Halls v The Registrar of Motor Vehicles of SA, Department of Planning, Transport and Infrastructure
[2014] SADC 204
•5 December 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Application for Review)
HALLS v THE REGISTRAR OF MOTOR VEHICLES OF SA, DEPARTMENT OF PLANNING, TRANSPORT AND INFRASTRUCTURE
[2014] SADC 204
Judgment of Her Honour Judge McIntyre
5 December 2014
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES
Appeal under Motor Vehicles Act 1959 against a decision to suspend the Appellant’s drivers licence on medical grounds. The Respondent had been informed by a health professional that the Appellant was not competent to drive due to a seizure and that if he drove he would likely endanger the public. The Appellant challenges the medical opinions upon which the suspension was based and denies that he has any medical condition that would affect his ability to drive.
Held: There is no cogent reason to depart from the conclusions reached by the Respondent – Appeal dismissed
Motor Vehicles Act 1959 s98ZA, s97Z; District Court Act 1991 s42B, s42E, s42F; National Transport Commission Assessing Fitness to Drive Standards , referred to.
Registrar of Motor Vehicles v Thiele (2002) SASCFC 51, considered.
HALLS v THE REGISTRAR OF MOTOR VEHICLES OF SA, DEPARTMENT OF PLANNING, TRANSPORT AND INFRASTRUCTURE
[2014] SADC 204Introduction
This is an Appeal under section 98ZA of the Motor Vehicles Act 1959 (the MVA) concerning the suspension of the Appellant’s drivers licence. The decision to suspend was made by a delegate of the Registrar of Motor Vehicles (“the Registrar”) on 18 February 2014. That decision was confirmed by the Registrar on a review under section 97Z of the MVA on 2 September 2014.
The delegate’s decision was based on a report from a health professional that the Appellant was not competent to drive a motor vehicle due to a seizure. During the review process the Registrar was informed by another health professional that the Appellant had a history of seizures and that subsequent EEG tests were consistent with the Appellant suffering epilepsy.
The Appeal
The conduct of the appeal is governed by the provisions of sections 42E and 42F of the District Court Act 1991 (the DCA) which provide as follows:
42E. (1) The Court must, on an appeal, examine the decision of the original decision- maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal—
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
42F.The Court may, on an appeal—
(a) affirm the decision appealed against;
(b) rescind the decision and substitute a decision that the Court considers appropriate;
(c) remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
Section 42E requires the Court to examine the decision of the original decision-maker. Section 42B defines ‘original decision-maker’ to mean:
The person or body whose decision is appealed against, and includes, if that person or body made the decision on an appeal against, or review of, a decision made by some other person or body, that other person or body.
A District Court judge on appeal must therefore examine the decision of the delegate of the Registrar as well as the decision of the Registrar on review.[1]
[1] Registrar of Motor Vehicles v Thiele (2012) 60 MVR 442.
The original suspension decision
The Appellant was involved in a road traffic incident on 30 January 2014. Following that incident he was conveyed by ambulance to the Royal Adelaide Hospital (“RAH”). The circumstances surrounding the Appellant’s attendance at the RAH are contentious.
Dr Thomas Masters, a medical practitioner at the RAH, wrote a letter to the Licence Regulation Unit of the Department of Planning, Transport & Infrastructure (“the Department”) dated 30 January 2014. The letter was a notification under section 148 of the MVA indicating that Dr Masters considered that the Appellant had suffered a seizure and that if he drove a motor vehicle, he would likely endanger the public.
As a result of receiving that notification from Dr Masters, Ms Phillips, a delegate of the Registrar sent a letter to the Appellant dated 10 February 2014 advising that under section 80(2a) of the MVA, his licence was to be suspended from 18 February 2014. That letter indicated that the Appellant could supply medical information to confirm that he is medically fit to hold a drivers licence in accordance with the National Transport Commission Assessing Fitness to Drive Standards (“the Standards”)[2]. It also advised the Appellant of his right of review.
[2] The Standards have been adopted by the Minister under section 80(2) of the MVA by notice in the South Australian Government Gazette published on 1 March 2012 page 886
The Appellant sent a fax to the Department on 13 February 2014 in which he indicated that he was unsure how Dr Masters arrived at his decision that he did not meet the medical standards required to drive a motor vehicle. The Appellant also enclosed a number of documents.
