May, Peter Lawrence v The Secretary, Department of Transport

[1981] FCA 54

Re: PETER LAWRENCE MAY
And: THE SECRETARY, DEPARTMENT OF TRANSPORT (1981) 52 FLR 246
No. VG128 of 1980
Administrative Law - Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Ellicott J.(1)

CATCHWORDS

Administrative Law - Administrative Appeals Tribunal - Appeal from - refusal to renew airline transport pilot licence - cancellation of commercial pilot licence and radiotelephone operator licence - whether question of law raised - "latent physical disability" - meaning of latent physical disability in s.47 Air Navigation Orders - meaning of physical disability - whether Tribunal misconstrued - whether statistical likelihood of epilepsy sufficient to establish a latent physical disability.

Administrative Appeals Tribunal Act, 1975 s.44.

Air Navigation Act, 1974 s.26(1)(b)

Air Navigation Regulations s.57(2)

Air Navigation Orders s.47

Administrative Law - Appeal on question of law from Administrative Appeals Tribunal - Cancellation of commercial pilot's licence and radio telephone operator's licence - Refusal to renew airline transport pilot's licence - Whether question of law raised by construction of "latent physical disability" under Air Navigation Order 47 - Whether statistical likelihood of physical disability sufficient to establish "latent physical disability" - Administrative Appeals Tribunal Act 1975 (Cth), s. 44 - Air Navigation Order 47.

Appeal - Question of law - Meaning of "latent physical disability".

HEADNOTE

On 27th June, 1980, the Secretary of the Department of Transport cancelled the appellant's commercial pilot's licence and radio telephone operator's licence and refused to renew the appellant's airline transport pilot's licence on the basis that the appellant may have suffered cerebral tissue damage during cranial surgery and that as a result there was a greater statistical likelihood of the appellant suffering from epilepsy than exists in the population generally. Accordingly the respondent contended that the appellant did not satisfy Air Navigation Order 47 which required that: "The applicant shall be free from such . . . latent . . . physical disability which is likely to interfere with the safe operation of an aircraft. . . ." The Administrative Appeals Tribunal affirmed the respondent's decision and the appellant then appealed to the court on a question of law pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975.

Held: (1) The construction of the words "latent physical disability" in Air Navigation Order 47 constitutes a question of law.

(2) The term "latent" in relation to a physical disability means a disability which exists or the potential for which exists within the system even though it or the potential for it may be dormant, rather than a chance based on the statistical probability that a person may have within his system potential for a physical disability to occur.

(3) A person will either be "free from" or not be "free from" physical disability and a medical examiner conducting an examination for the purposes of Air Navigation Order 47 cannot hide behind statistics and say that because there is a greater statistical risk of the appellant having an epileptiform manifestation than that to which the population generally is exposed the appellant might have a physical disability and therefore is not "free from" physical disability.

(4) The Tribunal was in error in directing its mind to the statistical evidence of the incidence of epilepsy in persons who underwent the same surgical operation as that of the appellant rather than ascertaining whether the appellant had actually suffered cerebral tissue damage during the operation which would give rise to an actual condition of the body which would have the potential to cause a physical disability, namely, epilepsy.

(5) The matter be remitted back to the Tribunal to be dealt with according to law.

HEARING

Sydney, 1981, March 12; May 12. #DATE 12:5:1981

APPEAL.

Appeal on a question of law from the Administrative Appeals Tribunal.

C.N. Jessup, for the appellant.

R.S. Huttner (solicitor), for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Mahoneys.

Solicitors for the respondent: Crown Solicitor's Office.

J. ISLES

ORDER

(1) That the appeal be allowed.

(2) That the decision of the Administrative Appeals Tribunal be set aside.

(3) That the case be remitted to the Tribunal to be heard and decided again according to law in the manner I have indicated after the hearing of such further evidence as it may decide to receive.

(4) That the respondent pay the appellant's costs of this appeal. Order accordingly.

