PETER JUDGES and CIVIL AVIATION SAFETY AUTHORITY - [2012] AATA 587

[2012] AATA 587

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/4155

Re

PETER JUDGES

APPLICANT

And

CIVIL AVIATION SAFETY AUTHORITY

RESPONDENT

Decision

Tribunal
Mr S Penglis, Senior Member and Dr A Frazer, Member

Date 29 August 2012

Place Perth

Decision Summary
The reviewable decision dated 22 September 2011 is hereby affirmed.
....(sgd) S Penglis...................
Mr S Penglis, Senior Member
Catchwords
Civil aviation – applicant pilot suffering from glaucoma – whether applicant’s glaucoma is likely to pose a risk to the safety of air navigation, and, if so, whether the medical certificate may issue with conditions which would ameliorate any risk posed – relevance of overseas medical certification and applicant’s flying history – decision not to issue a medical certificate affirmed
Legislation
Civil Aviation Act 1988, ss 3 (1), 9A(1) and 20AB(1)
Civil Aviation Regulations 1988 – sub-regulations 5.04(1), 5.04(3)(a), 5.04(3)(b), 11.056, 67.010, 67.015 and 67.180 and Tables 67.155, items 2.1 and 2.33
Cases
Re Hall and Civil Aviation Safety Authority [2004] AATA 21 [45]
Re Mulholland and Civil Aviation Safety Authority [2007] AATA 1952 [65- 67]
Re White and Civil Aviation Safety Authority (2009) 105ALD 33[79]
Re Window v Civil aviation Safety Authority (1999) 56 ALD 316 [60]
REASONS FOR DECISION
Mr S Penglis, Senior Member and Dr A Frazer, Member
29 August 2012

