R v Szramka; Ex parte Baird
[2000] TASSC 16
•14 March 2000
[2000] TASSC 16
CITATION: R v Szramka; Ex parte Baird [2000] TASSC 16
PARTIES: R
v
SZRAMKA, Zygmunt
BAIRD, Alan Ross; Ex parte
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: M42/1999
DELIVERED ON: 14 March 2000
DELIVERED AT: Hobart
HEARING DATES: 10 December 1999
JUDGMENT OF: Crawford J
CATCHWORDS:
Administrative Law - Judicial review at common law - Excess of power and defective use of powers - Abuse of discretionary power - Consideration of irrelevant matter or refusal to consider relevant matter - Cancellation of driver's licence by Registrar of Motor Vehicles - Appeal to magistrate by way of hearing de novo - Whether appellant unfit to hold licence - Guidelines provided to medical practitioners by traffic authorities stating that visual acuity below a certain level meant person should not drive - Undue weight given by magistrate to guidelines.
Apthorpe vRepatriation Commission (1987) 77 ALR 42; Minister for Immigration and Ethnic Affairs v Conyngham (1986) 68 ALR 441, referred to.
Aust Dig Administrative Law [42]
Traffic Law - Licensing of drivers - Tasmania - Appeals - Cancellation of driver's licence by Registrar of Motor Vehicles - Appeal to magistrate - Nature of appeal - Whether unfit to hold licence - Guidelines provided by traffic authorities to medical practitioners suggesting unfitness - Undue weight given by magistrate to guidelines.
Traffic Miscellaneous Regulations 1968 (Tas), reg41(1)(b).
Apthorpe vRepatriation Commission (1987) 77 ALR 42; Minister for Immigration and Ethnic Affairs v Conyngham (1986) 68 ALR 441, referred to.
Aust Dig Traffic Law [27]
REPRESENTATION:
Counsel:
Prosecutor: W T McMillan
Registrar of Motor Vehicles: C J Geason
Solicitors:
Prosecutor: Ritchie & Parker Alfred Green & Co
Registrar of Motor Vehicles Director of Public Prosecutions
Judgment Number: [2000] TASSC 16
Number of Paragraphs: 22
Serial No 16/2000
File No M42/1999
THE QUEEN v ZYGMUNT SZRAMKA; Ex parte ALLAN ROSS BAIRD
REASONS FOR JUDGMENT CRAWFORD J
14 March 2000
The prosecutor was the holder of a driver's licence. On 17 December 1998, the Registrar of Motor Vehicles cancelled his licence pursuant to the Traffic (Miscellaneous) Regulations 1968, reg41(1)(b), which empowered the Registrar, in the exercise of a discretion, to cancel a person's licence if, in the opinion of the Registrar, the person was unfit to hold the licence by reason of intemperance or some physical or other defect.
By subreg(1A)(b), the Registrar was empowered, for the purposes of exercising the discretion, to require a licence holder to submit to such medical or other examination or test as the Registrar thought fit. Presumably as a result of the exercise of that power, the Registrar received a report dated 13 November 1998 from a general medical practitioner, Dr R W Smith, which stated that in the doctor's opinion, the prosecutor was not medically fit to drive a motor vehicle, although Dr Smith also recommended that a specialist report was required from an ophthalmic surgeon, Dr N A Downie. The report stated that the prosecutor's Snellon Visual Acuity with glasses was nil in the right eye and 6/24 in the left eye. The Registrar also had Dr Downie's report dated 24 November 1998, which was addressed to Dr Smith and which was in these terms:
"As you know he has disciform macula degeneration in the right eye, he also has macula degenerative changes in the left. Vision is hand movements only in the right eye and 6/18 in the left with his present glasses. I cannot improve on his present prescription. He has a moderate degree of nuclear sclerotic cataract but his major problem is the macula degeneration. I do not think his vision is adequate to drive. I have told him there is a slight chance cataract surgery might improve him to a level where he could get a driving licence but there is certainly no certainty he would get much improvement.
As such he may be better to give up driving."
Upon the basis of those reports, it is not surprising that the Registrar determined to cancel the licence. However, the prosecutor had a right of appeal to a magistrate given to him by reg59(1)(b) and he exercised that right. The appeal was heard on 2 March 1999 and three days later the magistrate dismissed it. Subsequently, the prosecutor obtained an order calling on the learned magistrate to show cause why a writ of certiorari should not be issued quashing the dismissal of the appeal. These are my reasons for my determination following the return of the order.
