Thiele v The Registrar of Motor Vehicles - [2011] SADC 189

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
THIELE v THE REGISTRAR OF MOTOR VEHICLES
[2011] SADC 189
Judgment of His Honour Judge Costello
9 December 2011
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES
Appeal pursuant to provisions of Motor Vehicles Act 1959 against decision to cancel driver's licence - appellant involved in two motor vehicle accidents some seven years apart at the same intersection - in each case the driver/rider of the other vehicle in the accident was killed - the Registrar decided to cancel the appellant's licence considering it to be the only option available to prevent further accident or injury - Registrar's decision confirmed by Review Committee - failure to consider alternative options including licence subject to conditions - appeal allowed - Registrar and Review Committee decisions set aside - licence subject to conditions substituted.
Motor Vehicles Act 1959; District Court Act 1991; Police v Trill [2003] SASC 199; Police v Brookman [2006] SASC 378, referred to.
Thiele v Police [2009] SASC 159, considered.

THIELE v THE REGISTRAR OF MOTOR VEHICLES
[2011] SADC 189
Introduction

This is an appeal pursuant to the provisions of Section 98ZA of the Motor Vehicles Act 1959 (“the Act”) against a decision, of the Registrar of Motor Vehicles (“the Registrar”) dated 14 July 2010, to cancel the appellant’s driver’s licence, which decision was confirmed on a review by the Review Committee (“the Committee”) on 8 December 2010.
The Registrar decided to cancel the appellant’s licence pursuant to Section 82(d) of the Act being of the view that it was “ … the only option available to prevent accident or injury or a repetition of the offences committed by [the appellant]”. The Committee determined to confirm the Registrar’s decision on the same basis.
The Appeal
The appeal to this Court is (as I have said) brought pursuant to Section 98ZA of the Act. The conduct of the appeal is governed by the provisions of Sections 42E and 42F of the District Court Act 1991 (“the Court Act”) which provide as follows:
42E Conduct of appeal
1.The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
2.     The Court, on appeal –
(a)     is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)     must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
3.The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reason.
42F Decision on appeal
1.     The Court may, on an appeal –
(a)     affirm the decision appealed against;
(b)     rescind the decision and substitute a decision that the Court considers appropriate;
(c)     remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
The provisions of Section 42E require the Court to examine the decision of the “original decision-maker”.
Section 42B(2) of the Act defines “original decision maker” to include, where the decision was reviewed, both the initial decision of the Registrar and the decision of the Committee.
It is therefore necessary for me to consider both the decisions of the Registrar and the Committee although, for the reasons to which I will refer, in a moment, the absence of any substantive reasoning in the Committee’s decision, has meant that the focus of the appeal was on the decision of the Registrar.
Prior to embarking upon a consideration of the decisions, it is necessary to have regard to the circumstances which led to the cancellation of her licence.
Background to Cancellation
On 6 February 2001, the appellant (then aged 29 years) was convicted of an offence of failing to give way. That offence involved a collision, between her vehicle and a vehicle driven by Mr Mitchell, as a result of which Mr Mitchell was killed. In relation to this offence she was fined $300. After taking into account a number of factors, including the circumstances of the accident, the Magistrate determined not to disqualify her licence.
On 23 June 2007, the appellant was involved in a collision with a motor cyclist, Mr Bryant, at the same intersection as the previous collision. Again, as a result of the collision, Mr Bryant was killed. The appellant pleaded guilty to a charge of aggravated driving without due care. The offence was categorised as an aggravated offence because it caused death.
In February 2009, she was sentenced to imprisonment for 8 months with 7 months of the sentence being suspended. In addition, the Magistrate suspended her licence for a period of 18 months.
Apart from these two offences, her only other “driving incidents”, of any consequence, involved a minor collision in Western Australia in 1992 and three speeding offences in 1995, 1996 and 2008 respectively.
It is however sufficient to observe that the main focus, of both the Registrar’s and the Committee’s concern, was on the offences resulting in death.
In June of 2009, the appellant was successful in her appeal to the Supreme Court against the Magistrate’s decision not to suspend the whole of the sentence of imprisonment[1].