On 28 March 2014 the Department received a further facsimile from the Appellant referring to a telephone discussion between the Appellant and a departmental employee in relation to an historical entry on his record that suggested that the Appellant had suffered from epilepsy in the past. The Appellant stated in his facsimile that he had no medical history of epilepsy. He further indicated that he had “been cleared by the RAH and have spoken with Dr Werne of Emergency medicine at the RAH who stated that the recent test at Neurology was negative for epilepsy.” Finally the Appellant indicated that he had reported Dr Masters to the Australian Health practitioner Regulation Agency.
On 13 May 2014 Ms Phillips wrote to the Appellant acknowledging his correspondence and stating that, in the absence of a report indicating that Dr Masters’ diagnosis was incorrect, suspension of his licence would remain in place unless his complaint resulted in the report of Dr Masters being withdrawn or amended.
The confirmation of the suspension on review
On 29 May 2014 the Appellant applied for a review of his licence suspension under section 98Z of the MVA.
On 2 September 2014 the Registrar conducted the review under section 98Z of the MVA and confirmed the decision of the delegate.
The affidavit of the Registrar sworn on 10 November 2014[3] sets out the chronology of events and the material relied upon by the Registrar in reaching her decision. The Appellant was notified of the Registrar’s decision and reasons by letter dated 2 September 2014.[4]
[3] Exhibit R4.
[4] Exhibit R4 annexures JH-8 & JH -9
In summary, the Registrar relied upon the notification by Dr Thomas Masters dated 30 January 2014 and further correspondence received from Dr Michelle Kiley dated 30 May 2014. Dr Kiley is the staff specialist in Neurology and the Director of Epilepsy Services at the RAH. Dr Kiley’s letter set out the matters leading to Dr Masters’ notification following the Appellant’s attendance at the RAH Emergency Department in January 2014 and referred to hospital records that indicated that the Appellant had been seen at the RAH in the late 1980’s following seizures and at the Queen Elizabeth Hospital in 2010 having had a generalised tonic-clonic seizure. Dr Kiley also referred to a recent sleep deprived EEG conducted at the RAH which she said demonstrated poly spike and wave activity consistent with epilepsy. She further advised the Registrar that the Appellant had had a private sleep deprived EEG study conducted by Dr James Leyden on 22 May 2014 during which he had a generalised seizure.
Notice of Appeal
The Appellant’s Notice of Appeal was filed on 19 September 2014 and appeals against the whole of the decision of the Registrar dated 2 September 2014. The grounds for the appeal are set out in some 27 numbered paragraphs. In summary it appears that the Appellant challenges the medical opinions upon which the Registrar based her decision. Specifically, the Appellant denies that he suffers from seizures or epilepsy and denies any medical history that would affect his ability to drive.
The Hearing
This matter was originally listed for half a day but as a result of a number of factors it ultimately proceeded over some two and a half days. The hearing commenced on Friday 21 November 2014. The hearing was adjourned that evening to resume the following Monday for cross-examination of the Appellant and final submissions. When the matter resumed on Monday 24 November 2014 the Appellant was not present. He was at the time in custody following his arrest on 21 November 2014 because he allegedly drove home from court. He was refused police bail and remained in custody until Tuesday 23 November 2014. The hearing resumed on Monday 1 December 2014 and concluded on 2 December 2014.
Further evidence from the Appellant
Although section 42E of the DCA requires this Court to examine decisions on the material before the original decision-makers, it does not confine a Court to an examination of those decisions on that same material. The Court may receive further evidence if it thinks fit.
On the appeal, the Appellant, who was unrepresented, proposed to call the practice managers from the Crafter Medical Centre and the Marion Domain Medical Centre by telephone for the purpose of verifying some medical records already produced by the Appellant. During the course of discussion on that topic, the Appellant withdrew his application and indicated that he wished to proceed on the basis of the material already before the Court and to give evidence. The Appellant was permitted to tender three affidavits from himself, some medical documents, his CTP claim form relating to the accident on 30 January 2014 and a letter from Dr Walker with some attachments dated 28 November 2014. In addition, the Appellant filed a further affidavit affirmed on 1 December 2014 which was not admitted into evidence due to its content but was relied upon by the Appellant to supplement his oral submissions. I have considered that material in reaching my decision.
De bene esse ruling
The affidavit affirmed by the Appellant on 19 September 2014 became exhibit P1. The respondent objected to some of the annexures to that affidavit on the ground of relevance specifically Annexures JCH-7, 10, 11, 13, 15, 17, 18 & 19. Those were received de bene esse. Having viewed the exhibits that were the subject of the objection I consider that the objection as to relevance was properly taken. Those annexures will not form part of exhibit P1.
