Kelly v Roads Corporation (VicRoads) - [2016] VMC 1

F12522613
In the Magistrates Court
at Warrnambool

BETWEEN
ANTHONY KELLY Appellant
and
ROADS CORPORATION (VICROADS) Respondent

MAGISTRATE: LESSER

WHERE HELD: Warrnambool

DATE OF HEARING: 25 November 2015

DATE OF DECISION: 25 January 2016

MEDIUM NEUTRAL CITATION: [2015] VMC001

APPEARANCES
Mr A Felkel of Counsel for Mr Kelly
Ms S Holmes of Counsel for VicRoads

Background
1. I am indebted to the parties for providing me with the submissions and relevant documents on which they relied in argument in electronic form to assist me in the preparation of these reasons for decision. The documentary material, together with the oral evidence of Dr M Odell for VicRoads and Dr S Toprak for Mr Kelly was extensive, complex and technical. Whilst there was agreement in part between the parties and their experts, the key issue before the court was fully contested.
2. Prior to 2006, Mr Kelly held a car and heavy vehicle licence. As a result of an accident in 2005, Mr Kelly lost the vision in his left eye and suffered damage to his right eye. In March 2006, Mr Kelly provided a report to VicRoads that resulted in the cancellation of his heavy vehicle licence and conditions being applied to his car licence, including the provision of an annual ophthalmology report to VicRoads.
3. As a result of the eyesight report provided by Mr Kelly in May 2015, VicRoads decided to suspend his driver licence pursuant to section (s) 24 of the Road Safety Act 1986 (Vic) (the Act) and regulation (r) 78 of the Road Safety (Drivers) Regulations 2009 (Vic) (the Regulations), (the Decision). The date of the Decision was 25 June 2015 with effect from 9 July 2015.
4. Mr Kelly appealed the Decision, pursuant to s26(1)(b) of the Act which relevantly provides:
(1)      If the Corporation decides to—
(a)      refuse an application for a driver licence, a driver licence   variation or a permit; or
(b)      in accordance with section 24(2), suspend, cancel or vary in   any way a driver licence or permit or disqualify a person from   obtaining a driver licence or permit—
the applicant, holder or person may, in accordance with the   regulations, appeal against that decision to the Magistrates'   Court.

(2)      On an appeal under subsection (1) the court must—
(a)      re-determine the matter of the refusal, suspension, cancellation,                   variation or disqualification; and
(b)      hear any relevant evidence tendered by the appellant or the   Corporation; and
(c)      without limiting its discretion, take into consideration anything   that the Corporation ought to have considered.
…
(3)If the court is satisfied that the refusal, suspension, cancellation,                    variation or disqualification—
(a) results from a driving disqualification of the appellant in   another State or Territory of the Commonwealth; or
(b) was required by the regulations—

the court must confirm the decision of the Corporation.

(4) Every decision of the Magistrates Court on an appeal under this section must be given effect to by the Corporation.

5. It was not in dispute, and was confirmed in the evidence of both parties’ experts, that Mr Kelly’s most recent results do not satisfy VicRoads' visual field requirement for an unconditional driver licence. What was primarily in contention is whether, given that Mr Kelly has previously been granted a conditional licence by VicRoads with results of a similar kind, he is entitled to continue to drive on a conditional licence. In turn, this requires the Court to consider whether, on account of his current vision (as far as it can be ascertained from established testing techniques), Mr Kelly poses a danger when driving.
6. Section 26(2) of the Act states that, in considering such an appeal, the Court must re-determine the matter of VicRoad’s suspension of Mr Kelly’s licence, hearing any relevant evidence put forward by the parties, and may take into account any matters that VicRoads ought to have considered. On first consideration of the provisions in this sub-section, the appeal appears to be of a limited scope. A live issue in relation to its interpretation is the question of how the Court can reconcile ss(2)(b) in relation to the evidence provided at the hearing which was not considered by VicRoads in making the Decision, the subject of the appeal, and the requirement of s(3)(b) that mandates the Court to confirm VicRoads’ decision, absent any error in making it or a failure to take into consideration anything that, the Court considers, VicRoads ought to have considered.
7. In considering this issue, the Court noted that, in response to the Decision, VicRoads offered Mr Kelly the opportunity to provide further information about his current vision for its consideration. Having received and considered the further information and a submission on behalf of Mr Kelly that VicRoads ought revoke the suspension and grant him a conditional licence on the same terms as previously, VicRoads advised Mr Kelly that it was not prepared to change its decision.
8. Accordingly, the Court interprets the Decision as the Decision as varied by its final decision not to vary or set aside the decision dated 25 June 2015. Its reason for doing so is that any narrow interpretation of the section restricting its scope to the original decision, and the material available to and considered by VicRoads, on and before 25 June 2015 would in effect leave the parties in a position where all the material available to and considered by VicRoads after 25 June 2015, including the material tendered at the hearing, would require further consideration by VicRoads followed by another formal decision which, in itself, would be subject to the same appeal right. Given that VicRoads relied on the expert evidence of Dr M Odell who, at the hearing, confirmed that he maintained the same opinion about Mr Kelly’s limited driving capacity and safety to drive even after hearing all the evidence of Mr Kelly’s expert witness, Dr S Toprak, and Ms Holmes, on behalf of VicRoads, confirmed that position at the end of the hearing, any other interpretation would make the appeal process nonsensical, and would unnecessarily add to the already considerable cost of the parties.
Documents considered
9. In arriving at my decision, I considered the following documents:
VicRoads
(a) Prior to the hearing:

Respondent’s outline of submissions dated 26 October 2015
Respondent’s supplementary outline of submissions dated 17 November 2015
Notice of Dispute dated 25 September 2015
Statement of Dr M Odell dated 23 October 2015 and attachments and appendices
Supplementary statement of Dr M Odell dated 29 October 2015 and attachments and appendices

(b) Tendered at the hearing:

Exhibit 1 - Statement of Dr M Odell dated 23 October 2015
Exhibit 2 - Supplementary statement of Dr M Odell dated 29 October 2015
Exhibit 3 – Undated itemised legal costs bill
Mr Kelly
(a) Prior to the hearing:
Written submissions by the applicant dated 27 October 2015
Supplementary written submissions by the applicant dated 23 November 2015
Report of S Toprak dated 16 October 2015 and appendix and attachments
Supplementary report of S Toprak dated 10 November 2015 and appendices.
(b)Tendered at the hearing:
Exhibit A – Marked up Medmont binocular roving test report dated 30 July 2015
Exhibit B – Marked up Medmont binocular test report dated 22 October 2015
Exhibit C – Marked up Medmont monocular roving test report dated 21 August 2015
Exhibit D - Report of S Toprak dated 16 October 2015 and appendix and attachments
Exhibit E - Supplementary report of S Toprak dated 10 November 2015 and appendices.
Exhibit F – 30 July 2015 test marked up in court
Exhibit G – 21 August 2015 test marked up in court
Exhibit H – 24 August 2015 test marked up in court
Exhibit I – Quartered 24 August 2015 test
Exhibit J – 8 other test reports of Mr Kelly dated between 24 August 2007 and 30 July 2015
Exhibit K – Demerit point extract dated 13 August 2015 relating to Mr Kelly
Exhibit L – Undated legal costs estimate
The relevant law
10. VicRoads is the regulatory authority responsible for the driver licensing regime in Victoria. The purposes of the licensing regime are set out in s17 of the Act. Relevantly, s17(c) provides that one of the purposes of driver licensing is to ensure that people who are, or who become, unsuited to drive are not permitted to drive on public highways.
11. Section 24(1) of the Act imposes an obligation upon VicRoads, as follows:
The Corporation must, if required by the regulations to do so —
(a) suspend for the prescribed time the driver licence or permit of any person;
(b) cancel the driver licence or permit of any person;
(c) vary the driver licence or permit of any person by excluding or including a category of motor vehicle;
(d) vary the conditions to which the driver licence or permit of any person is     subject by imposing, removing or amending a condition.
12. Section 24(2)(a) provides VicRoads with a series of statutory discretions, as follows:
The Corporation may, in accordance with the regulations —
(a) suspend for any time that it thinks fit the driver licence or permit of any      person;
(b) cancel the driver licence or permit of any person;
(c) vary the driver licence or permit of any person by excluding or including a category of motor vehicle;
(d) vary the conditions to which the driver licence or permit of any person is     subject by imposing, removing or amending a condition.
13. Section 24(3) provides further that, if VicRoads suspends a driver licence in accordance with the Regulations on the ground that it would be dangerous for the person to drive a motor vehicle because of illness or bodily infirmity, defect or incapacity or because of the effects of treatment for any of those, VicRoads may do so on the basis of a report given by a registered medical practitioner and without conducting any other hearing or investigation into the matter before the suspension is imposed. The section states:
(3) In suspending, in accordance with the regulations, a driver licence or permit on      the ground that it would be dangerous for the person to drive a motor vehicle      because of illness or bodily infirmity, defect or incapacity or because of the effects      of treatment for any of those things, the Corporation may do so on the basis of a      report given by a registered medical practitioner and without conducting any other      hearing or investigation into the matter before the suspension is imposed.
14. Relevantly, r78(2)(a) of the Regulations provides:
(2) The Corporation must vary, suspend or cancel a person's driver licence or learner permit if, based on the results of a test required by the Corporation under section 27 of the Act or a report from a registered medical practitioner, the          Corporation believes—
(a) it would be dangerous for the person to drive a motor vehicle, or a category of      motor vehicle, because of illness or bodily infirmity, defect or incapacity or because     of the effects of treatment for any of those things;
15. The test under r 78(2)(a) involves several critical elements:

a.    The key question is whether VicRoads (or, on appeal, the Court) believes it would be dangerous for the person to drive a motor vehicle because of illness or bodily infirmity, etc;
b.    The belief must be based on test results or a report from a medical practitioner;
c.    If VicRoads (or the Court) forms the relevant belief, it is obliged to vary, suspend or cancel the person's driver licence, although it has a discretion as to which course of action to adopt.
The Guidelines
16. According to VicRoad’s submission, the Austroads publication 'Assessing Fitness to Drive for Commercial and Private Vehicle Drivers, Medical Standards for Licensing and Clinical Management Guidelines March 2012' (the Guidelines) is used by VicRoads when making decisions under s24 and r78. On 5 February 2015, the Guidelines were approved by the Minister pursuant to s96B of the Act as the relevant guidelines for the purposes of a test required by VicRoads to determine a person's fitness to drive pursuant to s27 of the Act.
17. The Guidelines are endorsed by VicRoads' medical advisers, and were created to assist Australian licensing authorities and medical practitioners by providing recognised standards for medical practitioners in assessing fitness to drive, and providing guidance for driver licensing authorities in making licensing decisions and decisions about driver fitness and dangerousness. The Guidelines set out detailed advice on the risks posed by a variety of medical conditions. These include a consideration of how risk is reduced when medical conditions are well treated, managed and controlled.
18. Section 10 of the Guidelines deals with vision and eye disorders. Section 10.3 Medical Standards for Licensing provides at page 120:
Monocular vision
A person is not fit to hold an unconditional licence
·if the person is monocular.

A conditional licence may be considered by the driver licensing authority subject to two-yearly review, taking into account the nature of the driving task and information provided by the treating optometrist or ophthalmologist as to whether the following criteria are met:
·the visual acuity in the remaining eye is 6/12 or better, with or without correction; and
·the visual field in the remaining eye has a horizontal extent of at least 110 degrees within 10 degrees above and below the horizontal midline.

19. The Guidelines provide for some consideration in cases where a person is 'just below' the required standard. Relevantly, Clause 10.2.1 of the Guidelines provides that:
In the case of a private vehicle driver, if the person's visual acuity is just below that required by the standard but the person is otherwise alert, has normal reaction times and good physical coordination, an optometrist/ophthalmologist can recommend the granting of a conditional licence.

Submissions
20. Although Mr Kelly is the appellant for the purposes of the appeal proceedings, the parties agreed that it was appropriate for VicRoads to provide its evidence in advance of Mr Kelly. For the same reason, it is appropriate for me to consider the submissions and evidence before me in that order.
21. There was considerable detail provided in both the parties’ submissions to the Court and the evidence of the parties’ experts, including close analysis of various visual field test charts produced from tests performed by Mr Kelly as required by VicRoads or in response to VicRoads’ suspension of his licence. It is not possible, nor necessary, to record every aspect of this material, but the following covers the essential matters relevant to my decision.
VicRoads
22. In its original outline of submissions dated 26 October 2015:

VicRoads conceded that Mr Kelly’s visual acuity in his remaining right eye exceeded the level of 6/6 with corrective lenses required by the Regulations;
in respect of the extent of Mr Kelly's visual field, VicRoads noted that Dr Toprak conceded that Mr Kelly's current roving visual field results do not satisfy VicRoad’s visual field requirement for a conditional driver's licence, namely 110 degrees of intact peripheral vision within 10 degrees above and below the horizontal midline;
VicRoads noted that none of the five Esterman test results provided (dated 19 May 2015, 30 July 2015 at 11.42am and 11.49am, 21 August 2015 and 24 August 2015) shows Mr Kelly to have a visual field extent of 110 degrees of intact peripheral vision within 10 degrees above and below the horizontal midline;
VicRoads noted that the Guidelines do provide some latitude in cases where a person is "just below" the required standard. However, it is submitted that "Mr Kelly is well below even that position". VicRoads went on to note that, in the past when Mr Kelly's visual field results were considered "borderline", Mr Kelly enjoyed the benefit of his other circumstances being taken into account;
in contending that Mr Kelly's visual field is now "too far below the required standard for any other circumstances to be taken into account when determining whether to grant a licence", VicRoads compared the visual field results from 2011 with the recent test results. In its view, these "show a visual field extent of 70-80 degrees, for only approximately 6° above and below the horizontal midline. There is an increase in the number of points not seen in the tests, particularly on the periphery of the visual field";
VicRoads noted that Mr Kelly also relied on a report from Dr Mark Lazarus, ophthalmologist, dated 9 July 2015 who described Mr Kelly's vision as "stable" and that he is "safe to drive". By contrast, VicRoads submitted that the Esterman test results "show Mr Kelly's visual field is gradually deteriorating rather than ‘stable’". VicRoads further noted that Dr Lazarus did not refer to the Guidelines in his report or state the basis for his opinion. VicRoads relied on Dr Odell’s opinion that "Mr Kelly falls well below" the licensing standards provided for in the Guidelines;
VicRoads submitted that "when undertaking a re-determination the court does not apply the civil or criminal standard of proof - the Court acts as an administrative decision maker and must "re-determine the matter" itself. It must also consider whether it is "satisfied" that VicRoads’ decision was required by the regulations, in which case it does not have a discretion and must simply confirm the decision rather than re-determining it;
VicRoads further submitted that it is appropriate to rely heavily on the opinion of Dr Odell and on the guidance materials developed by experts, such as the Guidelines, and "the Court should equally give significant weight to the views expressed in the Guidelines and by Dr Odell". In support, it quoted the Victorian Court Of Appeal decision in RJE v Secretary to the Department of Justice (2008) 21 VR 526, a case involving prediction of future criminal offending in the context of sex offender legislation. At [18], Maxwell P and Weinberg JA stated:
"[W]here… the facts are not in contest, and the expert opinion is both cogent and unchallenged, a judge should ordinarily be slow to depart from the risk assessment which the expert has made".
23. In summary, VicRoads argued that the Court should be slow to depart from the assessment of dangerousness undertaken by Dr Odell applying the Guidelines, because of his expertise in the medical assessment of traffic risk and his medical risk assessment that it would be dangerous for Mr Kelly to continue to drive. Further, it was submitted that "the Court should not attempt to make an assessment of the dangerousness of Mr Kelly's medical condition on its own without reference to the Guidelines". In essence, according to the submission, the Guidelines, endorsed by Dr Odell, "represent the current best practice in medical assessment of when a person’s increased crash risk is a result of any disability making it dangerous to allow the person to drive". In VicRoad’s view, its decision was and remains appropriate pursuant to s24 and r78(2)(a) and should be upheld by the Court.
Mr Kelly
24. In the original written submissions dated 26 October 2015:
in relation to the legislative operation of the appeal, it was submitted that the appeal "operates as a hearing de novo, with the Magistrate effectively sitting in the shoes of VicRoads";
it was further submitted that "[G]iven the serious consequences for Mr Kelly should the court affirm the Decision, the court should be satisfied on the "Briginshaw" standard and feel an actual persuasion, or be comfortably satisfied, that it would be dangerous for Mr Kelly to drive a motor vehicle". It was submitted that the onus of establishing that Mr Kelly ought not be licensed was VicRoad’s;
although agreeing that the Guidelines are relevant to the determination of whether or not Mr Kelly ought to retain his licence, it was submitted that "the Guidelines are neither mandatory, or directive, and allow for some discretion by a decision-maker to allow a person to retain their licence, even when they do not satisfy the Guidelines, provided doing so would not unreasonably jeopardise the safety of the public". Quoting VCAT Deputy President Lambrick in Harris v Taxi Services Commission [2014] VCAT 391 in relation to the Guidelines, she stated:
"the Guidelines provide useful and persuasive material about how much risk is tolerable when considering the safety of the public. I accept that the Guidelines are very conservative. They are not set in stone providing me with guidance rather than direction";