[1] Exhibit 3 - Book of Documents - Tab 17 - Thiele v Police [2009] SASC 159
Subsequent to the decision of Gray J in the Supreme Court, in September 2009, a Coroner’s inquest was held into the deaths of both Mr Bryant and Mr Mitchell.
In the course of his decision the Deputy Coroner reminded the Registrar of the existence of “the powers contained in Section 82 of the Act that permit suspension of a person’s licence in order to prevent accident or injury”[2] (my emphasis).
[2] Exhibit 3 - Book of Documents - Tab 18 - Findings of Inquest into deaths of Mitchell and Bryant - para 7.5
In February 2010, after referring to the Deputy Coroner’s decision, the Registrar informed the appellant that he was giving consideration to exercising his powers under the Act in relation to her licence.
The appellant made submissions to the Registrar, by letter dated 4 March, which concluded with the statement that there was no proper basis as to why “she should not be permitted to hold a licence … subject to conditions in order to prevent accident or injury”[3] (my emphasis).
[3] Book of Documents - Tab 18 p5
In a letter to the appellant’s solicitors, dated 14 July 2010, the Registrar determined to cancel the appellant’s licence pursuant to s 82 of the Act.
Section 82 of the Act is in the following terms:
82—Vehicle offences and unsuitability to be granted or hold licence or permit
The Registrar may—
(a)refuse to issue a licence or learner's permit to a person or to renew a person's licence or learner's permit; or
(b)suspend a person's licence or learner's permit for a specified period; or
(c)cancel a person's licence and issue in its place a probationary or provisional licence subject to probationary or provisional licence conditions effective for a specified period; or
(d)cancel a person's licence or learner's permit,
if the person has been convicted of or has expiated an offence, or series of offences, involving the use of a motor vehicle (whether in this State or elsewhere) such that it appears that the person should not hold a licence or permit, or should hold a licence subject to conditions, in order to prevent accident or injury or a repetition of the offence or offences by the person. [my emphasis]
As I have already observed, in deciding to cancel, the Registrar said “Section 82(d) allows me to cancel a person’s licence. In my view this is the only option available to me that will act to prevent accident or injury … by Mrs Thiele”[4].
[4] Book of Documents - Tab 20 p5
I will return to his Reasons, in more detail, in a moment.
On 5 August 2010, pursuant to the provisions of Section 98Z of the Act, the appellant applied for a Review of the Registrar’s Decision. As part of her submissions to the Committee the appellant again referred to the issue of a licence subject to conditions.
At paragraph 19 of her submissions she said:
The applicant contends that the appropriate approach is for the Registrar to utilise the provisions in section 80 Motor Vehicles Act to issue the applicant with a temporary driving permit authorising her, subject to such conditions and restrictions as are deemed appropriate, requiring her to undergo tests and furnish other evidence of her ability and fitness to drive a motor vehicle. If, at the conclusion of that testing regime, the applicant has demonstrated an ability and fitness to drive, consideration should then be given to the re-issue to her of a full driver’s licence.
By letter dated 22 December 2010 the Committee confirmed the Registrar’s decision in the following terms:-
The Committee has confirmed the decision of the Registrar to cancel the licence of Mrs Thiele pursuant to the provisions of section 82 of the MVA.
A summary of the reasons for the decision is as follows:
ØThe Review Committee considered the application of Mrs Thiele and various documents in support of that application.
Ø
The Committee considered the sentencing remarks on penalty of

Mr. C.A.Johansen SM delivered on 10 February 2009 and the sentencing remarks on penalty of Mr R. Hayes SM delivered 6 February 2001.
ØThe Committee considered the findings of the Coroner’s inquest into the deaths of Mr Graham Bryant and Mr John Eric Mitchell delivered on 27 October 2009. The Committee also considered the judgement, Thiele v Police [2009] SASA 159. The Committee did not determine a preferred account where any discrepancy existed in the material but accepted that Mrs Thiele had pleaded guilty on two occasions and had been convicted of driving offences which had resulted in the deaths of Mr Graham Bryant and Mr John Eric Mitchell at the intersection of Burdett Road, Thiele Road and Jovial Downs Road at Pompoota.