The applicant has enjoyed a long history of flying as a commercial pilot without incident.
On 24 August 2011, the applicant applied for Class 1 and Class 2 medical certificates.
As part of his medical examination the applicant informed the designated aviation medical examiner that he has glaucoma treated by trabeculectomy and bilateral superior vision defect.
On 5 September 2011, the respondent wrote to the applicant advising that the applicant failed to meet the medical standards for a Class 1 and Class 2 medical certificate. In particular, the applicant was advised that he failed to meet the requirements as set out in Table 7, 67.150, items 1.1 and 1.33 and Table 67.155, items 2.1 and 2.33 of the Civil Aviation and Safety Regulations 1988 (CASR).
The applicant was given 30 days to provide the respondent with any further medical reports to demonstrate that he did meet the medical standards.
In response to that invitation, the applicant provided to the respondent further material, including
·a copy of the Class 1 medical certificate issued by the Joint Aviation Authorities, United Kingdom (JAA) dated 13 April 2011;
·copies of reports from Dr A Casswell provided in connection with the applicant’s application for medical certificates from the JAA.
By letter dated 22 September 2011, the respondent informed the applicant that “CASA has now completed its assessment of the application and in accordance with the CASR 67.180, has decided to refuse to issue you with a medical certificate”.
The respondent gave the following as its reasons for refusing to issue the applicant with a medical certificate:
·You have a history of glaucoma treated by trabeculectomy
·You have bilateral superior vision field defects as demonstrated by computerised visual field plots
·These visual field defects overlap
·This means that for a significant portion of your superior visual fields, the vision is significantly degraded or absent and targets in that portion of the visual spectrum may not be seen
·There is relatively little protection from the visual field in the contralateral eye
·Your degraded vision has potential to significantly affect the safety of aerial navigation.”
That is the reviewable decision and the subject of this application.
the law
Prior to the hearing of this application, Counsel for the respondent caused to be lodged with the Tribunal (and served on the applicant) a written Outline of Submissions. Paragraphs 2 – 20 (inclusive) set out the respondent’s submissions as to the applicable law.
During the course of the hearing, the applicant was asked by the Tribunal whether he took issue with any parts of those paragraphs and whether he wished to add anything by way applicable law. The applicant indicated to the Tribunal that he did not take issue with anything in those paragraphs and did not wish to add anything.
The Tribunal considers those paragraphs to represent a precise and accurate statement of the principles of law, and adopts the same for the purposes of this application. Those paragraphs are in the following terms:
“Requirement to hold a current medical certificate
2.Subregulation 5.04(1) of the Civil Aviation Regulations 1988 (CAR) provides that the holder of a flight crew licence must not perform a duty authorised by that licence if the person does not hold a current medical certificate that is appropriate to the licence.
3.Subregulation 5.04(3)(a) of the CAR provides that, in relation to a commercial pilot licence, the appropriate medical certificate is a Class 1 medical certificate.
4.Subregulation 5.04(3)(b) of the CAR provides that, in relation to a private pilot licence, the appropriate medical certificate is a Class 1 or a Class 2 medical certificate.
5.Subsection 20AB(1) of the Civil Aviation Act 1988 (CA Act) provides that 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.
6.By ss.3(1) of the CA Act, the term ‘civil aviation authorisation’ is defined to include, inter alia, a certificate issued under the Regulations.
Medical certification
7.The issuing of medical certificates is governed by Part 67 of the Civil Aviation Safety Regulations 1998 (the CASR). Regulation 67.180 provides for the issuing of medical certificates. Regulation 11.056 allows the respondent to issue a medical certificate to a person “subject to any condition that is necessary in the interests of the safety of air navigation, having regard to the medical condition of the person”.
8.Regulation 67.180 prevents the respondent issuing a medical certificate unless the applicant meets the “relevant medical standard” or the extent to which the applicant does not meet that standard, is not likely to endanger the safety of air navigation.
8(sic)In some circumstances it is by using regulation 11.056, to impose conditions upon a medical certificate that the respondent can be satisfied that the extent to which a person fails to meet the applicable medical standard is not likely to endanger the safety of air navigation.
9.In accordance with regulation 67.015 of the CASR, a condition is “safety-relevant” if it reduces, or is likely to reduce the ability of a person to exercise the privileges conferred by a relevant licence.
10.Regulation 67.010 provides that the relevant medical standard for a class 1 medical certificate is medical standard 1 and the relevant medical standard for a class 2 medical certificate is medical standard 2. Medical standard 2 is defined in that regulation to mean the standards set out in table 67.155.
11.Regulation 67.010 also defines the terms ‘medical practitioner’ and ‘specialist medical practitioner’.
12.The period during which a medical certificate issued under r.67.180 remains in force is determined under r.67.205.
The Class 1 Medical Standard
13Regulation 67.010 provides that the Class 1 Medical Standard is set out in table 67.150 of the CASR. The Items which are relevant to this case are 1.1 and 1.33. The extracts from the Class 1 Medical Standard are set out in the respondent’s Statement of Facts and Contentions at paragraph 17.
The Class 2 Medical Standard
14Regulation 67.010 provides that the Class 2 Medical Standard is set out in Table 67.155 of the CASR. The Items which are relevant to this case are 2.1 and 2.33. The extracts from the Class 2 Medical Standard are set out in the respondent’s Statement of Facts and Contentions at paragraph 18.
Safety is the primary consideration
15By s.9A(1) of the CA Act, the respondent is required to regard the safety of air navigation as the most important consideration in the exercise of its powers and the performance of its functions.
Meaning of ‘likely’
16The term ‘likely’ when used in the context of the issue of aviation medical certificates pursuant to Part 67 of the CASR, should be understood as a reference to a substantial or real and not remote risk of a particular event occurring. This has been established in a number of decisions of this Tribunal as for instance, in Re Window v Civil Aviation Safety Authority, the Tribunal said:
“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.”
17Similarly, in Re Hall and Civil Aviation Safety Authority the Tribunal noted that:
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. The Tribunal’s view is that in June 2003, given the medical information available to CASA, a decision to impose a condition on Mr Hall’s Class 2 Medical Certificate was reasonable given the risks associated with his heart condition when considered in the context of air safety. In terms of the medical standard in Schedule 1, Part 1 of the old regulations, and whether his heart condition was likely to interfere with the safe exercise of his privileges or performance of his duties associated with his holding a private pilot’s licence, there was a real risk, albeit a small one. 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.
18 In Re Mulholland and Civil Aviation Safety Authority, the Tribunal said that:
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.
Whatever the risk may be of Mr Mulholland suffering a syncopal attack whilst flying, it is not to the point that it can be shown statistically that the risk is small. Dr Nilsson contended that the evidence does not support a finding that the frequency of syncope episodes is increasing. This is not a relevant test under the legislation. What is important is whether Mr Mulholland meets the requirements for the issue of a Class 1 or Class 2 medical certificate. If he does not, the only question remaining is whether CASA should issue to Mr Mulholland medical certificates with conditions in accordance with regulation 67.195 of the CASR. Any conditions imposed on a medical certificate must be necessary in the interests of the safety of air navigation, having regard to the medical condition of the person.
It is also important to understand that CASA must bear in mind the safety of persons other than Mr Mulholland, on the ground and in the air, and also their property. CASA’s principal concern must be the safety of air operations generally and this is clearly set out in s 9A of the Act which, relevantly, provides:
i. In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.
19Furthermore, in Re White and Civil Aviation Safety Authority the Tribunal accepted that the nature of the potential incapacity in question is a relevant consideration to bear in mind in assessing whether the extent to which a person fails the relevant medical standard is likely to endanger the safety of air navigation.
Medical Certification – the decision-making process
20In the respondent’s submission, r.67.180, when read with r.11.056 of the CASR requires the Tribunal to apply the following decision-making process in determining whether a person should be granted a Class 1 or Class 2 medical certificate:
determine whether the applicant meets the medical standards in table 67.155 – if the relevant standard is met, the certificate must be granted - see r.67.180(1)(a) and (2)(e);
