SUTTON AND ROAD TRANSPORT AUTHORITY
[2008] ACTAAT 2
•5 February 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:SUTTON AND ROAD TRANSPORT AUTHORITY [2008] ACTAAT 2 (5 FEBRUARY 2008)
AT07/16
Catchwords: Road transport – learner driver’s licence – refusal to issue licence on medical grounds
Administrative Appeals Tribunal Act 1989, ss 37
Road Transport (General) Act 1999, s 95
Road Transport (General) Regulation 2000, Sch 1
Road Transport (Driver Licensing) Regulation 2000, ss 15, 70, 78, 87
Tribunal:Mr M H Peedom, President
Date:5 February 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/16
GENERAL DIVISION )
RE: JUSTIN SUTTON
ApplicantAND: ROAD TRANSPORT
AUTHORITY
Respondent
DECISION
Tribunal : Mr M H Peedom, President
Date : 5 February 2008
Decision : The decision under review is affirmed.
…………………………
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/16
GENERAL DIVISION )
RE: JUSTIN SUTTON
ApplicantAND: ROAD TRANSPORT
AUTHORITY
Respondent
REASONS FOR DECISION
5 February 2008 Mr M H Peedom, President
The decision under review
The applicant in this case has applied for the review of a decision made by a delegate of the respondent on 18 April 2007 pursuant to section 70(1)(d) of the Road Transport (Driver Licensing) Regulation 2000 (“the Regulations”). The decision was to refuse to issue the applicant with a learner licence to drive a motor vehicle. The decision is made reviewable by the Tribunal by section 95 of the Road Transport (General) Act 1999, section 11 and item 15 of Schedule 1 Part 1.4 of the Road Transport (General) Regulation 2000.
The T documents
2. Documents were lodged with the Tribunal by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1989 (“the T documents”) which included the evidence on which the decision under review was based. A summary of that material and reference to relevant legislation follows.
3. The applicant sustained a traumatic brain injury on 4 September 2005 as the result of an accident. He was transported to the Brain Injury Rehabilitation Unit at the Liverpool Health Service which reported to the NSW Roads and Transport Authority that the applicant was unfit to drive a motor vehicle as a result of his injuries. It requested that his licence be suspended until further notice.
4. By letter dated 4 November 2005 Mr Brett Swale, a delegate of the respondent, advised the applicant that his driver’s licence was to be suspended with effect from 15 November 2005 pursuant to section 87(1)(d) of the Regulations until such time as he was able to provide a further medical report to show whether or not he complied with the required medical standards.
5. Section 87(1)(d) of the Regulations provides:
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
6. Section 15 of the Regulations provides:
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.
7. Relevantly to this case the required medical standards state that the criteria for an unconditional private driver’s licence are not met if the person has hemianopia. This is a condition which relates to the impaired ability of the brain to receive information transmitted to it through both eyes. The person experiencing it has difficulty seeing one side of their surrounding environment or reports that one side appears different from the other.
8. In relation to visual field defects the required medical standards state:
Visual fields may be initially screened by confrontation. Any person who has or is suspected of having a visual field defect should be referred for expert assessment by an optometrist or ophthalmologist. Visual fields should be measured using an automated static perimeter (Humphrey Field Analyser, Medmont M700, Octopus, etc.). If the automated perimetry suggests that the criteria for an unconditional licence are not met then Goldman or Esterman perimetry should be performed.
The required medical standards also state:
A conditional licence may be granted by the Driver Licensing Authority, taking into account the opinion of an optometrist or ophthalmologist, and the nature of the driving task, and subject to periodic review:
· After consideration of the nature of any underlying disorder.
9. On 2 April 2006 Dr Eric Ho, of the Canberra Hospital, recommended that the applicant seek a clearance from an optometrist after a visual field assessment and a neuropsychology assessment for driving before an off road test both prior to an occupational therapy driver assessment.
10. By letter dated 10 May 2006 the respondent advised the applicant that, pursuant to section 78(2)(c) of the Regulations and upon receipt of the recommendation from Dr Ho, it required him to provide the respondent with a report concerning his visual acuity and the neuropsychology assessment necessary to enable a referral to be made to the Driver Assessment and Rehabilitation Service (“DARS”). The letter noted that, should the applicant fail to provide the reports by 14 June 2006, his licence would be cancelled pursuant to section 87(1)(k) of the Regulations.