the submission noted that r78(1) and s24(3) both reinforced the discretionary nature of the Guidelines with the use of the word "may" in relation to suspending or cancelling a licence where a person fails to pass a test ordered pursuant to s27 of the Act or suspending or cancelling a licence in accordance with the regulations on the grounds that it would be dangerous for a person to drive on the basis of a doctor's report and without conducting any other hearing or investigation. Further, clause 10.2.1 of the Guidelines includes the recognition that a person who lies just below the required standard may be granted a conditional licence;
in noting that the same discretion does not exist in relation to the grounds for suspension and cancellation in r78(2), which were relied on in the Decision, it was submitted that VicRoads only relied on the failure of Mr Kelly to satisfy the Guidelines and it did not provide any other evidence or reasons to support its contention that would be dangerous for Mr Kelly to drive a motor vehicle save for the assertion that "Mr Kelly's visual field test results have worsened over time". The submission went on to note that any decision involving a discretionary power, statutorily conferred, must be exercised reasonably;
supported by a range of case law, the submission went on to note that VicRoads relied on the opinion and report of Dr Odell, which was challenged on the basis that it was not an "expert" opinion, Dr Odell was not an independent witness, and the basis of the opinion that Mr Kelly falls "well below" the Guidelines was not disclosed. Further, it was noted that Dr Odell has never had a consultation with Mr Kelly and "provides no demonstration of the reasoning process by which the "Perception Opinions" (in paragraph 21 of his original report) are made. In the absence of such reasoning, the Perception Opinions, and indeed the entire Odell Report, ought to be disregarded";
Mr Kelly’s submission relied on the evidence of Dr Toprak, whose report dated 16 October 2015 was appended, and his opinion that it was safe for Mr Kelly to drive. According to the submission, this opinion was based on 2 monocular field tests conducted by Dr Toprak on 21 and 24 August 2015 which, it was said, "do not satisfy the visual field requirements in the Guidelines, albeit by a small margin". Dr Toprak’s conclusion was:
"I believe Mr Kelly has thus far demonstrated safe driving within the restrictions of his conditional licence. Combined with his stable visual field it is therefore my opinion that the restrictions of Mr Kelly's conditional licence prior to suspension were adequate to maintain safe driving and that Mr Kelly is safe to continue driving with the same restrictions".
Additionally, the submission noted that, since Mr Kelly's eyesight was damaged, he has not been in a motor vehicle accident and has only had one loss of demerit points in February 2008 for exceeding the speed limit.
VicRoads
25. In its supplementary outline of submissions dated 17 November 2015:
VicRoads relied on the supplementary report of Dr Odell and disputed a number of findings in the supplementary report of Dr Toprak in order to convince the Court that the visual field of Mr Kelly was shown by the various tests to be "of a much reduced extent compared to what is specified in the guidelines. There is significant reduction of the peripheral field in critical areas for perception of potential hazards";
VicRoads submitted that the Court should take a more conservative approach when calculating Mr Kelly's visual fields than was suggested by Dr Toprak at paragraph 10 where he stated "his opinion is that visual field should be calculated to the first missed point, as one cannot be certain whether the area leading up to the first missed point is an area of intact vision or missing vision". In VicRoad’s submission, taking "the approach outlined by Dr Toprak may result in a finding that the Appellant can see areas where in fact he is missing vision, which is of concern when determining an issue that ultimately relates to public safety";
on other disputed points, VicRoads submitted that the Court should reject Dr Toprak’s opinion, at paragraph 11, that the 110 degrees at 10 degrees above and below the midline referred to in the Guidelines should not be interpreted as necessarily overlapping; should disregard his suggestion, at paragraph 20-24, about reaction times, coordination and ability to subconsciously alter his head position, as the tests are roving tests; should reject his analysis, at paragraph 15-17, regarding distance and angles of common traffic objects as of no relevance; and should disregard the Medmont test reports provided with red markings overlaid, as the Court has no ability to determine whether they are accurate;
VicRoads submitted that the Court should prefer the evidence of Dr Odell on the basis of his expertise in assessing medical driver risk, reject the suggestion that he was biased, and note that he was not the "effective decision maker", as suggested, VicRoads having made the Decision "on the recommendation of its Medical Panel considering the Guidelines and giving effect to the purposes of the Act".
Mr Kelly
26. In the supplementary written submissions dated 23 November 2015:
Mr Kelly relied on Dr Toprak’s supplementary report in which he summarised the results of all of Mr Kelly's visual field tests to date (paragraph 12), and submitted that the Court should rely on the higher number where a range is presented on the basis that it "is the appropriate figure to rely on due to the possibility of "false" negatives caused by blinking, lens and other issues", and calculated up to the first missed point as "one cannot be certain whether the area leading up to the first missed point is an area of intact vision or missing vision", and is consistent with the onus of proof lying with VicRoads, and it should reject Dr Odell’s calculations by reference to the last seen point;
the submission noted that Dr Odell did not challenge Dr Toprak’s findings in relation to Mr Kelly's August 2015 visual field tests in either report, and to the extent that he analysed the results of the 24 August 2015 test, "his comments are vague, irrelevant and confusing and ought to be disregarded";
Mr Kelly effectively encouraged the Court to disregard Dr Odell’s focus on the deterioration of Mr Kelly's visual field over time, as having "little relevance to the current enquiry … whether Mr Kelly currently meets the Guidelines", his comparison of the efficiency scores across monocular and binocular tests, and his reliance on efficiency scores, pointing to their not being referred to in Guidelines.
Evidence
General
27. VicRoads relied on the evidence of Dr Odell. He provided two written reports, together with extensive oral evidence which was the subject of detailed cross-examination. In his submissions filed prior to the hearing, Mr Felkel submitted that the Court should not consider Dr Odell as an expert as, although he is a qualified medical practitioner, he has no independent expertise in undertaking or assessing tests of visual fields. In the course of Mr Felkel’s cross-examination, Dr Odell conceded that he was unfamiliar with the difference in interpretation between linear and non-linear tests. However, in evidence in chief, Dr Odell explained the process by which he, and other experts in various aspects of visual medicine, consult on behalf of VicRoads to advise on issues of visual competence for licensing purposes, when called on to do so.
28. To the extent necessary for the purposes of considering Mr Kelly's visual competence for driving purposes, notwithstanding Mr Felkel’s submission, I accept that Dr Odell is an expert for the purposes of the proceedings. For that reason, I considered his evidence as part of my re-determination of VicRoad’s suspension of Mr Kelly's driver's licence.
29. By contrast, Mr Kelly relied on the evidence of Dr Toprak, an optometrist in private practice in Warrnambool. He also provided two written reports, together with oral evidence at the hearing, which was subjected to extensive cross-examination by Ms Holmes on behalf of VicRoads. He acknowledged that the Medmont tests that he conducted are not exactly the same as the Esterman tests provided to VicRoads, but suggested that any differences were minor and of no real relevance in determining Mr Kelly's visual field extent.
30. Given the extent of the expert evidence provided to the Court, it is difficult to summarise all the evidence in a logical, cogent and comprehensive manner.
VicRoads
31. In his original written statement, Dr Odell focused on, what he asserted, was the deterioration in Mr Kelly's visual field as ascertained from the test results made available to VicRoads during 2015. After VicRoads had suspended Mr. Kelly's licence, his case was further considered by the Committee on 17 August 2015 with a recommendation for further monocular testing. According to Dr Odell, the additional test done on 24 August 2015 demonstrated in a "significant reduction in his visual field". Noting the importance of adequate visual fields to safe driving, Dr Odell referred to the published national medical standards for licensing, "Assessing Fitness to Drive" (AFD) which "represent a sensible measure of the impact of various conditions, including restricted visual fields, on a person's ability to drive safely". He noted that the standards recommend various tests for assessing the visual field including the Medmont and Esterman tests, noting that the Esterman binocular field test is the preferred method, done in a modified way for monocular subjects such as Mr. Kelly.