ØThe Committee considered the driving record of Mrs Thiele as follows:
oMinor collision in 1992, Western Australia. (Page 31 Coroner’s Inquest, delivered 27 October 2009).
o10 December 1995, exceed speed more than 15kmh but not in excess of 30kph.
o4 September 1996, exceed speed not in excess of 15kph.
oApril 2000, fail to give way to vehicle at intersection. (Resulted in the death of Mr John Eric Mitchell).
o23 June 2007, due care, aggravated offence. (Resulted in the death of Mr Graham Bryant).
o4 November 2008, exceed signed speed up to 14kph.
ØThe Committee was unanimous in agreeing to uphold the decision of the Registrar of Motor Vehicles to cancel the licence of Mrs Thiele on the grounds to prevent accident or injury or a repetition of the offences committed by Mrs Thiele, pursuant to the provisions of section 82(d) of the MVA[5].
[5] Book of Documents - Tab 24
It is from this decision that the appellant has appealed to this Court.
Notice of Appeal
The grounds of appeal, in the appellant’s Amended Notice of Appeal, are:
1.The decision of the Review Committee to confirm the Registrar’s decision to cancel indefinitely the appellant’s driver’s licence was manifestly excessive and unreasonable in all the circumstances.
2.The reasons for decision of the Review Committee demonstrate errors in its process of reasoning and fail properly to articulate the basis for the conclusion that the Registrar’s decision should be confirmed: -
Particulars
a.The Review Committee considered, but failed to resolve, the accepted inconsistencies between the findings of the Coroner and the findings of Gray J in Thiele v Police [2009] SASC 159. A determination as to whether to prefer the conclusions of the Coroner or Gray J on material issues (where the conclusions were at odds) was an integral step in determining whether the Registrar’s decision should be varied or confirmed.
b.The reasons of the Review Committee set out the material that it considered but do not explain the way in which any of that material was used, or the conclusions that were drawn from the material before it and the reasons for those conclusions.
c.The appellant submitted a detailed written argument in support of her application for a review of the Registrar’s decision. The reasons of the Review Committee do not refer to those submissions and provide no indication as to whether the submissions were considered and if so, in what manner and the basis upon which those submissions were rejected.
d.The reasons do not reveal why it was that the Review Committee determined that the decision to cancel the appellant’s licence was necessary in order to prevent accident or injury or a repetition of the offences committed by the appellant.
e.The reasons of the Review Committee reveal that it failed to consider the appellant’s submission that it should consider utilising the provisions of s 80 Motor Vehicles Act (1959) to issue the appellant with a temporary driving permit requiring her to undergo a testing regime which would then permit a conclusion regarding her ability and fitness to drive.
The appellant seeks the following orders:
1.     That the decision of the Review Committee to confirm the Registrar’s decision be set aside.
2.     That the decision to cancel the appellant’s licence indefinitely be set aside and a direction given to the Registrar to issue to the appellant a temporary driving permit authorising her to undergo tests and furnish other evidence to the Registrar of her ability and fitness to drive a motor vehicle.
3.     Further or in the alternative to (2) that a direction be given to the Registrar to issue the appellant with a restricted licence pursuant to section 81 Motor Vehicles Act 1959 subject to the following conditions: -
3.1That the appellant be permitted to drive only upon roads in specified localities, namely those roads upon which it is necessary for her to drive in order to access the farm blocks owned by her and her husband;
3.2That the appellant be permitted to drive her children from her home on Thiele Road, Pompoota to Murray Bridge and back for the purposes of schooling or medical appointments or medical emergencies or for the purposes of obtaining groceries or supplies for the farm and household.
3.3Any other conditions that this Honourable Court considers necessary for the purpose of preventing accident or injury.
It will be apparent from the Grounds that some reliance was placed on apparent inconsistencies between the reasons of Gray J and the Deputy Coroner.
