ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BERGILD v ROAD TRANSPORT AUTHORITY (Administrative Review) [2017] ACAT 80

AT 34/2017

Catchwords: ADMINISTRATIVE REVIEW – review of decision to cancel driver licence – vision disorders – Assessing Fitness to Drive guidelines – whether guidelines mandatory or discretionary – whether non-compliance with a criteria under medical standards requires cancellation of licence – suitability for on-road assessment – kinds of conditions

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 9Road Transport (General) Act 1999 s 90A

SubordinateLegislation cited: Road Transport (Driver Licensing) Regulation 2000, ss 15, 55,

60, 87, 88

Cases cited: Craig v South Australia (1995) 184 CLR 163Crosby v Taxi Services Commission [2015] VCAT 58Drake v Minister for Immigration and Ethnic Affairs(1979) 2 ALD 60Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106Harris v Taxi Services Commission [2014] VCAT 391Le Vannais and Department of Transport [2012] WASAT 155Samad v District Court of NSW [2002] HCA 24Parker and Director General of Transport [2012] WASAT 151Project Blue Sky Inc v Australian Broadcasting Authority(1988) 194 CLR 355QWE v Taxi Services Commission [2015] VCAT 1512Re Greenham and Minister for Capital Territory (1979) 2 ALD 137Shi v Migration Agents Registration Authority [2008] HCA 31Zaffina v Taxi Services Commission [2016] VCAT 778

Texts/papers cited: Austroads, Assessing Fitness to Drive for commercial and private vehicle drivers, 2016, Medical standards for licensing and clinical management guidelines Pearce and Geddes, Statutory Interpretation in Australia, 7th ed

Tribunal: Presidential Member G McCarthyDate of Orders: 29 September 2017Date of Reasons for Decision: 29 September 2017

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AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 34/2017

BETWEEN:

JASON BERGILDApplicant

AND:

ROAD TRANSPORT AUTHORITYRespondent

TRIBUNAL: Presidential Member G McCarthy

DATE: 29 September 2017

ORDER

The Tribunal orders that:

1. The application is adjourned to a date to be fixed for further hearing.

………………………………..Presidential Member G McCarthy

REASONS FOR DECISION

1. Mr Jason Bergild has applied to the Tribunal for review of a decision made by

the respondent, the Road Transport Authority (the RTA) to cancel his driver

licence.

2. I heard the application on 1 August 2017. Mr Bergild appeared for himself. Ms

J Noble from the office of the ACT Government Solicitor appeared for the

RTA.

Factual Background

3. Mr Bergild has been a diabetic since childhood. Over time, his diabetes has led

to a deterioration in his eyesight. In particular he has developed a condition

known as diabetic retinopathy. Mr Bergild has had ongoing treatment which has

improved his vision particularly his visual acuity.

4. Dr Dunlop was, until recently, Mr Bergild’s treating ophthalmologist. Dr

Dunlop had treated Mr Bergild since at least 1994. On 15 February 2005, Dr

Dunlop wrote to the RTA requesting that Mr Bergild be considered for a

restricted driving licence. At this time, Mr Bergild was 30 years of age. Dr

Dunlop noted that Mr Bergild’s

“best corrected vision is 6/18+2 and the left vision hand movements. The best corrected binocular vision is 6/18+2. Computerised visual fields testing bionocularly on an 80 degree fields reveals central island division of 30 degrees with scattered points of perception out to 60 degrees.”

5. Dr Dunlop wrote “given the stability of his vision and his maturity of approach,

I am writing to request that he be considered for a restricted driving licence.”

6. On 27 May 2005, the RTA issued Mr Bergild with a conditional driving licence.

The RTA issued the licence on condition that he submit to a medical

examination of his fitness to drive every two years.

7. Mr Bergild told the Tribunal that since 27 May 2005 he has driven without any

driving incident or accident; that he has never lost any points from his licence;

and that he has submitted to and passed medical assessments every two years

regarding his ongoing fitness to drive. Ms Noble for the RTA made no

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submission to the contrary. Where the RTA was well placed to verify these

claims and did not dispute them, I accept them to be true.

8. At hearing, Mr Bergild stated that until his licence was cancelled on 13 June

2017 he drove every day from his home in the suburb of Kambah to Woden

where he works, and has done so for the last 12 years, although adding that his

employment is about to come to an end as a result of him taking a voluntary

redundancy package.1 Mr Bergild said that each evening he also drove a

distance of about 5.5 km to see his father and to make his father’s dinner before

returning home after dark. Mr Bergild also regularly drove to Weston Creek to

attend a gymnasium.2 Ms Noble did not dispute any of those facts.3

9. On 11 and 26 April 2016 Dr Dunlop tested Mr Bergild’s eyesight for the

purpose of his ongoing treatment. In a letter dated 13 July 2016 to the RTA

regarding the results of these tests, Dr Dunlop wrote:

His best corrected vision is 6/24 in his better right eye and hand movements in the superotemporal field of his more severely damaged left eye. Esterman binocular fields were done on 11/04/2016 and 26/04/216, both of which show gross peripheral loss of vision with central sparing in the central 10 degrees which is the basis upon which he satisfies the criteria for legal blindness, even though his better vision is 6/24.

10. In his letter, Dr Dunlop advised that he had a very “frank and factual”

discussion with Mr Bergild about his ongoing ability to drive safely. Dr Dunlop

reported his receipt of an email from Mr Bergild stating he had agreed to

surrender his driver licence even though he did not fully agree with the decision.

11. Mr Bergild was understandably frustrated by Dr Dunlop’s opinion in

circumstances where Mr Bergild had been driving for over 10 years without an

accident or incident or loss of any points from his licence.

12. As it happened, Mr Bergild changed his mind and did not surrender his licence.

13. On 21 September 2016, Mr Spasenoski, in his capacity as a delegate of the

RTA, wrote to Mr Bergild advising that the RTA had received advice that Mr

1 Transcript of proceedings pages 71.5-72.62 Transcript of proceedings page 72.53 Transcript of proceedings page 81.6

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Bergild was not medically fit to drive a motor vehicle class C “due to your

visuals not meeting the national standards.” Mr Spasenoski noted that under

section 87(1)(d) of the Road Transport (Driver Licensing) Regulation 2000 (the

Driver Licensing Regulation) the RTA may cancel his driver licence for this

reason. Section 87(1) relevantly states:

87 When an authority may vary, suspend or cancel driver licences(1) The road transport authority may vary, suspend of cancel a

person’s driver licence on its own initiative under section 88… if the authority is satisfied on reasonable grounds that –

(a) …

(b) …

(c) …

(d) the person does not comply with the required medical standards;

14. Mr Spasenoski gave Mr Bergild notice under section 88 of the Driver Licensing

Regulation that the RTA proposed to cancel Mr Bergild’s driver licence with

effect from 6 October 2016. The relevant parts of section 88 state:

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) ...