32. Turning to the results, Dr Odell noted that the standards specify a visual field of at least 110 degrees within 10 degrees above and below the horizontal meridian. In his view, Mr Kelly "falls well below this standard". In relation to the 24 August 2015 test chart, he concluded "(T)his shows that Mr Kelly's vision is restricted to a narrow central area, and even then is quite patchy". He went on to explain that "Mr Kelly is unlikely to have any perception of the loss of visual field. He will not "see" a black or blank area in his vision. He will only be aware of that part of his visual field which is working. He will simply be unaware of the fact that large parts of his visual field are missing".
33. In summary, Dr Odell concluded that, on the basis of the reports provided by Mr. Kelly's vision professionals, "I am of the opinion that Mr Kelly has a greatly reduced visual field in his one eye that fall well below the minimum standard for safe driving. As such, I do not consider the Mr Kelly is fit to hold a driver licence". Further, Dr Odell stated "(W)hile the standard suggests that a conditional licence might be suitable if a person's visual fields are just below 110 degrees, I do not believe that Mr Kelly should be considered for such a licence given that he falls considerably below the standard".
34. In his supplementary report, Dr Odell provided reasons for his original opinion, in order to deflect criticism of his original statement made on behalf of Mr Kelly. He provided some comparisons between the results shown in test charts dated 19 May 2015 and 19 May 2014, as well as earlier tests from 2007 to 2013. He suggested that a reduction in the number of points seen out of 120 and the reduced extent of his vision to the right and the left justified the conclusion of deterioration. He also noted that the Medmont chart of 24/8/15 "was done with a different technique to the Esterman chart of 19/5/15 but is comparable", and "shows an irregular area of perception of points covering a horizontal extent of about 30 degrees on the right and 40 degrees on the left. This extent is reduced still further in the half of the field above the horizontal meridian. There is an area of no perception in the right upper field which is the area required to see oncoming traffic. There is also a large area of missed points in the left upper field which is the area required to see pedestrians and traffic signage …".
35. In justifying his conclusion that Mr Kelly falls well below the required standard based on his comparison of three charts, Dr Odell stated that "all show visual fields of a much reduced extent compared to what is specified in the guidelines. There is significant reduction of the peripheral field in critical areas for perception of potential hazards". He went on to note that "the reduction in the peripheral view constitutes an increased risk of missing critically important features of the road environment". As for his conclusion that Mr Kelly falls considerably below the standard, Dr Odell noted that he "has no stereoscopic depth or distance perception as he only has one eye. He has a severely restricted visual field in his one remaining eye and … this is unlikely to improve. This means that Mr Kelly does not have sufficient vision to allow him to drive safely and is not likely to be able to satisfy the criteria in the guidelines in future".
36. In his evidence at the hearing, Dr Odell explained how the visual field test charts show a pattern of dots indicating what Mr Kelly can see. By interpreting these tests, he is able to define Mr Kelly's degree of vision. He also explained the requirements of the Guidelines, and his role as a member of the advisory committee to several national transport organisations. He noted that a new revision will be published in early 2016, but the vision requirements are unlikely to change. His understanding of the intention of the requirement of 110 degrees within 10 degrees above and below the midline is to be overlapping in order to incorporate a minimum area necessary for safe driving, as a person cannot have a bit missing in the centre of their visual field. It is designed to ensure an adequate visual field in a single area above and below the midline, including the peripheral areas to see potential hazards such as oncoming cars on the right, and signs, parked cars and pedestrians on the left.
37. Conceding that efficiency scores are not mentioned in the Guidelines, Dr Odell said that they are used as part of the analysis of the 120 points tested. In respect of the 66/120 - 55% result, this indicated that Mr. Kelly has some central vision but has large parts of blindness even in his good eye, while a person with normal vision in one eye would see almost all 120.
38. Dr Odell explained the difference between roving and static tests, agreeing that roving tests are more realistic in relation to what we do when we drive. He noted that the original Esterman tests involved a point of focus to test peripheral vision. Over an objection by Mr Felkel, he agreed that different testing machines produce different types of reports requiring different interpretation, but said that all reports were considered as they are relevant to show Mr Kelly’s ability to see. He conceded that the various reports showed different points on different days. In interpreting Mr Kelly's misses, Dr Odell worked from missed points, not to last seen points. He said that this provided a more generous interpretation which favoured Mr Kelly. Even so, according to Dr Odell, on the comparison of the 30 July 2015, 21 August 2015 (at 10.01.28) and 24 August 2015 (at 01.05.15) tests, Mr Kelly's visual field, on his most charitable interpretation, showed many missed points, especially in the upper right field, well within the 110 degrees range, although the patterns were irregular. He did however concede that it was difficult to compare the test results produced by different technology, as some points were shown as seen or missed in different reports. He also accepted that people like Mr Kelly who have lost the use of one eye compensate by moving their eye around to take in as many points as possible and train themselves to adapt by tilting the head, for example. For this reason, the roving test provides the best simulation. Nonetheless, Mr Kelly was still missing points of vision because he is trying to cover a large area with severely restricted visual functioning. For this reason, in his view and in agreement with the current opinion of the committee, the deficiencies in Mr Kelly's visual field constitute a risk as they are far outside what the Guidelines suggest. When I specifically asked about the leeway of the term in the Guidelines "just below", Dr Odell said that the committee took a "holistic view of the visual field and in the setting of critical areas of vision". Although both are specified, areas above the midline are more important than those below, as there are more road and potential obstacles in these areas. The committee attempts to get an idea of where the deficiencies are, as the areas affected are more important than the number of dots seen or missed. Later, in cross-examination, when Mr Felkel specifically suggested that the 24 August 2015 and 21 August 2015 results were, in fact, just outside the Guidelines, Dr Odell acknowledged that the term "just" is loaded, has no numerical value and is not precise, and that the process of interpretation is subjective and explains the reason for VicRoads using an expert committee.
39. In cross-examination, Mr Felkel again focused on Dr Odell's lack of formal qualifications in the analysis of visual charts, submitting that his evidence should be rejected as he should not be considered an expert. I indicated that I would consider the submission as part of my decision-making process. Mr Felkel then asked a series of questions regarding the comparison of two different displays of the same test results from 30 July 2015, highlighting that Dr Toprak would give evidence about the differences between the horizontal lines Dr Odell had used for his analysis and the non-linear visual displays that Dr Toprak had produced. Dr Odell conceded that he was unable to comment on that difference. Over an objection by Ms Holmes that there was nothing about linear and non-linear representations in Dr Toprak’s reports, Mr Felkel suggested that Dr Toprak would give evidence that horizontal lines cannot be drawn on non-linear reports, as they provide different graphical representations.
40. Mr Felkel challenged Dr Odell's conclusion that Mr Kelly's visual field was "well below" that required by the Guidelines on the basis that he provided no specifics to justify the conclusion in his first report. Although he had never met or conducted tests on Mr Kelly, Dr Odell explained that, in assessing that Mr Kelly would have no perception of his loss of visual field, he had met many people with visual field defects at St Vincent's Hospital who did not describe black areas, but had blind spots which did not look black. When it was suggested that this was pure speculation and an issue impossible to generalise about, he stated that he assumed Mr Kelly's situation was no different from the experience he had gathered from others with visual defects.
41. Turning to Dr Odell's supplementary report, Dr Odell was specifically asked if he disagreed with Dr Toprak’s interpretation of the Medmont charts. He responded that it depends on how one assesses them. He maintained that, on his assessment, Mr Kelly has limited vision in the entire field, and much less above the midline, even giving the most generous interpretations in relation to outliers and points to be disregarded. He acknowledged that people can miss points for various reasons including scanning behaviour, blinking and problems with contact lenses, but maintained that he looked for overall visual performance.