if the applicant does not meet the relevant medical standard, then the Tribunal must determine whether the extent to which the applicant fails the medical standard is likely to pose a risk to the safety of air navigation – if not, then the certificate may be granted - see r.67.180(2)(e)(ii) and (f)(ii);
if the extent to which the applicant fails the medical standard is likely to endanger the safety of air navigation, then the certificate must be refused unless it can be issued with conditions which will ameliorate any risk posed – see r.11.056”.
THE ISSUES
The applicant accepted that he did not meet the medical standards in Table 67.155.(see, for example, p-13) That concession was well made as the evidence clearly establishes that the applicant’s medical condition means that he does not satisfy the medical standards in Table 67.155.
The issues for determination by the Tribunal are therefore
(a)whether the extent to which the applicant fails to meet the medical standard is likely to pose a risk to the safety of air navigation, and, if so
(b)whether conditions can be imposed which would ameliorate any such risk posed.
THE EVIDENCE ADDUCED ON THE FIRST DAY OF THE HEARING
The applicant affirmed on oath paragraphs 1 – 9 of his Statements of Facts and Contentions. Those paragraphs are as follows:
“1.When applying to CASA for the renewal of my 1^st class medical I was currently holding a 1^st class medical from the UK CAA.
2.This medical had the following OML (operational multi-crew limitation) “holder to operate multicrew as or with a co-pilot”.
3.This gave me the right to operate JAR registered aircraft anywhere in the world including Australia.
4.The authorities issued this licence in full knowledge of my medical situation, ie I had had trabeculetomies performed on each eye. The first, the left eye, on 24 November 2003 and the last on the right eye on the 1 June 2009.
5.Following each of these procedures I was checked at the CAA medical department by their consultant ophthalmologist Mr G Duguid who passed me fit to fly and I was issued with a 1^st class medical.
6.Mr G Duiguid is not only a consultant ophthalmologist for the CAA but also for CASA Australia.
7.From 2003, my first trabeculectomy, until June 2011 I flew A320/A330 aircraft in command and as a co-pilot post age 60, worldwide. I also passed a class 1 medical every 6 months up until my renewal application with CASA on the 24 August 2011.
8.The ophthalmologist Mr A Casswell who performed the operations and saw me regularly has confirmed that my condition is stable and pressures at normal levels in both eyes.
9.Both the DAME, Dr Rob Liddell who examined me and the ophthalmologist Dr Dru Daniels who did a thorough eye examination, consider me fit to fly under CASA standards.”
The applicant also gave the following evidence:
(a)        the acronym DAME stands for “Designated Aviation Medical Examiner”;
(b)a trabeculectomy is performed to relieve patients of the symptoms of glaucoma by relieving the pressure on the optic nerve;
(c)        he started flying when he was 18 (which was in 1964);
(d)        he was in the Royal Australian Airforce from 1964 until 1972;
(e)he had flown commercially in Australia from about 1982 to 1987;
(f)from 1997 to 2011 he was a charter airline pilot with Thomas Cook Airlines operating in and out of the United Kingdom;
(g)he retired from that employment in 2011 on his 65^th birthday (which was the mandatory retirement age the United Kingdom);
(h)he returned to Australia in 2011 when he applied to the respondent for his medical certificate pursuant to the respondent’s regulations;
(i)whilst in the United Kingdom, he had to renew his medical certificate every six months, which included performing full flight simulator reviews.
During the course of cross examination, the applicant agreed that he had refused consent to the respondent obtaining copies of the applicant’s medical records held by the United Kingdom Civil Aviation Authority (CAA) and explained why.
When asked about page 9 of the report prepared by Mr Gibson (as to which see below), the applicant said the following of the group of pictures found on that page:
“I found these – this particular group of pictures – actually I put a note here, “ridiculous”, but definitely misleading. What he has done is he has blended the two monocular field tests, the field tests being where they check to find the damage or limitation in your eyes, what areas are blank basically, and instead of doing – he didn’t do a binocular one so what he has taken is that eye and that eye, blended them together and overlayed them, and if you look down at the bottom one, the head up display, HUD – a head up display is what – if you look through the cockpit window they have – they actually impose various things on the windscreen on some aeroplanes: speed, altitude, height, etcetera, etcetera, and with the overlay there, as you can see, that’s unbelievable, that’s ridiculous. That means if I was – if that’s what I saw flying, then I’m – I’d be carrying – I’d be, you know, I’d be carrying a guide dog with me. This is – I’m almost totally blind according to him on this one down here.
MR PENGLIS:   Well, the reason why I have reminded Ms Bennett to put this to you is because you well know a picture is sometimes quite persuasive and no doubt that’s why this has been put in. You need to be given an opportunity to say whether or not this is a true representation of your vision and you’re saying it’s not?   Absolutely not.
Would you be able to, over the lunch break, if you were given – I don’t know if Ms Bennett has a spare copy but another copy of this – we can make a colour photocopy of this page – would you be able to overlay what you think you – I mean, we can’t see through your eyes?   No.
And what Mr Gibson has done here is to try and assist the Tribunal by no doubt his best effort of trying to show the Tribunal what he thinks you might see in those three situations. Are you with me?   I am, sir, yes.
You say that’s not the case as I understand your evidence?   Absolutely.
It might be of assistance to the Tribunal if you were able to represent what you say would be your – the manner in which your vision is impaired in those three instances. Is that something you would be able to do?   Well, I could - basically it’s the left-hand side. I see what’s on the left.
….
So you’re saying you have no loss of vision at all. There’s nothing – you would see everything without any obscuring of your vision?   My vision is obscured or the lack of vision is in the peripheral area.
Right?   And this is – if your eyes are or your, you know, if you are locked in space looking straight ahead, then up her the peripheral vision there has gone until it gets to about here. But sitting in the cockpit you’re not actually locked.
So you’re saying in those three instances your vision would not be obscured because they are three instances of vision directly in front of you; is that what you’re saying to me?   I am, sir. Yes, you’re basically moving is what I’m saying; your eyes are moving.
Well, I understand that but if they were fixed, as these pictures try to communicate, is it your evidence that if you were looking straight ahead, as these representations depict, you would have, in that area, no deficiency in your vision. It’s more around the periphery that you have your difficulties; is that your evidence?   That’s my evidence, yes.
All right. Ms Bennett, is there anything arising out of that that you want to ask Mr Judges?
MS BENNETT:   No, thank you.
DR FRAZER:   If I can ask Mr Judges, I understand what you’re saying in that if you are looking straight ahead you are telling us that that is an accurate representation of your vision. Those pictures down there. That is as I see – I’m familiar with these aeroplanes as well
Sure, yes? which is interesting because, you know, you might get confused otherwise. But with the exception of using the head up display, but appreciating it’s just looking through the cockpit window without the green bits, this is what I see and what I was trying to explain by talking about the simulated checks, is this is what we’re looking at all the time. And if, say, like in the number 2, the second one down on the right
MR PENGLIS:   That’s figure, for the purpose of the transcript, Figure 6B.
6B?   Figure 6B, yes. If figure 6B was what I saw on an instrument approach, then I would be – I couldn’t do the approach. I couldn’t fly – you couldn’t fly the aeroplane if that’s all I saw. You would be missing out on enormous, you know, pieces of information that you need all the time.
DR FRAZER:   But you said though that you do have the loss of the visual field in the periphery?   Yes, that is correct. I mean, the test on this, as you’re probably aware, is the field test which is concentrating on a spot in the centre of a screen either with one eye closed or both eyes, depending on the binocular or monocular, in a darkened situation and little spots of light appear and then it’s what you see – whether you see them or not. The screen is reasonably dark anyway so they’re not bright flashes. They’re just small spots of light and you click a button every time you see it and that’s how they come up with this particular eye loss. But if it’s monocular and your eyes are moving, that millisecond can be covered by this eye which hasn’t got the same problem in the same quadrant if it moves. So your eyes are constantly compensating for the loss in the other so what I think I see, now, possibly there’s a blank spot there which I haven’t seen but, within a millisecond because my eyes are moving, the other eye or the same eye will pick it up. So what I see, I think, is the pictures on the left and Dr or Mr Gibson has basically got me in a situation where I’m focused on a spot of light in the middle of the screen and moving and then he’s overlayed these pictures or these defects which is not true in real life.