(c) …

(d) the grounds for proposed action; and

(e) …

(f) the date when the variation, suspension of 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.

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(2) …

(3) The notice may, but need not, provide an opportunity for the person to make representations about why the proposed action should not be taken.

(4) The date of effect must not be earlier than 14 days after the notice is given to the person.

(5) However, the road transport authority may decide that the variation, suspension or cancellation is to take effect on a date not earlier than a date when the notice is given to the person if the authority proposes to vary, suspend or cancel a person’s driver licence on the ground that –

(a) …; or

(b) the person does not comply with the required medical standards;

(c) …

15. Mr Spasenoski could have cancelled Mr Bergild’s licence with effect from a

date not earlier than the date when the notice was given to Mr Bergild4 on the

grounds that he did not comply with the required medical standards, meaning

with immediate effect, but elected not to do so. Instead, Mr Spasenoski advised

that the proposed cancellation would take effect on 6 October 2016, by which

date he was required to surrender his licence. He also informed Mr Bergild of

his right to apply for internal review of the decision.

16. On 3 October 2016, Mr Bergild exercised his right of review. He protested that

his eyesight was tested and found satisfactory in 2015; that the assessment was

“valid” for a period of two years as a condition of his licence; that he was

willing to undergo further medical assessment to confirm his ability to drive;

and that he was also willing to undergo a driving test if required to confirm his

ongoing suitability to drive. He also repeated that he had not had any driving

incident or accident or lost any points from his licence over the time that he had

been driving, and that he had been driving for almost 15 years without any

change to his medical conditions. He also asked the RTA to take into account

that losing his licence would have a significant impact on his ability to attend

4 Road Transport (Driver Licensing) Regulation 2000 section 88(5)(b)

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work, shop for food and provide care for his father who is an aged pensioner

living nearby and requiring living assistance.

17. On 4 October 2016, presumably to obtain evidence in support his application for

review, Mr Bergild underwent an assessment of his vision with Mr Rose,

optometrist, who found Mr Bergild’s unaided vision in his right eye to be 6/20-

1, “no light perception” in his left eye and that the aided vision in his left eye

was “6/12-1”. Mr Rose advised “spectacles to be worn when driving.”

18. This opinion was supported by an undated opinion from Hafsa Ibrahim,

optometrist, apparently prepared at a similar time which recorded the visual

acuity in Mr Bergild’s right eye as “6/10-2”, his left eye to have “light

perception” and that Mr Bergild’s binocular vision is “6/10-2”. Hafsa Ibrahim

advised that Mr Bergild “must drive with glasses on”.

19. As a result of Mr Bergild applying for review of Mr Spasenoski’s decision, the

cancellation of Mr Bergild’s licence did not take effect on 6 October 2016 and

Mr Bergild remained able to drive lawfully. There is, however, evidence that in

February 2017 Mr Bergild chose not to drive for a period of time consequent

upon him suffering a stroke. Mr Bergild explained that he has recovered from

the stroke.5

20. On 1 February 2017, Dr Dunlop wrote a letter “to whom it may concern”

received by the RTA confirming that when he last reviewed Mr Bergild in 2016

his best corrected vision was 6/24 in his better right eye and that he had hand

movements in his worse left eye, accompanied by extensive binocular field

defects. He confirmed his opinion that Mr Bergild “is unable to drive with this

level of vision which is permanent.”

21. On 23 March 2017 the RTA referred Mr Bergild’s case to the Driver

Assessment and Rehabilitation Service (DARS), ACT Health, for the purpose

of assessing Mr Bergild’s ongoing fitness to drive.

22. On 13 April 2017, Ms Humphries from DARS sent an email to Ms Vanzella as

follows:

5 Transcript of proceedings page 73.2

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He has recently had a stroke and has been advised by the ophthalmologist that he is not meeting standards for driving. Could I please request a driver licence medical be completed and visual acuity and visual fields also be obtained to ensure he is meeting vision standards for driving following his recent stroke before he is referred back to our service.

23. On 21 April 2017, Dr Lyons, a medical practitioner, conducted the requested

“driver licence medical” in which he noted that Mr Bergild is “legally blind”

and has been advised not to drive but “has been assessed before as fit to drive”.

24. On 12 May 2017, with reliance on the documents provided to her,6

Dr Van Diemen from the Fitness To Drive Medical Clinic (FTDMC), which

forms part of Clinical Forensic Medical Services with ACT Health, expressed

her view as follows about Mr Bergild’s fitness to drive:

Jason Bergild does not currently meet the requirements to hold a driver’s licence of any type including an unconditional or conditional licence. This is due to his significant visual field deficits resulting from his diabetes. This deficit is permanent and will not improve to the extent to allow him to drive again.

Due to the severity of Jason Bergild’s visual deficits, he is not fit to undergo an on-road assessment with [DARS].

25. By letter dated 26 May 2017, Mr Swale as a delegate of the RTA wrote to

Mr Bergild advising that he had upheld Mr Spasenoski’s decision to cancel

Mr Bergild’s driver’s licence for reasons given in his letter, and that the

cancellation would take effect on 13 June 2017 (the decision under review).

Mr Bergild has applied to the Tribunal for review of Mr Swale’s decision.7

The Review

26. The Tribunal’s function on review is to consider afresh the question whether

Mr Bergild’s licence should be cancelled based on the evidence presented at the

hearing. For this reason, the Tribunal received evidence, in addition to the

6 The medical documents were a copy of Hafsa Ibrahim’s undated report, a copy of Dr Dunlop's letters dated 13 July 2016 and 1 February 2017, a copy of Mr Bergild's discharge summary from Canberra Hospital Neurology Department dated 9 February 2017 and a copy of Dr Lyons's report dated 21 April 20177 Mr Swale’s internal review decision is reviewable by the Tribunal under section 90A of the Road Transport (General) Act 1999

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evidence available at the time Mr Swale made his decision, regarding

Mr Bergild’s suitability to hold a driver licence. The further evidence included:

(a) a further report dated 10 June 2017 from Hafsa Ibrahim;

(b) a further report dated 14 June 2017 from Dr Dunlop;

(c) an undated report from Dr Kuzniarz, ophthalmologist and oculoplastic surgeon;

(d) a report dated 20 July 2017 from Dr Walker, consultant ophthalmologist; and

(e) a report dated 28 July 2017 from Assoc. Professor Dr Parekh from the FTDMC.

Hafsa Ibrahim

27. In his further report, Hafsa Ibrahim stated that Mr Bergild presented for general

eye examination on 2 March 2017 and that with “best-corrected visual acuities

Mr Bergild meets the driving standard (6/12) with his aided vision, and must

drive with glasses on.” Hafsa Ibrahim’s reports were admitted in evidence

without objection. He was not required for cross-examination.