The grounds of the order to show cause, which were maintained by the prosecutor at the hearing, were the following:
"(b)The decision of the Magistrate was unreasonable in that he failed to give adequate weight to a relevant factor of great importance, namely, the evidence of the Applicant as to his reflex ability and reaction times.
(c)The decision of the Magistrate was unreasonable in that he failed to give adequate weight to a relevant factor of great importance, namely, the evidence of the Applicant as to his road history.
(d)The Magistrate committed jurisdictional error in that he acted upon an incorrect basis of fact, namely:-
(i) That there was nothing before him to indicate what the Applicant's road history was like;
(ii) That there was nothing before him to determine whether the Applicant's reflexes and muscle tone and reaction times fell within a parameter contained within guidelines referred to by him;
(iii) That he had no information before him by which he could determine whether other attributes that the Applicant possessed fell within the reference of normal as set out in the said guidelines;
(e)The decision of the Magistrate was unreasonable in that he took into account in the formulation of his determination the provisions of certain guidelines prepared by Aust Roads Incorporated and approved inter alia by the Royal Australian College of Ophthalmologists.
(f)The Magistrate committed jurisdictional error in that he was substantially influenced in his decision by an irrelevant factor, namely, the guidelines published by Aust Roads Incorporated and approved inter alia by the Royal Australian College of Ophthalmologists."
The nature of the appeal to the magistrate was a hearing de novo. It was the duty of the magistrate to act judicially and not administratively, and to determine for himself upon the evidence called before him and independently altogether of the process by which the Registrar reached a decision, whether the prosecutor was unfit to hold the licence and, if so, whether the discretion to cancel the licence, having regard to that evidence and determination, should have been exercised. R v Oldham; Ex parte Registrar of Motor Vehicles [1966] Tas SR 80.
At the outset of the hearing of the appeal, there were tendered into evidence the reports of Dr Smith and Dr Downie and a booklet (which I will call "the booklet") entitled "Assessing Fitness to Drive". The booklet played a dominant part in the proceedings and requires analysis. It is over 80 pages in length and purports to be "Austroads guidelines for health professionals and their legal obligations". Austroads is described as the association of Australian and New Zealand road transport and traffic authorities, the member organisations of which are the Department of Transport, Tasmania, similar departments and authorities of other Australian States and Territories and of New Zealand, the Commonwealth Department of Transport and Regional Development and the Australian Local Government Association. The booklet states it has the approval of 11 specified medical organisations or societies, including the Royal Australian College of Ophthalmologists and the Australian Optometrical Association. According to the forward at the commencement of the booklet, written by the Chairman of Austroads, the aim of the booklet "is to assist health professionals in assessing the fitness to drive of any patient who holds a licence for a light motor vehicle including a car, motorcycle or light rigid truck" and the guidelines have "been approved by all Australia's driver licensing authorities and are endorsed by all national medical colleges and associations". Under the heading "Purpose of the Guidelines", the booklet states that its "primary purpose … is to increase road safety in Australia by assisting health professionals to promote the responsible driving behaviour of their patients, having regard to their medical fitness".
Chapter 23 deals with "Vision and Eye Disorders". Under the heading, "Medical Standards ¾Vision and Eye Disorders", a number of relevant conditions are dealt with, the first of which is acuity. It is stated that drivers of cars and light trucks and motor cycle riders, "should not drive if binocular visual acuity is less than 6/12. Visual acuity must be measured with both eyes open while wearing any corrective lenses usually worn for driving." Under the heading "General Considerations", the booklet explains that "there may be a degree of flexibility allowed at the eye specialist's discretion for individuals who barely meet visual standards but who are otherwise alert, have normal reaction times and good muscular coordination" and "in such cases, a conditional licence should be considered". Having regard to the prosecutor's vision as reported by Dr Downie on 24 November 1998, it is clear that, according to the booklet, the prosecutor did not meet the visual standards and should not have been driving.
I will return to the booklet and its legal and evidentiary value in due course. However, I will first relate the material oral evidence which was given to the learned magistrate by Dr Downie and the prosecutor.