The Tribunal finds nothing in the applicant’s evidence, or in the manner in which the applicant gave his evidence, to cause it not to accept the evidence given by the applicant. Nor did Counsel for the respondent make any submission to the contrary. The Tribunal therefore accepts the applicant’s evidence and makes findings of fact in accordance with that evidence.
The applicant also tendered a copy of the applicant’s medical certificate Class JAA Class 1 issued by the CAA (as part of the JAA) dated 13 April 2011, endorsed upon the certificate were the following limitations: “Shall have available corrective lenses” and “Valid only as or with qualified co-pilot. (Applies only to Class 1 Privileges)”.
The certificate noted that the “Examination for this Certificate” was 13 April 2011. The licence was for the duration of 6 months.
The applicant also tendered copies of two documents headed “Memo” from Mr Graham Duguid, Consultant Ophthalmologist to the CAA, to “Aeromedical Section”, presumably of the CAA. The “Memo” dated 13 May 2008, referring to a “clinic date” of 12 May 2008, was in the following terms:
“Thank you very much for asking me to see Captain Judges again. I saw him in 2004. He has long standing glaucoma and there was a question over progression of his right visual field.
On Esterman visual field testing today, there has been some progression of the right visual field compared with 2004 with a few spots missed in the far nasal periphery. Interestingly, the left visual field has improved substantially and now there are only three missed spots in the left supernasal periphery. Binocularly, the visual field is entirely normal. He meets the other visual requirements. His intraocular pressures were 11 in the left and between 12 and 14 in the left by non contactometry.
I recommend he is fit class 1 with multicrew limitation (OML). However, since the progression is confirmed on a monocular Esterman, I have asked him to attend his ophthalmologist, Mr Tony Casswell, to improve his glaucoma medication. It may be that he just needs to take Cosopt twice a day to the right eye.
With regard to further follow-up, I recommend that he posts in a binocular Esterman annually and he can have this done by Tony Casswell. If there is any problems I should be pleased to see him again.”
The “Memo” dated 14 June 2010, referring to a “clinic date” of the same date was in the following terms:
“Thank you for asking me to see Mr Judges again today from the point of view of his glaucoma. He underwent right trabeculectomy in June 2009 and left trabeculectomy about five years ago. He currently has no visual complaints and is using Cosopt twice daily to the right eye only.
He meets the visual requirements unaided for distance and with glasses for near. There is a super nasal field defect in the left eye but in the right eye and binocularly the fields are acceptable. The trabeculectomy blebs look most functional and the intraocular pressures are 10mmHg in both eyes. The optic discs show moderate cupping.
I recommend he is fit class 1 but with a multi-pilot (OML) limitation. I recommend that he continues under the care of Mr Casswell and posts a binocular Esterman test to the CAA in a year’s time.”
The applicant tendered the “Esterman Monocular” readings, one for the applicant’s left eye and the other for the applicant’s right eye, both dated 14 June 2010.
The applicant tendered an “Eye Examination Report” undertaken by Dr Dru Daniels dated 24 August 2011. The “Eye Examination Report” bears the insignia of the Australian Government and is on the respondent’s letterhead. The evidence establishes, and the Tribunal finds, that Dr Daniels is not an employee of the respondent, but is one of several ophthalmologists authorised by the respondent to conduct eye examinations and provide reports to the respondent on its behalf.
That report shows that the date of the examination was 24 August 2011. The report indicated an abnormality in the left eye. In response to the question “Is there any ocular pathology or past ocular history?” The answer was “Yes” and the following handwritten notes appear –
“- Bilateral trabeculectomy for glaucoma
Superior Vision field defect (L) + (R) enclosed”
In response to the question “Does the applicant meet the vision standards for the class of licence required?” the doctor marked “Yes”.
The applicant also tendered the following documents:
·an Online “Medical Examination Report” undertaken by Dr Liddell on 1 September 2011;
·an Application for Aviation for Medical Certificate – Declaration – signed by both the applicant and Dr Liddell dated 24 August 2011;
·a document providing information in respect to Dr Casswell;
·a document providing information with respect to Dr Duguid;
·a letter dated 17 June 2008 from the CAA to the applicant.
The respondent initially called three witnesses, Dr David Fitzgerald, Associate Professor Poosham Dattatraya Navathe and Anthony John Gibson
The expertise of each of these witnesses was clearly established (and indeed not challenged by the applicant).
Dr Fitzgerald is a Senior Medical Officer employed by the respondent. He has been employed in that position since 2005.
Dr Fitzgerald was the delegate of the respondent who made the reviewable decision. In Dr Fitzgerald’s statement (which he affirmed during the course of his evidence), he gave the following evidence:
“Under normal circumstances, a pilot with normal vision must systematically scan inside and outside the cockpit. Loss of the majority of a field of vision makes this demanding task difficult to undertake consistently in good conditions.
In the event of adverse conditions, where either the other pilot, the instruments or the external environment needs close watching, this additional demand causes the risk of the loss of safe monitoring of the other key parameters.
Accordingly, since Mr Judges has not provided sufficient evidence that he does not suffer from bilateral visual defects and are not definitively unlikely to produce any significant functional defect as far as flying is concerned, I am unable to issue him with a medical certificate.
Mr Judges’ visual field defects are so severe and relevant for the purposes of the safe conduct of aerial navigation, that application of conditions such as for Mr Judges to fly only as or with co-pilot, would not adequately mitigate the risk posed by the deficits. His deficits significantly cover almost the entire superior extent of his visual field such that even with head movement, he is likely to be significantly impaired in functions related to visual tasks outside and inside the cockpit such as scanning for traffic, changes in instruments and obstacles.
The legislation, at item 1.33 of the table at regulation 67.150 and 2.33 of the table at regulation 67.155 of the CASR requires a person to have normal fields of vision. Given Mr Judges’s suffers from bilateral visual defects, he accordingly does not meet the relevant standards.
As the extent of Mr Judge’s bilateral superior vision defect is higher than is acceptable in CASA’s view for safe flight, CASA is unable to issue the applicant with a medical certificate. It is considered that Mr Judge’s visual field impairment is so significant that the risks to air safety posed by that impairment could not be ameliorated even by the imposition of conditions on the medical certificate.”
The applicant’s cross-examination of Dr Fitzgerald (relevantly) included the following:-
“Yes. I guess the question is that having been approved by Dr Drew Daniels, the ophthalmologist that did the eye test and passing the complete medical, why - I guess, why did you choose to then refuse the medical as the ophthalmologist had approved the - or said that I was up to the standard as a first-class medical?   Well, I guess, the first thing to say is quite clearly, despite Dr Daniels certification on his report, you have abnormal visual fields, so you don’t meet the standard per se. So as is, I think, outlined in my statement, as far as taking further steps as to whether you could fly or not when you don’t meet the standard, we need to determine whether the extent to which you don’t meet that medical standard is likely to effect the safety of aerial navigation. And again in summary, the visual field defect from which you suffer is quite significant and would likely have significant effects on your ability to adequately carry out the visual functions that are required of your duties as a pilot. Why - I can’t speak for Dr Daniels as to why he considered that your visual field loss wasn’t significant - I think, clearly is outlined in the report from Dr Tony Gibson that quite clearly identifies that the significant field loss ..... likely to have - seemed to be a functional impact on your ability to fully, safely carry out the duties of a pilot.
Okay. In response to that the facts that I actually put up there that I was carrying out the - those duties as pilot with the same condition and had been approved by the CAA for the previous eight years - that obviously indicated that the field loss that I had covered was not safety orientated - well, did not impinge on the safety of flight      ?   I think that, you know - sorry ..... the end of your question - but I think it’s a bit of a long bow to draw in that respect. I mean, the simple fact of the matter is that accidents and incidents are rare in themselves, luckily enough, and for you to, you know, make the case that you had been safety operating for eight years, presumably with the same condition - that may well have been or it may well have been that you were impaired and didn’t know it - or it’s hard to say. I’m quite surprised to learn that you had been certificated in the U.K. with the same - presumably, the same loss of visual function particularly given that in general the aero-medical certification in the JAA state ..... the U.K. CAA are quite ..... conservative perhaps than we would be in Australia. Now, of course, I can’t comment on the decision of my colleagues in the U.K. but, indeed, I think, at one stage we did ask for some permission to contact the CAA or to get some documentation from them to discover perhaps on what basis they felt that you were fit to fly, and we weren’t able to obtain that information, by memory. So I can’t, you know, give an explanation for their decision to continue to - for you to fly with that amount of visual field loss.
…
