Naresh v Millard

[2006] WASCA 35

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   NARESH -v- MILLARD & ANOR [2006] WASCA 35

CORAM:   WHEELER JA

PULLIN JA
BUSS JA

HEARD:   16 FEBRUARY 2006

DELIVERED          :   16 FEBRUARY 2006

FILE NO/S:   SJA 1092 of 2004

BETWEEN:   JAMES RAM NARESH

Appellant

AND

DAVID PERCIVAL MILLARD
KIMBERLY PHILLIP CROSS
Respondents

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :ROBERTS-SMITH J

Citation  :NARESH -v- MILLARD & ANOR [2004] WASCA 241

File No  :SJA 1092 of 2004

Catchwords:

Appeal - Traffic offence - Failure to wear a seat belt - Certificate of medical practitioner - Whether certificate sufficient to show appellant was "unable for medical reasons" to wear a seat belt

Legislation:

Interpretation Act 1984 (WA), s 74

Road Traffic Code 2000 (WA), reg 231, reg 232

Result:

Application for extension of time within which to appeal granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondents                 :     Mr B P King

Solicitors:

Appellant:     In person

Respondents                 :     State Solicitor

Case(s) referred to in judgment(s):

Naresh v Millard & Anor [2004] WASCA 241

Case(s) also cited:

Basso-Brusa v City of Wanneroo [2003] WASCA 103

Lilley v Lindsay-Smith [2001] WASCA 168

Waugh v Kippen (1986) 160 CLR 156

WHEELER JA

Background

1. This is an appeal against the decision of Roberts-Smith JA refusing leave to appeal against the appellant's conviction for not wearing a seat belt. 

2. I have had the advantage of reading the reasons for decision of Roberts‑Smith JA, which were delivered on 15 October 2004, in Naresh v Millard & Anor [2004] WASCA 241, which dealt with the application for leave to appeal ("the first set of reasons"). His Honour described in those reasons, in detail, the course which this matter had taken in the Court below, and set out the legislative framework and the issue which arose and (save for an apparent typographical error about the date of the medical certificate) I accept and adopt what his Honour has said in his reasons, from [1] through to [48] inclusive, about that background.

3. The issue, as his Honour correctly identified it, and the issue on this appeal, was and is whether the medical certificate which Mr Naresh produced, which read, "This man experiences significant sensations of claustrophobia when he wears a seat belt in his car" satisfied the description in reg 231(1)(b)(i) of the Road Traffic Code2000 (WA) of a certificate that "the person is unable for medical reasons" to wear a seat belt.

4. The appellant brought an application for leave to appeal the decision of Roberts‑Smith J, and his Honour's later decision correcting an error as to penalty.  That application came before Steytler P and Pullin JA on 21 April 2005, when their Honours noted that the appellant had an appeal as of right from the refusal of leave to appeal by his Honour, but that he required an extension of time.

Extension of time

1. In relation to the extension of time, the appellant has not filed any material directed to explaining his delay in applying for leave to appeal, but his affidavit of 3 September 2004 refers to a number of medical conditions from which he suffers.  Although they are not expressly said to be related to any delay, one can see how they might be relevant.  The appellant has been acting for himself.  His delay was relatively short, the application being made on 3 September 2004.  The respondent does not oppose the grant of extension of time.  I would therefore grant an extension of time within which to appeal.

Merits of the appeal

1. The Court then comes today to determine the appeal against the refusal of leave, leave being refused on the basis that the proposed grounds of appeal were unarguable.  Dealing with the merits of that issue, it seems to me that Roberts‑Smith J may have somewhat overstated the position when, in [49] of the first set of reasons, his Honour said:

   "The regulation requires the certificate to expressly state on its face that for medical reasons the person is unable to wear a seat belt."

2. If, by that, his Honour was intending to suggest that it was necessary for the certificate to follow exactly the wording of reg 231(1)(b)(i), then I accept that would be incorrect. The regulation does not require any particular form of words. Further, if reg 231(1)(b)(i) were to be read as requiring a specified form of words, it would be necessary to apply s 74 of the Interpretation Act 1984 (WA), which provides:

   "Where a form is prescribed or specified under a written law, deviations therefrom not materially affecting the substance nor likely to mislead shall not invalidate the form used."

