McClymont and Civil Aviation Safety Authority
[2019] AATA 5429
•17 December 2019
McClymont and Civil Aviation Safety Authority [2019] AATA 5429 (17 December 2019)
Division:GENERAL DIVISION
File Number: 2019/0397
Re:Malcolm McClymont
APPLICANT
AndCivil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:17 December 2019
Place:Brisbane
The Tribunal affirms the decision under review.
................................[Sgd].......................................
Member D K Grigg
Catchwords
CIVIL AVIATION – conditional Class 2 Medical Certificate – medical standards – glaucoma condition – examination of medical evidence – applicant does not meet the relevant medical standard – likelihood of risk to air navigation safety – whether any safety relevant conditions can be imposed on the licence – decision of the respondent affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Civil Aviation Act 1988 (Cth)
Civil Aviation Safety Regulations 1998 (Cth)
Cases
Bolton and Civil Aviation Safety Authority [2013] AATA 941
Commins and Civil Aviation Safety Authority [2004] AATA 1330
Hall and Civil Aviation Safety Authority [2004] AATA 21
Judges and Civil Aviation Safety Authority [2012] AATA 587
Mulholland and Civil Aviation Safety Authority [2007] AATA 1952
Re Window and Civil Aviation Safety Authority [1999] AATA 525
Shi v Migration Agents Registration Authority [2008] HCA 31
REASONS FOR DECISION
Member D K Grigg
17 December 2019
BACKGROUND
This matter concerns the Civil Aviation Safety Authority’s (“CASA”) refusal to issue
Mr McClymont, the Applicant, with a Class 2 Medical Certificate as a result of his glaucoma condition.
In April 2014 Mr McClymont applied for an Aviation Class 2 Medical Certificate.[1]
[1] Exhibit 1, T Documents, T4, page 14, Application for Aviation Medical Certificate – Declaration dated 30 April 2014.
On 19 May 2014 CASA granted Mr McClymont a class 2 aviation medical certificate subject to the condition that “Reading Correction to be available whilst exercising the privileges of this license”. The certificate was valid until 30 April 2016.[2]
[2] Exhibit 1, T Documents, T6, pages 17 – 18, Letter from CASA to Mr McClymont enclosing aviation medical certificate class 2 dated 19 May 2014.
On 10 August 2015 Mr McClymont was examined by Dr Denis Stark, Ophthalmic Physician and Surgeon. Dr Stark reported that Mr McClymont has evidence of chronic simple glaucoma but that his total field loss is virtually zero. Dr Stark recommended that he continue using Xalacom drops to control his glaucoma.[3]
[3] Exhibit 1, T Documents, T7, page 19, Report of Dr Denis Stark dated 10 August 2015.
On 16 March 2016 Mr McClymont again applied for an aviation medical certificate class 2.[4]
[4] Exhibit 1, T Documents, T8, page 21, Application for Aviation Medical Certificate dated 16 March 2016.
On 13 May 2016 CASA granted Mr McClymont a class 2 aviation medical certificate with the condition that “Reading Correction to be available whilst exercising the privileges of this license”. The certificate was valid until 16 March 2018.[5] CASA also advised that it was placing him on audit to monitor the progress of his condition and, when his medical certificate was due for renewal in two years’ time, CASA would require a report from an Optometrist/Ophthalmologist regarding his glaucoma.[6]
[5] Exhibit 1, T Documents, T10, pages 23 – 24, Letter from CASA to Mr McClymont enclosing aviation medical certificate class 2 dated 13 May 2016.
[6] Exhibit 1, T Documents, T11, pages 25-26, Letter from CASA to Mr McClymont dated 13 May 2016.
On 16 February 2017 Mr McClymont suffered a heart attack and had an emergency stent inserted into a single coronary artery. Mr McClymont was diagnosed with a single vessel coronary artery disease.[7] Mr McClymont was then prescribed medication which he was advised to take daily until review in 12 months time.[8] Mr McClymont informed CASA of his heart condition and that he had removed himself from flying duties. Mr McClymont requested CASA’s advice on the process that would need to be followed for him to return to flying duties.[9]
[7] Exhibit 1, T Documents, T12, page 28, Report of Dr Ryan Markham, Interventional Fellow, dated 20 February 2017.
[8] Exhibit 1, T Documents, T13, pages 32 - 33, Medications prescribed 21 February 2017.
[9] Exhibit 1, T Documents, T14, page 34, Letter from Mr McClymont to CASA dated 2 March 2017.
CASA informed Mr McClymont that after coronary artery stenting CASA will not undertake a risk assessment for his returning to fly for a minimum of six months and at that time CASA would require a report from cardiologist.[10]
[10] Exhibit 1, T Documents, T15, pages 35 - 36, Letter from CASA to Mr McClymont dated 13 March 2017.
In September 2017 Mr McClymont underwent an exercise stress test and echocardiogram. Dr Damien Roper reported that there was no symptomatic evidence of reversible ischaemia and no evidence of inducible ischaemia.[11]
[11] Exhibit 1, T Documents, T16 – T17, pages 37 – 40, Exercise Stress Test and Exercise Stress Echocardiogram Report of 16 September 2017.
In October 2017 Mr McClymont was reviewed by Dr William Glasson, Ophthalmologist.
Dr Glasson conducted a monocular visual field test and reported that:[12]
(a)Mr McClymont’s visual field examination showed significant field loss, particularly in his left eye; and
(b)the pressures in his eyes are too high and that given his field loss and the appearance of his optic nerve he was arranging for Mr McClymont to see Dr Guy D’Mellow “semi-urgently [as] I feel he needs to proceed with bilateral trabeculectomies”.[13]
[12] Exhibit 1, T Documents, T18, page 41, Report of Dr William Glasson dated 25 October 2017.