Although, ultimately, I have not found it necessary (in the determination of this appeal) to reconcile the inconsistencies, it is nevertheless important to refer to parts of these decisions in order to provide a background and context to some of the issues which have arisen for consideration.
The Reasons of Gray J and the Deputy Coroner
In his decision, Justice Gray made the following observations in relation to the collision, involving Mr Bryant:-
The facts that lie behind this sentence appeal demonstrate the dangers in everyday

road-use. A motorcyclist, travelling within the law, on a clear, dry morning on a country road, died as a result of a collision with a motor vehicle at an intersection. The driver of the motor vehicle was travelling at an appropriate speed, was aware of the give-way sign, slowed down and looked out both to the left and to the right, but failed to see the motorcyclist. There was an explanation. The motorcyclist was wearing black, was riding a black motorcycle and was travelling against a background of dark trees which cast a shadow, partially obscuring and camouflaging the motorcyclist.
…
… The defendant was not legally obliged to be exceptionally careful. It is plain that the defendant’s look-out was inadequate. However, there are circumstances that explain why she may not have seen the motorcyclist, that are understandable. In my view, the defendant’s want of care was in the category of a common human failing – an every day experience. It was not close to the worst category of offending. Had there been nothing more than a collision, it may well have been an offence that could be expiated[6].
[6] Book of Documents - Tab 17 paras 1 and 42
In contrast, the Deputy Coroner took a distinctly different view of her driving during this accident. He described her lookout in the collision as being “grossly defective”[7]. Indeed, while he allowed it as a possibility that she had looked prior to the collision, he concluded that it was more probable than not, that she did not look.
[7] Book of Documents - Tab 18 para 7.3
The Deputy Coroner dismissed the role of shadowing as a possible reason for her not to see Mr Bryant. Whilst he conceded that the presence of the trees themselves may have had a camouflaging effect on his dark clothing and motorcycle he concluded that “with an ordinary measure of vigilance Mrs Thiele should have seen Mr Bryant’s motorcycle”[8].
[8] Book of Documents - Tab 18 para 7.3
In addition to commenting on a possible explanation for the collision, Gray J also made observations as to the effect that this collision had had on the appellant’s mental state, namely:-
A medical report from the defendant’s treating doctor, Dr Altmann, confirmed that following the collision, the defendant suffered from a post-traumatic stress disorder. She was distraught, suffered from flashbacks, fearfulness and had lost confidence.
…
The evidence of the defendant’s contrition and remorse is significant. Her poor mental health for a lengthy period following the collision evidences her guilt and remorse. The fact that the defendant did not drive because of fear, and her consequent social isolation are further evidence of the above matters. Her apology given in court is evidence of her obvious and acute awareness of the suffering that she has caused the loved ones of the deceased[9].
[9] Book of Documents - Tab 17 paras 27 and 46
Further Evidence
Although Section 42E of the Court Act requires this Court to examine the decisions on the material before the original decision makers, it does not confine the Court to an examination of those decisions on that same material. It may receive further evidence it if thinks fit.
On the appeal, without objection, the appellant called evidence from a Mr Fraser, a qualified Driving Instructor, whose expertise was not contested.
Mr Fraser has been a professional driving instructor for the last 11 years. He is also a member of the Australian Driver’s Trainers Association. On a private basis, he has been involved with car clubs for 25 years and has been a competitor, official and event organiser responsible for the safety of all participants with motor rally sports. In addition he has worked with Occupational Therapists and doctors who refer patients who have medical issues, such as dementia, so as to assess whether they should hold a licence and also to provide support sessions.
He has owned and operated his own business, the “Drive Smart Driving School” since the year 2000.
Since that time he has trained somewhere between 600-700 drivers at various levels of competency.
In an affidavit of his, which was tendered by consent, he stated[10]:
5.   The emphasis of Drive Smart Driving School is to assist South Australian drivers to think and drive safely on the roads. … We provide lessons to learner drivers and also defensive driving courses and lessons for overseas drivers. Defensive driving courses include country and gravel road courses for private and corporate drivers. We can also tailor programmes to take into account a particular driver’s needs and requirements. Those lessons can encompass defensive driving lessons.