I just wondered why you didn’t actually then - if you felt that there was a problem with my vision, why we didn’t do anything else. It was just - it was, “You’re failed,” and that was the end of the case?   Well, I think, because the medical reports that we had available to us - that the condition was fairly clear-cut and obvious that the conditions, in terms of your visual field loss was quite severe, and I don’t think any particular further testing would have been terribly helpful to alleviate the fairly obvious decrement in your vision that you would impair your function, potentially.”
Associate Professor Navathe is the Principal Medical Officer of the respondent, a position he has held since December 2008. Associate Professor Navathe’s witness statement (which he confirmed on oath during the course of his evidence), included the following evidence:
“The disconnect between the occupational and the clinical perspective
In making a risk assessment in a clinical setting, a clinician makes a decision based on the best outcome in the long term for the patient. In making that assessment, a range of issues is considered such as the impact upon the individual, impact upon the individual’s family, the long-term risk of the disease, the long term risk of the medication, etc. The level of risk accepted is based on it being at a level that does not unduly compromise the individual’s day-to-day life.
In an occupational setting, on the other hand, the issues which have primacy, are the effect of the condition on the individual’s work, and any safety implications of the condition or the medication. The level of risk accepted is based on the safety of the individual and the safety of others affected in the workplace by the individual’s potential risks. In a regulatory medical certification situation, the duration is often limited (1 to 4 years) and this necessarily places a short term viewpoint on the examination of the issues
What factors are paramount in regulatory aeromedical decision making?
Section 9A of the Civil Aviation Act provides assistance in identifying what takes paramountcy in making decisions within the civil aviation medical certification context. It states “In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.” Therefore in making its aeromedical decisions, the CASA Office of aviation medicine insists on procedural fairness, and its decisions must be reasonable, but the question of the primacy to be accorded to air safety over any other relevant consideration (including individual rights) is clear.
Dealing with uncertainty
Uncertainty has been defined as a state of having limited knowledge where it is impossible to exactly describe existing state or future outcomes. Medicine is an uncertain science, and it is not unusual for a diagnosis not tobe made based on a set of symptoms reported. It is also not unusual, for different medical practitioners presented the same set of information, to come to different conclusions. Where there is uncertainty because of differing opinions, it is possible to benchmark the opinions against evidence in peer-reviewed literature. However, where the uncertainty stems from an inability to form a diagnosis, it then becomes obligatory to form a risk management decision in the absence of a decision, based on the constellation of symptoms and other clinical information available.
CASA makes all reasonable attempts to identify necessary information which will enable it to be satisfied about the safety relevance of the condition. However, sometimes a situation can arise, where clinical information, investigations, and specialist opinions do not lead to an unequivocal diagnostic formulation. In these situations, a point is sometimes made, that nothing more can be done, and therefore a medical certificate must be issued. While keeping in mind the limitations of medicine, unless CASA is able to be satisfied – based on the information available – that issuing a medical certificate will not adversely affect the safety of air navigation; there is no ability for CASA to do so.
Implications of visual field loss
One of the important issues about vision in aviation is the fact that vision is of two types, focal vision and peripheral or ambient vision. The two components of vision are different enough to be described as different types of vision. They differ in the visual tasks that they perform, the parts of the visual field they examine and their pathways through the brain. Roughly speaking focal vision tells us “what is there” while ambient vision tells us “where we are”.
Focal vision is used for detecting and recognizing objects. It is centered along the line of sight, so when we want to recognize an object, we turn our eyes to look directly at it.
Ambient vision is used for determining location in space and orientation in the environment. It operates out in the visual periphery and needs only detect faint large shapes. Most significantly, ambient vision is not greatly impaired when light level declines. Orientation with ambient vision is largely an “automatic” process, as the orientation skills are learnt from childhood. These are reinforced by the aviation emphasis on perspective, and it is the loss of ambient vision that leads to spatial disorientation – a problem that causes a significant majority of all accidents and fatalities. Using focal or central vision to determine orientation, as is possible during flights in Visual Meteorological conditions, comes at a much higher biological cost, and is the first skill to be lost during stress.
As a result, loss of ambient vision has a disproportionate impact on aviation safety. This is the reason for the aviation emphasis on ambient vision, as demonstrated by the ICAO Medical Manual which in Chapter 11 comments on the importance of visual fields in flying: “The integrity of the visual field is of special importance to flight crew and air traffic controllers. A pilot must be aware of other aircraft and objects on the ground while scanning cockpit instruments or looking at charts. The “peripheral flow” of visual information during the land flare is critical for this manoeuvre”.
During the course of his evidence before the Tribunal, Associate Professor Navathe spoke to and expanded upon parts of his written report. When asked by Counsel for the respondent whether Mr Judges’ evidence that he was tested every six months in a flight simulator to qualify him to fly in the United Kingdom changed anything that he had stated in his witness statement, Associate Professor Navathe said it did not and then said the following:
“No, it’s certainly a – it’s an important fact that the person has been able to – has been performing at a particular level in spite of the disability. Now as Dr Fitzgerald, I heard so as he mentioned we don’t know whether the conditions have changed or not. Even assuming that it hasn’t, the fact that a person has performed an activity without an accident doesn’t mean that it’s a safe activity because an accident is something which can happen sometimes for – there’s an element of chance involved in that activity. A lot of people do unsafe activities and don’t have accidents. So that doesn’t - you know, the fact that you have done something and not had an accident doesn’t mean it’s safe. I mean you could drive at 140 and not have an accident, it doesn’t mean that driving at 140 is safe. So, you know, that’s – it’s the link between safety and performance of an activity is not that simple.
Mr Judges in support of his application for a medical certificate told CASA and provided CASA with a medical certificate from the UK CAA. Does the fact that he has medical certification in the UK affect your decision when assessing applications in Australia? I mean there are jurisdictions worldwide and every jurisdiction have their own standards and their own, for want of a better word, risk appetite for what they will accept or what they will not accept. By and large, we know that the UK and the JAA are much more conservative about visual field defects than Australia is. So I mean I know this from my personal knowledge because we have informal and de-identified contacts with these authorities on an almost weekly basis and I just recently had a contact about a person who has got some visual field defects. So as a rule, the UK is certainly more conservative about this area than some others. Without knowing the complete basis of the information set which was seen by the decision maker, its’ difficult to be sure about what actually happened. It might be that there was some particular circumstances or some particular tests which were done or sometimes it would be overlooked. We don’t know what was the reason for that and that’s part of the reason why we wanted to explore that with the UK CAA in this case. We were not granted consent to do so so that’s why”.
When asked by Counsel for the respondent whether the fact that the applicant has medical certification in the United Kingdom affected the Associate Professor’s decision when assessing applications in Australia, the Associate Professor said that it did not.
The applicant’s cross examination of Professor Navathe was as follows:
“MR JUDGES: I suppose the only question that I would like to bring up is this one on spatial disorientation and this actually hasn’t come up before, it’s been a vision discussion but I just am a bit worried that that has been brought up with no sort of indication of why inasmuch as having completed, as I said, these checks very six months for the last eight years subsequent to my condition. If there had been any spatial disorientation noticed, it would have been noticed then. So I sort of feel that that’s maybe taking the discussion away from what the problem is here which is in fact my field loss and rather than subsequent what could possibly happen, perhaps, maybe? I think the reason that I mentioned that, Mr Judges, is that the implication of the visual field loss is not merely limited to not being able to see A or B but also that it causes loss of peripheral vision which has other implications as well. I am not suggesting that you have had spatial disorientation or anything like that, I was just identifying the special importance of vision in those particular circumstances.
Okay, I understand. But you would agree that if there had been any possible spatial disorientation within the last 16 simulated rides which are done under visual and instrument conditions at night and day et cetera in a simulator which is extremely realistic, that would have possibly – not possibly but definitely would have been noticed? If it had happened, it would have definitely been noticed.”