42. When asked about the last seen point or first missed point, Dr Odell considered the first missed point the most charitable, as somewhere between the last seen point and the first missed point the person's vision runs out. However, he conceded that it was not possible to draw firm conclusions as to that precise point. He also conceded that he compared efficiency percentages in his supplementary report, although they are not referred to in the Guidelines which focus on overall visual fields to assess the roadway requirements to be seen when driving. He agreed that it is not possible to compare the efficiency of binocular and monocular vision because of the different position of the nose.
43. In answer to my specific questions about the difference between the Esterman and Medmont machines, Dr Odell confirmed that, as a matter of course, ophthalmologists use the former and optometrists the latter. Overall, assessments of the two are that they produce similar tests with minor differences possible, and the overall impression of the visual field is very similar, although individual thinking and processing may produce different results. Dr Odell conceded that the different graphical representations reproduced by each of the machines are not simple point diagrams and provide the best estimates the machine can give of representations of patterns of vision in each quadrant. With regard to the letter provided by committee member Dr Gaya, Dr Odell stated that this would have been written as a summary of the opinion of the committee.
44. In re-examination, Dr Odell agreed that the committee had not considered any of the Medmont reports provided to the Court as the last Esterman report provided was dated 19 May 2015. He expressed the view that the committee would provide advice on non-linear representations, agreeing that the 10 degree line may be inaccurate, as a result of a different way of interpreting the visual field and a different bias on certain points because of an increased focus on central vision as compared with peripheral vision. However, Dr Odell was still of the view that, notwithstanding the differences, the Medmont reports with the expanded central scale can still give a reasonable view of Mr Kelly's peripheral vision, and any differences were not enormous and confirmed his restricted and irregular vision to the periphery and at less than the 110 degrees field.
Mr Kelly
45. In his original report, after recounting Mr Kelly’s history and eye conditions, Dr Toprak based his opinion on his summary of the results of the previous visual field test results Mr Kelly had undertaken between 24 August 2007 and 19 May 2015, together with three visual field tests he personally conducted on 30 July 2015, 21 August 2015 and 24 August 2015. He summarised his conclusions as follows:
"Mr Kelly's current visual field results do not satisfy VicRoad’s visual field requirement for an unconditional driver's licence … . This is also true of the visual field tests I have analysed and I believe were submitted to and observed by VicRoads in the past and formed the basis of their decision to grant him a conditional licence.
Mr Kelly's current visual field along the horizontal midline is comparable to past visual field results.
…
I believe Mr Kelly has thus far demonstrated safe driving within the restrictions of his conditional licence. Combined with his stable visual field it is therefore my opinion that the restrictions of Mr Kelly's conditional licence prior to suspension were adequate to maintain safe driving and that Mr Kelly is safe to continue driving with the same restrictions".
46. In his supplementary report, Dr Toprak took issue with a number of the statements and conclusions of Dr Odell in his supplementary report. In particular, he relied on roving tests which allow Mr Kelly to move his eyes freely and look for points during the test (similar to behaviour when driving) compared with static field tests; challenged the use of and reliance on efficiency scores by Dr Odell when they are not mentioned or referred to in the Guidelines; corrected and recalculated Dr Odell's efficiency scores consistent with his understanding of the variation between tests, and compared them with previous efficiency scores; disputed Dr Odell's interpretation of outlying points (outliers) on account of the number of factors, such as blinking, looking in a different direction etc, that can explain a patient missing a point; pointed to inconsistencies in the comparison of how first missed points or last seen points were counted; referred to a research study to challenge Dr Odell's assessment of and reliance on overlapping visual fields when considering maximum visual field extent; and provided the results of his re-examination and analysis of all of Mr Kelly's visual fields both graphically and numerically using what he said was "with a view to quantify them as consistently as possible with the definition of outliers and end points", calculating the extent to the first missed point.
47. Dr Toprak agreed with Dr Odell that Mr Kelly's visual field test results on 19 May 2015 were "worse quantitatively when comparing maximum visual field extents (but not adjusted efficiency) than tests conducted in previous years". However, he noted that there were many factors which could have been relevant, including the use of a different testing strategy (Esterman Binocular). For that reason, further tests were performed on subsequent dates with "quantative results obtained … consistent with tests conducted in previous years". In relation to Dr Odell’s comment on a reduction in the upper field, he explained how Mr Kelly "has adapted his roving technique to look for points along the horizontal midline (this is similar to what one would normally do when driving), to the detriment of looking for superior and inferior test points which are beyond 10 degrees of the horizontal midline", and related these to Mr Kelly seeing "signs, pedestrians and oncoming traffic" at various distances.
48. Dr Toprak disagreed with Dr Odell’s assessment of the visual field test conducted on 24 August 2015, citing his own analysis, and giving the opinion that Mr Kelly has "enough vertical extent of visual field to see oncoming traffic on the right, and signs/pedestrians/veterans on the left". He also confirmed his belief that, as Mr Kelly "is otherwise alert and has good coordination and normal reaction times" and his visual field falling just below the required standard, "he should be considered for a continuation of his conditional licence".
49. In conclusion, Dr Toprak stated:
"Relating to Mr Kelly's monocularity and depth perception, Mr Kelly has had enough time to develop and solely rely on his monocular cues of depth. He does have a reduced field of view due to being monocular … . Mr Kelly has adapted to being monocular by subconsciously altering head position, he frequently turns his head to the left to maximize the effective visual field of his right eye in the forward and left direction.
According to Mr Kelly’s Ophthalmologists his condition is stable and unlikely to either improve or deteriorate. Furthermore, Mr Kelly is currently being fitted with a scleral contact lens. This differs from his current rigid gas permeable lens as it is a much larger design and rests on the sclera (white of the eye). This has the benefit of not moving on his eyes while he is wearing them, and may help to improve his peripheral vision".
50. At the hearing, Dr Toprak gave his evidence with Dr Odell listening. He explained that the Medmont reports can provide a range of printouts, with the default one being a non-linear representation that accentuates central vision with an expanded view. As a result, it is not an accurate and correct interpretation to draw a straight line at the 10 degree point, because it produces an inaccurate result and underestimates the extent of the visual field. After going through his interpretation of the 21 August 2015 test, Dr Odell accepted that he could not dispute Dr Toprak’s interpretation, but maintained that Mr Kelly still displayed a very narrowly limited field and outside the Guidelines.
51. In relation to his analysis in his supplementary report, Dr Toprak said that the variations depended on which not seen points were called in. This could vary from examiner to examiner and explain different conclusions. In accounting for the difference in the results of his analysis of the 24 August 2015 test 140/100 and 140/90 above/below the midline, he stated that he had changed his methodology so that he was using the same methodology on a consistent basis in relation to each test to assess Mr Kelly's practical visual field with hard numbers.
52. He agreed that he is unable to be accurate about the last seen point and the first missed point. He also explained that outliers are outside points not seen but disregarded because of the various factors that can explain that occurrence such as looking elsewhere, blinking and tiredness. He acknowledged that it is a matter of the experience of the interpreter to know which points are to be regarded within the 10 degree range as outliers because they are not clustered and do not form a repeated pattern, where points are seen around them. He stated that he had adopted a consistent methodology in his supplementary report.
53. When asked about his opinion as to why Mr Kelly should be allowed to continue to drive, he said it was based on his history of demonstrating safe driving, together with his current visual fields when compared with previous ones. In his view, there was no big difference in them. He acknowledged that Mr Kelly does not have depth perception, but compensates with visual cues and other methods gained from experience. Although this varies for each individual, most people in Mr Kelly’s situation develop these skills within six months.
