RAJAK AND ROAD TRANSPORT AUTHORITY
[2008] ACTAAT 18
•19 May 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:RAJAK AND ROAD TRANSPORT AUTHORITY [2008] ACTAAT 18 (19 MAY 2008)
AT08/24
Catchwords: Road transport – driver’s licence – cancellation on medical grounds – failure to meet required medical standard in relation to eye sight.
Legislation Act 2001, ss 139, 180
Road Transport (Driver Licensing) Regulation 2000, regs 15, 87, 88
Tribunal:Mr B Hatch, Senior Member
Date:19 May 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/24
GENERAL DIVISION )
RE: ALEKSANDAR
RAJAK
Applicant
AND: ROAD TRANSPORT
AUTHORITY
Respondent
DECISION
Tribunal : Mr B Hatch, Senior Member
Date : 19 May 2008
Decision :
The decision under review is set aside and substituted by a decision that the applicant be granted a licence to drive a motor vehicle such licence to be of the same class previously held by the applicant on the condition that the applicant undergo a medical examination on an annual basis in relation to his eye sight.
…………………………
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/24
GENERAL DIVISION )
RE: ALEKSANDAR
RAJAK
Applicant
AND: ROAD TRANSPORT
AUTHORITY
Respondent
REASONS FOR DECISION
19 May 2008 Mr B Hatch, Senior Member
The decision under review in this matter is the decision of the Road Transport Authority (“RTA”) internal review affirming the decision of the RTA to cancel the applicant’s driver’s licence on medical grounds.
2. The power to cancel a driver’s licence is contained in the Road Transport (Driver Licensing) Regulation 2000 (“the regulations”). The relevant part of that Regulation is regulation 88. For the current purposes, it is worth setting out subsections (1) and (4) of regulation 88 which are:
88 Procedures for variation, suspension and cancellation of
driver licences(1)If the road transport authority proposes to vary, suspend or cancel a person’s driver licence (the proposed action) on its own initiative, the authority must give the person a written notice stating—
(a) the proposed action; and
(b)if the proposed action is to vary the licence—the proposed variation; and
(c)if the proposed action is to suspend the licence—the proposed suspension period; and
(d) the grounds for the proposed action; and
(e)any action that must be taken by the person to avoid or reverse the proposed action; and
(f)the date when the variation, suspension or cancellation takes effect (the date of effect); and
(g)whether and, if so, by when the person is required to return the licence to the authority if the proposed action takes effect
(4)The date of effect must not be earlier than 14 days after the notice is given to the person.
3. In this matter the RTA relied upon regulation 87 which relevantly provides as follows:
87 When authority may vary, suspend or cancel driver
licences(1)The road transport authority may vary, suspend or cancel a person’s driver licence on its own initiative under section 88 (Procedures for variation, suspension or cancellation of driver licences) if the authority is satisfied on reasonable grounds that—
…………..
(d)the person does not comply with the required medical standards; or
4. For the purposes of regulation 87 the required medical standards is defined in regulation 15 as follows:
15 Meaning of required medical standards
For this regulation, the required medical standards, in relation to a person, are the medical standards set out in the publication Assessing Fitness to Drive, as amended from time to time, published by Austroads Incorporated, that apply to the person.
5. The above regulations are not a model of clarity. The power to vary, suspend or cancel in regulation 88 arises from obvious implication of the regulation rather than a clear statement that the RTA can vary, suspend or cancel.
6. Pursuant to the Legislation Act 2001 at section 180 a power given by a law to make a decision includes the power to reverse or change the decision. As the RTA has the power to issue a driver’s licence it thereby would have the power to reverse that decision which would entail cancelling the licence. Section 139 of the Legislation Act also supports this by requiring the Tribunal to interpret a law that would best achieve the purposes of the Act.
History of this matter
7. The applicant was born on 20 April 1986. The applicant gave evidence that he obtained his driver’s licence in April 2003 and was licensed continuously until his licence was cancelled by way of letter from the RTA on 24 January 2008. Pursuant to that letter the applicant was required to surrender his driver’s licence by 14 February 2008. His evidence is that he has had two motor vehicle collisions in that time. The first was as a result of recklessness when he held a learner’s permit. The second one involved running into the rear of another motor vehicle when that motor vehicle stopped suddenly. While the applicant considered that accident to be due to other vehicles acting in an unexpected fashion, I find that it was more likely due to inexperience as at the time the applicant had only been licensed to drive for a few months. Other than that, the applicant has had an uneventful driving history over nearly five years.