JUDGE1

The appellant, Peter Lawrence May, is alleged to be a victim of statistics. In September 1979 he was the holder of a commercial pilot's licence. On 24 September a craniotomy operation was performed on him to enable the clipping of an aneurysm. Although the operation itself was successful it is said that because of it there is a 5% chance that he will suffer an epileptic turn while piloting an aircraft. Therefore he should be denied a pilot's licence. Stated shortly, the question before this Court, on appeal, is whether the Administrative Appeals Tribunal was wrong, in law, in so holding.

The appellant is about 36 years old. He commenced flying in 1964. In 1970 following periods as a flight instructor and a pilot in general aviation he joined an Australian domestic airline as a first officer and continued in that position for five years. After a short break, he obtained overseas employment as a flight engineer. In November 1978 he rejoined the same Australian domestic airline and worked from that time until September 1979 as a first officer. It was then that he began to suffer from severe and intermittent headaches. After several days, investigations revealed that he was suffering from a subarachnoid haemorrhage. On 24 September the craniotomy operation was performed to enable the clipping of an aneurysm. It was not possible to occlude the aneurysm and a clip was angled across the neck occluding the large terminal portion of the aneurysm but leaving portion of it still in communication with the circulation. The operation was successful and the applicant has described his recovery as uneventful.

Questions then arose as to whether the applicant's commercial pilot's licence and his radio telephone operator's licence should be cancelled and on 27 June 1980 decisions were made by the Delegate of the Secretary, Department of Transport, cancelling both. The ground upon which this decision was based was that the applicant failed to satisfy the medical standards required of an airline transport pilot by the Air Navigation Regulations and notified in Air Navigation Orders ("A.N.O's") 47.1.2.2 and 47.1.2.7(c). The appellant's licence expired on 30 June 1980. An application was also made to renew an Airline Transport pilot licence he had held. This application was refused on 23 July 1980 and was based on the same grounds. The appellant then appealed to the Administrative Appeals Tribunal to review these decisions and on 24 September 1980 the Tribunal affirmed them.

The appellant has appealed to this court on a question of law pursuant to s.44 of the Administrative Appeals Tribunal Act 1975.

There was evidence before the Tribunal that a person who has been subjected to cranial surgery is exposed to an increased risk of epilepsy general partial or focal. The evidence seemed to suggest that it was more likely to be focal than otherwise. This risk arises because the necessary manipulation of the surface of the brain that occurs in the course of the operation can cause cerebral tissue damage giving rise to abnormal electrical impulses. The evidence established that the risk of epilepsy occurring in the population generally is approximately 0.5% i.e. 1 in 200. Such a figure makes no distinction between generalised epilepsy and partial or focal motor epilepsy. The evidence was that focal epilepsy involves intermittent jerking of an arm or the face or possibly the leg. The commonest manifestation of it involves the arm. The next most common involves the face and the next the leg. While it may last only for 30 seconds it can occur over a period of several minutes.

Medical evidence was given before the Tribunal by a Senior Medical Officer attached to the Department of Transport and two specialist neurosurgeons. The Tribunal also had before it a number of published articles most of which dealt with epilepsy following intracranial surgery of the type here in question.

Of the two specialists one, Mr North, had carried out research into the risk of epilepsy. The other, Mr Brownbill, had performed the operation on Mr May. The effect of the evidence was that there was an increased risk of epilepsy occurring following an operation of the type Mr May had had. This risk would decline over a period of 7 or 8 years. The specialists did not agree on the precise increased risk. It was agreed that if a patient was able to maintain a therapeutic level of a drug phenytoin the risk would be reduced. The Tribunal assumed, in Mr May's favour, after hearing evidence on the matter, that he would be able to maintain this level.

In the light of the evidence, the Tribunal concluded that there was in relation to the appellant a risk on an epileptiform manifestation that is six to ten times greater than that to which the population as a whole is exposed. That is to say, that, whereas there was a .5% risk of an ordinary member of the population suffering an epileptiform manifestation, there was a 3 to 5% risk of Mr May suffering it.