During the course of the first day of hearing the Appellant informed the court that he did not have a copy of Exhibit P1. It was apparently seized by the police as part of an investigation. The solicitor for the Respondent provided the Appellant with a copy of the affidavit as part of a bundle of documents entitled “Case Book”. Unfortunately, because of the objection that the Respondent took in relation to relevance, the disputed annexures were not included in that case book. This did not become apparent until the penultimate day of the hearing. Copies of the relevant documents were then provided to the Appellant by the Court. The following day, the last day of the hearing, the Appellant applied for a mistrial submitting that his conduct of the matter had been prejudiced by reason of the late provision of these documents. That application was dismissed.
Further evidence from the Respondent
The Respondent also sought leave to adduce further evidence. The evidence that was received was as follows:
·Exhibit R1 - an affidavit of Dr Kiley sworn on 17 November 2014 attaching various medical records.
·Exhibit R2 - an affidavit of Probationary Constable Holly Ann Morgan sworn on 6 November 2014. PC Morgan was the police officer who attended the scene of the motor vehicle accident involving the Appellant on 30 January 2014.
·Exhibit R3 - an affidavit of Mark Wright sworn on 10 November 2014. He is the Operation Manager of the Expiation Notices Branch of SAPOL and annexes certain documents related to an expiation notice issued to the Appellant following the motor vehicle accident on 30 January 2014.
·Exhibit R4 - an affidavit of the Registrar sworn on 11 November 2014 annexing the documents relied upon in the course of the review.
·Exhibit R5 – a facsimile dated 2 May 2014 from the Appellant to Dr Leyden enclosing a referral from his general practitioner.
·Dr Leyden, a neurologist, gave evidence of an EEG conducted at his clinic on 22 May 2014. Dr Leyden gave evidence and three exhibits were tendered through him: R6, a video of the EEG conducted on the Appellant; R7 - a sample of the EEG reviewed by Dr Leyden; and R8 - Dr Leyden’s report on the EEG dated 22 May 2014.
The Appellant cross examined Dr Leyden and during the course of this put two documents to Dr Leyden which are Exhibits P5 and P6.
Following the arrest of the Appellant on 21 December 2014, the Respondent applied to adduce further evidence. The first was an affidavit of Mr Shanks, the Deputy Registrar of Motor Vehicles relating to historical data concerning the Appellant’s driver’s licence. That affidavit was not received in evidence. The other evidence was CCTV footage taken at the Christies Beach Police Station on 21 November 2014. This footage was put to the Appellant during cross-examination and subsequently tendered as Exhibit R9. In summary, that footage was said to show the Appellant having a seizure in the police cells. In addition the Appellant was cross examined about two attendances at the Flinders Medical Centre on the evening of 21 November 2014.
Discussion
The Court must give due weight to the decision being appealed against and the reasons for it and not depart from that decision except for cogent reasons.[5] I will deal with each of the two decisions relating to the suspension of the Appellant’s licence for the reasons outlined above.
[5] Section 42E(3) of the DCA and Registrar of Motor Vehicles v Thiele.
Original decision to suspend
The Appellant challenges the medical opinion upon which the original suspension was premised. Dr Masters’ letter to the Registrar fulfilled his obligation under section 148(1) of the MVA. He had reasonable cause to believe that the Appellant held a driver’s licence and that he was suffering from a physical illness or disability such that if he drove a motor vehicle, he would have been likely to endanger the public.
Dr Masters’ opinion was based on his observations of the Appellant on 30 November 2014 at the RAH. Dr Masters’ notes form part of Exhibit R1. The discharge letter sets out Dr Masters’ opinion that the Appellant had suffered a seizure and he queried whether the Appellant was an untreated epileptic. He referred the Appellant to the neurology clinic for follow up and investigation.
Dr Masters’ letter to the registrar was sufficient information for the delegate to:
(a) have been satisfied that the Appellant was not competent to drive a motor vehicle; and
(b) suspend his licence according to section 80(2a)e of the MVA; and
(c) stipulate the manner in which the Appellant could seek to satisfy the Registrar that he was in fact competent to drive a motor vehicle.
The letter that was sent to the Appellant on 10 February 2014 advising of the delegate’s decision also indicated that the Appellant’s medical practitioner or specialist could confirm that the Appellant was fit to hold a drivers licence in accordance with the Standards. According to the Standards, a person is not fit to hold an unconditional licence if the person has experienced a seizure. Conditional licences may be considered if specified criteria are met.[6] The Appellant did not meet those criteria nor did he supply medical evidence of the type required by the Standards. Prima facie the original decision to suspend was correct.