54. In cross-examination, when challenged about providing non-linear reports upon which horizontal lines cannot be drawn, Dr Toprak stated that, with his experience of performing tests every day, he has developed a knowledge of which points are within and outside the 10 degrees. This explained his marked up versions of the non-linear printouts although they are displayed on screen as if linear. He again conceded that, even on that interpretation, the results are not within the Guidelines. He suggested that he had performed and interpreted over 1300 tests, of which a small subset related to the Guidelines and fitness to drive. He did not agree that the non-linear representation is not helpful in determining what can be seen within 10 degrees above and below the midline, as knowledge of the accentuation of the central vision allows him to say where the 10 degree range is. He also acknowledged that the Esterman software is specific to and almost identical with the Medmont equivalent in binocular form, and provides a report in the same format without the expanded field, thereby enabling a straight line at 10 degrees to be drawn.
55. In relation to Dr Odell’s interpretation of outliers, Dr Toprak explained that there can be a wide variation in any measurements, and extreme values are not considered accurate. To the suggestion that it is because of Mr Kelly's condition that he missed points to the left, Dr Toprak explained that there could be other reasons. He acknowledged that Mr Kelly has blind spots above and below 10 degrees, partly because of the 0.2 seconds allowed for each test. Specifically dealing with exhibit H, he agreed with Ms Holmes that the extent of the visual field within 10 degrees below the line was 90 degrees, disregarding outliers unless clustered, but only if looking at overlapping points. In relation to Ms Holmes’ suggestion that his interpretation of the issue of overlap when considering the 110 degrees above and below was not appropriate, he said that he tried to be helpful, and his knowledge that Mr Kelly has more vision above the line than below.
56. Dr Toprak was asked specific questions about appendix 5A which, he agreed, provides in quadrants linear versions of the test results. His view was that it is difficult to be certain about whether Mr Kelly has vision or not by interpreting the shaded areas. Personally, he would look for the dark and light shade, and check those against the points seen or not seen above and below the 10 degree line. He acknowledged that he has not driven with Mr Kelly, and agreed that his expertise is limited to visual field tests, not driver safety or the application of the Guidelines. However, he rejected a suggestion that such limited experience made his reports of no assistance, as he used the Medmont Tests daily, and regularly works out interpretations by drawing straight and curved lines.
57. Finally, Dr Toprak reiterated his view that there was no major change in Mr Kelly's recent visual field results from the previous test results, and that he still believed Mr Kelly to be safe based on his driving history.
58. Mr Kelly also gave evidence. He told the Court that his post-injury treatment took a total of one year, and requires annual check-ups separately with an eye surgeon, ophthalmologist, and optometrist. He explained his work on his farm involves the regular use of motorbikes, utilities, tractors and cars. He said he had no difficulties, acknowledging that he knows the property well. He stated that he was aware of the difference in eyesight compared with before the accident, but felt he had overcome any disability. He confirmed that he had had no road accidents in that period.
59. Asked by me about specific travel from the farm, he confirmed that the distance had been increased from 70 km to 180 km, so that he could drive to Geelong to get a train to Melbourne to see specialists approximately 3 times a year. In relation to other travel, he said that he rarely goes to Hamilton, goes to Warrnambool, a distance of some 70 km each way, about every 10 days for supplies and food, and goes to Mortlake, 35 km away, for food and supplies, repairs and a haircut. He might also travel up to 60 km for social outings.
60. In cross-examination, Mr Kelly conceded that he is unable to see any blind spots in his vision, but said that he sees everything. In relation to the suggestion by Ms Holmes that the flashes in the visual field tests replicate real life, he said that they are very small, "small as a sparrow". When asked about the outer areas and extent of his vision, Mr Kelly said that he can see the roof and the floor without blind spots. He agreed with Dr Toprak that, when taking the tests, he focused on the area within 10 degrees above the horizon because this is most relevant to where other cars are.
61. In relation to the visual field tests, he did not think there had been a great change from the point of view of his driving. He felt that the anxiety and stress of taking the tests may explain why the results have varied. He was prepared to take more tests to stand up for his rights.
Final Submissions
62. Ms Holmes acknowledged that the key issue is whether Mr Kelly meets the Guidelines and whether any deterioration over time affects his ability to drive safely on a conditional licence now. She noted that VicRoads would be called to account by the Coroner, given that the purpose of its determination is road safety. She reiterated her original submission that, if the Court is satisfied that VicRoads acted in accordance with the Regulations, under r78 it must vary, suspend or cancel Mr Kelly's licence in accordance with the specific wording of the regulation on a belief that it would be dangerous for Mr Kelly to continue driving. She noted that, in his evidence, Dr Odell maintained his opinion notwithstanding the discussion of non-linear test results, which had not been raised with VicRoads before the hearing. She highlighted exhibit I as a clear indication that there are blind spots in Mr Kelly's vision, noting a particular concern about the 30/20 degrees right/left vision result. She believed that Dr Odell had continued to give Mr Kelly the benefit of the doubt in his interpretation of the results, despite being unclear about the area between the last seen point and the first missed point.
63. In summary, Ms Holmes argued that the results of recent tests indicated that the deterioration in Mr Kelly’s vision had gone "too far", and were well below, no longer just below, the Guidelines. She pointed out that Mr Kelly confirmed in his evidence that he was unaware of what he is missing in his vision. This was so irrespective of the distance from his home. She highlighted that Dr Toprak had conceded that, in assessing the 110 degrees above and below the midline, whether overlapping or otherwise, Mr Kelly presents with a big blind spot in one quadrant which is not consistent across the scale. On that interpretation of the 24 August 2015 report, the result is 90 degrees above and below, which is well below 110 degrees. Accordingly, that determines the matter. She said that the results show a decline, that is some change, in his vision.
64. Ms Holmes reiterated her reliance on the written submissions made by VicRoads, and encouraged the Court to look at the test results and variations in a practical way in relation to how they may affect Mr Kelly on the road when he is driving, for example when he is tired, and take a conservative approach by considering his worst day on the road and his worst test performance result this year in determining whether he poses a risk. All his results fall below the guidelines, and impact on the issue of public safety.
65. Mr Felkel relied on his two submissions, reminded that Court that the onus of proof is on VicRoads, and reiterated that, as the Court has a discretionary power, it must exercise it reasonably taking into account the Briginshaw standard of satisfaction. In relation to Dr Toprak’s evidence, whilst acknowledging that Mr Kelly's visual field is outside the Guidelines, he says it is just below the Guidelines, and Mr Kelly is safe to drive. On the basis of Dr Odell's agreement with Dr Toprak’s assessment of the August 2015 test results, and despite the fact that Dr Odell would not say that it was just below the Guidelines, Mr Felkel submitted that VicRoads had not discharged their onus of proof.
66. Mr Felkel invited the Court to prefer Dr Toprak’s evidence over that of Dr Odell, as he had no expertise to recognise the inappropriateness of horizontal lines on non-linear representations of test results. He submitted that the decision to suspend Mr Kelly's licence should be quashed, that the conditions prior to suspension remain appropriate, and that, in the event that the Court did not agree, it has the power to choose a smaller driving area which, in his view, should at least allow Mr Kelly to drive to Warrnambool.
67. In response to Mr Felkel’s submission, Ms Holmes submitted that Dr Odell had made appropriate concessions in cross-examination, but had not changed his view in relation to driver risk, a matter about which he has expertise, or his opinion that Mr Kelly ought not to have a conditional licence.
Discussion
68. In its original submission to the Court, VicRoads contended that, in the event that the Court finds that its original decision was made in accordance with the regulations, it was incumbent upon the court to confirm the decision. In the context of how the parties ran the appeal, and the technical nature of the evidence presented at the hearing, it is difficult to accept that submission as being consistent with the statutory framework under which VicRoads makes its decisions on suspension and cancellation of licences, and the statutory framework for appeals to the Court. No case law was provided by either party on the nature and scope of the appeal, and the only Supreme Court of Victoria decision cited in the literature on the Act that I could find was not relevant.