The relevant medical standards are in A.N.O's 47.1.2.2; 47.1.1.2; 47.1.2.7(c) and 47.1.1.7(c). A.N.O's 47.1.2.2 and 47.1.1.2 are identical, as are 47.2.2.7(c) and 47.1.1.7(c). Standard 47.1.1.2 provides:-
"The applicant shall be free from such active or latent, acute or chronic, physical disability which would entail a degree of functional incapacity which is likely to interfere with the safe operation of an aircraft at any altitude throughout a prolonged or difficult flight."

The standard required by A.N.O's 47.1.1.7(c) is:-
"There shall be no significant functional or structural abnormality of the circulatory tree."

There was no contention before the Tribunal and no contention before me that A.N.O's 47.1.1.7(c) and 47.1.2.7(c) applied and they may therefore be disregarded.

The Tribunal, in giving its decision, expressed the view that the applicant as the holder of a pilot's licence would face an unacceptable risk of an epileptiform manifestation and a risk that they regarded on the evidence as being real and not insignificant. It held that he should therefore be found not to be free from a latent disability within the meaning of the relevant medical standard and that the decisions of the Delegate of the Minister should be upheld.

Another matter, to which the Tribunal made reference, was the effect of hypoxia on the appellant, that is to say, the diminution of the supply of oxygen to the vital organs due to flying at heights in a cabin pressurised at approximately 8,000 feet above sea level. The evidence which the Tribunal accepted was that hypoxia is a definite precipitating cause of epilepsy and that it would make any person prone to epilepsy more likely to experience an onset of epilepsy. It therefore concluded that the very working environment of the applicant would subject him to a greater risk of epileptiform manifestation than he would face at ground level.

The Tribunal declined to grant a licence on conditions pursuant to s.57(2) of the Air Navigation Regulations.

The appellant has appealed to this court against the decision of the Tribunal alleging that the decision was wrong in law in effect because, on the evidence before it the Tribunal was bound to find that the appellant was "free from a latent physical disability" within the meaning of the relevant medical standards.

The appellant can only appeal to this court on a question of law. There was some discussion at the hearing before me as to whether the appellant's grounds of appeal constituted a question of law. Counsel for the appellant indicated that he wished to argue that the Tribunal misconstrued the phrase "latent physical disability" contained in the relevant medical standards and had therefore misdirected itself. In my view this raises a question of law and on this basis I allowed the appeal to proceed. It could be argued that the Notice of Appeal does not raise this question precisely and I indicated at the hearing that I was prepared to grant leave to the appellant to amend his Notice of Appeal to raise it. Pursuant to Order 53 Rule 4 of the Federal Court Rules, I grant leave accordingly.

Air Navigation Order 47 deals with the medical standards for Flight Crew Members of aircraft and Air Traffic Controllers. Physical and other standards are provided for the various classes of licence. Physical Standard No. 1 is made applicable to an Airline Transport Licence and Physical Standard No. 2 to a Commercial Pilot Licence and a Flight Radio Telephone Operator's Licence. These two standards although not identical are so in relevant respects and I will therefore direct my consideration to Physical Standard No. 1 contained in A.N.O. 47.1.1. What I say however applies equally to the corresponding provision of Physical Standard No. 2 found in A.N.O. 47.1.2.

A.N.O. 47.0.3 which applies to all standards provides:-
"The standards of this Part cannot include sufficient detailed specifications to cover all conditions. The assessment of medical fitness shall be made as a result of a complete medical examination conducted throughout in accordance with high standards of medicine and having due regard to the requirements of the licence applied for and the conditions in which the applicant will have to carry out his duties.

A.N.O. 47.1.1.1, part of Physical Standard No. 1, provides that the medical examination and assessment shall be based on the requirements of mental and physical fitness which follow it.

It is clear from these provisions that these A.N.O's are attempting to lay down for the medical examiner the broad standards to which regard is to be had. Needless to say although having legal effect, they are not provisions in a statute, and this should be borne in mind in considering them. They are clearly designed to protect the public interest in maintaining high standards of safety in air transport and air navigation. At the same time, as Counsel for the appellant submitted, their application can seriously affect an applicant's right to pursue his or her livelihood and this is also a relevant matter in construing them.

It is with these factors in mind that I propose to consider the relevant provisions.