Dr Dunlop

28. In his further report, Dr Dunlop stated that on 14 June 2017 he conducted

further tests on Mr Bergild’s eyes. Regarding visual acuity, Mr Bergild’s best

corrected vision in his right eye was 6/12-2 and, in his left eye, hand movements

in the temporal field. Regarding visual fields, Dr Dunlop explained that on this

occasion the binocular Esterman tested showed that Mr Bergild complied with

the standards required, but that the test had produced false positive and false

negative errors. He concluded with the following statement:

Unfortunately, this [Esterman] test is unreliable because of the very high false-positive rate and the high false-negative rate. Clinically your eyes have not changed over the last 12 months nor I believe over the last 5 years, apart from the improvement that occurred with the cataract surgery of November 2014.

29. Dr Dunlop gave oral evidence by telephone at hearing. He noted that the criteria

for the grant of a licence to a person with monocular vision were different and

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more general in 2005, and that since 2009 more specific parameters have been

established regarding peripheral vision.8

30. Dr Dunlop noted that the “Assessing Fitness to Drive for commercial and

private vehicle drivers, 2016, medical standards for licensing and clinical

management guidelines” (the Guidelines) require Mr Bergild, as a person with

monocular vision, to have visual field in his remaining eye of at least 110

degrees within 10 degrees above and below the horizontal midline. Dr Dunlop

noted that arising from the tests he conducted on 11 and 26 April 2016 Mr

Bergild’s best horizontal field was 45 degrees which was well beneath the 110

degrees required.9

31. Dr Dunlop acknowledged Mr Bergild’s admirable driving record, but

remained of the view that it gave no guarantee about future driving

performance.

Dr Kuzniarz

32. In his report, Dr Kuzniarz stated that he examined Mr Bergild on 22 June 2017.

He noted that Mr Bergild’s corrected visual acuity on that day was 6/12. He also

noted that Mr Bergild’s most recent Esterman visual field test conducted by

Dr Dunlop on 14 June 201710 “shows losses within horizontal 110 and vertical

20 deg”. Notwithstanding those results concerning Mr Bergild’s visual fields,

Dr Kuzniarz gave his opinion regarding Mr Bergild’s fitness to drive as follows:

Taking into consideration Jason’s driving record of 10 years with no accidents, my opinion is that he may be suitable for a conditional/restricted drivers licence [restricted] to daylight driving and a radius of 50 km.

33. Dr Kuzniarz gave oral evidence by telephone at hearing. He explained that he

was not recommending that Mr Bergild hold a licence, but that the question was

open “for discussion”. Dr Kuzniarz said -

8 Transcript of proceedings page 21.49 Transcript of proceedings pages 22.7-23.710 At hearing, Dr Kuzniarz explained our that the reference to 17 June 2017 in his report was an error and should have referred to 14 June 2017: transcript of proceedings page 30.

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Mr Bergild should undergo a driving assessment through the Canberra Teaching Hospital for the driving assessment … and the assessments rating his performance on the road – driving the vehicle.11

34. Dr Kuzniarz noted from Dr Dunlop’s reports that Mr Bergild’s visual fields had

never been remarkable and had not actually changed over the last five years. He

said:

[M]y perception … was that the determining factor was actually not his visual field but his actual central vision as a - you know - breaking point - why he lost his driver’s licence if that’s the point in the vision what I imagine was actually quite better than 6/18 and within … at least the legal limit for driving so definitely not eligible for [an] unrestricted drivers licence and I wouldn’t even suggest that but he might be functioning well with [a] restricted driving licence for daylight driving and restricted radius of where he can travel. But I think that he should be further assessed … his driving really should be further assessed.12

35. Dr Kuzniarz would not commit to stating that Mr Bergild has monocular vision,

meaning he has vision only in one eye, because he has some vision in his left

eye but agreed that his vision in his left eye is “extremely poor – below - even

blindness.”13

Dr Walker

36. In his report, Dr Walker stated that he examined Mr Bergild on 17 July 2017.

Dr Walker also conducted an Esterman binocular vision field test and reported

that Mr Bergild failed the test -

because he does not have the required 110° of visual field nor 10° above and below fixation in its entirety although he does have some visual field 10 degrees above in the upper right and below and lower left field but not in the upper left or lower right.

37. Dr Walker recorded that Mr Bergild’s visual acuity was 6/12 corrected in his

right eye and that he could see hand movements with his left eye.

38. Dr Walker stated that Mr Bergild should be classified as having monocular

vision.

11 Transcript of proceedings page 30.712 Transcript of proceedings page 31.513 Transcript of proceedings page 34.8

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39. In her letter of instructions to Dr Walker, Ms Noble asked Dr Walker “if you

consider that Mr Bergild meets the criteria for the grant of a conditional licence,

what conditions would be appropriate? In answering this question, please

consider the factors set out at Chapter 4.4.3 of the Guidelines and the

appropriateness or otherwise of Mr Bergild being granted a conditional drivers

licence restricted to daylight driving and within a radius of 50 km or 10 km

from his home.” Dr Walker answered as follows:

I believe that Mr Bergild is a sane, sober, careful individual and I agree with Dr Kuzniarz’s assessment that he be graded [sic] a restricted licence with daylight driving with a radius of 50 km from home.

40. In response to an invitation for any other comments or recommendations that

Dr Walker had relevant to his area of expertise in the appropriateness or

otherwise of granting Mr Bergild under licence, Dr Walker stated:

Mr Bergild is aware of his limitations and conscientious about his driving and I feel with his current vision, would be safe on the limited distance of driving and still allow him to work and care for his father.

41. Dr Walker provided a summary and assessment as follows:

Diabetic retinopathy right and left; currently inactive. He should have a practical on road driving test.

42. Dr Walker gave oral evidence by telephone at the hearing. He stated that he is a

“specialist registration eye specialist”.14 Ms Noble brought to Dr Walker’s

attention that Dr Dunlop had rated Mr Bergild’s “horizontal field at 45 degrees

and his vertical fields at 10 degrees and said that that was not sufficient to

drive.”15 In answer, Dr Walker said:

He performed better for me than he did for Dr Dunlop. So I thought that since he only just failed he does have some vision above 10 degrees up one layer. [If] I remember correctly it’s up and lateral and below and medial but not others. He’s had a long history of safe driving and no accidents. I think he deserves an on-road test and if he fails that well he fails. If he passes it well then he’s got the problem of getting to work and looking after his aged father and a car would certainly help him there.