11. On 16 June 2006 the respondent cancelled the applicant’s licence, he not having provided medical reports by 14 June 2006 as required.
12. On 4 October 2006, Ms Hart, Senior Psychologist, Canberra Hospital, conducted a neurological assessment of the applicant. She said that the applicant demonstrated a left visual neglect, a hemianopia and slowed speed of information processing. She reported:
Current assessment results do not preclude a return to driving, however there are several areas that will require particular attention when Justin participates in his onroad driving assessment. He will need to demonstrate the ability to compensate accordingly and modify his driving behaviour. The following areas may present safety risks for Justin as a driver:
-speed of information processing when decision making and responding on the road (e.g., time to decide whether to move into an intersection and acting)
-spatial skills for judging distance and positioning the car on the road and manoeuvring in car parks (e.g., distance from the curb)
-planning ahead (e.g., foreseeing and proactively avoiding potential dangers; planning ahead appropriately for upcoming turns)
-consistently following rules and avoiding errors (e.g., consistently performing head and mirror checks)
-modification of performance according to feedback (e.g., changing his driving behaviour in response to the feedback of the driving assessment team) and frustration tolerance.
13. On 27 February 2007 DARS conducted an Occupational Therapy Off Road Driver Assessment of the applicant. The DARS summary of off road assessment reported that there was evidence of visual field defects which would be likely to impact on the applicant’s ability to obtain a licence. It noted that a full vision assessment with an optometrist had been booked. It further noted that if the applicant’s vision met required RTA standards, further on road assessment would be required.
14. On 1 March 2007 the applicant received a full vision assessment from Mr John Kam, optometrist. Mr Kam reported that the Medmont Driving VF (visual field) test demonstrated that the applicant has a left absolute hemianopia in both eyes and thus failed the peripheral vision aspect of his driving test.
15. By a report dated 6 March 2007 DARS referred to Mr Kam’s report and recommended that the applicant’s licence be cancelled on medical grounds. In fact, the licence had already been cancelled on 16 June 2006.
16. By letter dated 6 March 2007 Mr Swale advised the applicant that he was refusing to issue him with a learner driver’s licence, pursuant to section 70(1)(d) of the Regulations. The letter was sent in response to an application by the applicant for an ACT learner licence.
17. By letter dated 9 March 2007 (erroneously referring to 2006) Mr Rosauro Ricabo, optometrist, advised that the applicant’s visual fields appeared normal and that he met the visual standards for driving a motor vehicle.
18. By letter dated 15 March 2007 an officer of the respondent asked Mr Ricabo to advise the respondent as to the method he had used to assess the applicant’s vision. By telephone conversation of the same date, Mr Ricabo advised that he used a confrontation test only whereas a visual fields testing machine would be more accurate.
19. By letter dated 16 March 2007 Mr Swale advised the applicant that, since Mr Ricabo had not used a testing machine, the respondent would rely upon the report of Mr Kam and the decision not to reinstate the applicant’s licence would stand.
20. By letter dated 26 March 2007 the applicant sought an internal review of the respondent’s decision not to reinstate his licence.
21. On 29 March 2007 Dr Christianne Lawin-Brussel, ophthalmologist, Canberra Eye Hospital, examined the applicant and found him to have an almost complete hemianopia to the right side. By letter dated 4 April 2007 she advised Dr Ho that she had found the applicant to have an almost complete hemianopia to the right side and accordingly it was not safe for him to drive a vehicle.
22. By letter dated 18 April 2006 (but presumably 2007) the respondent referred to Dr Lawin-Brussel’s letter and advised the applicant that the result of the internal review was that the decision to refuse his application for a licence would be upheld.
23. On 26 April 2007 the applicant applied to the Tribunal for a review of the decision.
The applicant’s evidence and submissions
24. The applicant stated that he required a driver’s licence to be able to transport himself to and from his rehabilitation appointments, to enable him to return to the workforce, to do his own grocery shopping and to transport h is son to school when the weather was inclement. This would enable him to regain his independence and avoid being a burden to others. In support of his application he presented a number of reports.