Dr Downie's evidence was that he was an ophthalmic surgeon and on 23 November 1998, he examined the prosecutor on reference from his general practitioner, Dr Smith. Dr Downie had seen him on several occasions over the previous four or five years. The prosecutor had a condition called disciform macula degeneration in his right eye, which meant that he had very poor sight in that eye. He had relatively mild changes of the same condition in the left eye and his vision had been slowly deteriorating over a period of years. On that occasion, Dr Downie found his visual acuity in the left eye was 6/18. Dr Downie explained that the numbers referred to the prosecutor's corrected vision whilst wearing glasses and came from the Snellon notation. If a person can see at 6 metres what a normal person can see at 6 metres, then visual acuity is referred to as 6/6. If a person has to be at a distance of 6 metres to see something which a normal person can see at 18 metres, the acuity is 6/18. If a person needs to be within 6 metres to see what a normal person can see at 60 metres, then the acuity is 6/60, although at that level, he is regarded as being legally blind. Dr Downie described a visual acuity of 6/18 as about half way and emphasised that it recorded the prosecutor's best corrected vision. In the year before, the prosecutor's general practitioner found the acuity was 6/9 and a few weeks later, Dr Downie had found it was a poor 6/12. Fluctuations are to be expected, he said. I note that the earlier and better readings might possibly be accounted for by the slow deterioration of the prosecutor's visual condition, a factor which was referred to by Dr Downie earlier in his evidence.
Critical passages in Dr Downie's evidence were the following. He was asked by counsel for the Registrar whether, as a result of the tests, he was of the opinion that the prosecutor's vision was inadequate for him to drive. His answer was the following:
"Well, I think the answer to that, I mean, its an agonising decision. Vision is not the only thing that accounts for driving and in fact there are probably some other things that are more important. If you've got 6/18 vision, I mean you can certainly see a car coming towards you and you can see a person walking on the road but my interpretation of the law as it stands is that I don't think I am allowed to bend the rules. I don't think its within my - I don't suppose its within the courts either, I suppose, I mean, I think the rules say you've got to be [6/12] or better and its not really up to me … to sort of say, I mean, I guess my job is to report what the vision is. I mean, you could argue the toss as to whether the rules are totally reasonable, whether there are lots of other factors that ought to be taken into consideration."
Dr Downie revealed that it was his understanding that visual acuity of 6/12 was a legal requirement. In cross-examination he was asked upon what basis he believed that. He made vague reference to a document which had been sent to all doctors, which I interpret as being a reference to the booklet. He was then asked to put that aside and to express his opinion as to whether a person with a reading of 6/18 in one eye could, nevertheless, be a capable driver and not impose any danger to other drivers or pedestrians. His answer was that he did not know and that there was no "black and white answer to that". It was his view that:
"It is sometimes a very difficult decision to decide whether or not a patient is fit to hold a driving licence and I think it is often reasonable to consider other factors in general health as well. … A patient who was otherwise very fit and sprightly and with quick reflexes but with vision of 6/18 might be a better driver than a more frail patient with slower reflexes and a vision of 6/12."
He had not examined the prosecutor except with regard to his eyesight. His understanding was that the law required that the prosecutor had visual acuity of 6/12 or better. He did not think that his opinion as to whether that was a good law or a bad law was relevant. He made the following additional remarks:
"I don't know whether I'm entitled to exercise discretion or not. My understanding is that I'm probably not entitled to exercise discretion. … I think you need to have this argument with the registration authorities, not with me. … I don't say he's unfit to drive. All I say is that his vision is 6/18."
On being asked to express an opinion about the prosecutor's ability to drive, based on the visual acuity tests, Dr Downie said that he was not able to do so and that he was an eye doctor, not a driving tester. It is clear from Dr Downie's evidence that the only reason why he had expressed as his opinion, in his report of 24 November 1998, that the prosecutor's vision was not adequate for him to drive, was because Dr Downie had found that the visual acuity was worse than 6/12 and he understood that 6/12 was a legal requirement for a person to hold a driver's licence.
