Mills v Director General, Department of Transport

[2000] NSWADT 61

CITATION:	Mills -v- Director General, Department of Transport [2000] NSWADT 61
DIVISION:	General Division
PARTIES:	APPLICANT Allan George Mills RESPONDENT Director General, Department of Transport
FILE NUMBER:	003098
HEARING DATES:	15/05/00
SUBMISSIONS CLOSED:	05/15/2000
DATE OF DECISION:	05/18/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Passenger Transport Act - taxi driver - suspension of authority - Taxi driver - suspension of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	State Transit Authority v Sloey & Anor [1999] NSWSC 47 (12 March 1999)
REPRESENTATION:	APPLICANT Allan George Mills RESPONDENT Director General, Department of Transport
ORDERS:	1. The decision of the Director General to suspend Mr Mill's taxi driver authority is set aside.

Introduction

1 On 6 April 2000, Mr Mills applied to the Tribunal for a review of a decision of the Director General, Department of Transport, to suspend his taxi driver authority. The Director-General made the decision because Mr Mills had undergone a cardiac transplant in 1990 and was therefore not medically fit to drive a taxi.

Jurisdiction

2 Under section 52(1) of the Passenger Transport Act 1990 a person whose application has been refused or whose accreditation or authority has been varied, suspended or cancelled, may apply to the Administrative Decisions Tribunal for a review of that decision.

Reasons for suspension

3 In its Statement of Reasons the Director General said that:

The advice presented by your doctor indicates that you do not meet the National Road Transport Commission Standards and therefore are not medically fit to drive a Public Passenger Vehicle.

4 The results of the internal review of the decision was that the original decision was affirmed. The final paragraph of the internal review document states that “The decision is based solely on the Department’s medical standards which are clearly not met by Mr Mills.”

The Standards

5 The Standards relied on by the Director-General as the basis for suspending Mr Mill’s authority are set out in a publication by the Australasian Faculty of Occupational Medicine entitled “Medical Examination of Commercial Vehicle Drivers, Revised version, 1997”(the Standards). The purpose of the Standards is set out at page 1 in the following terms:

These standards are intended to assist medical practitioners who are conducting medical examinations of commercial drivers on behalf of driver licensing authorities. The licensing authorities require clear, non-technical medical advice regarding a person’s fitness to drive commercial vehicles so as to ensure public safety. The final decision on certification rests with licensing authorities.

6 The Standards go on to say at page 7 that:

The criteria for assessment are set down, ie whether applicants meet the standards for a commercial vehicle driver’s licence; whether a conditional licence would be appropriate; or whether further testing and monitoring is required . . .

The aim of examining a commercial vehicle driver should be to establish whether he or she suffers from any medical condition which could affect his or her capacity to drive safely. The criteria are met if no such condition is diagnosed.

The important principle is that the evaluation of individual medical fitness and safety to drive depends on comprehensive medical assessment of overall health and informed medical judgment about the impact of single or multiple conditions on whole person function.

7 Standard 1.2.7 headed Cardiomyopathy states that:

The criteria are NOT met:
• if the person has had a heart or heart/lung transplant.

Facts

8 The facts in this case are straightforward and not in dispute. Mr Mills has been driving taxis since 1978. He had a cardiac transplant on 1 November 1990 and has been under the care of Associate Professor Anne Keogh, Cardiologist, prior to the operation and since that time. According to Professor Keogh’s report dated 8 March 2000, a permanent pacemaker was placed on day 13 after the heart transplant for electrical problems as a result of the transplant. Mr Mills continued to drive a taxi when he had recovered from the operation.

9 In February 1996, Mr Mills developed some coronary artery disease in the new transplanted heart and in March 1996 underwent double coronary artery bypass grafting.

10 Prior to the recent suspension Mr Mills’ licence had never been cancelled or suspended. He has never been involved in a motor vehicle accident while driving a taxi and has never felt the need to pull over because he felt faint or dizzy.

11 Professor Keogh gave oral evidence by phone at the hearing. She confirmed the view expressed in her report that Mr Mills is unlikely to have any sudden cardiac events in the next 12 months. This opinion was based on recent negative stress dobutamine echo test and angiograms. The echo test is designed to see if the blood is still flowing freely through the grafted arteries to the heart. It has an 85% accuracy rating.

12 Professor Keogh expressed the view that if, despite the results of these tests, Mr Mills was to suffer a blockage, this would occur slowly and would result in Mr Mills becoming faint. She said there was only a very small chance that this would happen so suddenly that Mr Mills would not have an opportunity to pull over.

13 Professor Keogh agreed with the statement in Standards on page 9 that “The epidemiological (statistical) evidence supports the view that people with coronary artery disease, including those who have had bypass surgery, have an increased risk of future episodes compared with those who do not have the disease.” However, in her opinion there was no justification for any blanket standard that those with heart transplants should not drive a taxi.

14 Professor Keogh concluded that while Mr Mills has an increased risk of future episodes that risk is small.

Submissions

15 Mr Wozniak on behalf of the Director General submitted that I should take into account s 64of the Administrative Decisions Tribunal Act 1997 (ADT Act). That section states that:

(1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.

(2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter.

(3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate.