It is not suggested that there is any other ground for finding the appellant unfit to hold a licence than that contained in A.N.O's 47.1.1.1 and 47.1.2.2. As stated earlier A.N.O's 47.1.1.7(c) and 47.1.2.7(c) were raised by the Delegates of the Minister but they were not pressed.

In all, A.N.O. 47.1.1.2 is in much broader terms than the eight paragraphs which follow. These deal with such matters as mental fitness, examination of the nervous system, injuries to the head, general surgical examination, general medical examination, ear examination, nose throat and mouth examination and defects of speech. Although more specific, these paragraphs leave a great deal of discretion to the medical examiner in the course of applying them. For present purposes they are relevant not because on the evidence they justify a view that the appellant should be assessed as unfit but because they are of assistance in determining what is meant by A.N.O. 47.1.1.2.

The Tribunal has held that the appellant is "not free" from a relevant physical disability. The disability suggested is an epileptiform manifestation whether of a general, partial or focal character. There was no dispute that if Mr May suffered an epileptic turn, whilst performing his duties as a pilot, it would clearly entail a degree of functional incapacity which was likely to interfere with the safe operation of the aircraft. Reference was made at the hearing to the meaning of "likely" in the standard. Does it mean "might well occur" or "will on the balance of probabilities occur". Because it was agreed by the parties that it would be likely so to interfere, it is unnecessary to express a final view as to the meaning of the word. It suffices to say that the Tribunal could clearly have concluded on the evidence that on the balance of probabilities an epileptic turn, whether general, partial or focal, would if it occurred interfere with the safe operation of the aircraft.

The real question here concerns the application of the words "The applicant shal be free from active or latent, acute or chronic, physical disability as would entail . . . . . . . . . functional incapacity". It is not suggested that Mr May had an "active" "acute" or "chronic" physical disability and these words may be disregarded as applying to him. A question did arise at the hearing as to whether the disability had to be either "active" or "latent" and at the same time "acute" or "chronic". I do not think this is required. It is sufficient if an applicant's condition falls within any one of these descriptions. The suggested description here is "latent". The words "active" "acute" or "chronic" may of course assist in construing the word "latent".

A number of meanings are suggested for the words "latent". They are conveniently collected in the following passage from the Tribunal's reasons:-
"The word 'latent' is used in a number of different senses. The Oxford English Dictionary gives the following meanings:-

'. . . . hidden, concealed; present or existing, but not manifest, exhibited, or developed. (the opposite of patent.)

d. Path. 'Applied to diseases, the usual symptoms of which are not manifest, and to symptoms which do not appear under conditions in which they are natural' (Syd. Soc. Lex 1888). Also latent period, the period during which a disease lurks in the system before manifesting its presence."
(underlining supplied)

The Random House Dictionary gives the following:-
'1. present but not visible, apparent, or actualized; existing as potential: 2. Pathol. (of an infectious agent or disease) remaining in a resting or hidden phrase; dormant. Syn. 1. Dormant, quiescent, veiled. LATENT, POTENTIAL refer to powers or possibilities existing but hidden or not yet actualized. LATENT emphasises the hidden character or the dormancy of what is named; latent qualities, defects, diseases. That which is POTENTIAL exists in an as yet undeveloped state, but is thought of as capable of coming into full being or activity at some future time; potential genius, tragedy." (underlining supplied)

Gould's Medical Dictionary (4th ed) gives the following:-
'Not manifest; dormant; potential'."

The Tribunal in a passage which followed expressed what it thought was the meaning to be given to the word. It said:-
"It is plain that the word 'latent' can connote something that is underlying but dormant. The chronic relapsing course of malaria is an example of such a condition. But we consider that the word 'latent' should equally have the meaning assigned to it in the passages underlined, in which it carries the connotation of potentiality. In this case it means that if in the circumstances of the applicant there is, because of the operative treatment that occurred, a potential risk of an epileptiform manifestation then that constitutes a disability which should in our opinion be identified as a latent disability."