[13] Trabeculectomy surgery is used to lower the intraocular pressure inside the eye: >
On 27 October 2017 Mr McClymont informed CASA that he had been seen by
Dr D’Mellow and that Dr D’Mellow had prescribed drops and performed a laser treatment on his left eye to assist with lowering the intra-ocular pressure (“IOP”).[14]
[14] Exhibit 1, T Documents, T20, pages 45 – 46, Letter from Mr McClymont to CASA dated 27 October 2017.
On 5 January 2018 Dr D’Mellow reported that Mr McClymont had significant peripheral loss in the left eye and partial arcuate superiority in the right eye.[15]
[15] Exhibit 1, T Documents, T28, page 67, Report of Dr Guy D’Mellow to CASA dated 5 January 2018.
On 19 January 2018 CASA informed Mr McClymont that based on the available evidence and the CASA guidelines on licences and certification for persons with glaucoma, “overlapping visual field defects are an unfavourable finding for certification. This is due to risks associated with a degraded visual field limiting awareness of internal and external visual cues”.[16]
[16] Exhibit 1, T Documents, T30, page 74,Email from CASA to Mr McClymont sent 19 January 2018; >
The CASA online guidelines regarding glaucoma conditions provide the following requirements for medical certification:[17]
Approach to medical certification
Based on the condition
· Adequate visual fields
o50+ degree monocular visual field testing. (Esterman binocular field not acceptable) Medmont binocular field test with fixation is acceptable
ono overlapping field defect
ono defect within 20 degrees of the visual axis
ototal field loss less than one quadrant
[17] on Treatment
· absence of side-effects from eyedrops
· contrast sensitivity normal with pilocarpine drops
Demonstrated Stability
· intraocular pressures well-controlled
· visual fields stable
…
Main aviation risks are acute glaucoma and insidious onset visual field loss
(emphasis added)
On February 2018 Mr David Prossor, Flight Instructor Grade 1, conducted a flight review of Mr McClymont. Mr Prossor reported that:[18]
(a)on his review, he did not detect any abnormality in Mr McClymont’s vision or flying;
(b)Mr McClymont only flies Day VFR (visual flight rules) in a single engine light aircraft and the pilot’s seating position in the plane is such that any pilot’s left vision will be restricted (due to a pillar structural member adjacent to the left hand seat of the aircraft); and
(c)in his opinion, there was “no valid reason why Mr McClymont should not be re-issued with his private pilot’s aviation medical certificate”.
[18] Exhibit 1, T Documents, T31, pages 75 – 76, Letter from Mr Prossor to CASA dated 5 March 2018.
On 3 July 2018 CASA provided Mr McClymont with an update that his case was complex and was being reviewed by the Complex Case Management (“CCM”) team.[19]
[19] Exhibit 1, T Documents, T39, page 124, Letter from CASA to Mr McClymont dated 3 July 2018.
Mr McClymont submitted to CASA that except for a slightly reduced field of view on his left side, he could detect no deficiency in his vision (other than what is corrected wearing glasses) and that he can still operate a plane safely.[20]
[20] Exhibit 1, T Documents, T40, pages 126 – 127, Submission from Mr McClymont to CASA undated.
The CCM review concluded that Mr McClymont’s vision impairment was unfavourable for certification because it resulted in a significant risk of collision with objects in the air due to significant overlapping field loss.[21]
[21] Exhibit 1, T Documents, T41, pages 129 – 133, CASA Complex Case Management Report dated 4 July 2018.
Following the CCM review CASA informed Mr McClymont that it had concluded that he did not meet the medical standards set out in Table 67.155 of the Civil Aviation Safety Regulations 1998 (“CASR”).[22]
[22] Exhibit 1, T Documents, T42, pages 134 – 137, Letter from CASA to Mr McClymont dated 4 July 2018.
Mr McClymont then attended an examination by Dr Sunil Warrier, Ophthalmologist, for further testing and review. Dr Warrier reported to CASA that:[23]
(a)he performed a Binocular Estermann visual field test on Mr McClymont which shows that he had “some superior loss but…still has more than 15 degrees of vision above the horizontal midline [and that] binocularly, his side to side vision is more than what is required and his visual acuity remains excellent”; and
(b)he would “leave [Mr McClymont’s] ability to fly in then [sic] hands of CASA”.
[23] Exhibit 1, T Documents, T50, page 145, Report of Dr Sunil Warrier dated 19 November 2018.
CASA requested Dr Warrier provide a copy of the computerised visual field plot and information on whether Mr McClymont:[24]
·had any overlapping field defects;
·had any defect within 20 degrees of the visual axis;
·total field loss.
[24] Exhibit 1, T Documents, T53, page 148, Email from CASA to Dr Sunil Warrier sent 30 November 2018.
The CCM team decided that the updated information from Dr Warrier did not indicate any improvement in the visual fields and that no new monocular visual field testing had been done since that performed by Dr Glasson in October 2017. As a result, the CCM recommended Mr McClymont’s Class 2 Medical Licence should be refused.[25]
[25] Exhibit 1, T Documents, T55, pages 151 – 156, Complex Case Management Report dated 17 December 2018.
On 21 December 2018 CASA decided to refuse to issue Mr McClymont with a Class 2 Medical Certificate on the grounds that (“CASA Decision”):[26]
(a)Mr McClymont’s medical conditions of glaucoma with significant loss of normal visual field and ischaemic heart disease, requiring coronary artery revascularisation treatment, does not meet the Class 2 Medical Standard; and
(b)no appropriate safety conditions could be imposed to adequately mitigate the risks posed by Mr McClymont’s eye disease.
[26] Exhibit 1, T3, pages 8 – 13, Notice of refusal to issue Class 2 Medical Certificate dated 21 December 2018.
On 18 January 2019 Mr McClymont applied for a review of the CASA’s decision by this Tribunal. Mr McClymont submits that while he has some loss of peripheral vision it is not of any measurable significance and poses no safety issues.[27]
[27] Exhibit 1, T Documents, T1, pages 1 – 6, Application for Review dated 18 January 2019.
A refusal by CASA to grant a certificate is a reviewable decision and an application may be made to the Tribunal for review.[28] The Tribunal has jurisdiction to review the CASA Decision pursuant to section 25 of the Administrative Appeals Tribunal Act 1975.