[6] The Standards part 6.2
The Appellant challenges the report of Dr Masters. (Grounds of appeal 1.0, 1.1 and 1.8). He gave evidence in support of his contention that Dr Masters’ opinion that he had likely suffered a seizure at the time of the motor vehicle accident was incorrect. He contends that the version of the accident relied upon by Dr Masters was incorrect. He relied upon his CTP claim form and SAPOL documents concerning the accident and specifically the expiation notice.
The Appellant said in evidence that he did not suffer any seizure at the time of the accident rather he says that the accident was caused by the other driver cutting in front of him. He said that their bumpers touched but that there was no damage to either car. The other driver called the police and the police called an ambulance to convey the Appellant to the RAH in order to undergo alcohol and drug testing because they did not have appropriate testing equipment in their patrol car.[7] He says that the history or presenting problem recorded by Dr Masters on the RAH notes is incorrect and inconsistent. He says further that he was not advised of any opinion that he may have suffered a seizure, nor was he told he should be reviewed by the neurology department. He says he did not read the RAH discharge letter completed by Dr Masters dated 30 January 2014.[8]
[7] [T] p35-36
[8] [T] p42, 45 - 46
The CTP claim form completed by the Appellant contains a version of the accident consistent with his evidence. However, he says that he hit his head in the accident and implicit in his form is the contention that he was conveyed to the RAH because of this.
The Affidavit of PC Morgan[9] indicates that the police did not call the ambulance; rather that the Appellant was in the back of the ambulance when police arrived. She says she did not speak to the Appellant at the scene. When she spoke to him at the hospital he gave her an explanation of the accident that was inconsistent with his evidence although she also commented that he appeared confused and did not seem to appreciate he was speaking to police. Specifically he told her that he did not know why he drove in the back of the other car but that he thought he was tired and fell asleep.
[9] Exhibit R2
The Appellant appeared to suggest in his evidence and submissions that the Police had “revoked” his expiation notice because the conversation deposed to by PC Morgan was “rebutted”. In cross-examination the Appellant reluctantly conceded that the reason the expiation notice was revoked was because he had elected to be prosecuted.[10]
[10] [T] p161-167
The Appellant’s evidence concerning the accident on 30 January 2014 was unconvincing and I do not accept it. He has given a number of accounts as to the cause of the accident. These include his evidence, the CTP claim form, the account to PC Morgan and the material he submitted to the Expiation Notice Branch of SAPOL which states that the accident occurred due to a “medical emergency”.[11] None of the matters put to me by the Appellant cause me to doubt Dr Master’s opinion that the Appellant suffered a seizure.
[11] Exhibit R3
Dr Kiley, the hospital staff specialist in neurology, has reviewed the RAH notes. She considered that the Appellant’s presentation at the Hospital on 30 January 2014 was consistent with a patient who had recently experienced a seizure and was in a state of post-ictal confusion.[12]
[12] Exhibit R1 paragraph 3.
Dr Leyden, the consultant neurologist consulted by the Appellant in May 2014, gave evidence that it is likely that the Appellant had a seizure on 30 January 2014 based on his perusal of the medical notes and the EEG conducted at his clinic on 22 May 2014.
The Appellant produced no evidence to the delegate to refute Dr Masters’ opinion. The additional evidence that has come to light since that decision indicates to me that, notwithstanding the Appellant’s view that he did not suffer from a seizure on 30 January 2014, the circumstances suggest otherwise.
In my view, the Delegate was justified in concluding that it was appropriate to suspend the Appellant’s licence until the Appellant satisfied the Registrar that he was competent to drive a motor vehicle.