In answer to questions put to him by the Tribunal, Associate Professor Navathe said that the “OML limitation” was one used only in the United Kingdom and was a “short form” which means that “you have to fly with an additional pilot in the cockpit”. He said that the respondent “doesn’t use the term OML but we have the same concept, yes, we use a multi-crew”. When asked in what sort of cases the respondent has imposed such a condition, Associate Professor Navathe said “most of the times that this limitation is put in is for people who have a higher risk of incapacitation… most of the cases are people where there is a risk of incapacitation. For instance, the coronary artery disease risk which we accept is in the range of 1.2% from people who have had a heart attack have a higher risk of incapacitation. These people would have a multi-crew restriction. People who have had an old diagnosis of atrial fibrillation, who are now controlled, these people would have a multi-crew limitation”.
The respondent’s third witness was Anthony John Gibson, an optometrist who was provided with, amongst other things, the Ophthalmology Report of Dr Casswell dated 18 July 2011, the Eye Examination Report of Dr Daniels dated 24 August 2011 and various of the respondent’s Aviation Medical Reports.
Mr Gibson’s report (which he affirmed during the course of his evidence) included the following eviddence:
“He might also be unaware of objects he has not seen until they appear suddenly in his central or inferior field.
In effect, most of the superior half of Mr Judges’ central 48° field is compromised. For an object to be detected by him, it would have to have been detected in his inferior field and fall within his central 10-15° field to be seen clearly.
Mr Judges might adapt to this restriction by scanning with eye and head movements.
Visual field losses have been implicated in reduced mobility and motor car accidents. It is not unreasonable to assume that similar problems could occur in aviation.
The practical implications of these field losses have been demonstrated in Figs. 5(a), (b), 6(a), (b) and 7(a), (b) where the maximum threshold greyscale map was used to create an overlay of variable transparency mimicking the areas of field loss. The overlay was applied to 3 aviation cockpit image to stimulate the view Mr Judges might experience:
Figs. 5(a), (b) show normal and simulated views of an Airbus A320 cockpit at night (1.7m viewing distance);
Figs. 6(a), (b) show normal and simulated views of a section of the instrument panel in a Boeing B-737 (0.5m viewing distance);
Figs. 7(a), (b) show normal and simulated view of a headup display, as projected on to an aircraft windscreen (0.4m viewing distance).
The field loss overlay was altered in size to reflect the angular subtense of a 48° field at the various viewing distances. There is some artistic license inherent in the field loss overlay but it does provide a practical representation of the field test data in the aircraft cockpit environment.
The field loss overlay clearly demonstrates that visibility of objects in these scenes is compromised.
The effects of the losses might be compensated for by head and eye movement scanning, but there is an obvious hindrance to effective visual information acquisition. Objects might easily disappear and suddenly reappear in the field as his gaze positioned altered. Internal objects (instrument symbols, warning lights, switches, maps, procedure manuals) and external objects (other aircraft, runways, glide path indicators) might easily be missed or misinterpreted.
There are obvious implications for safe operational performance of a pilot with this visual impairment. The impact of these visual field losses during high stress situations like takeoff, landing and emergencies would be amplified and could easily induce critical errors of judgement with potentially fatal consequences.”
Under the heading “Air Safety Implications”, Mr Gibson wrote as follows:
“In my opinion:
1.Mr Judges’ demonstrated dense monocular field losses and limited central vision are significant and a clear breach of the CASR regulations for all pilot classes:
CASR Section 67 (150 1.33, 155 2.33 and 160 3.32) “Has normal fields of vision.”
2. The only reference in the regulations to field testing describes the confrontation test, a simple screening test. Monocular threshold tests performed on a computer controlled apparatus with standard viewing conditions are clinically accepted as a more complete and reliable method for measuring visual fields. It is likely that Mr Judges would demonstrate a significant field loss on a well performed confrontation test.
3.Although the reports of Mr Judges’ vision have some inconsistencies and are incomplete in their detail, there is enough evidence of visual field loss to indicate that he does not meet the visual standard for any class of flying licence.
4.A simulation of his restricted field on typical cockpit views clearly demonstrates the flight operational risks created by his reduced visual capacity.
5.The status of Mr Judges’ peripheral vision beyond 24° from fixation is not recorded but is likely to be affected. His capacity to detect a peripheral object and stimulate a fixation movement to view the object is already compromised. Additional peripheral field losses are likely to be present and would further compromise his visual capacity.
6.Mr Judges’ field losses have significant risks to air safety as:
·There is a large area above the central fixation point in his vision where his ability to recognize objects is severely compromised;
·These losses would limit his ability to complete tasks that require fast recognition of small detail;
·Objects 15° beyond fixation could disappear and reappear quickly in his vision, particularly in the superior field.”
Under the heading “Specific Questions Raised in your Request”, Mr Gibson wrote as follows:
“In my opinion:
1.Mr Judges has significant visual field loss in each eye L>R) and this creates restrictions in his binocular field, particularly superiorly.
2.Mr Judges has a high probability (~40-50%) of not seeing objects in a large zone above his central field.
3.The field losses are a clear breach of CASR regulation Section 67 (150 1.33, 155 2.33 and 160 3.32) “Has normal fields of vision” and represent risk to his ability to safely exercise the privileges of all pilot licence classes.
4.Typical aviation scenes, when viewed with an overlay of the combined monocular losses, demonstrate the practical significance of Mr Judges’ field loss.”
During the course of his oral evidence before the Tribunal, Mr Gibson was taken to letters from the CAA dated 12 May 2008, 17 June 2008 and 14 June 2008 and to three pages of graphs relating thereto. When asked whether any of that material changed any of the opinions he had expressed in his report, Mr Gibson said: “No, because these tests that were done are a different test.”
Mr Gibson went on to elaborate as follows:
“This test is done on a Humphrey machine and it is an Esterman monocular test. The patient parameters on the left hand side, I would point out, show that the stimulus intensity is 10 decibel and it is single intensity and fixed. So this is like a screening test. It is tested at one level. And it also demonstrates that he had fixation losses, four out of 11. So that is 36 per cent. He had false/positive errors of one out of nine and I think false/negative errors are zero. But this test tests a wider field. But it is only testing at one level. And at least in the monocular test for the right eye and the fellow one for the left eye, the fixation is monitored. In the results for the left eye, again, there are quite a lot of fixation losses, four out of 11, and a few false/positive and false/negative errors. And on the right eye test he scores 98 per cent. On the left eye test he scores 90 per cent. So there are more errors for the left eye field. Now the difference with the - if we go on to the binocular test, the binocular Esterman test allows the patient to move their eye. So there are no fixation losses recorded. What he has though is a lot of false/positive errors, five out of nine, which is 56 per cent. And on this test he scores 99 per cent but my argument about
this test, and I have raised it before with CASA, is that it is a useless test. Everybody passes the Esterman test, especially binocular tests. When you allow patients to move their eye they could sit there pressing the button all day and they would get a good score eventually because it doesn't monitor where the patient is looking. So it is commonly used to assess patient mobility. Perhaps for, you know, getting around. And it is sometimes used in driving tests but it is an unreliable test because it is a very easy test to do and nearly everyone passes it. So that would be my comment on the Esterman test.”
In the course of cross examination by the applicant, Mr Gibson was questioned about figures 5, 6, and 7 of his report and accepted that he had “made some assumptions about what sort of viewing distance these objects would be, where the camera was positioned when they took the photo of the cockpit instrument panel in the headup display”. He said that he “superimposed the impressions of what parts of the field would be missing based on those assumptions”.
The applicant then put to Mr Gibson “as they don’t relate to a position the pilot would be sitting, then would you consider that they are not really of any use” to which Mr Gibson said as follows:
“Well, I think they are obvious because wherever the pilot is sitting, there is a 24 degree field loss. Now there is a field loss in the central 48 degrees, if you like …. So, you know, you could simulate it more accurately if you got exactly at the pilot’s head position and it projected out in space a 48 degree field. That is what section of the 48 degree field is affected, going on the tests results that we got. Now, I have a comment about that too, is that the field tested was only the central 48 degrees. We don’t know what the vision is like beyond that”.
The evidence tendered on behalf of the respondent included various other documents. The Tribunal does not consider it necessary to summarise them.
THE HEARING IS ADJOURNED
After hearing the final submissions on behalf of both parties, the Tribunal adjourned for a short period. Upon resumption, the following exchange occurred between the presiding member and the applicant:
“MR PENGLIS:   Mr Judges, the tribunal has formed a provisional view and the provisional view is that your application will not succeed on the evidence that has been adduced at the hearing thus far. And I will explain very briefly a short point. In short point is that - if you would have exhibit A7.
MR JUDGES:   Which was?
MR PENGLIS:   The letters you handed up, the memos you handed up, today from Mr Duguid
MR JUDGES:   Yes.
MR PENGLIS:   As we understand it, in essence your submission is that notwithstanding the evidence that has been adduced by and on behalf of the respondent we should set aside the reviewable decision because of, amongst other things, the views expressed by Mr Duguid in his documentation and the fact that pursuant to those recommendations, the CAA issued you with a licence under which you have operated without incident. In a nutshell, that is your case. The limitation in that or one of the limitations in that is that, as I indicated to you earlier, we don't have the CAA documentation so we don't know what their process was. We don't know what the considerations were. They havn't been exposed to scrutiny by either the respondent or us. Secondly, the respondent and the tribunal haven't had the opportunity of hearing Mr Duguid. We don't know why he formed the view. Again, it hasn't been exposed to scrutiny.
So the Tribunal thought it appropriate to express you the provisional position that the Tribunal has arrived at to indicate to you in essence the primary reason why. And subject to hearing from Ms Bennett, what we propose to do is to adjourn the hearing of this application on the basis that if you want to adduce any further evidence, and that evidence would have to be limited to either documentation from the CAA or oral evidence from the CAA or Mr Duguid, then we will resume this hearing. If we don't receive the notification, the hearing will stand as completed. And we will, subject to that, reserve our decision today and deliver our decision in the usual course. As a matter of fairness to you, you need to understand exactly what the position is. Do you understand what I have said?
MR JUDGES:   I do, sir.”
The applicant availed himself of the opportunity afforded to him by the Tribunal and subsequently produced to the Tribunal, and the respondent, various medical records and other documents provided to the applicant by the CAA.
EVIDENCE PRODUCED ON THE SECOND DAY OF THE HEARING
The Tribunal received into evidence a letter from the CAA to the applicant dated 24 June 2010 and its 3 pages of attachments being copies of the applicant’s visual fields. The letter was in the following terms:
“Thank you for kindly arranging for us to receive the report from Mr Casswell, your Consultant Ophthalmic Surgeon together, with hard copies of your visual fields. I note you underwent trebeculectomy to each eye and have made a good recovery from this procedure. I am pleased to confirm the validity of your JAA Class One medical certificate with OML limitation.