[28] Sections 31(1)(b) and 31(2), Civil Aviation Act 1988 (“CA Act”).
In addition to Mr McClymont, evidence was given at the hearing by:
(a)Dr David Fitzgerald, Senior Medical Officer at CASA;
(b)Mr Tony Gibson, Optometrist; and
(c)Mr David Prossor, Flight Instructor.
Doctors Fitzgerald and Gibson also provided medical reports.
Mr Prossor assisted Mr McClymont as an advocate at the hearing.
LEGISLATIVE BACKGROUND
CASA is obliged, by virtue of section 9A of the Civil Aviation Act 1988 (Cth) (“CA Act”), to regard the safety of air navigation as the most important consideration in the exercise of its powers and the performance of functions.
In Shi v Migration Agents Registration Authority [2008] HCA 31, Keifel J, as her Honour then was, explained the role of the Tribunal as follows (citations omitted):
“[134] Section 43(1) expresses clearly that the Tribunal may exercise all of the powers and discretions conferred upon the original decision-maker. The Tribunal has been said to stand in the shoes of the original decision-maker, for the purpose of its review. In Minister for Immigration and Ethnic Affairs v Pochi Smithers J said that, in reaching a decision on review of a decision of the original decision-maker, the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person…”
(emphasis added)
Pursuant to the CA Act, a person must not perform any duty that is essential to the operation of an Australian aircraft during flight times if the person does not hold a current “civil aviation authorisation” that authorises the performance of that duty.[29] A “civil aviation authorisation” is defined in section 3 of the CA Act to include a certificate under the regulations and includes a medical certificate.
[29] Section 20AB(1), CA Act.
A person holding a civil aviation licence is required to hold a current medical certificate appropriate to the class of licence. Regulation 61.410 of the CASR provides the holders of private pilot licenses, such as Mr McClymont, must hold a class 1 or Class 2 Medical Certificate.
Part 67 of the CASR governs the issuing of medical certificates and regulation 11.056 allows the issue of a medical certificate subject to “any condition that CASA is satisfied is necessary in the interests of the safety of air navigation”.
Pursuant to the provisions of regulation 67.180(1) of the CASR, CASA must issue a medical certificate to an applicant who meets the requirements of regulation 67.180(2).
Relevantly here, pursuant to regulation 67.180, in order for a medical certificate to be issued Mr McClymont must meet the “relevant medical standard”, or, to the extent to which the applicant does not meet that standard, is not “likely to endanger the safety of air navigation”.[30]
[30] Regulation 67.180(2)(e), CASR.
The relevant medical standard for a Class 2 Medical Certificate is Medical Standard 2 which is the medical standard set out in Table 67.155 of the CASR.[31] Table 67.155 provides relevantly as follows:
[31] Regulation 67.010, CASR.
Item Criterion Abnormalities, disabilities and functional capacity 2.1 Has no safety-relevant condition of any of the following kinds that produces any degree of functional incapacity or a risk of incapacitation:
…
(b) a disability or disease (active or latent);
…2.2 Has no physical conditions or limitations that are safety-relevant Visual requirements 2.31 Eyes and their adnexae function normally 2.32 Is not suffering from any safety-relevant pathological condition (either acute or chronic), nor any sequelae of surgery or trauma 2.33 Has normal fields of vision (emphasis added)
Regulation 67.010 of the CASR defines medically significant condition as including, relevantly:
(a)any of the following (no matter how minor):
(i)any illness or injury;
(ii)any bodily infirmity, defect or incapacity;
(iii)any mental infirmity, defect or incapacity;
(iv)any sequela of an illness, injury, infirmity, defect or incapacity mentioned in subparagraph (i), (ii) or (iii)
(emphasis added)
Regulation 67.015 of the CASR provides that a medically significant condition is “safety-relevant” if it “reduces, or is likely to reduce, the ability of someone who has it to exercise a privilege conferred or to be conferred, or perform a duty imposed or to be imposed, by a licence that he or she holds or has applied for”.
In Re Window and Civil Aviation Safety Authority [1999] AATA 525 (“Re Window”) Deputy President Forgie said at paragraph 60:
"… Having regard to the need to protect public safety while having regard to a person's entitlement to pursue his or her ambitions, we consider that the word "likely" means a "substantial or real and not a remote chance". That is not a matter which can be assessed on statistical likelihood and certainly does not mean “more likely than not”, “odds on” or “a more than 50% chance of a thing happening”. To adopt those latter three meanings would, in our view, be to place too little weight on the protection of public safety and too much on an individual's entitlements.”
(emphasis added)
In Hall and Civil Aviation Safety Authority [2004] AATA 21 (“Hall”) Deputy President RP Handley said at paragraph 45:
“As the Tribunal stated in Re Windows (supra), the assessment of what is "likely" cannot be based on statistical likelihood. In this context, it is a matter of weighing up the requirements of air safety with the applicant's interest in the safe exercise of the privileges and performance of the duties associated with holding a private pilot's licence. … When issues of air safety are under consideration, a small risk may be sufficient to trigger the need to take appropriate action to address the risk. This was the case here.”
(emphasis added)
The CASR do not specifically prescribe any particular level of risk. The Tribunal noted this in Mulholland and Civil Aviation Safety Authority [2007] AATA 1952, and, after referring to Re Window and Hall, said:
“[65] Whether Mr Mulholland has a high risk or a low risk of losing consciousness while flying an aircraft is simply irrelevant. The fact is that he has a risk of incapacitation which is significantly different to the remainder of the aviator population who do not suffer from syncope or any other safety-relevant medical condition. In our view the risk of incapacitation is real and not an imaginable or fanciful risk nor is it a remote risk.”
