this occurring is relatively low.[7] He noted the symptomatology may be of gradual origin with impaired judgement, worsened without oxygen supplementation.  Dr Fox also said that the leaching of calcium from bones into the blood can give rise to significant issues regarding cognition, mental acuity and so on. He also said there could be slowly progressive anaemia with associated fatigue which could result in impaired judgement while flying. [8] He regarded the prostate cancer as the ‘most serious issue that the applicant faces’. That is understandable given that the prostate cancer is progressing, and that the applicant has thus far refused ADT for its treatment. 

    [7] Exhibit 13, Report of Professor Fox dated 25 September 2024, p. 10

    [8] Exhibit 13, Report of Professor Fox dated 25 September 2024 p 8, 12.

16. By way of a conclusion, Professor Fox when asked whether the risks of incapacitation give rise to a substantial or real and not remote possibility of occurrence of an incapacitating event in-flight due to the applicant’s medical history, the doctor said, “there is a possible/likelihood of recurrence of incapacitating events in-flight”. However, the risk of sudden incapacitation from the prostate cancer is not substantial. It should be noted that Professor Fox was commenting on other reports and had not seen the applicant. Further, the report of Dr Fox was unable to be put to the applicant’s medical experts.

    Metastatic pleomorphic lycosarcoma and pulmonary metastases

    The Evidence of Professor Choong

17. Geomorphic sarcoma is a high-risk grade cancer.[9] The undisputed evidence is that the applicant will develop further lung metastases.[10] He has been treated for these lung metastases each year between 2018 and 2023. The evidence of Professor Choong who has treated him since 2013 and continues to treat him, is to the effect that the applicant is a great survivor and that he treats him as the need arises. Professor Choong describes him as presently ‘doing well and fit as a fiddle’.[11]

    [9] Transcript, Day 1, p.15, lines 25-33.

    [10] Transcript, Day 1, p. 36, lines 35 – 38.

    [11] Exhibit 6, letter Professor Choong dated 5 March 2024.

18. In relation to the status of the sarcoma Professor Choong noted:

    “So at this very moment in time, he has – he is, as we understand, free of sarcoma disease. The most recent imaging showed that an area that has been followed up over the last number of years with CT scans of his chest, and which has 5 shown variability from being big, and then gone small, has shown an increase in size in the most recent CT scan, although a PET scan done has shown very little uptake in it. We had also done a recent MRI of his brain because there was some concern which Peter was trying to address as to the questions whether he had any brain recurrences and he does not. We’ve cleared that and it would seem that the only issue he has outstanding is this abnormal finding in the lower part of his right lung which is currently, I understand, being investigated by the respiratory team as well as his radiation oncology team, as well as his radiation oncology team”.[12]

    [12] Transcript, Day 1, p. 11, lines 1 – 14.

19. In relation to Mr Glover’s functional capacity, he said:

    “Every time I see Peter, he is as fit as a fiddle. You know, he comes in and he is well and from a strength perspective has always got good function of both lower limbs and arms, he is able to do things without any sense of fatigue when we discuss his general health.  When we meet each other on a regular basis, it’s about assessing, first of all, the local area of his prior disease, but also trying to assess what his functional capacity is, and I have never been concerned about his functional capacity that is with regard to strength movement, mobility, orientation, time, place, person.… I cannot see anything that causes me concern from a safety perspective.  When one undertakes surveillance, we report on anything that is abnormal and we follow up on that, and that’s what we’ve done over the years, but nothing that we’ve seen including now is anything I would regard as being a safety hazard.”[13]

    [13] Transcript, Day 1, p. 11, lines 17 – 33.

20. Professor Choong referred to a recent PET scan and a CT scan which showed no recurrent disease in the lung nor any obvious avid disease elsewhere.[14] He says that he is still functioning with a reasonable quality of life and that from the point of view of safety relevance in the air, his chances of having an adverse event are low. He describes this cancer in the applicant as being “indolent” meaning that it is not something that has raged out of control but something that pops up from time to time and which can be appropriately treated without any issue to him.[15]

    [14] Exhibit 7, Medical Report of Professor Michael Ng dated 4 March 2024.