I have now had the opportunity to discuss this with my colleague, Mr Chorley, here at Aviation House, this suggests that you attend for further assessment with Mr Duguid, our Consultant Ophthalmic Advisor. The appointment to see Mr Duguid should take place within the next two months….”
As a consequence of the additional evidence, the applicant was made available for further cross examination by counsel for the respondent. During the course of that cross examination, the following questions and evidence occurred.
“Okay. Thank you. The – in his report, Professor Vingrys has noted that from the records that were supplied from the UK CAA, it appears that your eyesight has got progressively worse since around 2006. Can I ask do you feel – is it your – do you agree with that conclusion that was drawn by the professor?   Yes, I guess when he says “progressively worse”, there was a deterioration in the right eye; the left eye was pretty much stable after the trabeculectomy. So the right eye had deteriorated beyond what it was in that period of time, although noticeable mostly as a binocular test as opposed to – sorry, monocular, whereas the binocular vision personally didn’t seem unchanged. I didn’t notice any difference in my vision, with the exception of this particular test.
MR PENGLIS:   So just so I understand, Mr Judges, what you’re saying is when you looked through that eye and that eye only, you could notice a deterioration, but when you were looking through both eyes, it – you either didn’t notice it or it wasn’t as noticeable; is that what you’re saying?   It is in a – not – in as
I’m not trying to put words in your mouth, I’m trying to understand what you just said, so?   Yes, I know. I know what you’re trying to say. I – what I – the point is, if I look through that single eye, the monocular, then the vision is basically unimpaired, with the exception of the peripheral.
All right?   So there is a blind spot which is up here somewhere, so I can’t see that finger moving, but as it comes to here, I can. So with one eye, then that’s gone, but with two eyes
But the question was whether you had noticed a deterioration, not what you can see and can’t see, as I understood ?   The answer is no, I didn’t notice a deterioration.
But what about if you only looked through one eye? I thought that’s what you were saying, monocular?   Yes, except I don’t, you know.
I understand that, and I’m just trying to understand your evidence. But what – I’m telling you what I understood, and giving you the opportunity to tell me if I’ve got it right or wrong, that’s all. You said it was noticeable when you had a monocular test, which is what I understood you to be saying, but not when you were looking through both eyes. What that meant to me is you didn’t notice it deteriorating on a day to day basis because you looked through both eyes, but if you had tests and you looked through only one eye, you would notice that there had been a deterioration; is that what – is that right or wrong?   Well, yes, it’s – I guess it’s right inasmuch as if I look through one eye, then there – to me, there’s no deterioration. But if I do a test, ie, one of these Esterman-monocular tests, which is flashing white lights that glow, then I won’t see the white light up here.
Right?   So there is definitely deterioration, that’s for sure, but in day to day operations, it was never noticeable.”
The respondent called a further witness, namely Professor Algis Vingrys, Head of the Department of Optometry and Vision Sciences at the University of Melbourne. Again, this witness’s qualification as an expert is undoubted and was not challenged by the applicant.
During the course of his evidence, Professor Vingrys affirmed the substance of the letter which he wrote to the respondent dated 9 March 2012 in which he wrote, amongst other things, the following:
“1.      What is the degree of visual field loss experienced by Mr Judges?
The degree of visual field loss can be quantified using the Mean Defect (MD) index from a visual field print out. At the first test date in October 2000 Mr Judges MD was -1.07 for the Right Eye and 4.27 for the Left Eye.
Typical classifications are to assign MDs <-6 as mild; -6 to -11.9 as moderate, and >-12 as indicative of severe defects, so at that time Mr Judges had a mild defect in his Left eye only. At the most recent test, dated 24 August 2011, Mr Judges had a Mean Defect of -13.9 in his left eye, which would classify this eye as having a severe defect, and a Mean Defect of -10.9 in his Right eye, being a moderate defect. These values are consistent with those found in the UK just before his departure for Australia which were, RE -11.2 and LE -13.2, so these indices are reproducible.
2.        What is the likely functional impact of that visual field loss?
Functional impact is usually determined by the binocular visual field. As Mr Judges has a substantial loss in the superior aspect of his visual field in both eyes, he would have limited capacity to sight objects in his superior visual space or to scan instruments above his head. He has developed a reduced sensitivity in the inferior field as well but this 1 to 5 dB change would nave minor impact on his capacity to scan instrument panels or to read printed materials, which is usually undertaken using the inferior part of the visual field.
3.        In your opinion, is Mr Judges fit to exercise the privileges of his commercial pilot and private pilot licenses?
It is apparent that Mr Judges has gone from having a monocular visual field defect in 2000 to now having a substantial defect in both eyes in 2011. These bilateral losses were initially found in the UK by Mr Casswell in July 2011. However, his status was considered ‘adequate for flight duties’ by Mr Druguid in May 2008 based upon a normal Easterman test returned at that time. The defects noted by Mr Casswell in 2011 were subsequently confirmed by testing in Australia in August 2011. The bilateral superior loss and mild depression of sensitivity in the inferior field would mean that Mr Judges would have some capacity to read the instrument panel but would have limited capacity for the intake of external information whilst scanning flight instruments, as simulated in Mr Gibson’s Figures 5-7.
Mr Gibson’s analysis is based on the most recent (2011) Integrated Visual Field and is not only accurate but reflects the existing 2011 state. It needs to be pointed out that the A320 flight check and both Easterman field tests, which might have influenced the UK examiner (Druguid), were performed before the present losses of visual field were established. They would have given an overly optimistic interpretation for his present capacity.
It is my opinion that Mr Judges has shown significant deterioration in the visual fields of both eyes since 2006 (see Figure 3) after successful trabeculectomy surgery, despite his IOP being stable and well controlled over this same time frame. It is also my, that his present visual fields as measured by Dr Daniels in August 2011, are not adequate for the safe performance of flight duties, in either a commercial or private pilot capacity.”
54.During the course of his evidence in chief – he was not cross examined by the applicant – Professor Vingrys gave the following evidence:
“MS BENNETT:   Professor, with respect to the document that I just referred to, which is the charts from 2010 relating to Mr Judges, can you please discuss those charts and see whether they change anything in relation to your statement?   No, I was quite surprised by ..... because they seem to portray a slightly better visual outcome than what I may have expected, and, in fact, they are not that consistent with his own 2011 ..... line test, which were also provided by both the CAA examiner and a Dr Hausen of Australia, where they were intending ..... So either from – in other words, the charts I have in front of me from 2010 are indicating for a better outcome than what I expected, so either it has had some progression, as is shown in the 2011 field test results, or there’s some other mitigating circumstance that has given him a better performance, and that mitigating circumstance may be, as alluded to in my report, the Esterman test is a substantial suprathreshold test, which is – can be seen as an easy test, if you like, compared with the threshold tests that are conducted in the general monitoring of .....
Having reviewed that test result, does that change the conclusions in your report?   There is inconsistency between what is showing in 2011 and 2010, and it would be hard for me to be as firm in my conclusion as I was in my initial report, and what I would like to do is actually do another Esterman on him now, or just actually making sure that he hasn’t had a change in his vision, which is evident in two other tests, one done in the UK, and one done in Australia.
Thank you. In your report, at the second page, the third paragraph down, you have stated in that paragraph – it starts:
In my opinion, that Mr Judges has shown significant deterioration in the visual fields in both eyes since 2006. ?   Mm.
That:
After successful trabeculectomy surgery, despite his IOP being stable and controlled over this same timeframe. ?   Yes.
And then the second sentence is:
It’s also my opinion that his present visual fields, as measured by Dr Daniels in August 2011, are not adequate for the safe performance of flight duties in either a commercial or private pilot capacity. ?   Mm.
In the United Kingdom CAA, provided – issued the applicant, Mr Judges, with a medical certificate, which had allowed him to fly as part of multi-crew, so with a – sort of, a safety pilot, or a member of the safety crew. You haven’t discussed that specifically, and if I could ask what would your opinion be, whether Mr Judges, on his – on the fields as measured by Dr Daniels in August 2011, would a safety pilot condition, such as was issued in the United Kingdom, be something that would adequately mitigate the risks as you’ve identified in your report?   You’re asking me a difficult question, and it’s a procedural quality question of the CASA here in Australia. My personal opinion – and I’m only going to express a personal opinion here – is that the reason we have multi-crew is to facilitate safety, and if one of those crew is deficient and can’t perform the duties, then that safety is compromised, to a degree. The question becomes is it compromised to the degree that the crew will fail, and I guess we can go through numerous accidents before where the failure of one or other crew member has led to apparent accident. So I’m not quite sure what CASA would feel. My own personal opinion would be that both crew members have to have the capacity, as required of their licence, and that produces a certain sense of redundancy in the sense of safety within the operating environment. The thing that’s difficult in this case is that Mr Judges has progress in his condition, and I’m quite prepared, as I wrote in my report, to accept that he would be ..... to one of the pages – I think it was appendix 1, page 7, where I show the visual fields, if you go down that page. Has the tribunal had time to find appendix 1, page 7?
MR PENGLIS:   Yes?   Okay. There is a ..... the visual field, starting from 2000 and ending up in 2011 in the bottom right corner of the page, and they’re arranged vertically. So if you go down that page, the first thing that’s apparent is that the right eye is always normal in the early phase of the condition that affected Mr Judges, and, in fact, the left eye slowly develops a larger and larger visual field loss. But because Mr Judges is a binocular person, walks around with both eyes open, it would be, in my opinion, quite safe for him to perform under those circumstances. As you go along the right-hand columns, you find that in 2008, he – I didn’t have the data, but in 2011, both eyes become involved, and that was confirmed – the first report there was from the UK, and the second one was from Australia, and I can see that there’s a commonality in the type of loss. ..... that both eyes are involved, in my opinion, Mr Judges has a visual deficit that cannot now be compensated for by the better eye, particularly in the ..... part of his visual space. And there’s a little bit apparent in the 2010 field that he showed me ..... that there are some missing points in the superior field, particularly in the left eye, but also in the right eye, and even in the binocular representation is one point that is ..... in the superior part of the visual space. As I point out, though, the difference between the field that we have – I have plotted here in appendix – page 7 of the appendix, versus the one that you just sent me, the Esterman, is that the Esterman ..... 10 decibels, whereas the one in the appendix is done on threshold. And so there’s a factor of about 100 difference in the brightness of the stimuli. And so what it says to me is that when the stimulus is incredibly bright, Mr Judges can percept it and respond to it obviously, in the Esterman field, but when the stimulus is dimmer or somehow degraded, Mr Judges will have considerable difficulties in undertaking that task. And, in my opinion, that would compromise his flight duties, even as a multi-crew member.”
ANALYSIS