6.   I am aware of the circumstances of the two accidents involving Mrs Thiele. I am able to tailor a programme which I believe will address the deficiencies in her driving which caused the two accidents, namely a grossly deficient lookout. I will study all provided details of the two accidents plus visit the site and develop appropriate remedial training lessons.
7.   I will conduct the lessons at the intersection where the collision occurred and at other nearby intersections. I will be able to teach Mrs Thiele how to scan the road and the environment around her as she is driving so that she can learn to proceed only when it is clear and safe. In addition, I will teach her how to maintain a good lookout and coach her to double check the road before proceeding.
8.   I will show her how to cope with and understand blind spots including her own eye’s internal blind spot and also demonstrate why she may not be observing critical aspects of the environment. I will stand in certain places along the road or intersection to demonstrate blind spots etc.
9.   I am able to reinforce, in both legal and practical terms, the obligation to give way.
10.   Additionally, I can teach her general defensive and anticipation skills to deal with what is actually occurring, rather than proceed on what she may expect another driver to do.
11.   I anticipate that the first lesson would be for about three hours but the lessons can be extended. Additionally, I would expected (sic) to return and reassess her a couple of weeks after the last lesson.
12.   I am able to incorporate any guideline or criteria that the Court may set.
[10] Exhibit A5 - Affidavit of Mark William Fraser dated 20-10-2011

In evidence before me, he reaffirmed his view that a training course, devised specifically for her, could address any deficiencies (whether due to a failure to look or failure to see) in her driving which may have caused or contributed to these collisions.
He outlined a course of training which would last up to 6 months, initially involving 2 - 3 sessions, each of which would be probably about 2 hours in length, at weekly/fortnightly intervals.
Thereafter, there would be a further 2 hour session each month for the next 5 to 6 months. This training would, of necessity, require her to have at least a learner’s permit while driving under his supervision.
He envisaged that these sessions would involve driving in both the country and metropolitan areas. At the end of the 6 month period, she would be required to undertake a final assessment conducted by him in his capacity as a qualified licence assessor. If she completed her final assessment to a satisfactory standard, it would, he said, then be appropriate for her to obtain a licence to drive on “P plates” like other drivers.
The training sessions which he proposed are more rigorous than normal “learn to drive” sessions and are more akin to a “defensive driving” course.
Mr Fraser also saw merit in a requirement for the appellant to undergo a refresher course (involving perhaps one 2 hour session) each year for up to a further 5 years to “reinforce the results” of the training. He also indicated that some of his “students” had “complacency issues”, similar to those attributed to Mrs Thiele, which his training was able to address.
Finally, Mr Fraser proffered as another explanation (not explored as far as I am aware in any of the previous hearings in Court, or before the Deputy Coroner) for her “failure to see” Mr Bryant. He referred to the front passenger side pillar which he said, although narrow has the ability to obscure significant sections of road (and, by extension, vehicles on them) when viewed in the distance e.g. he said “a finger-width obstruction to the driver’s view would, at 800 metres, obscure some 27m of road”.
He also referred to a driver’s blind spot as another factor capable of contributing to one’s failure to see.
In his opinion “a failure to see” due, in particular, to the pillar was a common occurrence amongst drivers and one which he had developed specific aids and techniques to highlight, and then address, with trainee drivers.
In summary, he was satisfied that his course of training would address any deficiencies in her driving technique or potential complacent attitude.
The Decisions under Appeal
The Committee’s Decision
I have already reproduced the Committee’s decision in full. In my opinion, while it contains Reasons, it is devoid of any reasoning.
In short, other than by endorsing the Registrar’s Decision, there is nothing in its Decision which suggests that the Committee turned an independent mind as to why cancellation of the licence (as opposed to any other form of sanction) was necessary. As a result, and in accordance with Section 42E(3) of the Court Act, I have accorded little weight to it
It is the Registrar’s Decision which needs to be examined and accorded due weight. It is this Decision which contains the reasoning leading to the conclusion that there was no other option available other than to cancel her licence.