8. The applicant gave evidence that he has also ridden a motor bike for the last four or five months without incident. It is not clear from the evidence whether the motor cycle riding had occurred on public roads as a licensed driver or whether it occurred in other circumstances. I do not find that anything turns on that issue in any event. The applicant’s evidence was that, in the last five years, he has had various jobs which involved driving either standard sedan motor vehicles or utility vehicles but also including a 3 tonne truck. In 2006 the applicant travelled to Europe for two months and drove extensively through England, Serbia, Croatia and Bosnia.
9. The applicant gave evidence that he has had problems with his eye sight since birth. The medical evidence is that he has X-linked retinoschisis. This is a genetic disorder. Some of the evidence presented suggests that the condition may deteriorate although it may not.
10. In cross-examination the only matters raised were that the applicant had difficulties reading the whiteboard when he was at school and that medical advice was given to his school that allowances needed to be made as to where he sat in the classroom so that the applicant could more easily read the whiteboard and other materials.
11. In all other respects the evidence of the applicant was not challenged. I find that the applicant has since 2003 been a competent and confident driver.
12. The applicant’s driver’s licence was cancelled because, in the opinion of the RTA, he failed to meet the required medical standard as set out in the ‘Assessing Fitness to Drive’ book (“the book”) as published by Austroads Inc. (see regulation 15 of the regulations). The book appears to be published by ‘Austroads’ and ‘NTC Australia’. According to the book, NTC Australia is the National Transport Commission being an independent body established under an inter-governmental agreement and funded jointly by the Federal, State and Territory Governments. The book states that Austroads is the Association of Australian and New Zealand Road Transport and Traffic Authority. The book does not explicitly state that it is published by Austroads Inc. The book does state that the copyright in it is owned by Austroads Inc. I draw the conclusion that this book is the book referred to in regulation 15.
13. A relevant part of the book is Part 23 ‘Vision and Eye Disorders’. In order to meet the criteria, a driver should have a visual acuity which is not worse than 6/12.
14. The evidence before the Tribunal is that 6/12 is a recognised eye sight criteria. What is in lay terms best described as normal vision is 6/6 which means that a person can see from 6 metres what the average person can see from 6 metres. The evidence of Dr Alan Johnston was that a healthy young person would be expected to have better than that such as 6/5 or 6/4. This would mean that the healthy young person could see from 6 metres what the average person would see from 4 or 5 metres. Dr Johnston found that the applicant had vision in his right eye of 6/15 and in his left eye of 6/24.
15. On the face of it therefore, the applicant does not meet the standards to have an unconditional driving licence. The book however notes that a conditional licence may be granted taking into account the opinion of the treating doctor/GP/optometrist and the nature of the driving task and subject to periodic review:
- If the standard is met with corrective lenses; and
- After consideration of the nature of any underlying disorder.
16. The evidence of Dr John Downie, ophthalmic surgeon, which was accepted by the other witnesses was that the applicant’s eye sight with correction was 6/18 in both eyes. Dr Downie also stated that his binocular field of vision was more than 120 degrees. There was no dispute that the applicant’s field of vision met the standards in the book.
17. Part 3.5 of the book states at 3.5.1 under the heading ‘Conditional Licences’ that:
a conditional licence may be recommended by the examining health professional for drivers who have not met the criteria, but whose medical treatment and/or vehicle or driving modifications may enable them to drive safety.