…

14 Transcript of proceedings page 36.915 Transcript of proceedings page 37.7

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It doesn’t appear a legal or a practical problem that he undergo a practical test.16

43. Dr Walker agreed with Mr Bergild’s proposition that he has some peripheral

vision in his left eye and that the raised retina of his left eye would distort the

visions of the lights that were being flashed into his eyes, but disagreed that this

would have an impact on his actual Esterman score.17

Dr Parekh

44. In her report, Dr Parekh states that she and Dr Van Diemen examined Mr

Bergild on 27 July 2017. As I understand it, neither doctor has expertise in

ophthalmology.18 On that subject, they relied on the reports of Dr Dunlop,

Dr Kuzniarz and Dr Walker, and perhaps also Mr Rose and Hafsa Ibrahim.

45. For the purpose of assessing Mr Bergild’s fitness to drive, Dr Parekh and

Dr Van Diemen conducted a full physical examination, and three specific tests

regarding cognition and vision.

46. Dr Parekh conducted a test known as the Addenbrooke’s cognitive examination,

used, as I understood it, to assess a person’s mental alertness and cognition.

Mr Bergild obtained near perfect scores for that examination.

47. Dr Parekh also conducted a test known as the OT (occupational therapy) Drive

Home Maze Test. Dr Parekh explained that the Maze Test required Mr Bergild

to draw a line following a path through a maze printed on an A4 sheet of paper

without crossing any of the lines that created the maze. Regarding Mr Bergild’s

results from doing the Maze Test, Dr Parekh’s report states “unable to complete,

multiple major errors. Test was stopped after 356 seconds.”

48. Dr Parekh explained that the Maze Test was used to assess a person’s ability to

drive referenced to a range of different functions or skills including sight,

planning and construction that are needed to navigate a route through the maze.

It also tests brain functions involving decision-making skills and attention skills.

Dr Parekh agreed that in light of Mr Bergild’s excellent cognition skills his

16 Transcript of proceedings paged 37.9-38.417 Transcript of proceedings page 39.418 In closing submissions, the RTA accepted that to be so in the case of Dr Parekh: transcript of proceedings page 83.9

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failure to draw a pencil line through the maze from the entry point to the exit

point was primarily if not entirely due to his visual impairment.19

49. Dr Parekh explained that Dr Van Diemen also conducted a ‘finger – nose test’

which required Mr Bergild to touch his nose and then touch Dr Van Diemen’s

finger as it moved. Dr Parekh explained that Mr Bergild consistently “past

pointed, which means he wasn’t able to visualise the periphery when the finger

was moved.”20

50. Dr Parekh stated in her report:

It is our opinion that Jason Bergild:

Does not have the capabilities required for safe driving at present. Given the ongoing poor diabetic control and the underlying pathology, it is unlikely that Jason Bergild’s clinical condition will improve to the extent to allow him to hold a driver’s licence of any kind.

It is no longer medically safe to participate in an on-road driving assessment by the DARS.

51. Dr Parekh concluded her report with the following statements:

1. Jason Bergild does not currently meet the requirements to hold a driver’s licence of any type including an unconditional or conditional licence.

a. Jason Bergild has poorly controlled Type 1 Diabetes Mellitus with evidence of significant end-organ damage.

b. Jason Bergild does not currently meet the visual requirements to hold a driver’s licence of any type.

c. Should Jason Bergild be granted a driver’s licence the responsibility of this decision rests with the supporting medical practitioner(s), the Road Transport Authority and The Australian (sic) Civil and Administrative Tribunal and is not supported by the Fitness to Drive Medical Clinic (FTDMC) Panel

52. Dr Parekh gave oral evidence at hearing. Regarding Mr Bergild’s diabetes,

Dr Parekh noted that long-term diabetes management can be tested through a

blood test called haemoglobin A1C which tests glucose control. She noted that

19 Transcript of proceedings page 53.820 Transcript of proceedings page 45.2

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the results should normally be within the range of about 6.5% to 7% and that

since 2010, from the medical records obtained, Mr Bergild was never below

10%.

53. Dr Parekh said that, in her view, there was no scope to give Mr Bergild a

conditional licence. In her view, “there is no ability based on the clinical

examination to say that we’ve got enough functioning vision to allow Mr

Bergild to drive safely.”21

54. Dr Parekh also disagreed with the views of Dr Kuzniarz and Dr Walker that

Mr Bergild should be given the opportunity to undergo a practical driver

assessment. She disagreed because Mr Bergild was unable to complete the

Maze Test in less than 100 seconds.22

Consideration

55. The Tribunal must consider the question whether Mr Bergild’s driver licence

should be cancelled by reference to the evidence before it, in addition to the

evidence that was before Mr Swale. The decision under review is not ‘time

critical’, as occurs for example when reviewing whether a person was entitled to

a benefit during a certain period that depends on the facts and circumstances

applicable during that period. The Tribunal is concerned with a circumstance:

should Mr Bergild’s driver licence remain cancelled? Further evidence can lead

to a different outcome without any suggestion that the decision under review

was wrong or inappropriate at the time it was made.23

56. In conducting its review, the Tribunal has available to it the powers that were

available to Mr Swale. Referenced to section 87 of the Driver Licensing

Regulation, the Tribunal therefore has power to vary, suspend or cancel

Mr Bergild’s licence, and must confirm or vary Mr Swale’s decision if it

concludes that Mr Bergild’s licence should be cancelled or varied, respectively.

21 Transcript of proceedings page 50.122 Transcript of proceedings page 50.323 Re Greenham and Minister for Capital Territory (1979) 2 ALD 137; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Shi v Migration Agents Registration Authority [2008] HCA 31 at [45] and [99]; (2008) 235 CLR 286

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57. Mr Bergild referred to the Australian Public Service Code of Conduct to

contend that it is unlawful to discriminate against a person on the grounds of a

disability, and that the RTA has discriminated against him on the grounds of his

visual impairment, rather than his driving ability. There are many difficulties

with this submission, for example that the RTA is not Mr Bergild’s employer,

but I also reject the substance of the submission. I am well satisfied that the

RTA seeks only to discharge its statutory function of ensuring that drivers on

public roads are appropriately licensed, and that it cancelled Mr Bergild’s

licence not because he has a disability per se but because his impaired vision, in

the RTA’s view, prevents him from being able to drive safely.

58. However the substance of the submission highlights that the real issue is

whether Mr Bergild’s vision is so impaired that he should not have a driver

licence of any kind.

59. Under section 87(1) of the Driver Licensing Regulation, there are many

different reasons for why a person’s driver licence may be varied, suspended or

cancelled. In this case, the RTA contended that Mr Bergild’s licence should be

cancelled on the ground that he does not comply with the requisite medical

standards for a person with impaired vision.

60. Under section 15(1) of the Driver Licensing Regulation, the required medical

standards

are the medical standards set out in the publication Assessing Fitness to Drive, as amended from time to time, published by Austroads, that apply to the person.