ISSUES FOR THE TRIBUNAL
The issues for determination by the Tribunal are:
(a)does Mr McClymont meet the medical standard for the issue of a Class 2 Medical Certificate as set out in Table 67.155 of the CASR; if no,
(b)is the extent to which Mr McClymont fails to meet the relevant medical standard “likely to endanger the safety of air navigation” within regulation 67.180(2)(e)(ii) of the CASR; and, if yes,
(c)can any conditions be imposed under regulation 11.056 of the CASR which would ameliorate the threat to the safety of air navigation.
DOES MR MCCLYMONT HAVE AN ESTABLISHED MEDICAL HISTORY OR CLINICAL DIAGNOSIS OF A SAFETY-RELEVANT CONDITION: ITEM 2.1, TABLE 67.155
CASA contends that Mr McClymont does presently have a safety-relevant condition (a visual field deficit) and that he does not meet the requisite medical standard and therefore the refusal to grant a Class 2 Medical Certificate is appropriate.
The term “condition” is not defined in the CASR.
However, as noted by Deputy President PE Hack SC in Bolton and Civil Aviation Safety Authority [2013] AATA 941 (“Bolton”), at [28]:
“Given that “safety-relevant” is defined in reg 67.015 of the CASR by reference to “a medically significant condition” it must be used in the sense of a state of health.”
Mr Gibson, Optometrist, was engaged by CASA to consider the Mr McClymont’s vision test results and to consider the safety risks association by Mr McClymont’s vision status.
Mr Gibson provided a report on 4 April 2019 and gave evidence at the hearing.
Mr Gibson reported that based on the medical test results available, Mr McClymont has:[32]
(a)overlapping visual field loss in each eye but much worse in the left eye;
(b)bilateral defects within 20° of the visual axis;
(c)a severely compromised visual field in the Right central superior quadrant; and
(d)unknown visual field losses beyond 40° from fixation.
[32] Exhibit 7, Report of Mr Tony Gibson dated 4 April 2019.
It is not in dispute that Mr McClymont has an established medical history and the following relevant medical conditions:
(a)Glaucoma; and
(b)Ischaemic heart disease.
CASA considers that Mr McClymont’s ischaemic heart disease is now stable on medication and is not relevant for the purpose of this review.
Mr McClymont sought to rely on the report of Dr D’Mellow. Dr D’Mellow reported:[33]
"The retinal peripheries were flat though there was a superior chorioretinal scar in the left eye from his previous retinal detachment".
"He has a 0.8 cup:disc ratio in the right eye, the left shows a more damaged disc with a 0.9 cup:disc ratio with minimal remaining rim".
"Computerised perimetries were done and show significant loss in the left eye and a partial arcuate superiorly in the right".
[33] Exhibit 1, T Documents, T28, page 67, Report of Dr Guy D’Mellow dated 5 January 2018.
However, both Dr Fitzgerald and Mr Gibson gave evidence that Dr D’Mellow did not perform the appropriate test for CASA’s purposes (discussed further below).
The medical evidence demonstrates that Mr McClymont does not satisfy the requirements in items 2.1, 2.2, 2.31, 2.32 and 2.33 in Table 67.155 of the CASR, and therefore
Mr McClymont does not meet the medical standard by virtue of his vision loss.
It is not in dispute that Mr McClymont’s glaucoma causes some functional incapacity. What is in dispute is whether the condition impacts on the safe ability of Mr McClymont to fly a plane.
IS THE EXTENT TO WHICH MR MCCLYMONT FAILS TO MEET THE RELEVANT MEDICAL STANDARD “LIKELY TO ENDANGER THE SAFETY OF AIR NAVIGATION” WITHIN REGULATION 67.180(2)(E)(II) OF THE CASR?
CASA’s Submissions
CASA’s principal submission is that, based on the medical evidence, Mr McClymont’s bilateral visual field loss is such that:
(a)he has bilateral defects within 20 degrees of the visual access;
(b)he has severely compromised visual field in the Right central superior quadrant;
(c)he has unknown visual field losses beyond 40 degrees from fixation;
(d)he fails to meet medical standards 2.1(b), 2.2, 2.31, 2.32 and 2.33; and
(e)there are no suitable conditions which could be placed on his certificate.
Evidence
Mr David Prossor
Mr Prossor is a Flight Instructor Grade 1. Since 2000, he has conducted approximately 266 flight reviews and has been flying since 3 May 1964.
On 14 February 2018 Mr Prossor conducted a flight review with Mr McClymont.
Mr Prossor told the Tribunal that in his assessment:[34]
“Mr McClymont had no issues at all in landing…
I asked you to do various manoeuvres. We did some storming manoeuvres, we did some steep turns, we did some under the hood work where you’re limited to flying with a hood over the gentleman’s face so that he can only fly on the basic instruments in front of him…I found he had no issues with that…
… We did a practice forced landing, and I was happy that he could put the aeroplane on the ground in a clear patch there. We also conducted what is called an engine failure after take-off.”
[34] Transcript, page 7, lines 12, 21 – 23, 28, 30 – 33.
In Mr Prossor’s opinion:[35]
“While Mr McClymont may have less than perfect vision in his left eye he has shown…in a practical field check that he is capable and able to conduct safe flight and that his pre existing flight experience would make up for any perceived shortcomings in his ability to fly safely.”
[35] Exhibit 1, Statement of Mr David Prossor dated 1 June 2019, page 4.
Mr Prossor says he did not notice any deficiencies that may have been caused by his vision during that flight, although he acknowledged that he did not take any assessment or measurement of Mr McClymont’s visual field at the time of the test.
Mr Malcolm McClymont
Mr McClymont said the testing conducting by Flight Instructor David Prossor involved:
(a)over five landings at two different airstrips;
(b)different aircraft configurations;
(c)carrying out stalls and recovery, and steep turns onto prescribed headings without gaining or losing excessive altitude;
(d)undergoing 0.2 hours of flight under simulated instrument conditions where he was required to turn onto prescribed headings and climb and descend to prescribed altitudes while flying solely by reference to the aircraft’s instruments; and
(e)his vision outside the aircraft being blocked by special goggles.