69. If the Court were to accept VicRoads’ submission, it would render the limited scope of the appeal and the Court’s re-determination of VicRoads’ original decision to suspend Mr Kelly's licence so narrow as to create an obvious difficulty for the parties. That difficulty is this - the Court could take the view, on assessing all the information available to VicRoads at the time of its decision on 25 June 2015, that VicRoads acted in accordance with its legislative powers, and confirm the Decision, as VicRoads submitted is required. But, notwithstanding that decision, at the same time, the Court could also take the view, on assessing the more extensive information made available to it for the appeal and since the Decision, that VicRoads could, and potentially should, now come to a different conclusion. It would also appear to negate the Court’s discretion to determine the appropriate choice of decision provided in s24(2) to suspend, cancel or vary the driver’s licence.
70. Having considered the appeal provisions in s26, which clearly provide for the Court to consider all the available relevant evidence in its re-determination of the Decision of VicRoads to suspend Mr Kelly’s licence, the proper interpretation, in my view, must be that the appeal is a hearing de novo, that the Court stands in the shoes of VicRoads as the decision maker, that it must consider all the evidence before it, including evidence provided after the Decision, that it is required to exercise any statutory discretions reasonably and that, if there is a legal onus of proof as such, it is VicRoads’, not Mr Kelly’s. As to the issue of a standard of proof, it was submitted for Mr Kelly that the “Briginshaw” standard applies because any licence suspension is a matter of serious consequence to him. The High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 considered the application by a judge of the civil standard of on the balance of probabilities to the evidence in support of an adultery allegation in a matrimonial cause. The leading judgement was given by Dixon J (as he then was). The Court dismissed the appeal and, in doing so, did not change the fundamentals of the standard itself or create an intermediate higher standard (as some later argued) between the balance of probabilities and the criminal standard of beyond reasonable doubt. What the High Court properly noted was that, the more serious the consequence of a court’s finding in relation to the essential issue in dispute, the more cogent and persuasive ought be the evidence on which the court makes its findings. His Honour observed:
“Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the tribunal of fact that the adultery alleged was committed, it should so find.”
71. It is clear that the consequences of the application of the Guidelines by VicRoads to individuals such as Mr Kelly in arriving at a decision to suspend a driver’s licence are significant. At the same time, the application by VicRoads of its statutory obligations under the Act in relation to licensing drivers is critical to the maintenance of safe driving standards on Victorian roads. There is nothing to suggest to me that VicRoads did not treat Mr Kelly and its consideration of his case with anything but fairness. It arrived at its decision to suspend his licence on the basis of a belief that it would be dangerous for Mr Kelly to continue to drive on a conditional licence by the same process it had previously used to assess his driving safety since 2007. The belief was formed after consideration of the advice provided to it by the expert committee, one member of which is Dr Odell, particularly in relation to the test results dated 19 May 2015 provided by Mr Kelly. It determined the matter in the manner consistent with the statutory framework under which the Act requires it to make such decisions.
72. Notwithstanding this, in my view, it is clear that the Court must consider all the available evidence, including that provided by Dr Odell and Dr Toprak at the hearing, as part of the process of re-determining the Decision. It makes no sense to treat the scope of the appeal as limited to engaging in the same decision-making process as that undertaken by VicRoads on the same evidence available at 25 June 2015.
73. Whilst the Court does not disagree with the VicRoads’ submission that it should not easily disregard the Guidelines in applying them in order to determine the extent of Mr Kelly’s visual capability and the level of dangerousness resulting from it, it also accepts the proposition put on behalf of Mr Kelly, and supported by the VCAT decision in Harris, that the Guidelines provide persuasive assistance rather than mandatory direction.
74. In his evidence, Dr Odell conceded his lack of experience in the interpretation of non-linear visual field test results. I note Ms Holmes’ complaint that these were not specifically mentioned and explained in Dr Toprak’s reports, a fact that potentially may have led to an internal review of the Decision. By contrast, Dr Toprak impressed me as a practitioner who has considerable practical experience in such interpretation, and is more specifically familiar with Mr Kelly's visual history, as the practitioner who has tested his sight on several occasions during 2015. As well, despite internal errors in his report, Dr Lazarus, Mr Kelly's long-time ophthalmologist, has given his opinion that, essentially, Mr Kelly's remaining vision is stable. What became clearly evident to me in assessing the evidence of each of Dr Odell and Dr Toprak is that the results of any particular test can vary from the results of other tests, even over a short period, because of a range of factors personal to the person being tested. This was conceded by Dr Odell and is confirmed by a careful comparison of the charts tendered in evidence. Dr Toprak’s summary of all the test results since 2007 also demonstrate this. These variations are further complicated by the use of two different technologies (Esterman and Medmont machines) to test Mr Kelly’s visual field, sometimes using a binocular test and others using a monocular test, resulting in different visual representations of the test results. It was agreed between the witnesses that interpretation of the test charts has a subjective element based on each examiner’s own experience, particularly in determining which seen points and missed points, and which outliers, are counted as included or excluded, especially on the periphery of the visual field. As a result, in my view, given the range of test results over the whole period from 2007, all of which were less than the 110 degrees specified in the Guidelines, it is difficult for me to have confidence, as VicRoads appeared to have, that the variations in themselves necessarily point to a permanent deterioration in the extent of Mr Kelly's visual field.
75. The hearing has provided a far greater opportunity for a careful and comprehensive analytical overview and comparison of the various visual field tests undertaken by Mr Kelly, including those conducted after the Decision. It has highlighted the discrepancies, however minimal, between the linear and non-linear representations in the test charts provided by the Esterman and Medmont machines used respectively by ophthalmologists and optometrists. It has also highlighted the subjective nature of the interpretations of the test results in terms of points seen, points not seen, decisions as to which outlying points should be included or disregarded, and the calculation of the extent of Mr Kelly’s visual field to the left and to the right, both above and below the midline up to 10 degrees. In my view, it was regrettable for both parties that this additional material could not have been the subject of an internal review by the committee and VicRoads before the appeal was heard.
76. Despite all of this extra material, it remains clear that Mr Kelly's eyesight is not as good as, I am sure, he would want. However, section 10.3 of the Guidelines requires the consideration of a conditional licence in the context of the nature of the driving tasks that Mr Kelly regularly performs, and seeks to perform, namely driving in, around and nearby his farm property in rural Victoria. In this context, the key question for me is whether I believe it would be dangerous for Mr Kelly to drive a motor vehicle because of his limited visual field. My belief must be based on test results or a report from a medical practitioner. In the context of the appeal hearing, it is effectively both – the various test results since 2007 and the evidence of the two expert witnesses. If I form the relevant belief, I am obliged to suspend, cancel or vary Mr Kelly’s driver licence, although I have a discretion as to which course of action to adopt.
77. On all the evidence, and consistent with VicRoads’ previous allowances in their assessments of Mr Kelly’s visual field, and taking account of Mr Kelly’s past accident-free driving history, on balance it appears to me that Mr Kelly remains capable and safe to drive on a conditional driver’s licence within a reasonable but restricted distance from his farm property. This is particularly so as he is familiar with the district and its roads, and he is not required to drive in any heavy or unfamiliar traffic situations. To the extent that his excellent driving record is confirmation of this, I accept it. However, throughout any period where Mr Kelly continues to drive, it remains incumbent on him to be constantly aware of the limitations of his visual field and, at any time that he considers that his driving performance has become or appears to have become unsafe, he must take the appropriate action to bring that state of affairs to VicRoads’ attention.