61. The current medical standards are in the Guidelines published in October 2016.

62. Part A of the Guidelines provides general information about fitness to drive.

63. Part B is divided into 10 chapters, each dealing with a different medical

condition relevant to whether a person may hold a licence. Save for chapter 6

dealing with neurological conditions, each chapter considers the relevance of

the medical condition in three sections. The first section considers the relevance

of the condition to the driving task. The second provides general assessment and

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management guidelines. The third sets out the medical standards for licensing a

person with the applicable condition.

64. Although the general assessments and guidelines under the second section in

each chapter are at times quite prescriptive, it is clear from reading the

Guidelines as a whole that the “required medical standards” for the purpose of

section 87(1)(d) of the Driver Licensing Regulation are the standards tabulated

in the third section in each chapter. Several parts of the Guidelines support that

conclusion.

65. Part A, section 1.4, it states:

Part B comprises a series of chapters relating to relevant medical systems/diseases. The medical requirements for unconditional and conditional licences are summarised in a tabulated [form] to differentiate between the requirements for private and commercial vehicle drivers. Additional information, including the rationale for the standards, as well as a general assessment and management considerations, is provided in the supporting text of each chapter.

Diabetes

66. Part B, chapter 3 of the Guidelines deals with diabetes mellitus24 as a medical

condition that affects a person’s fitness to drive.

67. On that subject, Dr Parekh and Dr Van Diemen were of the opinion that

Mr Bergild should not hold a driver licence of any kind because of his “ongoing

poor diabetic control and the underlying pathology”. They allege he has poor

insight into his current medical conditions and the significant impact these

conditions have upon the task of driving.

68. Part B, chapter 3 of the Guidelines recognises that diabetes can affect a person’s

ability to drive, primarily because of the risk of unexpected hypoglycaemia

which can cause loss of consciousness, seizure, dizziness and other abnormal

behaviour.

69. I had difficulty understanding how Dr Parekh and Dr Van Diemen came to the

view that Mr Bergild does not meet the medical standards for a conditional

licence because of his diabetes. The only basis appears to be that his “results”

24 A more complete or formal name for diabetes

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have been consistently above 10% since 2010 when they should have been in

the range of 6.5% to 7%. Dr Parekh said that this high range exposes him to

risks of blackout, dizziness and consequential blurred vision. However, for Mr

Bergild, there is no suggestion that such an event has occurred in the last seven

years despite the consistent reading in his medical records. Further, Mr Bergild

(who struck me as a very honest and straightforward man) protested that he does

not get blackouts, or dizziness or weakness or anxiety when driving and that he

has been dealing with his diabetes for the past 40 years.25

70. Dr Dunlop reports that Mr Bergild has a very responsible attitude towards

managing his disease. No one, save for Dr Parekh and Dr Van Diemen, has

suggested that Mr Bergild should not hold a licence because of his diabetes, and

the RTA did not suggest it in its submission dated 31 July 2017.

71. The only question is whether Mr Bergild’s vision disorder is an appropriate

reason to cancel his licence.

Vision

72. Section 3.2.3 of chapter 3 of the Guidelines notes that assessment and

management of comorbidities is an important aspect of diabetes with respect to

a person’s fitness to drive. It notes that diabetes can affect visual acuity which

should be tested annually, and that retinal screening should be undertaken every

second year if there is no retinopathy, or more frequently if at high risk. It notes

that visual field testing is not required unless clinically indicated. Section 3.2.3

directs the reader to chapter 10 for vision and eye disorders that can affect a

person’s fitness to drive.

73. The medical standards for licensing persons with vision and eye disorders are

set out in the table in chapter 10, section 10.3. The standards address three

issues concerning vision: visual acuity, diplopia and visual fields.

Visual acuity

74. Visual acuity is concerned with the person’s clarity of vision with or without

glasses or contact lenses and is tested using a standard visual acuity chart with

five letters from the 6/12 line. The RTA notes that the most recent testing

25 Transcript of proceedings page 52.5

17

carried out by Dr Dunlop on 14 June 2017 and Dr Walker on 17 July 2017

demonstrated that Mr Bergild has the requisite visual acuity in his better eye.

The RTA accepts that Mr Bergild meets the medical standards in the table under

section 10.3 in relation to visual acuity.26

Diplopia

75. Diplopia is a more formal term for double vision, meaning that a person sees

simultaneously two images of a single object. There was no suggestion that

Mr Bergild suffers from or has experienced diplopia.

Visual fields

76. Visual fields is concerned with the extent of a person’s peripheral (or side)

vision. Section 10.2.2 relevantly states:

Normal visual field is: 60 degrees nasally, 100 degrees temporarily, 75 degrees inferiorly and 60 degrees superiorly. The binocular field extends the horizontal extent from 160 to 200 degrees, with the central 120 degrees over lapping and providing the potential for stereopsis. …

Peripheral vision assists the driver to be aware of the total driving environment. Once alerted, the central fovea area is moved to identify the importance of the information. Therefore peripheral vision loss that is incomplete will still allow awareness; this includes small areas of loss and patchy loss. Additionally, affected drivers can adapt to the defect by scanning regularly and effectively and can have good awareness. Patients with visual field defects who have full intellectual/cognitive capacity are more able to adapt, but those with such impairments will have decreased awareness and are therefore not safe to drive.

A long-standing defect, such as from childhood, may lead to visual adaption. Such defects need to be assessed by an ophthalmologist/optometrist for a conditional licence to be considered. They should be managed as an exceptional case to the standard.

..

Subjects with any significant field defect or a progressive eye condition require a binocular Esterman visual field for assessment. … For an Esterman binocular chart to be considered reliable for licensing, the false positive score must be no more than 20 per cent.

26 RTA submissions dated 31 July 2017 at [30]; transcript of proceedings pages 82.5 and 84.8

18

77. The medical standards concerning visual fields consider, separately, the

standards for a person with binocular vision and a person with monocular

vision.

78. Mr Bergild would not agree that he has monocular vision, noting that he has

some level of vision in his left eye. However, on balance, I am satisfied that he

should be regarded as having monocular vision. Dr Dunlop and Dr Walker said

that Mr Bergild should be classified as monocular, and Dr Kuzniarz stated that

Mr Bergild’s vision in his left eye is “extremely poor – below - even blindness”.

79. The medical standards in relation to visual fields for a person with monocular

vision state:

Monocular vision

A person is not fit to hold an unconditional licence:

if the person is monocular.

A conditional licence may be considered by the driver licensing authority subject to two-yearly review, taking into account the nature of the driving task and information provided by the treating optometrist or ophthalmologist as to whether the following criteria are met:

The visual acuity in the remaining eye is 6/12 or better, with or without correction; and

The visual field in the remaining eye has a horizontal extent of at least 110 degrees within 10 degrees above and below the horizontal midline.