It also expressed it in the following passages:-
"Mr Roberts contended that the applicant has no disability and that he thus has no latent disability. He has had, it was said, a disability, namely an aneurysm, that has been repaired by being partially clipped, the existence of the clip not being itself necessarily a disability. But as we see it the relevant disability that the applicant has is that he has been subjected to an operative treatment that gives rise to the risk of an epileptiform manifestation and the existence of such disability must we consider be recognized, at least if there is a real and not insignificant risk that such a manifestation may occur."

and
". . . . . . . we are of the view that our conclusion based upon the evidence means that the applicant as the holder of a pilot licence would face an unacceptable risk of an epileptiform manifestation, a risk that we regard on the evidence as being real and not insignificant. He should therefore be found not to be free from a latent disability that falls within the prohibition contained in A.N.O's 47.1.1.2 and 47.1.2.2."

The view for which the appellant contends is that, for the paragraphs to apply a physical disability must exist and that it cannot be found to exist simply on the basis of statistics.

As I understand the evidence before the Tribunal there was no evidence to establish that the handling of Mr May's brain in the operation had in fact caused sufficient damage for abnormal electrical impulses to arise so as to lead to an epileptiform manifestation. Evidence was given of the operation and of how an epileptic turn could be caused as a result, but no evidence appears to have been directed to whether his brain was in fact affected. Mr Brownbill performed the operation but he did not express a view as to whether Mr May's brain was in fact affected or as to the likelihood of it having been affected. He gave the following evidence (transcript p.87) about how damage could occur:-
"How does that damage occur if the operation is performed properly?. . . .Damage is a word that people tend to think in its extreme. Damage simply means something that, in the surgical context, something that should not normally happen and whenever one handles a brain we know and you have alluded to others, we know that the mere handling of a brain can cause sufficient damage for abnormal electrical impulses to arise from those neurons, those delicate nerve cells in the surface of the brain. Some brains vary just as people vary but some are very delicate or some more so than others, susceptible to this handling. That is part of what I woudl call damage."

It will be noted that he does not say, in this passage, that the operation itself will inevitably cause damage to the cerebral tissue in all cases. He says it can cause damage but expresses no view about the likelihood of such damage to Mr May's brain.

What the Tribunal relied upon, was the evidence that, if a person has the operation in question, there is a percentage chance that he or she will within a period of years have an epileptiform manifestation. The percentage chance, at a given time, depends on whether the person is treated with the drug phenytoin and on what time has elapsed since the operation. In Mr May's case the percentage of chance at the relevant time was between 3% to 5% on the assumption he was treated with phenytoin. The chance of the manifestation occurring will decline over a period of seven or eight years.

The approach of the Tribunal means that, even if Mr May has not been affected by the operation in any relevant sense and, therefore, will never have the physical disability alleged, he nevertheless should be denied his licence because, statistically, there is a chance he has been.

The words of the requirement are that the person examined shall be "free from" a latent physical disability. If statistics alone can be used to arrive at a conclusion that a person is not free from a latent physical disability it can lead to some curious results. For instance, 1 in 200 people in the community is susceptible to epilepsy. This means that if a young pilot is being examined for his licence there is something like a .5% chance that he will develop epilepsy. Could it then be said that he was free from the risk of having an epileptiform manifestation. Although 1 in 200 may not be large one might perhaps think it is not so small as to be insignificant in relation to persons piloting aircraft. On this approach, I think it would be difficult to find that anybody was free from a latent physical disability i.e. epilepsy, within the meaning of the requirement. Obviously this approach can't be right. It would drive the requirement mad. Nobody would pass the test. Some risks have to be accepted even though significant.

The Tribunal appears to have overcome this problem in its own mind by its finding that the statistical risk of Mr May having an epileptiform manifestation was six to ten times greater than that to which the population as a whole is exposed. In part of its reasons it referred to the risk as a "real" and "not insignificant" risk. For this to provide a satisfactory consistent approach to the question it would of course be necessary in all cases to regard the statistic for the disability vis a vis the general population as not being real or significant.