25. A report from an occupational therapist at the ACT Health Independent Living Centre based on observations made of the applicant on 8 May 2007 said that the applicant had attended the Centre to evaluate mobility scooters as an option for his community mobility. Testing his use of a three-wheeled scooter in a shopping centre showed that he was able to manage doorways, turning and obstacles well. He had also appeared able to use the scooter safely on paved and unpaved surfaces of bike and pedestrian paths. There had been few people present on the paths during the tests. He also was tested on an open area between the shops in a more populated but not crowded area. He had proved to be safe in this environment but there was one occasion when it had seemed uncertain that he had looked properly to his left to ascertain that the area was free of pedestrians. The occupational therapist assessed the applicant as being able to drive a scooter safely in the conditions that prevailed on the day of the test and had appeared to compensate well for his left hemianopia and would need to continue to be particularly vigilant when using a scooter for his own safety and the safety of others. She said that he was aware of speed, slope and camber when he was driving indoors and outdoors and so gave the general impression on the day of being a safe and competent driver of a scooter.
26. A report dated 11 September 2007 by an orientation and mobility instructor of Guide Dogs NSW/ACT said that an assessment had been made of the loss of vision suffered by the applicant as the result of hemianopia. It had indicated that he had no difficulty avoiding stationary objects or moving objects, such as pedestrians, while walking. The assessment concluded that he was able to locate and avoid obstacles at walking speed.
27. A letter from Dr Ho, staff specialist, Rehabilitation Medicine at Canberra Hospital, dated 8 June 2007 said that the applicant had shown huge improvement since his injury and that resuming driving would immensely facilitate his recovery from injury, reintegration into the community and re-establishment of his family life.
28. At the applicant’s request Dr Ho gave telephoned evidence to the Tribunal. He said that the applicant had shown a lot of improvement in managing his self care and living in the community. He could not say, however, whether the applicant was suitable to operate a motor vehicle or not. He had the physical ability to drive a motor vehicle but his field of vision was a matter of concern and a significant issue.
29. A letter dated 12 June 2007 from Mr N Dahl, the managing director of a company of air-conditioning and heating contractors, said that he had held discussions with the applicant regarding him carrying out general light labouring duties on a casual basis for up to 8 hours per week as part of his rehabilitation process. Part of the applicant’s duties, apart from general workshop house-keeping, would be to procure material from suppliers and carry out deliveries to various sites. It would be essential for him to have a motor vehicle to conduct these duties.
Reasons for decision
30. The frustration which the applicant suffers from a degree of dependence upon others to assist him undertake routine daily activities because of the loss of his driver’s licence is understandable. Dr Ho’s report of 8 June 2007 suggests that the restoration of a driver’s licence, with the grant of a learner driver’s licence as the first step, would be one means of making a positive contribution to his rehabilitation.
31. Unfortunately, however, the evidence before the Tribunal leads to the unavoidable conclusion that any benefit that the applicant might derive from the grant of a learner driver’s licence at this stage would be outweighed by the risks associated to both himself and the general public.
32. In particular, the off road assessment conducted by DARS, the reports of Mr Kam and Dr Lawin-Brussel and the reservations expressed by Dr Ho make it clear that the extent of the applicant’s impairment of his vision would give rise to an unacceptable level of risk. To the extent to which some support is to be found in the report of Mr Ricabo that the applicant’s visual fields met the required standards, that support is undermined by a further explanation given by him to the respondent in a letter dated 18 January 2008 that the test undertaken by him was not very reliable. I note also that the method used by Mr Kam was one of the methods specified as acceptable by the required medical standards.
33. The reports provided to the Tribunal by the applicant do not allow a different conclusion. Tests undertaken of a person using a mobility scooter and while walking are unlikely to give an accurate representation of the ability of a person to safely driver a motor vehicle on a public street.
34. The applicant is to be commended for the resolve which he has shown to rehabilitate himself and he is to be encouraged to continue to explore the means of achieving his goal of rehabilitation and independence. Regrettably, however, for the reasons I have outlined, this cannot be accommodated at this stage by approving the grant of a learner driver’s licence.
35. The decision under review should therefore be affirmed.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT07/16
APPLICANT: JUSTIN SUTTON
RESPONDENT: ROAD TRANSPORT AUTHORITY
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANT:
RESPONDENT: MS C BESEMERES
PARTY JOINED:
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTY JOINED:
OTHER:APPLICANT: SELF
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DATE/S OF HEARING: 5 FEBRUARY 2008 PLACE: CANBERRA
DATE OF DECISION: 5 FEBRUARY 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
ORAL DECISION GIVEN
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