80. The RTA contended that the two criteria are mandatory, in the sense that “the

criteria provide a minimum threshold which must be met”. The RTA contended

that only once the criteria are satisfied, does the RTA (or the Tribunal on

review) have a discretion in relation to the conditions that may or should attach

to a conditional licence.

81. The RTA contended that the fact that a monocular driver has no stereoscopic

vision is a further reason for why the Guidelines “leave no scope for discretion

in relation to the standard for visual field [that must be met] compared to the

standard for a binocular driver.”

19

82. The RTA contended that the list of discretionary factors in relation to assessing

field of vision have no application to a monocular driver seeking a private

licence, although they may have some role in relation to a monocular driver

seeking a commercial licence.

83. Four questions arise from the RTA’s submissions:

(a) Whether Mr Bergild meets the visual fields criteria for a monocular

driver?

(b) If not, whether the RTA (or the Tribunal on review) still has a discretion

to grant him a conditional licence?

(c) If ‘yes’ to question (i) or (ii), whether the discretion should be exercised?

(d) If ‘yes’ to question (iii), what conditions should be applied?

Compliance with the criteria

84. Regarding question (i), I am satisfied that Mr Bergild does not meet the visual

fields criteria for a monocular driver.

85. Dr Dunlop stated that the tests done on 11 and 26 April 2016 showed Mr

Bergild as having visual fields of only 45 degrees in the horizontal extent, rather

than the necessary 110 degrees. Dr Dunlop’s report dated 14 June 2017 reported

that the Esterman field test he conducted that day showed that the horizontal and

vertical height of the fields were within the required parameters for the

Esterman binocular field under the Guidelines but he was of the view that the

test was unreliable because of the very high false positive rate and the high false

negative rate. He noted the false positive rate was approximately 50%. The

Guidelines note at section 10.2.2 regarding assessment method that “the false

positive score must be no more than 20 per cent.”

86. Dr Walker conducted an Esterman field test on 17 July 2017. He reports that the

result was a “fail” because Mr Bergild does not have the required 110 degrees

of visual field nor 10 degrees above and below fixation. Dr Kuzniarz noted

those results.

20

Mandatory or discretionary

87. Regarding question (ii), I reject the submission that the two criteria in the

medical standards for the issue of a conditional licence to a person with

monocular vision are mandatory. In my view, whether a person complies with

the criteria, or either of them, is no more than a circumstance that the RTA

should take into account, together with the nature of the proposed driving task,

when deciding whether to issue a conditional licence and, if so, what conditions

to impose. I have reached that conclusion for several reasons.

88. First, tribunals in previous cases have consistently held that the Guidelines

provide guidance, but not direction, about whether a person’s driver licence

should be cancelled or varied by having conditions placed upon it.

89. In Harris v Taxi Services Commission27 Lambrick DP of the Victorian Civil and

Administrative Tribunal (VCAT) said:

The guidelines provide useful and persuasive material about how much risk is tolerable when considering the safety of the public. I accept that the guidelines are very conservative. They are not set in stone providing me with guidance rather than direction.

90. In Crosby v Taxi Services Commission28 and again in QWE v Taxi Services

Commission29 the VCAT said that the Guidelines are not binding and should not

be followed where there are exceptional circumstances that justify departure

from them.

91. The Western Australia State Administrative Tribunal (WASAT) came to the

same conclusion in Parker and Director General of Transport30 and in Le

Vannais and Department of Transport.31

92. In Le Vannais, the Tribunal was also critical of the regulator for continuing to

treat the Guidelines as mandatory. The Tribunal said:

It is clear on the evidence in this case that the respondent’s delegates have engaged in the same rigid adoption of the Assessing Fitness to Drive

27 [2014] VCAT 391 at [43]28 [2015] VCAT 58 at [27]29 [2015] VCAT 1512 at [36]30 [2012] WASAT 151 at [19] – [23]31 [2012] WASAT 155 at [27] – [28]

21

Guidelines as occurred in Parker. For the reasons explained in that case, this has resulted in a constructive failure by the respondent to exercise the discretion conferred on it by the Regulations and the elevation [of] the Assessing Fitness to Drive Guidelines to rules of law, thereby impermissibly overtaking the proper exercise of the respondent’s powers under reg 25(b) and reg 41 of the Regulations.

93. The High Court made the same observation, in general terms, in Samad and

Others v District Court of NSW and Anor.32 In that case, the High Court

considered clause 149 of the Poisons and Therapeutic Goods Regulation 1994

(NSW), which provided that the Director-General may suspend or cancel a

licence to supply methadone on any one or more of the grounds stated in the

clause. Herron J of the NSW District Court had concluded that where the

criteria for cancellation or suspension of a clinic’s licence were met, the

Director-General had a discretion to suspend or cancel the licence but was

obliged to do one or the other once the criteria were met. The NSW Court of

Appeal agreed.

94. The High Court in Samad did not agree. The Court said:

When a statutory power is conferred by the use of words of permission, there may arise a question whether the effect is to impose an obligation, or, at least, an obligation that must be performed in certain circumstances. Issues of this kind are to be resolved as a matter of statutory interpretation, having regard to the language of the statute, the context of the relevant provision, and the general scope and objects of the legislation.33

95. The Court acknowledged that sometimes, despite use of the word “may”, a

contrary intention should be understood. For example, in Finance Facilities Pty

Ltd v Federal Commissioner of Taxation,34 the Court found that if the criteria

permitting a tax rebate were met, the Commissioner was obliged to allow the

rebate despite the applicable statutory provision stating “may allow”.

96. The Court in Samad went on to say:

Whether a statute, which confers a power, on its true construction also imposes a duty to exercise the power in certain circumstances, may also affect the form of relief that is appropriate where there has been a failure

32 [2002] HCA 2433 [2002] HCA 24 at [32]34 (1971) 127 CLR 106

22

to exercise the power; it may affect the question whether the appropriate order is in order to make a certain decision, or to do a certain act, or merely to consider the matter according to law. And, even if a statute does not impose a duty to exercise the power, it may circumscribe the considerations that are relevant to the exercise of discretion. In every case the task is to construe and apply the statute.35

97. The Court concluded that the power to suspend or cancel the licence to supply

methadone remained discretionary even where a criterion to do so was met. It

noted that the contravention could occur in circumstances that were technical, or

trivial, or accidental, or readily excusable. The Court said:

In Re Carl Zeiss Pty Ltd’s Application, Kitto J observed of a provision that the Court or the Registrar “may” order removal of a trademark that “[t]his is the language of authorisation and not of command”. Further, in Ward v Williams, reference was made to authorities indicating that it lies on those who assert that the word “may” conveys a command to show that this is so, as a matter of construction of the statute taken as a whole.