Mr McClymont submitted that, in relation to his current flying ability, the testing conducted by Mr Prossor showed that:
(a)he could safely land the aircraft on every landing without any intervention;
(b)his “ability to judge approach angle, flare height and rate and the actual touchdown were unimpaired by my vision defects despite Dr Fitzgerald and Mr Gibson saying I would be unable to carry out those tasks.”[36];
(c)the manoeuvres undertaken would not have been possible if his vision impeded my view of the instruments;
(d)he had “no deficiencies in [his] abilities attributable to my eyesight” and, therefore
(e)there was “no likelihood of such an accident or incident suddenly occurring”.
[36] Applicant’s Final Submission dated 22 September 2019.
Mr McClymont contends that more weight should be given to Flight Instructor Prossor’s assessment because “the flight review was conducted under actual flying conditions and included simulated emergencies such as engine failure after take-off, and forced landing. Flight Instructor Prossor also required me to do a flapless landing which requires a faster, flatter approach and consequent different landing flare with higher final nose attitude. To not give adequate weight to these tasks that were carried out in real circumstances while placing heavy emphasis on vision simulations by Mr Gibson is highly and unrealistically selective on the part of CASA”.[37] Mr McClymont says that greater weight should not be given to Dr Fitzgerald over Mr Prossor given that Mr Prossor is qualified to assess a pilot’s capability to safely carry out his duties.
[37] Applicant’s Final Submission dated 22 September 2019.
Mr McClymont submits that his glaucoma condition is not likely to have a further debilitating onset of affliction (i.e. there is no chance of a sudden change to his exiting level of peripheral vision loss) while he is flying. In this regard he seeks to distinguish his case from those described in the authorities referred to by CASA, such as Mulholland and Civil Aviation Safety Authority [2007] AATA 1952, which relate to the potential for a person to have another stroke or heart attack. Mr McClymont says “… there is no comparison between a pilot who occasionally loses consciousness while flying, and myself with a known but not rapidly progressing vision defect. The example quoted is a totally irrelevant risk comparison to my own case”.[38]
[38] Applicant’s Final Submission dated 22 September 2019.
Mr McClymont contends that CASA assume “that at some stage while I am flying my vision will suddenly become further impaired. They do not say how or why this would happen. Glaucoma is a disease of very slow, often imperceptible change. It is not known to cause sudden vision loss of the kind CASA are speculating about”.[39]
[39] Applicant’s Final Submission dated 22 September 2019.
A sudden onset of deterioration in vision is not CASA’s concern. The concern is with what Mr McClymont can/may not see based on his test results from 2017.
The Tribunal agrees that those cases are distinguishable based on the facts, however the general principle is the same. The CA Act does not prescribe any specific level of risk. The cases have established that the “risk” whatever that is, must be more than remote. The risk is directed to the likelihood that something may occur which endangers the safety of air navigation. That risk could include a failure to see something.
Mr McClymont relies on the fact that his IOP have remained stable, the progression of glaucoma is slow, he maintains low IPO, and is regularly monitored. The Tribunal acknowledges that is the case but that is not the concern. The concern is the degree to which his current level of vision carries a risk.
Mr McClymont said that in Commins and Civil Aviation Safety Authority [2004] AATA 1330 (“Commins”) the Tribunal accepted that the use to which a person’s licence is put is relevant to assessing the likelihood of a given risk presenting itself. Mr McClymont says that he only flies “a low performance Cessna 172 in remote areas carrying out stock and water inspections on my own isolated cattle property and travelling to other remote properties to carry out repairs to aircraft in my capacity as a Licenced Aircraft Maintenance Engineer”[40] and that therefore any safety risk resulting from his glaucoma is remote.
[40] Applicant’s Final Submission dated 22 September 2019.
Commins
was concerned with a stay application and was not a final hearing on the matter. In that case a final determination of whether Mr Commins would be issued a Class 2 Medical Certificate was yet to be determined. As a result, the Tribunal was weighing the risks associated with his continuing to fly pending the hearing with what prejudice he would suffer if CASA’s decision was not stayed. It is not directly applicable to
Mr McClymont’s case.
Mr McClymont relies on the fact that he
recently passed a Commercial Vehicle Drivers Health Assessment for the purpose of retaining a Heavy Vehicle Drivers Licence.
Mr McClymont says the medical standard used for this licence is the same medical standard that CASA uses for the issuance of its basic Class 2 Medical Certificate.
Mr McClymont accepts that his peripheral vision is impaired but not totally absent. However, he says the impaired areas of vision, which coincide with fixed obstructions in the aircraft and the visor of his cap, can be overcome by head and eye movements, and regular scanning.
Mr Prossor gave evidence that there are one-eyed pilots and pilots with defective colour vision that are permitted to hold a Class 2 Medical Certificate. Mr McClymont says his potential impairment is lower than a one eyed pilot as both of his eyes still function, albeit with some peripheral loss. Further, he says:[41]
“CASA also allows pilots with defective colour vision to fly at night and under the Instrument Flight Rules in high performance aircraft. This indicates that they accept some vision defects for what can be the most demanding classes of flying operation, yet they consider my vision defects too serious for relatively benign day Visual Flight Rules operations in low performance aircraft.”
[41] Applicant’s Final Submission dated 22 September 2019.
Mr McClymont disagrees that:[42]
“… issuing me with a Class 2 Medical Certificate would endanger the safety of air navigation. The main use of my pilot’s licence is to check aircraft I have worked on, property inspections, and to fly to customers aircraft in an area bounded by, but not excluding, Mt Isa, Emerald and Charleville. I am the sole Licenced Aircraft Maintenance Engineer in this area since the closure of Longreach Aircraft Maintenance at Longreach airport.
…
The risk of progression of the glaucoma is slight while my Intra Ocular Pressures remain controlled.
The current deterioration has not impaired my flying performance as evidenced by my flight review with Flight Instructor Prossor.
There is no evidence that I am at a high risk of further sudden impairment.”
[42] Applicant’s Final Submission dated 22 September 2019.