    [15] Transcript, Day 1, p. 11, 44 - 47.

21. In cross-examination, Professor Choong was asked about marks currently in the lungs which could possibly be cancerous, and he said in effect he was seeking further information and watching them.[16] He also said that he was confident there was no brain metastasis.

    [16] Transcript, Day 1, p. 19

    The Evidence of Professor Ng

22. Associate Professor Ng is a radiation oncologist. He was referred to treat the applicant for metastatic sarcoma that had metastasised to his lung with radiotherapy in March 2021. He said that the applicant has had a number of treatments but that there is no recurrence of the disease to the lungs. The doctor also referred to the fact that the applicant has prostate cancer. He has also treated the prostate cancer with radiotherapy in August 2021, but it has spread to the abdominal lymph nodes without causing any symptoms.

23. He continues to monitor him and reviewed him on 4 March 2024. There was no evidence of recurrent disease in the lungs.  He still has presently untreated prostate cancer which does not cause symptoms.  He was asked whether these cancer conditions would or could lead to a safety relevant condition incident.   He said that the chances of that are low and that Professor Choong and himself are monitoring the applicant regularly. When he was asked about the current spots on the lung referred to above, he opined that they were scarring from previous treatment[17] and I accept that evidence.

    [17] Transcript, Day 1, p. 33

24. He was asked whether he regarded the applicant’s conditions as stable, he said:

    “From a functional point of view, I think Peter is stable, he looks and seems the same to me than when I met him from 2 to 3 years ago. From an imaging point of view, he is actually stable for the last 12 months because, I think, he’s had all his disease eradicated.  His prostate cancer still needs to be monitored and that’s reflected biochemically in monitoring the PSA. So that one has the option to be treated”.[18]

    [18]  Transcript, Day 1, p. 43, lines 38 – 44.

25. I assessed the Associate Professor Dr Ng and Professor Dr Choong as being extremely knowledgeable and reliable witnesses who have had a close medical association with the applicant for a long time. 

    Cardiac issues

    The Evidence of Dr Hochberg

26. In 2011, the applicant had a blockage in an artery and had a stent fitted. He said that he has had no heart problems since that time.

27. He had a stress test in the week before the hearing and had no problems in completing for the requisite time at the requisite level for his age. While on his farm he refers to maintaining his house and sheds, cutting wood and doing general maintenance.

28. Dr Hochberg is the deputy principal medical officer for the respondent. He trained as a specialist cardiologist and then moved into 3 separate areas of specialisation, occupational medicine, aviation medicine and family medicine.

29. He explained that to obtain the Class 2 Medical Certificate that the applicant seeks, one should essentially be free of disease such as metastatic cancers or serious coronary artery disease.[19] He states this is consistent with Australia’s obligations under the United Nations International Civil Aviation Organisation. He says there is a very low tolerance for risk standards applied and risk is additive. In effect, the question for determination is what the likelihood of incapacitation is when flying the aircraft. Incapacitation can be either sudden or subtle. For example, if a person were to take androgen blockers to treat prostate cancer, a side-effect of that would be fatigue which may result in subtle incapacitation.[20]

    [19] See Generally, Transcript, Day 2, pp. 6 and 7.

    [20] Transcript, Day 2, p. 13, lines 14 -16.

30. Dr Hochberg also points out that even the stress tests dealing with exercise tolerance have a 15% false negative result meaning that people who have passed stress tests can still have a coronary within the next month.

31. In answer to questions about increased risk caused by the fact that the applicant might be flying at up to 10,000 feet he said there are two specific risks they are: (1) the impact of G forces; and (2) the impact of altitude hypoxia. Hypoxia will affect cognitive ability which will affect operation of an aircraft. His cardiac condition may make him less able to resist an increased G force thereby increasing the risk of loss of control.