In my view the words "free from" do not sit happily with this approach. First, I do not think it is possible to regard a statistic of 1 in 200 as necessarily insignificant particularly with a condition such as epilepsy. It may be a risk which has to be accepted but this does not mean it is insignificant. In the case of other physical disabilities there may be a greater risk. Where then does one stop? Secondly, quite apart from this, the words used - on this approach - don't in my opinion admit of this exception. They are in terms quite positive. The applicant must be "free from" a latent disability.

If "latent" meant simply a "potential risk" based on statistics I think one may well have to conclude that no applicant was free from epilepsy or, for that matter, from many other diseases in respect of which statistics are available.

It is relevant to observe, that, in the present case, the potential for an epileptiform manifestation arises out of the existence of damage to the brain tissue. Similarly it could be said the potential for a heart attack could arise out of the existence of a weak heart due e.g. to blocked or narrowed coronary arteries. In each of these examples a condition exists which has in it the potential for physical disability. In other words the potential is there - it exists.

It will be noted that the definitions of "latent", quoted by the Tribunal, convey the idea that, although what is "latent" may be dormant or not manifest, it nevertheless exists. For instance, the Oxford English Dictionary gives it the meaning "present or existing but not manifest exhibited or developed." Of "latent period" in relation to diseases it says "The period during which a disease lurks in the system before manifesting its presence". This means it is at least present.

The Random Home Dictionary definition contains a similar idea. For instance "present but not visible apparent or actualised". Of an infectious agent or disease it means "remaining in a resting or hidden phase, dormant". This too implies the existence of the agent or disease.

It also uses the meaning "existing as potential". In this meaning the word "existing" is important. In my view this definition means that the potential exists - that is to say that some condition exists which has certain potentialities. The same idea is found in the Random House definition when it refers to "LATENT, POTENTIAL refer to powers or possibilities existing but hidden or not yet actualised. LATENT emphasises the hidden character or the dormancy of what is named. . . . . . . That which is POTENTIAL exists in an as yet undeveloped state but is thought of as capable of coming into being or activity at some future time."

In my opinion when the word "latent" is used in A.N.O. 47.1.1.2 in relation to "physical disability" it is referring to a physical disability which exists or the potential for which exists even though it or the potential for it is dormant or not manifest or lurking in the system. I do not think the words are satisfied merely because there is a chance based on statistics that a person may have within his body potential for a physical disability to occur. His body must at least have within it the potential for that physical disability to occur before it can be said a person has a "latent physical disability".

The effect of the view I hold can be illustrated by reference to the evidence in this case.

A person who has intracranial surgery involving the manipulation of the brain may suffer damage to the cerebral tissue which damage has the potential to give off abnormal electrical impulses causing an epileptiform manifestation. If the person suffers damage to the cerebral tissue I think it can be said that he has a latent physical disability - the potential exists because of that damage for him to have an epileptiform manifestation. If he does not suffer that damage he does not have that latent physical disability because no potential for the manifestation exists.

If where such surgery occurs there is no evidence as to whether damage to the cerebral tissue has occurred it is not possible to find that the potential exists and therefore that the person has a latent physical disability.

As stated earlier the Tribunal after referring to the dictionary meanings of "latent" said:-
"In this case it means that if in the circumstances of the applicant there is, because of the operative treatment that occurred, a potential risk of an epileptiform manifestation then that constitutes a disability which should in our opinion be identified as a latent disability."

The Tribunal did not then direct its mind to whether damage had occurred to the cerebral tissue of Mr May's brain but proceeded to analyse the medical evidence which led them to the view that there was, in relation to the applicant, a risk of an epileptiform manifestation that is six to ten times greater than that to which the population as a whole is exposed. This view was based solely on statistics arrived at after observing people who had had an operation the same as the appellants and the incidence of epilepsy thereafter. It was not based on an analysis of whether particular people had suffered cerebral tissue damage because of the operation. The potential risk to which the appellant was subject therefore sprang from the fact that he was one of a class who had had a similar operation. It was not derived from any potential for epilepsy which existed because he had suffered tissue damage.