In conclusion Mr McClymont says he has demonstrated that he is a responsible pilot by removing himself from flight duties and notifying CASA when he had a heart attack and essentiality that he should be trusted to be able for himself whether he can safely navigate an aircraft.
Medical Evidence
Doctor David Fitzgerald
Doctor Fitzgerald is a consultant occupational physician, Senior Medical Officer at CASA, a Fellow of the Australasian Faculty of Occupational and Environmental Medicine and holds a Diploma of Aviation Medicine and an Australian Certificate of Civil Aviation Medicine.
As part of his role at CASA, Dr Fitzgerald reviewed CASA’s decision to refuse to issue with Mr McClymont with a Class 2 Medical Certificate.
Doctor Fitzgerald prepared a report for the purpose of the hearing which is dated 5 May 2019.[43] Dr Fitzgerald also gave evidence at the hearing.
[43] Exhibit 2, Report of Dr David Fitzgerald, Senior Aviation Officer dated 5 May 2019.
Doctor Fitzgerald explained that:
(a)“the primary manifestation of glaucomatous damage is in the peripheral fields”.[44]
[44] Transcript, page 13, lines 12 – 13.
(b)the relevant clinical practice guidelines on glaucoma provide as follows:[45]
[45] Exhibit 2, Report of Dr David Fitzgerald, Senior Aviation Officer dated 5 May 2019.
“5. CASA's clinical practice guidelines on glaucoma/ ocular Hypertension, defines adequacy of visual fields as: no overlapping field defect, no defect within 20 degrees of the visual axis, and total field loss less than one quadrant. Applicants should provide results of computerised visual field plot: 50+ degree monocular visual field testing. (Esterman binocular field test is not acceptable) Medmont binocular field test with fixation is acceptable. A copy of the guidelines is attached to my statement and marked 'DF2' for identification.
6. The International Civil Aviation Organization (ICAO) Manual of Civil Aviation Medicine (Third Edition - 2012) notes that:
11.10.13 Applicants whose ocular pressures are well controlled with medications which do not produce serious side effects and whose visual acuity and visual fields are satisfactory may meet the visual requirements of Annex 1 and can be granted a Medical Assessment. A copy of the extract is attached and marked 'DF3' for identification.”
(c)The guidelines are indicative of unfavourable conditions for licence certification; however, CASA still considers an individual’s circumstances;
(d)a person with glaucoma and visual field loss:[46]
[46] Exhibit 2, Report of Dr David Fitzgerald, Senior Aviation Officer dated 5 May 2019.
“8. … is considered to have an established medical history or clinical diagnosis of a safety-relevant pathological condition of the eye, and therefore does not satisfy the criteria in 2.31, 2.32 and 2.33 of the table at regulation 67.155 of the CASR.”
(e)Mr McClymont has:[47]
[47] Transcript, page 14, lines 29 – 34.
“quite a significant loss in the left eye, almost sort of the total peripheral field … The right field also had significant loss superiorly to one side and when you take both of those together there is overlapping field loss and the peripheral loss is also, you know, within 20 degrees of the horizontal axis.”
(f)in relation to Mr Prossor’s comments regarding the structure of the plane and the fact that all pilots would have restricted vision (see para 15 above), a person with normal vision could look around and see whatever object was there but a person with deficient vision may not;
(g)although Mr McClymont “demonstrated some ability in his flight review [with Mr Prossor] to land in those circumstances, I don’t feel that given the pathology we know about that it would necessarily give a reasonable confidence that the impairment is not likely to give a potential risk to safety in the future”[48] and “whilst, yes, you’ve done five landings and so forth in a flight test, it doesn’t mean you don’t have a visual field loss in another circumstance that might impair you in terms of the judgement of altitude and so forth”;[49]
(h)in relation to the fact that Mr McClymont was able to obtain a medical certificate for a motor vehicle licence, it is not relevant to a pilot’s licence as the applicable standards are different;
(i)Mr McClymont does not have the ability to detect things as well as someone with double vision;
(j)
The fact that there may be some colour blind or one-eyed pilots does not address whether Mr McClymont has a safety relevant medical condition. Even if
Mr McClymont was only being assessed based on his right eye, he would still meet the unfavourable outcome “because the extent of his field loss in the right eye is not normal”.[50] People with one eye are required “to have full visual fields with the remaining eye”;[51] and
(k)The risk associated with Mr McClymont’s visual field loss includes collision with other traffic (or birds) and on landing because judging height is a matter of peripheral vision, and it may not be easy for Mr McClymont to focus on the end of the runway.
[48] Transcript, page 15, lines 42 – 45.
[49] Transcript, page 21, lines 31 – 34.
[50] Transcript, page 39, lines 6 – 7.
[51] Transcript, page 40, lines 1 – 2.
In Dr Fitzgerald’s opinion, having considered the test results available and various medical reports (referred to above):
(a)Mr McClymont has a safety relevant condition as per items 2.1, 2.2, 2.31, 2.32 and 2.33 of Table 67.155 of the CASR;
(b)Mr McClymont’s glaucoma condition with significant field loss could adversely affect his ability to safely exercise the privileges of a pilot licence, such as in relation to the following:
·Ongoing and insidious loss of additional visual field;
·Collision with fixed and moving objects whilst operating the aircraft on the ground;
·Collision with fixed and moving objects whilst operating the aircraft in the air.
·Impairment in judging perspective during the landing flare
Dr Fitzgerald concluded that:
(a)there is a real and substantial risk that Mr McClymont’s condition may cause restrictions in his visual fields such that he may have limited awareness of internal and external visual cues; and
(b)restrictions in his vision may place Mr McClymont and any passengers in his aircraft at “serious and potentially grave risk”.