(4) In determining an application for a review of a reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.

(5) In this section:


Government policy means a policy adopted by:

(a) the Cabinet, or

(b) the Premier or any other Minister, that is to be applied in the exercise of discretionary powers by administrators.

16 Mr Wozniak submitted that the Director General’s hands were tied because of the existence of the Standards.

Reasoning and decision

17 There are two types of policy mentioned in s 64, namely Government policy” and “other policy”. The only evidence relevant to the issue of whether the Standards fall into either of these categories is an undated letter from Lynn Habner, Project Manager with the National Road Transport Commission, apparently written to an officer within the Department of Transport. The letter states that “These changes (referring to the changes in the new edition of the Standards) will ensure the document’s ongoing relevance and were approved by Australia’s Transport Ministers on 31 March 1997.” (Words in brackets added.)

18 Mr Wozniak did not suggest that the Standards constituted “Government policy.” However the Standards are clearly “other policy applied by the administrator in relation to the matter concerned.” I accept Mr Wozniak’s submission that I should have regard to the Standards unless they can be shown to be contrary to law or to produce an unjust decision in the circumstances of the case.

19 A similar case involving the interpretation of the Standards was decided by the Supreme Court in State Transit Authority v Sloey & Anor [1999] NSWSC 47 (12 March 1999). In that case a bus driver was diagnosed as suffering from blockage of a coronary artery and underwent coronary artery graft surgery. Although he did not exhibit any symptoms, his employer, the State Transit Authority (STA), certified him unfit to return to work. The STA justified its decision by relying on the Standards which state that employees who had undergone coronary artery graft surgery presented an increased risk of symptoms for a further twelve months after surgery.

20 At first instance the Equal Opportunity Tribunal (now the Equal Opportunity Division of this Tribunal) found that the STA had discriminated against the employee in his work on the ground of disability pursuant to the Anti-Discrimination Act 1977 (ADA). The Tribunal held that the employer was not entitled to certify the driver unfit to drive merely because he fell into a category of persons who presented an increased risk of symptoms, but was obliged to consider his individual circumstances.

21 The STA appealed to the Supreme Court which upheld the Tribunal’s decision and found that an employer must take into account all evidence of a person’s state of health before coming to a conclusion that he or she was not fit to drive a bus.

22 In relation to the role of the Standards, Barr J said at paragraph 41, that:

The Standards do not have the force of a law. They are developed by medical practitioners, experienced in the relevant areas of medicine, to provide guidance for those making decisions regarding the granting of drivers licences. It is a most appropriate practice for the STA to adopt such standards, but such adoption gives them no greater force. They have not been put before the Parliament, and are simply a code of practice adopted by a statutory authority. . .

Rigorous compliance with the standards must therefore be assessed in the context of the STA's more general duties under its legislation and occupational health and safety legislation. The sections of the standards quoted in the evidence make it clear that they are to be used as guidelines, and that the individual circumstances of each case should be considered.

23 His Honour went on at paragraphs 61 and 63 to say that:

Next, the standards are intended to assist medical practitioners who are conducting medical examinations. That implies that those medical practitioners are to give weight not only to the standards generally but to the results of the examinations of particular drivers. And that seems to be only common sense. Drivers falling into Mr Sloey's category may be expected to have a wide range of conditions and symptoms. Some will have suffered myocardial infarction and some not; some will have sustained heart damage and some not; some will have symptoms and some not; some will perform satisfactorily in medical examinations and some not. If techniques exist which can measure the degree of risk presented by individual drivers who are shown only statistically to be in a category of drivers who present a higher risk of symptoms, it seems to me that the standards expect them to be used.

These conclusions are supported by the requirements of the standards that the final decision whether to certify rests with the licensing authorities (which must be taken here to refer to any employer making similar decisions) and that examining medical officers are expected to keep themselves appraised of major changes in medical knowledge which may influence their assessment of drivers.

In my opinion the Tribunal was correct in observing that the standards show themselves as intended to be used only as guidelines.

24 I agree with this decision and in any case, it is binding on the ADT. Applied to the circumstances of this case it leads to the conclusion that the Director General did not make the correct and preferable decision in suspending Mr Mill’s licence because rather than using the Standards as a guideline, he considered himself bound by them. The Director General should have considered the individual circumstances of Mr Mill’s case.

25 Based on Professor Keogh’s evidence of the very low risk of Mr Mills having cardiac events in the next twelve months and the fact that he has driven a taxi without incident for 10 years since the transplant, the Department should not have suspended Mr Mill’s licence.

26 At the hearing the issue of imposing a term on Mr Mill’s licence that he be examined by Professor Keogh quarterly and certified fit for driving was canvassed. Section 34 of the Passenger Transport Act 1990 allows the Director General to impose such a condition. Under s 63(2) of the Administrative Decisions Act 1997 (ADT Act) the Tribunal may exercise all the functions that are conferred or imposed by the Passenger Transport Act 1990 on the administrator who made the decision.

27 Given that Professor Keogh prepared a report on 8 March 2000 stating that Mr Mills is unlikely to have any sudden cardiac events in the next 12 months, I do not see any justification for such a condition.

28 The decision of the Director General to suspend Mr Mill’s taxi driving authority is set aside.