98. Applying these principles to this case, the RTA (and the Tribunal on review)

under section 87(1) “may” vary, suspend or cancel a driver licence if satisfied

on reasonable grounds of any of the matters set out in section 87(1)(a) – (o).

There is a wide range of sometimes highly qualitative matters in section 87(1)

(a) – (o). There is, in my view, no basis for concluding that simply because one

of the grounds in section 87(1) is made out the RTA must vary, suspend or

cancel a person’s licence. There is especially no basis for concluding that it

must cancel the licence, as was put in this case.

99. In my view, to have accepted the RTA’s submission that the criteria in the

Guidelines for a driver with monocular vision holding a conditional licence are

mandatory, so that Mr Bergild’s licence must be cancelled upon him not

meeting the second criterion, would have caused me to make the same mistake

that was corrected in Parker and in Samad. Put another way, to regard

compliance with the criteria as mandatory would be to convert the medical

standards to a rule of law and to supplant or deny the RTA’s discretion in

section 87(1) of the Driver Licensing Regulation.

35 [2002] HCA 24 at [35]

23

100. To deny that discretion would be an error of law. As noted by the High Court in

Samad, in Craig v South Australia36 the High Court said:

An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act.

101. At the hearing, I inquired of Ms Noble if there were any decisions by any

tribunal that had considered the Guidelines, given that the Guidelines operate

nationally, at least on the issue of whether the criteria in medical standards

should be regarded as mandatory.

102. Ms Noble stated that she had looked but had been unable to find anything.37 Yet,

as detailed above, there are many decisions on the issue - and in each of them

the applicable tribunal rejected the proposition that the Guidelines are

mandatory. I did not find a decision that supported the RTA’s submission.

103. The circumstance is disappointing. Solicitors, especially solicitors from the

office of the ACT Government Solicitor with their obligations as a model

litigant, have an obligation to assist the Tribunal in understanding the applicable

law. It is not just a matter of professional etiquette. There is the practical fact

that the Tribunal’s research resources are very limited, and it needs the

assistance of practitioners in order to know the applicable law. The cases

mentioned above were easily found by means of an internet legal search. I am

surprised that the RTA was not aware of these decisions as a matter of course. It

is particularly concerning - having regard to the High Court’s decision in

Samad - that to have accepted the submission of the RTA would have led the

Tribunal into error.

104. In addition to legal principle and precedent being against the RTA’s submission,

the language in the medical standards concerning the grant of a conditional

licence to a driver with monocular vision does not support a submission that the

criteria are mandatory. Inadvertently or otherwise, the two criteria are not

expressed as preconditions that must be met before a driver licensing authority 36 (1995) 184 CLR 163 at 17737 Transcript of proceedings page 95.5 - .9

24

can issue a conditional licence. Whether the criteria are met is expressed only as

an issue that needs to be taken into account, together with the nature of the

person’s proposed driving task, when deciding whether to issue a conditional

licence. The only factor expressed in mandatory language is that a conditional

licence, if issued, be reviewed every two years.

105. The language can be contrasted with the statement concerning issue of an

unconditional licence:

A person is not fit to hold an unconditional licence:

if the person is monocular.

106. If the criteria concerning issue of a conditional licence were intended to be pre-

conditions, those who drafted the Guidelines could easily have made that clear

in the same manner by stating, for example:

A person is not fit to hold a conditional licence:

If the visual acuity in the remaining eye is not 6/12 or better, with or without correction; and

The visual field in the remaining eye has a horizontal extent of less than 110 degrees within 10 degrees above and below the horizontal midline.

107. If the Guidelines were to have the force of law, the starting point in statutory

interpretation is to apply the natural and ordinary meaning of what is actually

said38 and it is the duty of a court or tribunal to give the words of a statutory

provision a meaning that corresponds with their grammatical meaning unless

the context, consequences or purpose of the statute requires the words to be read

in a way that does not correspond with the literal or grammatical meaning.39 In

this case, aside from the fact that legal principle and precedent mandates that I

must not treat the criteria as mandatory, I can see no reason why the ordinary

and natural meaning should not be applied. To do so does not produce any

illogical or absurd result and, as mentioned above, if those who wrote the

38 DC Pearce and RS Geddes, Statutory Interpretation in Australia (seventh edition), 2011 at pages 27 - 2939 Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at 384

25

Guidelines had intended the criteria to be pre-conditions for a conditional

licence they could have said so.

108. In support of its submission that the criteria are mandatory, the RTA referred to

the earlier comment in section 10.2.2 regarding a driver with monocular vision:

For private vehicle drivers a conditional licence may be considered if the horizontal visual field is 110 degrees and the visual acuity is satisfactory in the better eye.

109. However, that appears to be contradicted by the further sentence in the same

paragraph in section 10.2.2 that states:

However, if an ophthalmologist/optometrist assesses that the person may be safe to drive after consideration of the above listed factors a conditional licence may be considered by the driver licensing authority, subject to at least two-yearly review of the better eye.

110. Ms Noble submitted that this exception relates only to the issue of a commercial

conditional licence,40 but I see no reason to confine it in that way. Also, a

construction that the criteria are mandatory for a conditional private licence, but

not for a conditional commercial licence is illogical where the general tenor of

the Guidelines is to require higher standards of fitness to drive for those holding

commercial licences.

Exercise of the discretion

111. Regarding question (iii), the RTA contended that if I find there to be a

discretion to issue Mr Bergild with a conditional licence notwithstanding him

not meeting the visual field criterion, I should not exercise that discretion. The

RTA relies on Dr Dunlop’s opinion, as Mr Bergild’s long-standing treating

ophthalmologist who recommended that Mr Bergild surrender his licence, and

Dr Parekh’s assessment that Mr Bergild poses an unacceptable crash risk. I am

asked to disregard Dr Walker’s opinion on the grounds that he recommends a

conditional licence “for essentially compassionate reasons”. I will presume a

similar submission in relation to Dr Kuzniarz’s opinion that Mr Bergild may be

suitable for a conditional licence for daylight driving in a radius of 50 km.

40 Transcript of proceedings page 90.1

26

112. Mr Bergild submitted that he should continue to hold a licence, even with

conditions, because of his long history of careful driving and his recognition of

his limited vision. He asked me to take into account how he has had a licence

for more than 10 years without incident, had modified his vehicle at

considerable expense to assist him to drive safely and that now, for no apparent

reason, the RTA wishes to bring it to an end. As he said in his closing

submissions:

I don’t feel I have done anything wrong. I have done everything that they have asked me to do. I have done all the tests and all the medicals they have asked me to. I have shown maturity on the road. I am definitely very careful. I am not sure what else I can do.41

113. I accept that Mr Bergild fails to satisfy the second of the applicable criteria in

the medical standards for a monocular driver. However for several reasons I am

not satisfied that that is a good and sufficient reason to cancel his licence.