Mr Tony Gibson
Mr Gibson reported that:
(a)The report of Dr Stark is of limited application because, primarily, conclusions on overlapping field vision would not be evidenced on a binocular field test; and
(b)Dr Warrier did not perform the appropriate visual field test as required by CASA’s guidelines. The Esterman Test conducted by Dr Warrier has limited application and is no longer accepted by CASA;
(c)Dr Glasson is the only doctor that performed the appropriate visual field tests on 25 October 2017;
(d)
he used the monocular visual field tests results performed on Mr McClymont on
25 October 2017 by Dr Glasson and combined them (using a technique and method developed by researchers in the field) to get a “combined integrated binocular view”[52] which showed that “the better field of the Right eye masks the significant losses of the Left eye but there is an area of common prominent field loss in the superior right temporal arcuate field”;[53]
[52] Transcript, page 50, line 42.
[53] Exhibit 7, Report of Mr Tony Gibson dated 4 April 2019.
(e)in his opinion:[54]
[54] Exhibit 7, Report of Mr Tony Gibson dated 4 April 2019.
“Over 50% of the superior hemifield in [Mr McClymont’s] central 40° field is compromised.
…
Scanning with eye and head movements is a common adaptation to restricted visual field but induces compromised capacity through errors and longer detection times.”
(f)He prepared graphic pictorials in order to demonstrate what Mr McClymont can and cannot see (see Annexure A);
(g)acknowledged that some of the graphic pictorials he prepared were developed with some artistic licence on his part, but that, even with that limitation the simulations he prepared demonstrate:[55]
[55] Exhibit 7, Report of Mr Tony Gibson dated 4 April 2019.
· “the potential possibility of missing detail at an initial glance
· the subtle compromising effect of visual field loss
· the likelihood that the confusion zones may not be recognised by the pilot and be reported an unaffected
The effect of the losses might:
· create confusion from misread instruments and charts
· lead to delayed or absent recognition of other external aircraft traffic and visual navigation target
· be worse with blurred near vision …
· cause some objects to disappear and suddenly reappear in the field
· be worse in high stress situations like takeoff, landing and emergencies
· have the potential to contribute to pilot judgment error
· be partially compensated for in the real world by head and eye movement scanning
…
This would have potential implications for safe operational performance of a pilot with this visual impairment.”
(h)He concluded that “Mr McClymont’s visual field loss has demonstrated asymmetrical monocular field losses which are significant and a breach of the CASR regulations for all pilot classes”;[56]
(i)Mr McClymont can read because he has good central acuity remaining in each eye but “what he doesn’t see is when he is looking straight ahead, the points that are affected by the grey scale are where his instantaneous vision is most compromised …”;[57]
(j)A different criterion is used when assessing an ability to fly than an ability to drive;
(k)The Estermann test is “a gaze test, it’s not a field test” and is commonly used in driving tests and “It is not sensitive enough to be a good indicator of how you can perform a complicated task like flying an aeroplane”;[58] and
(l)
It is not surprising that Mr McClymont performed well on his practical test with
Mr Prossor, however, “the problem is when an object is placed in a part of his field that is affected he would not be aware that it’s there”.[59]
[56] Exhibit 7, Report of Mr Tony Gibson dated 4 April 2019.
[57] Transcript, page 51, lines 12 – 13.
[58] Transcript, page 52, lines 3 – 4.
[59] Transcript, page 52, lines 24 -25.
Mr McClymont put to Mr Gibson that the images he created were “highly misleading” and says that “Mr Gibson is not a pilot and is applying fixated vision to all scenarios”.[60]
[60] Applicant’s Final Submission, dated 22 September 2019.
Mr McClymont referred to the decision of Judges and Civil Aviation Safety Authority [2012] AATA 587 (“Judges”), where Mr Gibson was called as an expert witness. In Judges the Tribunal found that some of the images prepared by Mr Gibson did not represent a reliable depiction of the applicant’s vision on the grounds that the applicant “says as such, and we have found him to be an honest witness. Secondly, Mr Gibson acknowledged that in preparing the figures he has made certain assumptions”. Mr Gibson told the Tribunal:[61]
[61] Transcript, page 62, lines 28 – 39.
“I understand the criticism from Mr Judges and I sort of rethought things after that and we’ve had some research projects come out since then that - and especially that application, which really is a very neat way of showing us, you know, what actually happens. Nobody sees me just superimposing a greyscale of black on top of an image is - was done as a sort of indicator to the panel as to the effect of a field loss and Mr Judges said, well, it doesn’t look anything like the Chairman said, well, I’m not going to use it as evidence, thanks for the illustration but we’re not going to submit it as evidence and so that’s - that was what happened with it and what I’ve done now is a better version of it, in my view. We don’t use the greyscale overlap, you know, simulation. We use the greyscale to indicate where the vision is affected and it’s subtle, the effect is subtle.”
and:[62]
“Mr McClymont has the impression that he has a problem with his vision in the upper left quadrant and the only results that I reported on are the results of his field test - his monocular field test dated 25th of the 10th 2017 and they show a loss of field loss of vision in the left eye superior and inferior and in the right eye it’s superior right arcuate field loss, so when you combine the two images together - which is what I attempted to do with the analysis, his worse vision is to the upper right field, because both eyes are affected there. Now, Mr McClymont is of the opinion that it is his upper left field that is affected but that is a common misconception we find with patients who say “I’m having trouble with vision from my left eye” when in fact the left field is affected. So I think there’s a bit of confusion about what part of the field is affected and which eye is affected. Both eyes see, you know, 180 degrees or right around both eyes and the two fields are linked together but in his case the left eye has damage and there is not much vision superiorly and in the right eye there is damage to the nerve creating a superior arcuate field loss in the right upper field.
…
the field tests are what you see when you’re looking out of your eyes and the most affected loss in both eyes is the upper right field and you see it - you feel it’s the left but it’s - the facts are it’s the right, superior right field, and that’s what the greyscale superimposition thing shows. That’s the bit that’s affected most with the two eyes combined together.
Mr McClymont: I can’t correlate what I see, and I’m the one behind these eyeballs. I cannot correlate - - -?‑‑-
Mr Gibson:Yes, and I’m not surprised at - I’m not surprised at that at all because that’s a very common reaction for people, they - you know, we do these tests on lots of people for driving, and so on, and a lot of people say, but I see better than that, and the facts are what you think you see, and what you actually see are two different things.”