The Registrar’s Decision[11]
[11] Book of Documents - Tab 20
I trust I do no disservice to the Registrar’s decision if I summarize it in the following way. After reviewing the circumstances of both collisions he:-
·agreed with the Deputy Coroner’s conclusion that the Mitchell collision was due to her grossly defective lookout;
·preferred the Deputy Coroner’s findings on the Bryant collision to those of Justice Gray and concluded that this collision was also due to her grossly defective lookout;
·concluded that, in the context of a decision aimed at obviating injury or death in the future, the actions of “failing to look” or “looking and failing to see” are equally dangerous and have similar consequences;
·concluded that the only two incidents to have ever occurred at this intersection involved Mrs Thiele;
·found that she had been involved in 4 crashes of varying seriousness;
·found that there was no contradiction between a decision to grant to Mrs Thiele a heavy vehicle licence and a decision to cancel her licence because the former decision was based mainly on considerations of her visual activity;
·determined that the powers available to him under Section 82 were those in subsections (b), (c) and (d);
·
concluded that Section 82(b) (which empowers him to suspend a licence) was inappropriate because he could not be satisfied that she would not

re-offend once the suspension was over;
·concluded that Section 82(c) (which permits him to cancel a licence and in its place issue a probationary or provisional licence, subject to the statutory conditions applicable to those licences) was inappropriate because the conditions referred to in those licences would not prevent accident or injury repetition;
·concluded that Section 82(d) (which empowers him to simply cancel a licence) was the only option available;
Errors in the Decision
The Registrar was required to make a decision in the context of whether there was a need to take action to prevent accidents or injuries. In my view, in his approach to and consideration of the question of whether or not to cancel her licence, the Registrar has erred in the following ways, namely:-
Four Crashes
In considering his powers under Section 82 the Registrar observes that the appellant “… has been involved in a total of 4 crashes of varying seriousness, that have all been attributed to her driving behaviour, driving carelessly, without due care and failing to give way”[12].
[12] Book of Documents - Tab 20 p3
The provisions of Section 82 permit the Registrar to take action “if the person has been convicted [of] an offence … involving the use of a motor vehicle … such that the person should not hold a licence … in order to prevent accident or injury….
The parties agree that one of the four crashes, to which the Registrar refers, did not involve an offence.
In my view the juxtaposition, in Section 82, of the phrase “such that” with the word “offences”, indicates that Parliament intended that only those contraventions of the law, which resulted in a conviction or which had been expiated, were to be taken into account by the Registrar when deciding whether to cancel a licence.
As such, the language of Section 82 did not permit the Registrar to take into account, in determining to cancel a licence, “driving incidents” which were not the subject of offences or expiations.
Failing to Look – Danger and Consequences
The Registrar concluded that, in the context of the issue he was required to consider, there was no difference between “failing to look” and “looking but failing to see” because both were equally dangerous and had similar consequences.
By focussing, in this way, on an aspect of her driving with particular respect to its consequences, he allowed himself to be distracted from a consideration of the real issues i.e. the reasons for her failure to look or to see and whether there were measures available which might address any deficiencies in her driving leading to such failure to look or to see.
In this respect, at least, he attempted to identify her deficiencies, classifying them as a lack of aptitude and a complacent attitude.
Having identified her deficiencies, if he had then focussed on them rather than focussing on the danger and consequences of her driving, he would have been able to properly consider whether there were any measures available to overcome her deficiencies which, in my view, he failed to do.
Cancellation – the Only Option
The Registrar, in deciding that his only option was to cancel her licence, appears to have limited himself to a consideration of the powers available to him pursuant to Section 82. While he did consider Sections 81A and Section 81AB he did so only in the context of his consideration of the options available pursuant to Section 82.
By limiting his consideration to Section 82, he was, for practical purposes, forced to conclude that an unqualified cancellation was his only option.
In so doing, in my view, he failed to consider his powers under Section 80 and 81 (or a combination of the two) to fashion a licence, subject to a set of conditions which could initially test her ability to drive and then regulate the manner of her driving thereafter.