114. First, Mr Bergild failed the criterion for visual fields, but it is difficult to assess

the extent to which he failed. There is an inherent level of unreliability in the

Esterman test arising from false positive and false negative responses that, as I

understand it, occur to varying degrees. Dr Dunlop attributes him passing the

test on 14 June 2017 to high false positive and false negative responses.

115. Second, I am concerned that Dr Dunlop’s report to the RTA in 2016 seems to

have occurred because of Mr Bergild’s significantly diminished visual acuity

that took things to “breaking point”, to use Dr Kuzniarz’s phrase, not changes in

his visual field which have been stable for the last five years. However, based

on the present evidence, the RTA accepts that Mr Bergild’s visual acuity meets

the criterion.

116. Third, I have the evidence of Dr Walker, a specialist registration eye specialist,

and Dr Kuzniarz, who both think that Mr Bergild should have the opportunity to

participate in an on-road driving test. Neither was recommending a conditional

licence, but both were saying that further assessment should be made in the

form of an on-road driving assessment. Both were stating that if Mr Bergild

fails the test, so be it, but the opportunity should be given.

41 Transcript of proceedings page 65.7

27

117. The views of Dr Walker and Dr Kuzniarz appear to have substance, noting that

Dr Parekh describes on-road driving as the “gold standard test”.42

118. Mr Bergild’s results from the Maze Test and perhaps also the finger – nose test

suggest he might not pass an on-road driving test but I reject the proposition that

he should not even be given that opportunity to try especially where he has an

unblemished driving record, with daily driving, since at least 2005. Dr Walker

describes Mr Bergild as sane, sober, careful individual who is well aware of his

limitations and conscientious about his driving.

119. The submission that Dr Walker made his recommendation on compassionate

grounds is not persuasive. Dr Walker and Dr Kuzniarz, I am sure, are well

aware of their professional responsibilities to Mr Bergild and other road users

when expressing their opinions that Mr Bergild should be given an opportunity

to participate in an on-road test.

120. Last, I question the RTA’s claim that Mr Bergild’s failure to pass the medical

assessment precludes him from an on-road test. The RTA did not perceive there

to be any immediate need to cancel Mr Bergild’s licence after it received

Dr Dunlop’s letter on or about 13 July 2016. It could have cancelled his licence

with immediate effect, if it thought that appropriate or necessary, but did not do

so until 13 June 2017.

121. Many on our roads are poor drivers, but not so poor that they should lose their

licences and the important independence that their licences give. Many,

especially those with good cognition, self-regulate their driving habits to

accommodate their limited or declining driving skills. I am confident that those

from DARS who conduct on-road driving tests would test Mr Bergild’s driving

skills in a professional and independent way to determine whether he has passed

a ‘tipping point’ where he should not be able to drive at all even with conditions

to address all or minimise the significance of his vision impairment.

122. The question arises as to how, where and what kind of on-road test should be

conducted. Mr Bergild expressed reservations about conducting a test on

unfamiliar roads around Civic, but he has no wish to drive in that area. 42 Transcript of proceedings page 54.1

28

Conversely, he said he would have “no problem at all” if the test were

conducted in Waniassa43 with road conditions similar to Kambah where he lives

and wishes to drive.

123. In circumstances where Mr Bergild has been driving daily without incident for

12 years, including driving to Woden Town Centre, I am not persuaded that to

conduct the test would involve such a risk that it should not be conducted at all.

Risk could be quickly assessed by commencing the test at slow speeds and in

open areas. Instructors would then know whether to progress to roads that

would relevantly test whether his vision is sufficient to be issued with a

conditional licence.

124. I can also see no reason why Mr Bergild should not be able to take the test in his

own car with which he is familiar, and which has been fitted with aids to assist

his ability to see, especially where that is the car he would drive if licensed.

125. I also question why an on-road test cannot be conducted in accordance with the

kinds of conditions that Mr Bergild would be willing to accept. For example, if

Mr Bergild agrees that he would no longer be permitted to drive at night or

outside a certain radius of his home (which might be quite small), the test could

be conducted to ascertain his ability to drive in accordance with those

conditions. I see no reason to doubt that Mr Bergild would not abide by

conditions, as he would be required to under section 60 of the Driver Licensing

Regulation, given his driving history.

126. I must however acknowledge that DARS has not had an opportunity to

comment on any of these observations.

127. I have noted Part A, chapter 2, section 10.2.8, which states:

A practical driver assessment is not considered to be a safe or reliable method of assessing the effects of disorders of vision on driving, especially the visual fields, as the driver’s response to emergency situations or various environmental conditions cannot be determined.

128. However this statement needs to be put in context. Two specialist

ophthalmologists are of the view that Mr Bergild’s circumstances (vision,

43 Transcript of proceedings pages 79.8-80.2

29

cognition, attitude to driving, age and driver history etc) are such that a

conditional licence should be considered subject to him passing an on-road test.

129. Mr Swale explained that Mr Bergild could be issued with a learner licence for

the purpose of an on-road assessment. Mr Swale offered that with that learner

licence, Mr Bergild’s father or perhaps some other person with a driver licence

could accompany Mr Bergild on a “practise drive” before participating in the

on-road assessment.44

130. The RTA could consider a conditional licence, and what conditions should be

imposed, by reference to the outcome of the assessment and “the nature of the

driving task” contemplated under the possible conditional licence.

Conclusion

131. I have explained why, in my view, Mr Bergild should be given an opportunity

to participate in an on-road driving test but I have not heard from the RTA as to

whether I have power on review of a primary decision to order it or, if I do,

whether I should exercise that power. Meanwhile, Mr Bergild’s licence remains

cancelled.

132. An expedient approach might be that the RTA and Mr Bergild arrange for

Mr Bergild to participate in an on-road test by agreement. If fails the test, the

likely outcome would appear to be that the decision under review should be

affirmed. Conversely, the outcome of the test might suggest that the preferable

decision on review would be to vary Mr Swale’s decision by instead varying

Mr Bergild’s licence by placing conditions on it that reflect the outcome of the

test.

133. I recognise that I raise issues about which the parties have not had an

opportunity to be heard. For this reason, I propose to re-list the matter on short

notice to hear from the parties as to how they wish to proceed.

………………………………..

44 Transcript of proceedings pages 108.7-109.2

30

Presidential Member G McCarthy

31

HEARING DETAILS

FILE NUMBER: AT 34/2017

PARTIES, APPLICANT: Jason Bergild

PARTIES, RESPONDENT: Road Transport Authority

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT Ms J Noble

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT ACT Government Solicitor

TRIBUNAL MEMBERS: Presidential Member G McCarthy

DATE OF HEARING: 1 August 2017

32