18. Much of the time of the Tribunal in this matter was taken up by the issue of telescopic lenses attached to a spare pair of spectacles and whether that would enable the applicant to meet the visual acuity criteria and, if so, thereby be safe to drive a motor vehicle. Evidence was given that such telescopic lenses have not been allowed in any Australian jurisdiction although it is unclear to what extent other jurisdictions have given consideration to such devices. There was evidence that more than 30 States of the United States of America allow drivers to use such telescopic lenses. I do not regard either of these pieces of evidence as probative. The first issue to determine in relation to the telescopic lenses is whether they are corrective lenses for the purposes of the book. Under the medical standards for vision and eye disorders the words “corrective lenses” are used. Under the general management guidelines the words “glasses or contact lenses” are used. The Shorter Oxford English Dictionary does not provide a separate definition for “glasses” but gives one definition of “glass” as “an optical instrument used as an aid to sight: a telescope”. Reference is then made to an “eye glass” and in the plural as “glasses for spectacles”. The Dictionary then defines “spectacle” as, amongst other things, a “device for assisting defective eye sight, or for protecting the eyes from dust, light etc. consisting of two glass lenses set in a frame which supported on the nose, and frequently kept in place by legs passing over the ears”.
19. I find that a pair of spectacles fitted with a telescopic lense are corrective lenses or glasses for the purposes of the book.
20. Even though the spectacles fitted with a telescopic lense are corrective lenses for the purposes of the book does not end the matter as to whether they are appropriate in relation to a person’s fitness to drive.
21. Dr Johnston gave evidence as to the use of telescopic lenses incorporated in spectacles for the purpose of driving. According to Dr Johnston, the American experience has been that such devices are safe. Some training is required in the use of the telescopic lense. According to Dr Johnston, the use of the telescopic lense does not unnecessarily detract from peripheral vision and therefore many drivers are quite safe using those devices.
22. Evidence was also given by Dr Morris Odell. Dr Odell is a senior forensic physician and has been an adviser to Vicroads for many years. He is not an ophthalmic surgeon but has many years’ experience in assessing people’s fitness to drive motor vehicles in relation to various health issues. Dr Odell expressed serious reservations about the use of telescopic lenses particularly in relation to the loss of peripheral vision when the driver attempts to use the telescopic lense. Dr Odell gave evidence that, while there was considerable support for telescopic lenses particularly in many American States, there was little hard evidence as to their efficacy and that much of the support for the lenses came from those advocating their use.
23. I find that the use of telescopic lenses in spectacles for the purposes of driving are not proven to be safe and were this matter to turn on that issue, I would not consider such corrective lenses to be appropriate for driving a motor vehicle. It may be that in future there is sufficient evidence to support the use of these lenses for driving but, at this stage, I do not accept that such evidence exists.
24. The more important evidence in this matter came from Dr Odell. Prior to Dr Odell giving evidence, Dr Downie, an ophthalmic surgeon, gave evidence. His evidence was that, while the applicant does not meet the acquity standard, his full field of vision means that he is of no danger when driving a motor vehicle. Dr Odell then gave evidence and, after extensive evidence in relation to telescopic lenses, he gave evidence that, in his opinion, the applicant would be allowed to hold a driving licence in Victoria and that Dr Odell would support such a situation. It should be noted, however, that Dr Odell had not actually examined the applicant although Dr Odell is regularly called upon to review medical histories of people who are seeking drivers’ licences in Victoria and he has experience in making such assessments often without the requirement of an actual examination of the person concerned.
Conclusion
25. I find that the applicant is fit to drive a motor vehicle and he should be granted a driving licence. Considering his medical condition, however, and the evidence of the doctors, it should be a condition of his driving licence that initially he be required to undergo a medical examination particularly in relation to his eye sight on a yearly basis. It would be a matter for the RTA to consider after a few years whether such annual reviews are thereafter required or whether some other regime should be put in place if any.
26. I set aside the decision under review and in its place decide that the applicant be granted a licence to drive a motor vehicle such licence to be of the same class previously held by the applicant on the condition that the applicant undergo a medical examination on an annual basis in relation to his eye sight.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT08/24
APPLICANT: ALEKSANDER RAJAK
RESPONDENT: ROAD TRANSPORT AUTHORITY
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANT: MR S WHYBROW
RESPONDENT: MR G MCCARTHY
PARTY JOINED:
SOLICITORS: APPLICANT: O’CONNOR HARRIS
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTY JOINED:
OTHER:APPLICANT:
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR B HATCH, SENIOR MEMBER
DATE/S OF HEARING: 17 & 18 APRIL 2008 PLACE: CANBERRA
DATE OF DECISION: 19 MAY 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
1
0
0