3. However, it is my view that the fact that his Honour arguably overstated the requirements of the regulation does not assist the appellant in the present case.  Although no particular form of words is required, the critical portions of the regulation appear to me to be that the certification be that the person is "unable" to wear a seat belt, and that that inability is "for medical reasons".

4. Taking the latter first, the certificate must either use the words "for medical reasons" or specify some medical condition from which the inability stems.  The obvious purpose of that requirement is to make it clear that the certifying medical practitioner is to rely upon his own professional medical diagnosis rather than upon any subjective views expressed to him by the person about whom he is certifying.  It may be, of course, that in arriving at the diagnosis it will be necessary for the medical practitioner to take into account feelings and symptoms reported by the person seeking the certificate, but taking account of those matters must then result in some medical conclusion.  I would be prepared to accept, for the purposes of this appeal, that a diagnosis of claustrophobia is a medical one.

5. More importantly, however, for present purposes, the regulation requires that the medical practitioner certify that the person is unable to wear a seat belt. "Unable", according to the Macquarie Dictionary, means "Not being able, lacking ability or power". A certificate will not be sufficient if it merely indicates that medical reasons make it difficult or inconvenient or unpleasant for the person to wear a seat belt. Rather, the interaction between the person's medical condition and the wearing of the seat belt must be such as to render the person "unable" to do so. That conclusion is reinforced when one compares reg 231(1)(b)(i) with reg 231(1)(b)(ii), which refers to a certificate to the effect that, by reason of particular characteristics, it would be "unreasonable" to require the person to wear a seat belt.

6. Further, the structure of reg 231 and reg 232 suggest that, although it may be that no particular form of words is required, a certificate pursuant to reg 231 must be very clear in its terms so as not to be open to an alternative interpretation. Regulation 232(2)(b) requires the person to produce the medical certificate, if required to do so, before the regulation will afford a defence. Regulation 231(3) creates an independent requirement that a person produce a medical certificate on demand to a member of the Police Force. The certificate, then, is plainly intended to be one which will be capable of clearly conveying to a member of the Police Force whether a person has or has not complied with the requirements of the Road Traffic Code.  Such officers are, of course, not generally medically trained and will be required to make a decision on the spot, as to whether or not it is appropriate to issue an infringement notice or to summons a person for breach of the regulation.  Interpreting the regulation in such a way that vague and ambiguous certificates are considered to be sufficient compliance with it would seem to me to undermine its evident purpose.

7. In my view, a certificate may well be understood as certifying that a person is unable to wear a seat belt if it certifies that the person is physically incapable of fastening the seat belt or that, because of the medical condition, the person would be unable properly to control the vehicle while wearing a seat belt, or that the person's health would be seriously harmed by the wearing of a seat belt.  Certificates to that effect would, I consider, be understood as a matter of commonsense as certifying that the person was simply unable, for the medical reasons, to wear the seat belt.

8. The certificate in the present case, however, does not go so far as to suggest that the appellant is unable to wear his seat belt.  There is nothing

in the certificate to suggest that the sensations of claustrophobia he experiences while wearing a seat belt, while "significant", are such as to make him unable properly to control a vehicle, or as to give rise to some serious risk to his health.  The certificate leaves open the possibility that those sensations are no more than unpleasant.  I would accept, as a further possibility, that raised by Roberts‑Smith J in [49] of his first set of reasons, which is that the certifying doctor was, by certifying in the manner he did, simply avoiding the question of whether the appellant was unable to wear a seat belt.

1. Mr Naresh referred, in argument before us, and before the Magistrate, to matters which stemmed from his experience and which, in his view, meant that he was not able to wear the seat belt because his condition was serious.  An acceptance of those matters may have been why the Magistrate gave a relatively lenient fine, but cannot go to the interpretation of the certificate itself.

2. In my view, therefore, his Worship the Magistrate, and Roberts‑Smith J, were correct in concluding that the certificate in question here was not one which satisfied the criteria in reg 231(1)(b)(i), and his Honour was correct in his decision to refuse leave to appeal against the Magistrate's decision. For those reasons, I would dismiss this appeal.

3. PULLIN JA:  I would also grant an extension of time in which to appeal, and dismiss the appeal, for the reasons given by her Honour.

4. BUSS JA:  I agree with Wheeler JA.