The Tribunal has taken the unusual step of reproducing at length much of the evidence that was given in this matter to demonstrate the overwhelming nature and force of that evidence, particularly the expert evidence. That evidence is clearly to the effect, and the Tribunal has no hesitation in finding, that the applicant suffers from significant visual impairment.
Having said that, the Tribunal finds that the Figures 4, 5, 6 and 7 referred to in Mr Gibson’s do not represent a reliable depiction of the applicant’s vision. First, 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.
That, however, does diminish the force and effect of the expert evidence which has been tendered on behalf of the respondent, in which, subject to the aforesaid qualification, the Tribunal accepts unreservedly.
The applicant did not call on any expert evidence to contradict the evidence produced on behalf of the respondent. Rather, he based his application on, essentially, three propositions:
(a)he believes that the imposition of a condition that he fly only as a co-pilot would ameliorate any risk that his defective vision is likely to pose to the safety of air navigation;
(b)he has impeccable safety record
(c)as recently as 2010, the United Kingdom equivalent of the respondent, the CAA confirmed the validity of his Class 1 Medical Certificate.
Turning then to the issues for determination by the Tribunal, as previously identified, in the end the applicant did not seriously contend that his eye sight was not likely to pose a risk to the air safety navigation without the imposition of conditions (see, for example, p-60/61). In any event, the evidence overwhelmingly establishes that the extent to which the applicant fails to meet the medical standards is likely to pose a risk to the safety of air navigation, and the Tribunal so finds.
At the heart of this application is whether conditions can be imposed which would ameliorate any such risk posed, namely, the same way that the applicant’s UK medical certificate is issued (that is, by restricting it to be valid only as or with qualified co-pilot).
The applicant’s case in this regard is reflected by the following submissions made by him:
“MR PENGLIS:   And you again refer us to Mr Duguid and to the CAA. You have heard the case that is put up against you in that regard and Ms Bennett has referred to paragraphs 38 and 39 of the outline of submissions and, in particular, in answer to a question that I put to her, she took us to Dr Fitzgerald's report and paragraph 16. In particular, the second part of paragraph 16. Now the tribunal understands your argument to be, well, the imposition of a condition should be satisfactory because (a) that is what the CAA did and (b) I have been flying for many, many years under that condition with no incident. We understand that. What else do you rely upon? What else do you submit in that regard to satisfy us that the view expressed by Dr Fitzgerald ought not be upheld?
MR JUDGES:   Well, most of the people that are certifying me, ophthalmologists I guess and - although Dr Fitzgerald is involved in aviation as such, it is not whether his view of the - of my condition is more relevant than Dr Duguid's reading of it. I guess it is debatable. He does go on and say that it is - he appears to say that is likely or a 50 per cent chance of things happening and in fact that is patently untrue because nothing has happened in eight years of flying in this condition with constant checks and constant medicals. So that doesn't seem too likely. The condition, as Mr Caswell has said, is stable so I am not going to get worse at the moment. And every six months I am having a medical anyway so if it does start to get worse, you know, we will be the first to know. But in the meantime flying, especially in a two pilot situation, this is not a condition like a heart attack where I am suddenly going to drop on the ground.
And the point in fact which was brought up a little while ago was this incapacitation and the question was whether it was insidious or creeping incapacitation. The other pilot didn't notice it. I have it written down here somewhere. But the bottom line is we actually constantly check each other for this. So two pilots flying an aeroplane: One pilot will ..... incapacitation whether it is on take off, landing, approach, or wherever, and the other pilot - the trigger will be when he goes in a certain direction, whether the angle of bank is beyond a few degrees or whether it is going down or up and he shouldn't be, he then questions the other pilot. You know, are you all right? And if the answer is no because the guy is incapacitated or dead or whatever, then he takes over. And in all the incapacitation drills that I have done over the years I can't think of one or two in hundreds where anything that has gone seriously - especially of altitude on the ground may be - it is occasionally - if it is a junior pilot, he might miss it.
But 99.9 per cent of the time the other pilot picks up the incapacitation. So I don't feel that that is likely to happen to me but my problem, my disease, my only incapacitation could be I could go blind instantly. And I don't think there are any cases of glaucoma pilots going blind instantly.
… DR FRAZER: I suppose I will just make a comment to hear your view. You are accepting that you have bilateral visual field defects so both eyes are affected. The nature of the defect or medical condition is that it is there all of the time. And you do accept that to fly safely you need to have a co-pilot all of the time. But I suppose what I would say to you is the co-pilot is also relying on your assessment and interpretation, particularly with this condition which, as you have said yourself, is not a sudden onset which might be quite obvious in that - say if the pilot is having a heart attack, for example. I am just making a comment. I am interested in how you assess that yourself.
MR JUDGES:   Are you questioning whether I am a sort of - I can be relied on by the other pilot due to the fact that there are some field
DR FRASER: Well, you accept yourself you need a co-pilot. You are accepting that.
MR JUDGES:   Yes.
DR FRAZER:   Yes. Isn't the co-pilot relying on you to perform to a satisfactory level?
MR JUDGES:   Yes, we have a way of flying these days where it is crew resource management, CRM. And the two people, invariably two people crew these days, are combining for the best result in safety and in the whole - operating the flight. So, yes, the co-pilot or the other pilot, whether he is the captain or the co-pilot, is relying on me to the extent that he expects me to do my part of the job.
DR FRAZER:   Yes.
MR JUDGES:   And I sort of get the feeling that these pictures of - confuse people inasmuch as you keep seeing this big blank spot which in fact is not there.
MR PENGLIS:   Well, I can tell you, Mr Judges, that the tribunal - I will not be relying or accepting as a fact that that is an accurate representation of what you see.
MR JUDGES:   Okay.
MR PENGLIS:   So you don't need to address it. Having said that, I make it clear it doesn't mean that we are rejecting the evidence given by Mr Gibson. It was just we understand what he has attempted to do. We feel it would be unsafe for us to rely upon that as a fair representation of what you see.
MR JUDGES: Okay. I appreciate it. So in the question or - as part of the crew or part of the team, my limitations are there are sort of small blank spots, I guess, in my vision field. But they are being addressed or covered by the fact that we don't sit there staring, you know, at a point. The thing is that all the area that we can see is covered. So as I am sitting here I am also looking this way, that way. That will cover what is coming. So there is not - you are not going to see a 747 hop out of the window you didn't know was there, even if the other guy missed it and his field of vision is perfect, because you don't fly with OMLs together so one of us is covering. And although he may say, well, I am working harder for the result because you are afflicted, it is not actually true. And this is why I sort of say that once we - every six months when we do these checks, the examiner is there purely to see that we are both completing our share of the work but also up to the standard that is required.
And if either one of us falls down, then it goes back to retraining or, you know, you can actually lose your job if you don't do it to the standard. So all the time I have been afflicted as such, one way of putting it, nobody has ever said you can't do your job. And the other pilot hasn't said I am, you know, flying a job and a half here and he is only doing half a job.
DR FRAZER: And just to make sure I heard you correctly, did you say then - I think you did make a comment that in your visual field - you said - what did you say exactly? Are you saying isolated pockets of deficit? Is that what you said?
MR JUDGES:   No, my failed vision area is peripheral at the top. So it is the bilateral superior field. So it is this little bit up here.
DR FRAZER:   Yes.
MR JUDGES:   So, as I say, if I put my hand up as an indication and start wriggling my fingers, they don't actually show in my field of vision, where they would in yours, at this point. But when they come to here, they do. So that bit has gone.
DR FRAZER: Yes, okay.
MR JUDGES:   But where you are sitting in the cockpit of my aeroplane or the aeroplanes that you are flying, this piece up here is roof. Buttons and switches. And none of them require constant attention because they are all linked to an electronic system that if there is a problem with any part of the aeroplane which is connected to that particular switch, it comes into a central electronic advisory centre and that tells us there is a problem. Then you can turn back and look.
DR FRAZER: Yes.
MR JUDGES:   And if that - even a party with perfect vision can't see anything from there above because he is not - you know, you don't spend your time with your eyes up here.
DR FRAZER:   Yes but you are conceding that to fly safely you need a co-pilot all the time?
MR JUDGES:   Yes.
DR FRAZER:   And you are also reliant on the electronic monitoring technology at a certain level above, you know, where your defect is in?
MR JUDGES:   Not particularly relying on it per se. It is just an area of where my vision fails and somebody else's is still there.
DR FRAZER:   Yes.
MR JUDGES:   If there is nothing there of real issue. I mean, beyond that.
DR FRAZER: Well, because there is an electronic monitoring system. That is what you said, isn't it?
MR JUDGES:   I said that why it is - you know, in my case it becomes less of interest that I can't see possibly that much of the overhead panel whereas the other pilot can. But from here on up, nobody could see anything anyway and there is still stuff going back here.
DR FRAZER:   Well, all right, but there are certain monitoring devices that the other pilot can see that you can't see. Are you conceding that?
MR JUDGES:   Probably, yes.”
On the evidence, the Tribunal finds as fact each of the reasons given by the respondent for refusing to issue the applicant with a medical certificate (as set out in paragraph 8 above).
Applying those facts and the expert evidence which the Tribunal has received and accepted to the principles of law (set out at paragraph 12 above), the Tribunal has no hesitation in concluding that the conditions suggested by the applicant, or any other conditions, will not ameliorate the risk which the applicant’s defective eye sight is likely to pose to the safety of air navigation. As Dr Fitzgerald said, the applicant’s “deficits significantly cover almost the entire superior extent of his visual field such that even with head movement, he is likely to be significantly impaired in functions with either to visual tasks outside and inside the cockpit such as scanning for traffic, changes in instruments and obstacles”.
In this regard the Tribunal also refers to and adopts the submission made by Ms Bennett for the respondent “and as Dr Navathe gave evidence, in other cases where CASA has applied a second pilot condition, the incapacity is obvious. You know if a person suffers a heart attack and he is incapacitated, the second pilot knows that he needs to take full control of the aircraft. In cases like this, with the field vision, which is a more subtle incapacity, the second pilot doesn’t necessarily know that the pilot in command is not at full speed…which makes it difficult for taking over”.
In short, the public interest in safe aviation is not adequately protected by allowing the applicant to continue to operate as a pilot, even only with a second pilot flying with him. The nature of the applicant’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 from the applicant. The position is very different from the situation where a pilot is fully medically fit to fly an aircraft unless he becomes incapacitated by a medical condition from which he is known to suffer. Rather, this is a case where the prospective pilot’s ability to fly is and at all times will be compromised.
The applicant has a long and distinguished record of safe aviation. However, the fact that he has flown in the United Kingdom until recently without incident is incapable of outweighing the matters which the Tribunal has addressed. The primary purpose of air safety regulations is to provide as well as one can for safe aviation by being proactive: not reactive.
As Mr Gibson put it in his report “there are obvious implications for safe operational performance of a pilot with vision impairment. The impact of these visual field losses during high stress situations like take off, landing and emergencies would be amplified and could easily induce critical errors of judgement with potential fatal consequences”.
As Associate Professor Navathe put it in his evidence before the Tribunal “the fact that a person has performed an activity without an accident doesn’t mean that it’s a safe activity because an accident is something which can happen sometimes or – there’s an element of chance involved in that activity. A lot of people do such activities and don’t have accidents. So that doesn’t – you know, the fact that you have done something and not had an accident doesn’t mean it is safe.”
The Tribunal respectfully agrees.
Finally, nor does the fact that the CAA having re-issued to the applicant a medical certificate in 2010 assist the applicant. Although some views were expressed as to the possible reasons for the differing results of visual tests undertaken in 2010 and 2011, the fact that another regulatory authority in another country operating under another regulatory regime makes a particular decision is of little assistance (weight) in determining what is the proper decision to be made under the regulatory regime that applies in Australia and having regard to the medical opinion received and (subject to one qualification) accepted by this Tribunal.
It should be made clear that (as was no doubt the case when the respondent made the reviewable decision) it is with an element of regret that the Tribunal is required to make a decision which will have the effect of bringing to an end a long and distinguished career in commercial civil aviation. Nevertheless, it is the Tribunal’s duty to determine the matter on its merits and according to law.
It therefore follows, that for the reason given above, the reviewable decision must be affirmed.

I certify that the preceding 72 (seventy two) paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member and Dr A Frazer, Member.

....(sgd) T Freeman...................
Dated 29 August 2012

Date(s) of hearing 31 January 2012 and 25 May 2012

Applicant In person

Counsel for the Respondent Ms G Bennett

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4155
Re	PETER JUDGES
APPLICANT
And	CIVIL AVIATION SAFETY AUTHORITY
RESPONDENT

Tribunal	Mr S Penglis, Senior Member and Dr A Frazer, Member
Date	29 August 2012
Place	Perth

Date(s) of hearing	31 January 2012 and 25 May 2012
Applicant	In person
Counsel for the Respondent	Ms G Bennett