The confirmation of the suspension on review
On 29 May 2014 the Appellant sent his application for review to the Registrar. That application is reproduced in part as annexure JCH-6 to the Appellant’s affidavit affirmed on 19 September 2014.[13] The balance of the application is attached as annexure JH-6 to the Registrar’s affidavit sworn on 10 November 2014.[14]
[13] Exhibit P1
[14] Exhibit R4
On 30 May 2014 Dr Kiley sent the Registrar a letter[15]. The Appellant contends in his notice of appeal that this letter is unsubstantiated third party opinion.[16]
[15] Exhibit P1 – annexure JCH-12
[16] Ground 2.2
Dr Kiley reviewed the Appellant’s medical records held by the RAH and the Queen Elizabeth Hospital, reported on two EEG tests conducted at the RAH in February and May 2014 and reviewed the results of an EEG conducted by Dr Leyden during which the Appellant had had a seizure. Following review of that material, Dr Kiley informed the Registrar of the Appellant’s history as disclosed by that material. That material is annexed to Dr Kiley’s affidavit.[17]
[17] Exhibit R1
The Appellant claims in his grounds of appeal that Dr Kiley “cleared” him on 27 February 2014.[18] It appears that the Appellant is referring to an EEG test conducted at the RAH on 27 February 2014 and the report signed by Dr Kiley on 3 March 2014. There are however three different versions that purport to be an EEG Test Report dated 27 February 2014 with a “Test Id: 106623” signed by Dr Kiley on 3 March 2014. These are:
·A document annexed as JCH-8 to the Appellant’s affidavit of 19 September 2014[19] which contains a conclusion which states ‘The record is unequivocally normal’.
·A document annexed as MAK-3 to Dr Kiley’s affidavit affirmed on 17 November 2014 signed by her of the same day which contains a conclusion that ‘The record is not unequivocally normal: a sleep deprived EEG is advised’.
·A document annexed as part of JH-7 to the affidavit of the Registrar[20]. That report contains the conclusion “The record is normal”
[18] Ground 2.2.
[19] Exhibits P1.
[20] Exhibit R4
In addition to the differing conclusions there are other differences between the three documents. For example the first document referred to contains completely different referral details to the other two and has a different date of birth for the Appellant.
The discrepancies were put to the Appellant. He was unable to explain them and denied that he had tampered with these documents. I make no finding concerning this issue however I conclude that the copy annexed to Dr Kiley’s affidavit is the correct version of the EEG test conducted on the 27th February 2014 for the following reasons:
·It was extracted from the records of the RAH and verified by Dr Kiley.
·Dr Kiley annexed a letter to the Appellant dated 31 March 2014 signed by her seeking to arrange a sleep deprived EEG study as recommended in the copy of the report annexed to her affidavit. Neither of the other two versions contain that recommendation.
·The Appellant underwent a sleep deprived EEG at the RAH Hospital on 13 May 2014. The report of that test is signed by Dr Kiley and forms annexure MAK-6 to her affidavit.
·The Appellant underwent a privately arranged sleep deprived EEG Dr Leyden’s clinic. Dr Leyden gave evidence that he received a referral letter from Dr Hogarth, the Appellant’s general practitioner under cover of a facsimile from the Appellant, dated 2 May 2014.[21] This enclosed a copy of an EEG test report on 27 February 2014 in the same terms as the document attached to Dr Kiley’s affidavit. The referring letter from Dr Hogarth further refers to the recent EEG as being ‘Not unequivocally normal’. I note in passing that there appears to be two versions of Dr Hogarth’s letter of referral. In addition to the version sent to Dr Leyden there is another version which forms part of annexure JCH-2 to the Appellant’s affidavit affirmed on 19 September 2014 in which Dr Hogarth apparently states “A recent EEG at the RAH was normal” .
[21] Exhibit R5
I reject the proposition that Dr Kiley cleared the Appellant in February 2014. On the contrary Dr Kiley indicated that the EEG test was not normal and recommended further investigations in the form of a sleep deprived EEG. A sleep deprived EEG was conducted at the RAH on 13 May 2014. Dr Kiley signed a report on 14 May 2014 which indicated that the EEG was abnormal and “consistent with genetic generalised epilepsy”.[22] Dr Kiley advised the Registrar of this in her letter of 30 May 2014 saying that it “clearly demonstrates polyspike and wave activity consistent with epilepsy”.
[22] R1 Annexure MAK-5
Dr Kiley also referred in her letter to a sleep deprived EEG conducted by Dr Leyden during which the Appellant had a generalised seizure.
In my view, the Registrar was justified in concluding on the basis of the information before her that it was appropriate confirm the delegate’s decision to suspend the Appellant’s licence.
Additional Evidence
I have referred to the additional evidence that was presented at the hearing of this matter. Of particular relevance was the evidence of Dr Leyden. Mr Halls was critical of Dr Leyden’s evidence contending that he was not impartial. I reject that criticism. Dr Leyden impressed me as a very fair and objective witness who had the qualifications and experience to provide expert evidence in relation to the medical issues in dispute. I have no hesitation in accepting his evidence.