The only other witness to give evidence was the prosecutor. He said that he was 85 years of age and had been driving for at least 65 years, during which time his licence had not been cancelled or suspended until the cancellation which was the subject of the appeal. He lived on his own in a low set house and had no difficulty whatever getting around the inside of the house. He cared for himself and cooked his meals. A housekeeper came in once a week to keep the house clean and tidy. He did quite a bit of the necessary work in the backyard, but also had some assistance there. He had no difficulty getting around the yard. He could walk around the streets if he had to and had no problem negotiating footpaths. At traffic lights, he was easily able to identify lights on the other side of the road. He only wore spectacles when he had to, but in the ordinary course of walking he did not need them. When he came to cross a city street at lights, he did not use glasses. He knew that his near sight was not as good as it was, but he had noticed no difference whatsoever with his long sightedness over the previous 10 years. Prior to the cancellation of his licence, when driving around the city he had no problems whatever with driving, in coming up to intersections and in coming to a stop behind stationary vehicles. At night he had no difficulty whatever identifying street lights or intersections. If he had any cause for concern about his ability to see, he would consult the appropriate qualified people. He said that about a month before the hearing of the appeal, on a terrible day with rain pouring down, he stood on the corner of Tamar and Cameron Streets, Launceston, and could see past George Street, St John Street and Charles Street and observe traffic lights changing all the time. However, he confirmed that he had attended on his general practitioner who would not pass him and advised him to go to Dr Downie who, in turn, would not pass him either. He had not been to another medical practitioner. He maintained that he could see very well and that Dr Downie would say that his lateral sight was as good as ever. However, with his right eye he could only see laterally and could not see in the centre. He gave as an example that he could see a person's face but not his arms. I think he meant that he could see a person's arms but not his face if he was standing up close with his left eye covered.
The reasons of the learned magistrate for dismissing the prosecutor's appeal suffer from some lack of clarity, so that careful reading is required. The reasons were:
"The evidence before me is uncontradicted, ie, that his visual acquity [sic] as determined by the ophthalmologist, Dr Downie was, according to the Snellon scale 6/18, ie less than the standard within the profession according to the medically accepted basis that a person is deemed fit to drive a motor vehicle which is 6/12.
Dr Downie, the ophthalmologist of some 20 years experience and based his diagnosis on his own skill and according to the standards accepted with the profession, that is by a booklet it seems for assessing fitness to drive which is approved by the Royal Australian College of Ophthalmologists and other branches of the medical profession.
The determination of fitness is not one that rests solely with the consideration of visual actuity [sic] as admitted by Dr Downie, it is a multifactorial one involving also such matters as reaction times and muscular co-ordination. However he made no assessment including the matters, those other matters as they were not, he said, within his field.
The guidelines nevertheless permit some specialist discretion incorporating these other factors in determining whether a driver is fit to drive. There being no other expert material in relation to this matter the matter is then for me to determine.
The applicant gave evidence of what he sees when he drives and how he has no trouble from stopping at lights and behind the cars. He gave evidence that he had been driving for some 65 years and judging by his experience I conclude that he's at least 80 years of age and although one can say that he is otherwise perhaps reasonably spry for the amount of those years, I have no information before me by which I could determine whether the other attributes that he may possess falls in the reference of normal as set out in the guidelines.
I have nothing before me to determine whether his reflexes and muscle tone and reaction times fall within that parameter.
There was nothing before me to indicate what the defendant's road history was like, so I can only conclude that it was unremarkable and in all the circumstances I can only conclude that he is a very cautious driver.
However, I am not able to determine if his reaction times and muscular co-ordination are sufficient to compensate for any deficiency in his visual acquity [sic].
I am therefore satisfied that the applicant is by reason of his visual defect unfit to hold a driver's licence."
I turn to consider grounds (e) and (f) of the order to show cause. They raise the use of the booklet which was made by the learned magistrate in coming to his decision that the prosecutor was unfit to hold a driver's licence. The first point which must be made is that the booklet has no statutory basis. No provision is made for it in the Traffic Act 1925, the Traffic (Miscellaneous) Regulations 1968, or elsewhere. It cannot be used to define the meaning of the expression "unfit to hold a driver's licence by reason of … some physical or other defect" in reg41(1)(b). Acceptance of the contrary proposition would produce the consequence that the meaning of the regulation would vary with changes in the booklet, which is no more than a set of administrative guidelines. There is no ground for elevating it to the status of law. Apthorpe vRepatriation Commission (1987) 77 ALR 42 at 51; Minister for Immigration and Ethnic Affairs v Conyngham (1986) 68 ALR 441 at 452 - 453. The second point I make is that the booklet was issued for the purpose of assisting health professionals when making assessments of patients' fitness to drive.