32. Speaking on behalf of the respondent and applying the respondent’s standards, Dr Hochberg is of the firm opinion that the coronary artery disease, the prostate cancer, and the possibility that an unresolved condition in the lung could be a carcinoma are all safety relevant.[21]

    [21] Transcript, Day 2 p. 46.

    The Evidence of Dr Beresford

33. Dr Patrica Beresford is employed by the respondent as a senior medical officer in the aviation medicine department. She made the decision under review. Her role is to determine whether a pilot met the medical standard specified, that is, if they had a diagnosis covering any of the organ systems listed in the medical standard. If they had such a diagnosis, she had to determine whether the risk afforded by the condition might impact aviation safety and whether there was any way to mitigate that risk to aviation safety.[22] She thinks the applicant does not meet the required medical standard.

    [22] Transcript, Day 2 p. 52

    CONCLUSION

1. In reaching this conclusion, I make no criticism of any of the excellent, fair and professional medical witnesses. They have made every effort to assist the Tribunal.

2. This case is largely about risk management.  The two eminent doctors who have and are treating the applicant are satisfied that but for his prostate cancer, his condition is stable. There is also no doubt that the prostate cancer is not stable and without treatment, will get worse. The greatest safety relevant issue is the cognitive effects of the androgen deprivation ADT, rather than the prostate cancer itself. At present, he has refused treatment.

3. While his treating doctors do not suggest that they have specialist knowledge of aviation medicine, they do express the opinion that it is not unsafe for him to fly. They have the advantage of actually knowing and treating the applicant. That knowledge is to be contrasted with the knowledge of the respondent’s experts who do not know the applicant and rely on the medical reports of individuals who have treated the applicant.

4. It is possible that the applicant’s various conditions may adversely affect his operation of an aircraft.  It is a risk, but it is not a substantial risk. The attitude of the respondent through its experts is that the risk is unacceptable. However, one must consider the purpose of the risk assessment process. In doing that and in considering the risk of an adverse event causing loss of control and a crash, one must also consider the consequences. The pilot may kill himself.  He may kill passengers. He may kill people on the ground. He may cause damage to property. These also must be taken into account in the risk assessment process. The grant of a licence is a privilege, but it is a privilege much enjoyed by its holder. The applicant has flown for many years with an unblemished record. He obviously values the licence greatly and uses it particularly to fly between his two farms which are a long way apart.  Given the remote location of these properties, any risk can be mitigated by requiring the applicant to fly between them in such a way that, if he crashes, he will be an insignificant risk to people on the ground. That observation would apply as well to smaller airports.  Even if he crash-landed, the possibility of hurting someone other than himself or passengers is remote. If he chooses to fly, knowing the slight risk of an adverse event occurring, then he has voluntarily undertaken the risk of killing himself. My assessment of him is that he has common sense. He is carefully monitored by his doctors quarterly. The chances of a serious adverse event instantly disabling him while flying is not substantial.

5. Given the evidence of treating doctors, I am satisfied that he can meet the safety relevant standard subject to certain strict conditions to deal with the contingency which I regard as, not substantial should an adverse event of the kind described occur in the air.

   DECISION

6. Pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act1975 (Cth), the Tribunal orders that the decision of 16 June 2023 be set aside and the matter remitted to the respondent for consideration to take into account my finding that the applicant can meet the safety relevant standards with the imposition of the following conditions:

   (a)  he should not carry passengers unless he has a co-pilot who can take over in the event of an emergency;

   (b)  his flight should be limited to attending to his farms;

   (c)   it should be along an agreed flight path with stops at agreed points; and

   (d)  his medical condition should be monitored quarterly by his treating doctors and a report thereon be provided to the respondent within one week of his medical appointment.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President I Hanger AM KC

.......................[SGD].....................

Associate

Dated: 10 October 2024

Date of hearing:

Date final submissions received:

2 October 2024

30 September

Counsel for the Applicant:

Mr Peter Lithgow

Solicitors for the Applicant:

Mr John Maitland
Maitland Lawyers

Counsel for the Respondent:

Ms Kristi Riedel

Solicitors for the Respondent:

Ms Josephine Park
Civil Aviation Safety Authority