Dr Leyden says that, in the light of the referral letter from Dr Hogarth and the RAH EEG results attached to the referral, he recommended a prolonged sleep deprived EEG to ensure that they missed no abnormality.[23] In short, Dr Leyden said that about an hour and a half into the test the Appellant suffered a tonic-clonic seizure following which the test ceased and the Appellant was conveyed to the Lyell McEwin hospital.
[23] [T] p89
As is Dr Leyden’s usual practice the EEG was filmed[24]. Dr Leyden explained the aspects of that visual recording that gave rise to his opinion that the Appellant can be seen having a tonic-clonic seizure. Dr Leyden further indicated that he subsequently reviewed the EEG record prior to the seizure. That recording showed periods of generalised spike and wave activity which Dr Leyden described as an epileptiform abnormality indicating an abnormal electrical discharge which is a characteristic change seen in epilepsy. He said that over the hour and a half prior to the generalised tonic-clonic seizure there were frequent such discharges seen on the recording of the Appellant. Dr Leyden said that this material in conjunction with the seizure that was observed caused him to conclude that the Appellant has epilepsy. He produced a portion of that EEG record to demonstrate the discharges that he was referring to.[25] He said that this test was consistent with the findings of Dr Kiley in respect of the second RAH EEG test.
[24] Exhibit R6
[25] Exhibit R7
The Appellant was critical of the fact that Dr Leyden did not produce the whole of the EEG recording. I do not consider this objection well founded. In the absence of other expert evidence this would have been most unhelpful. Dr Leyden’s opinion was based on his review of the whole EEG and the portion produced was simply an aid to his explanation of that aspect of his evidence.
The Appellant put a number of propositions to Dr Leyden during the course of cross-examination including some documents apparently sourced from the internet. These did not cause Dr Leyden to alter his opinion that the Appellant suffers from epilepsy.
In particular the Appellant put propositions to Dr Leyden that what can be seen in the video is not a tonic-clonic seizure but rather was caused by the manner in which the technician conducting the test adjusted the chair and placed a pillow behind his head. Whilst it was somewhat difficult to follow the line of questioning it appears that the Appellant was suggesting that he was in some manner asphyxiated and that what can be seen was the result of lack of air or breathing difficulties. Dr Leyden rejected that proposition and maintained his view that what can be seen is a seizure.
A number of matters were put to the Appellant during his cross-examination concerning past attendances at hospitals in relation to apparent seizures. He denied these matters. I found his evidence unconvincing. I accept that the records attached to Dr Kiley’s affidavit concerning two apparent seizures in 1988 are accurate. The Appellant sought to rely on documents concerning his driving history and past medical clearances to drive. These are of limited relevance to the present situation and indeed much of what he produced was self-reported. The medical opinions were based largely upon that self-reporting.
The Appellant was also asked questions about events following his arrest on Friday 21 November 2014. He was apparently conveyed to the Flinders Medical Centre on two occasions by police. The second such occasion followed an incident depicted on the CCTV footage of the Appellant in the cells.[26] The Appellant denied that on either occasion he suffered a seizure and said that the incident depicted on the CCTV footage was caused by the narrowness of the bed. No further evidence was called concerning those matters. I do not consider it necessary to make any specific findings in respect of those events for present purposes. However having carefully viewed the CCTV footage from the police cells it appears to me that the Appellant moves in a very similar manner to that depicted in the footage of the EEG test in Dr Leydens’ rooms and further that there is no apparent problem with either the bed or the mattress.
[26] Exhibit R9.
Conclusion
The Appellant challenges the medical evidence upon which the Registrar and the Registrar’s delegate formed the view that he is not competent to drive a motor vehicle. He maintains that he has no medical condition which adversely affects his ability to drive in a safe manner. He has not however produced any cogent evidence or material to rebut the evidence that was before the Registrar and her delegate.
In my view there is no cogent reason to depart from the conclusions of the Registrar’s delegate and the Registrar. In my opinion the delegate and the Registrar were entirely justified in reaching the conclusions that they did. I reach similar conclusions. The original order for the suspension of the Appellant’s licence was properly made. During the review of that suspension the Registrar received further material from Dr Kiley relevant to the Appellant’s fitness to drive. The Appellant was given an opportunity to respond to that material and did respond. The Registrar took all relevant material into account and did not consider any irrelevant material in deciding to confirm the suspension. The further evidence produced during the hearing does not alter my view that the decision ought to be upheld. Indeed some of the further material provides considerable support to the decision appealed against as outlined above.
I therefore dismiss the appeal.
2