[62] Transcript, page 50, lines 9 – 24; page 57, lines 42 – 47; page 58, lines 4 - 9.
Mr Gibson’s evidence regarding his images was untested in that no evidence from someone of equal qualification was introduced critiquing his technique or his findings. The Tribunal acknowledges that Mr Gibson has been forthcoming in acknowledging his assumptions and that a degree of artistic licence has been adopted in developing the images. The images were clearly developed to assist the Tribunal with a better understanding of what Mr McClymont’s loss of vision might look like. While the Tribunal appreciates the attempts made by Mr Gibson, the Tribunal is mindful that they may not be accurate given the technique used. This is not to criticise the technique used but merely to be mindful of what weight if any, should be given to those images. Given the specialist evidence available from Dr Fitzgerald and Mr Gibson, the Tribunal does not need to rely on these images to form its conclusion. The Tribunal points out that, other than in relation to the images prepared, the Tribunal in Judges did not dismiss or discount Mr Gibson’s opinion.
The Tribunal notes Mr Gibson’s acknowledgement that the images in his report are only representative of what Mr McClymont’s impaired vision based on his application of the known data.
Conclusion on Risk
It is apparent from the medical evidence that Mr McClymont’s condition places him, and potentially others, at a more than remote risk. The Tribunal notes that Mr McClymont presented no medical evidence or opinion to contradict the opinions of Dr Fitzgerald or
Mr Gibson. No medical evidence was led by Mr McClymont. The experts’ opinions are essentially unchallenged. Both Dr Fitzgerald and Mr Gibson came to the same conclusion regarding the seriousness of Mr McClymont’s vision impairment and the associated risk to safe air navigation.
While Mr Prossor expressed the view that Mr McClymont’s condition posed little risk,
Mr Prossor is not medically qualified and cannot give a qualified opinion on the risks associated with someone with Mr McClymont’s visual impairment.
Although Dr D’Mellow did not perform the appropriate test for CASA’s purposes,
Dr D’Mellow did specifically note that Mr McClymont has “significant loss in his left eye”.
The evidence of Dr Fitzgerald and Mr Gibson is consistent as follows:
(a)Mr McClymont may have been able to obtain a medical licence to drive but this has no bearing on the standards required for the issuance of a Class 2 Medical Certificate by CASA;
(b)Mr McClymont has significant field loss in both eyes;
(c)Mr McClymont passed his assessment with Mr Prossor but this does not mean the risk is remote;
(d)Mr McClymont’s visual field loss may result in collision with other traffic (or birds) and present difficulties on landing; and
(e)Mr McClymont may not be aware of the extent to which he cannot see things of relevance to air safety.
CASA’s overarching obligation is to regard the safety of air navigation as the most important consideration in the exercise of its powers and the performance of its functions. To this end, the Tribunal finds that the extent to which Mr McClymont fails to meet the Medical Standard is likely to endanger the safety of air navigation.[63]
[63] CASR r 67.180(2)(e)(ii).
The next issue for determination is whether any condition, such as the Safety Pilot Condition, can be imposed which would ameliorate the threat to the safety of air navigation.
IMPOSITION OF A SAFETY RELEVANT CONDITION
The only safety relevant condition proposed was that of a safety pilot. Mr Gibson says
Mr McClymont should not fly alone, and that a well-trained co-pilot “might mitigate this risk but would need to be well prepared”.During the hearing Mr Gibson:
(a)acknowledged that he is not a pilot and that whether a safety-pilot condition would appropriately ameliorate the risk posed, was a decision for CASA;
(b)said he was “not in a position to judge”;
(c)then said “I’m qualified to that opinion but I don’t know what the regulations are and what CASA’s attitude [is] - I said might mitigate this risk but would need to be well-prepared”;[64]
(emphasis added)
(d)indicated that any impairment in terms of flight path and control of the aircraft might be subtle and potentially missed by a safety pilot “unless he was aware of the fact that there were some limitations to his vision that the second pilot may not be aware that Mr McClymont and miss some detail”.[65]
[64] Transcript, page 63, lines 42 – 44.
[65] Transcript, page 49, lines 23 – 25.
In Mr Prossor’s opinion a co-pilot is not necessary.
In Dr Fitzgerald’s opinion “the nature of [Mr McClymont’s] defective vision is such that it will not necessarily be apparent to the second pilot if and when he would need to take control of the aircraft” and that, therefore, the “imposition of a safety pilot condition upon his medical certificate would not adequately mitigate the risks to air safety posed by his abnormal field of vision”.[66]
[66] Exhibit 2, Report of Dr David Fitzgerald dated 5 May 2019.
Dr Fitzgerald, in addition to being qualified in aviation medicine, is also a pilot of many years. Dr Fitzgerald’s opinion regarding whether a safety condition can be imposed is therefore the preferred opinion.
Mr McClymont is prepared to have conditions applied to his licence, if necessary such as conditions that preclude him from night flying and aerobatic flying. However,
Mr McClymont acknowledged at the hearing that a safety pilot condition would not be practical given that he resides remotely from other pilots.In the circumstances, particularly having regard to CASA’s overarching obligation to regard the safety of air navigation as the most important consideration in the exercise of its powers and the performance of its functions, the Tribunal finds that there is no safety relevant condition would could be imposed which would ameliorate the risk posed.[67]
[67] Mulholland and Civil Aviation Safety Authority [2007] AATA 1952, at [66]-[67].
DECISION
The Tribunal finds that Mr McClymont fails to meet the applicable medical standard and that there is a likelihood that he will endanger the safety of air navigation, and that there is no appropriate Safety Pilot Condition which could be imposed.
The decision under review is affirmed.
I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
.........................[Sgd].........................................
Associate
Dated: 17 December 2019
Date of hearing:
3 September 2019
Date last submissions received: 23 September 2019 Applicant: In person Advocate for the Applicant: Mr D Prossor Advocate for the Respondent: Ms C Swain
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