78. Taking account of the variations in the more recent test results, I consider that Mr Kelly ought to be permitted to drive on a conditional driver's licence within the more limited range of 75 kilometres from his farm. This will enable him to obtain supplies from, and conduct other business requirements in, both Mortlake and Warrnambool, a town and city of population proportions consistent with Mr Kelly's capacity to drive safely. I cannot be satisfied that the extent of his visual field is such that driving only occasionally to and from Geelong, a distance of some 180 kms, and within that much busier urban road environment, remains safe from a community perspective. As a result, Mr Kelly will need to make other arrangements to visit specialists in Melbourne.
79. Given my assessment of all the information made available to the Court for the hearing, and the fact that Mr Kelly will soon have a new scleral lens for his good eye, it is self-evident that further tests of Mr Kelly’s visual field should be undertaken. On the basis of the further testing, VicRoads should reconsider Mr Kelly's vision and his capacity to drive safely on a conditional driver's licence. Any such a decision would also be subject to a s26 appeal.
80. Mr Kelly's capacity to drive safely under a conditional driver’s licence should continue to be monitored by VicRoads by annual licence reviews. As indicated at conclusion of the hearing, in my view it would be in both parties’ interests to agree on one or more independent ophthalmologists and/or optometrists to conduct reviews of Mr Kelly's eyesight generally, and the extent of his visual field in particular, with such regularity as is agreed between the parties. Agreement about the use and interpretation of Esterman and Medmont machines would also be sensible. This may have the benefit of reducing the likelihood of extensive litigation being required at considerable cost to the parties on a not infrequent basis.
Findings
81. Based on all the evidence available to me, I make the following findings of fact:
1. The available visual testing of the extent of Mr Kelly's visual field confirms that he cannot satisfy the requirements of the Guidelines for an unconditional licence. That position has prevailed since being first granted a conditional licence.
2. The written reports and oral evidence of Dr Odell and Dr Toprak, on which the parties relied, as regards Mr Kelly’s visual field test results, were not entirely consistent and, both conceded in evidence, have been the subject of, and are open to, different interpretations. In his evidence, Dr Odell conceded that he was not an expert in the difference between and interpretation of linear and non-linear tests in determining the extent of Mr Kelly's visual field above and below the horizontal line. In his evidence, Dr Toprak conceded that he is not an expert in determining safe driving.
3. Mr Kelly remains a person whose driving capacity is not otherwise affected than as a result of his limited monocular vision. He has been assessed as, and appears to me to be, otherwise alert, has normal reaction times and good physical coordination. His driving record since being granted his conditional licence supports that finding.
4. Notwithstanding that, VicRoads made the Decision to suspend Mr Kelly’s licence on the basis of the recommendations of its expert committee in interpreting the results of the visual field test conducted on 19 May 2015 which was submitted on behalf of Mr Kelly. This process of decision-making was consistent with the processes that it had undertaken since 2007. Dr Toprak conceded in evidence that this result showed a diminished visual field in comparison with Mr Kelly’s previous results.
5. VicRoads made the Decision in accordance with its statutory obligations and on reasonable grounds, having taken account of the relevant matters and properly formed the requisite belief (upon which it based its decision) that it would be dangerous for Mr Kelly to drive a motor vehicle because of the defects in his visual field.
6. Having considered all the available evidence before the Court, I find on balance that the variations in test results of the extent of Mr Kelly’s visual field since 19 May 2015 remain within the range of previous results upon which VicRoads’ consistently granted Mr Kelly a conditional licence. As a result, I cannot be satisfied on the balance of probabilities that, at this time and without further testing, the variations reflect a deterioration in Mr Kelly’s visual field that is likely to be permanent, as I accept that there are a number of other plausible explanations of the variations, including blinking, lens movements, looking elsewhere, stress and interpretation issues.
7. I find that, although testing confirms that Mr Kelly has several areas of blind spots in his visual field, on balance they are consistent with previous findings, and have not been demonstrated to render Mr Kelly unable to see oncoming traffic in the upper right quadrant, or signs and pedestrians to the left in the upper left quadrant to such an extent that it would be dangerous from a community perspective to allow Mr Kelly to drive in any circumstance.
Decision
82. Having reviewed the decision of VicRoads to suspend Mr Kelly's conditional driver’s licence on the basis of a belief that it would be dangerous for him to drive a motor vehicle because of illness or bodily infirmity, defect or incapacity or because of the effects of treatment for any of those things, pursuant to r78(2)(a):
1. Under s26(2), I have re-determined the matter taking into account all matters which VicRoads should have taken into account, and all the available evidence, and I am not satisfied the suspension was required by the regulations. I therefore set aside the Decision.
2. I order VicRoads to forthwith reissue Mr Kelly with a conditional driver’s licence. As regards the conditions under which Mr Kelly's conditional licence was operating prior to the suspension effective from 9 July 2015, pursuant to s24(2)(a)(d) and r78(2)(a), I vary those conditions such that Mr Kelly is entitled to drive in a reduced area bounded by a radius of 75 kms from his farm property boundary in any direction.
3. Mr Kelly's capacity to drive safely under a conditional driver’s licence should continue to be monitored by VicRoads by (at least) annual licence reviews. As indicated at conclusion of the hearing, in my view it might be in both parties’ interests to agree on one or more independent ophthalmologists and/or optometrists to conduct reviews of Mr Kelly's eyesight generally, and the extent of his visual field in particular, with such regularity as is agreed between the parties. This may have the benefit of reducing the likelihood of extensive litigation being required at considerable cost to the parties on not infrequent occasions.
Orders
83. At the conclusion of the hearing on 25 November 2015, I made the following orders:
1. Adjourned to Warrnambool Magistrates’ Court on a date to be fixed.
2. Decision reserved. Reasons for decision will be provided to the parties by the Registrar, and handed down on the return date fixed by the registrar. The parties are excused from attendance on the return date.
84. Having considered the evidence of the witnesses, the reports relied on by, and the submissions of, the parties, I make the following orders:
1. The decision dated 25 June 2015 of VicRoads to suspend Mr Kelly’s conditional driver’s licence is set aside.
2. Order VicRoads to forthwith reissue Mr Kelly with a conditional driver’s licence.
3. As regards the conditions under which Mr Kelly's conditional licence was operating prior to the suspension effective from 9 July 2015, I vary those conditions such that Mr Kelly is entitled to drive on a conditional licence in an area bounded by a radius of 75 kms from his farm property boundary in any direction.
Costs
85. At the end of the evidence and submissions at the hearing, both parties made separate submissions in respect of the payment of their legal costs. Ms Holmes submitted that, as the appeal is in the nature of a civil action, if the court confirmed VicRoads’ decision, costs should be awarded. Exhibit 3 was tendered as a detailed cost claim in excess of $15,000 which she described as a reasonable figure. However, on her instructions, she submitted that the sum of $7000 should be awarded to VicRoads. Mr Felkel noted that his instructor had corresponded with VicRoads to warn that costs were at issue, if Mr Kelly’s appeal were successful. He tendered exhibit L, a detailed cost claim in excess of $25,000.
86. During and at the end of the hearing, each party was critical of the other in relation to the presentation of material in support of their submissions and reports. VicRoads claimed that they were not given prior notice of the reliance on the non-linear reporting of Mr Kelly’s visual field by Dr Toprak. For Mr Kelly, it was claimed that Dr Odell had failed to provide explanations of and justifications for various of his conclusions in respect of Mr Kelly’s driving safety.
87. Despite its context under the Act, both parties appeared to agree that the appeal was essentially a civil contest. In that context, cost orders are entirely discretionary. Taking into account the manner in which the appeal was conducted by the parties, each party’s criticism of the other, the fact that there was considerable merit in the case presented by each party which left me to make the final decision on balance by a very small margin, and all other relevant considerations, it is my view that, notwithstanding an outcome in favour of Mr Kelly, I ought to make no order as to costs. Each party should bear their own costs of the appeal.
John Lesser
Magistrate

MAGISTRATE:	LESSER
WHERE HELD:	Warrnambool
DATE OF HEARING:	25 November 2015
DATE OF DECISION:	25 January 2016
MEDIUM NEUTRAL CITATION:	[2015] VMC001
APPEARANCES	Mr A Felkel of Counsel for Mr Kelly Ms S Holmes of Counsel for VicRoads