It is unnecessary for me to determine the extent to which the Registrar was entitled to have regard to the booklet when considering whether to exercise the Registrar's administrative power under reg41(1) to cancel a driver's licence. No submissions were made by counsel in that regard. In fact, counsel referred me to no judicial authority relevant to the subject of guidelines.
The learned magistrate was bound to act judicially and he needed to be more circumspect about the weight he might give to the booklet, compared to the weight a medical practitioner or the Registrar might have been prepared to give it. An analysis of the learned magistrate's reasons reveals that he gave the booklet considerable weight. In my view, it is fair to say that he determined the appeal in the way he did because the evidence established that the prosecutor's measured visual acuity was 6/18 which failed to meet the booklet's criteria of 6/12 and that as a consequence, the prosecutor was unfit to hold a driver's licence. That is not to say that the learned magistrate did not have regard to the source of the booklet and that it appeared to have the approval of the Royal Australian College of Ophthalmologists and other branches of the medical profession. But, having concluded that there was no other evidence which ought to persuade him to the contrary, the learned magistrate used the booklet to define for him that the prosecutor was "unfit", as that expression is used in reg41(1)(b), to hold a driver's licence.
The problem for the Registrar at the hearing of the appeal was that although Dr Downie had been prepared to sign a report which stated that "I do not think his vision is adequate to drive", he was not prepared to repeat that opinion when giving evidence before the learned magistrate. Dr Downie declined to do so, asserting, in essence, that he was incapable of expressing an opinion about it. The learned magistrate was therefore left with no evidence, apart from the acuity reading and the booklet which supported the Registrar's decision. Dr Downie did explain that visual acuity of 6/18 indicated that the prosecutor could see something at 6 metres, while a normal person could see it at 18 metres, but he countered the effect of that evidence by saying that a person with 6/18 vision can certainly see a car coming and a person walking on the road.
The essence of the prosecutor's evidence was that notwithstanding a significant problem with his right eye, his vision for the purposes of driving and walking in public streets was sound. He admitted that his near sight was not as good as it was, but maintained that his long sight was good. It must be inferred that the learned magistrate rejected his claims about the soundness of his vision and applied the booklet as dictating that the prosecutor was unfit to hold a licence because of the 6/18 visual acuity reading. I conclude that by doing so the learned magistrate fell into jurisdictional error, for he elevated the booklet to a status which it did not have. By applying it in the way he did, he gave it the force of law. I do not say that he was not entitled to have regard to what it said, but he needed some other evidence to reach a conclusion that the 6/18 reading meant unfitness to hold a driver's licence. It was not a matter about which he could take judicial notice or use his own common sense. He needed expert assistance and he was not sufficiently provided with it by the evidence. Dr Downie declined to assist in that regard and he was not pressed or asked questions which might have explained the problems the prosecutor must have been having with his vision because of his relatively low visual acuity.
I do not think that the other grounds of the general order have been established. In the course of his reasons, the learned magistrate referred to most of the evidence which related to what is raised by the grounds. His principal error in this case was to elevate the booklet into having such a strong probative value that it virtually defined, for the purposes of interpreting reg41(1)(b), what amounted to unfitness to hold a driver's licence.
I add that before the learned magistrate, counsel for the prosecutor conceded that the prosecutor carried the onus of establishing that he was fit to drive. That was an erroneous concession. The prosecutor held a driver's licence. The Registrar cancelled it under a power to do so. The hearing of the appeal by the learned magistrate was in the nature of a hearing de novo. The question for the magistrate was whether, on the evidence before him, the prosecutor was unfit to hold a driver's licence and whether, for that reason, the licence should be cancelled. Clearly, the onus of proof was on the Registrar to establish those matters. He who asserts, must prove, is the general rule.
For the reasons I have given, there will be an order quashing the decision made by the learned magistrate on 5 March 1999 whereby he dismissed the prosecutor's appeal from the decision of the Registrar of Motor Vehicles to cancel his driver's licence.
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