Conclusion
For the reasons articulated, I am satisfied that the Registrar erred in his decision by:
·taking into account a traffic incident which was not the subject of an offence;
·focussing on the dangers and consequences of driving with a defective lookout rather than the deficiencies in her driving which may have led to the defective lookout; and
·failing to consider his powers under Sections 80 and 81 to permit the appellant to drive but subject to conditions.
In my opinion, the Registrar erred in the exercise of his discretion when he determined that he had, in effect, no option but to simply cancel her licence. Accordingly I am satisfied that there are cogent reasons to depart from the decision of the Registrar.
Decision on the Appeal
The provisions of Section 42F of the Court Act permit the Court to:
·affirm the decision appealed against;
·rescind the decision and substitute a decision that the Court considers appropriate;
·remit the matter to the Registrar for further consideration.
In my opinion, having considered the material before the Registrar, the detailed submissions of counsel for the parties and the further evidence called by the appellant, this Court is in as good a position as the Registrar to now make a decision. There is therefore no need to remit the matter to the Registrar.
The issue which I must decide is whether the cancellation of her licence is necessary in order to prevent accident or injury or whether some other sanction is appropriate, consistent with the need to protect other road-users.
I accept that the appellant has been involved in two accidents at the same intersection with each accident having tragic consequences. I will assume for present purposes that the two accidents occurred because the appellant simply failed to look.
This was the view arrived at by the Deputy Coroner. As a result, he concluded that she was a motorist of quite limited aptitude, competence and temperament[13]. It may have been for that reason that he made reference to the Registrar invoking the power to suspend her licence[14].
[13] Exhibit 3 - Book of Documents - Tab 18 para 7.5
[14] In this respect it is of note that in his Reasons in "Thiele" Gray J did not (as he had done in Police v Trill (2003) SASC 199) direct that a copy of the Reasons be forwarded to the Registrar to consider his powers under section 82 of the Motor Vehicles Act 1959 - also see Police v Brookman (2006) SASC 378
The Registrar concluded, inter alia and presumably based on the Deputy Coroner’s findings, that he could not be confident that a period of suspension “would improve her aptitude so as not to become complacent while driving”[15].
[15] Exhibit 3 - Book of Documents - Tab 20 - p4
If the appellant was, without more, simply suspended from driving for a limited period of time, I might agree. There is however, a course of action involving a sanction which falls between simple suspension and unqualified cancellation.
If the appellant is required to undergo an intensive course of defensive driver training I am satisfied, based on the evidence of Mr Fraser, that this could address the limitations in her “aptitude”.
I am also satisfied, again based on the evidence of Mr Fraser, that the defensive driving course could also address the issue of complacency in her approach to driving. In this regard, in addition to the positive impacts of the defensive driving course, I am also mindful of the remarks of Justice Gray with respect to the significant psychological impact suffered by the appellant as a result of the Bryant collision.
In my view, the combination of these factors makes it unlikely that she will approach her driving, in the future, in a complacent way.
I am further reinforced, in my view that her driving deficiencies can be addressed, because I cannot discount, at least, the possibility that the appellant did look but nevertheless failed to see and not merely for the reasons advanced by Justice Gray.
None of Justice Gray, the Deputy Coroner or the Registrar were asked to consider, let alone take into account, the possibility of yet another explanation, namely, the role of a pillar and/or a blind spot in causing a driver to “look yet fail to see”.
Having said that, even if the collisions occurred by reason of a simple failure to look, I do not accept the Registrar’s conclusion that this is indicative of a deficiency in her aptitude and an attitude of complacency which can only be addressed by cancellation simpliciter.
In my view, for the reasons referred to, her driving “deficiencies” can be adequately addressed by, in the first instance, issuing her with a permit subject to conditions requiring her to undergo a defensive driving course of the kind described by Mr Fraser and conditions which limit the locations where she can drive.
Before formulating these Reasons, I invited the parties to consider and, if necessary, make submissions as to the specifics of these conditions.
Although the Registrar did not agree that there were any conditions which could overcome his concerns, the parties attempted to reach agreement on a set of appropriate conditions.