Although it may seem a fine point, I think the Tribunal in approaching the facts in this way fell into error. On the true construction of the phrase "latent physical disability" it was not entitled, in my opinion, to rely solely on the statistical evidence before it. It had no evidence before it of an existing condition in the appellant's body which had in it the potential for an epileptiform manifestation. No argument was put to me that it did. In the absence of such evidence, it was not entitled, in my view, to reach the conclusion it did.

It might be said, in answer to this, that, because of the existence of the statistical evidence, it could never be said that the appellant was "free from" a latent physical disability because, having had the operation, he might have cerebral tissue damage and therefore the potential might exist. There may be some force in this view as I have already pointed out if one were entitled to consider only potential risk based on statistics for the purpose of determining whether a person was free from a latent disability.

However, where one is considering the matter on the basis that a latent disability requires proof of an actual condition of the body from which the potentiality arises, I think the position is different. In that event I think the answer to using the words "free from" in this way lies in a consideration of the purpose of these physical and other standards. They are there to lay down requirements which are the basis of the medical examiner's assessment of an applicant. The examiner has to assess (inter alia) whether the applicant is free from a relevant latent physical disability. This will depend on the examiner's examination of the applicant's physical and mental condition and of his medical history. Based on this examination he is required to come to a conclusion whether the applicant is "free from" the disability. It is a matter of opinion. Is he free from it or isn't he? If, as I have indicated, he is bound to find that there exists in his body a condition (e.g. cerebral tissue damage) which has the potential to cause a physical disability, he, as an expert in the field, will either be able to say that in his opinion it exists or it doesn't. If he thought that there was only a 5% chance that it existed he could hardly say that in his opinion it existed. His opinion would be, in other words, that the applicant was "free" from it. If, on the other hand, the examining doctor thought it was more likely than not that it had occurred, based on his knowledge and experience (including of course knowledge of medical statistics) he would obviously be justified in saying that it did exist and that therefore he was "not free" from it. In other words, the requirement in A.N.O. 47.1.1.2 throws up a question for the medical examiner to answer with his own expert opinion in accordance with his knowledge and experience. I do not think it would be open to him to hide behind statistics and say that, because there was a 5% chance he might have it, he couldn't say the applicant was free from it.

It follows therefore that in my opinion the Tribunal has erred in law in construing the phrase "latent physical disability" in the relevant A.N.O's. If it had not misdirected itself in the way I have indicated it would in my view have been bound to find on the evidence that Mr May was free from any relevant physical disability and that the Delegates of the Minister were wrong in refusing the licences.

I should point out that in reaching this decision I have considered the terms of the other paragraphs of Physical Standards 1 and 2. I do not find any inconsistency between them and the approach I have adopted in construing A.N.O. 47.1.1.2. It is also relevant to note that A.N.O. 47.1.1.4, dealing with examination of the nervous system, requires (inter alia) that the applicant shall have no established medical history of epilepsy. This is referring to cases where an applicant has had an actual epileptiform manifestation. One prior instance of it however would seem to require the refusal of an application for a licence. (See Neal v. Secretary, Department of Transport (1980) 29 A.L.R. 350).

Having decided that the Tribunal has erred in law in the way I have indicated the question arises as to what order I should make.

It is possible, of course, that no neurosurgeon, even Mr Brownbill who performed the operation, could express a view as to whether or not Mr May had in fact suffered cerebral tissue damage. On the other hand a neurosurgeon may be able to. For instance it may be possible to adduce expert evidence that such damage is caused in all cases, or, it is more likely than not, that such damage is caused in all cases, and, on this basis, find that, on the evidence, Mr May does have cerebral tissue damage.

In these circumstances, I think the proper course, finding as I do that the Tribunal has erred in law, is to refer the matter back to the Tribunal to deal with it according to law in the manner I have indicated. The Tribunal will then be free to hear and consider further evidence.

I therefore make the following orders in this matter:-
(1) That the appeal be allowed.

(2) That the decision of the Administrative Appeals Tribunal be set aside.

(3) That the case be remitted to the Tribunal to be heard and decided again according to law in the manner I have indicated after the hearing of such further evidence as it may decide to receive.

(4) That the respondent pay the appellant's costs of this appeal.