The appellant submitted that Mr Fraser could and should be the person to conduct both the appellant’s driving-training course and the final assessment.
The Registrar submitted that it would be appropriate for the final assessment to be conducted by an assessor nominated by the Registrar.
On behalf of the Registrar, Mr Keane informed me that in learner-driver situations, independent assessors, such as Mr Fraser routinely conduct

driver-training courses. On the successful completion of the course, those learner- drivers are entitled to have a licence issued to them.
The regime, which I consider is necessary for the appellant, involves not only the driver-training course but also a final assessment. In other words, I have in mind, a further layer of testing for the appellant over and above that required for an ordinary learner-driver.
I was impressed by Mr Fraser. There was no challenge to his expertise or competence. There was also no suggestion of a lack of objectivity or bias on his part. I am satisfied that it is appropriate to direct that Mr Fraser be the person to conduct both the driver-training course and the final assessment.
Formal Orders
Accordingly, I allow the appeal and rescind the decisions, to cancel her licence, of both the Registrar and the Review Committee.
In lieu thereof, there will be an Order directed to the Registrar to issue to the appellant a permit subject to the following conditions:
1. The appellant undertake a defensive driving training course with, and designed by, Mark Fraser of Drive Smart Driving School to commence as soon as reasonably practicable but no later than the 16^th of December 2011 (“the course”).
2. The course is to be structured in such a way as to address the identified deficiencies in the appellant’s driving including (but not limited to) complacency and lack of aptitude and to provide general instruction in safe driving.
3. The course is to commence with three two hour lessons over a period of approximately three weeks followed by further sessions of 1.5 hours at approximately monthly intervals for a period of six months.
4. If, at the completion of the course Mr Fraser is of the opinion that it is appropriate to do so (having regard to the appellant’s response to the training provided by way of the course), the appellant will undergo a formal assessment of her driving competency.
5. During this period, in addition to participating in the course, the appellant shall be permitted to drive a motor vehicle under learner’s permit conditions if accompanied by a qualified supervising driver pursuant to s 72A Motor Vehicles Act 1959 to enable her to practice and develop the skills she will learn during the course of instruction with Mr Fraser.
6. If, as a result of the assessment referred to in paragraph 4, Mr Fraser forms the view that the appellant’s identified driving deficiencies have been adequately addressed and remedied, the appellant will be issued with a probationary driving licence for 12 months which will be subject to the following conditions:
6.1. The appellant undertake further assessments of her competency by Mr Fraser at 12 month intervals for a period of five years;
6.2. For a period of 12 months:
6.2.1. the appellant be permitted to drive her children from her home on Thiele Road, Pompoota to Murray Bridge and back for the purposes of schooling, medical appointments or medical emergencies traversing Thiele Road, Burdett Road, Karoonda Road, Princes Highway, Bridge Street, Railway Terrace, North Terrace, First Street, West Terrace, Second Street, Clara Street, Mannum Road, Standen Street, Adelaide Road and Swanport Road;
6.2.2.the appellant be permitted to drive from her home on Thiele Road, Pompoota aforesaid to Murray Bridge and back for the purposes of obtaining groceries or supplies for the farm and household on the same roads as set out in paragraph 6.2.1;
6.2.3. the appellant be permitted to drive only upon those roads upon which it is necessary for her to drive in order to access the farm blocks owned by her and her husband and/or to move farm machinery between those blocks traversing Thiele Road, Swamp Road, Billabong Road, Lagoon Road, Jovial Downs Road, Burdett Road, Pine View Road, Russell Road, Eucalyptus Road, Karoonda Road, Boundary Road, Bow Hill Road, Glen Burr/Boundary Road and McLoughlin Road;
between the hours of 7.00a.m. and 8.00p.m. or at other unspecified times in the event of medical emergency.
6.3.At the end of the 12 month probationary licence period, if the appellant has not been involved in any motor vehicle accidents and has not been convicted of or expiated any offences under the Road Traffic Act 1961 or the Motor Vehicles Act 1959, she will be issued with an unconditional driver’s licence by the Registrar subject only to the condition referred to in paragraph 6.1 hereof.