Browne v NSW Ambulance Service [2004] NSWADT 192

CITATION: Browne v NSW Ambulance Service [2004] NSWADT 192 revised - 10/09/2004 DIVISION: Equal Opportunity Division APPLICANT PARTIES: David Browne RESPONDENT NSW Ambulance Service FILE NUMBER: 031029 HEARING DATES: 10/11/2003 - 11/11/2003, 06/02/2004 SUBMISSIONS CLOSED: 02/06/2004 DATE OF DECISION: 09/03/2004

BEFORE: Grotte E - Judicial Member; Bolt M - Non Judicial Member; Weule B - Non Judicial Member APPLICATION: Disability Discrimination - In work MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 Commissioner of Corrective Services v Aldridge (2000) NSWADTAP 5 Commissioner of Corrective Services v Maxwell (2001) NSWADTAP 21 CASES CITED: Loscialpo v NSW Police Service (unreported, Human Rights and Equal Opportunity Commission 2 September 1999) Qantas Airways Ltd v Christie (1998) 193 CLR 280 X v Commonwealth (1999) 200 CLR 177 Zraika v Commissioner of Police, New South Wales (2004) NSWADT 67 APPLICANT REPRESENTATION: D McClure, barrister RESPONDENT T Anderson, barrister ORDERS: i) The complaint is substantiated; ii) The Respondent is to process the Applicant's application for employment; iii) The Respondent is ordered to pay the Applicant's costs of and incidental to these proceedings.

REASONS FOR DECISION Background 1 On 6 November 2001 Mr Browne ("the Applicant)" lodged a complaint with the Anti-Discrimination Board alleging discrimination on the ground of disability, namely colour blindness, against the NSW Ambulance Service ("the Respondent"). 2 The Applicant claimed that the Respondent unlawfully discriminated against him by failing to process his application for employment because of his disability. 3 The Applicant claimed that on or about 1 May 2001 he lodged applications for employment with the NSW Ambulance Service as a Trainee Ambulance Officer and Trainee Patient Transport Officer. 4 He claimed that he was subsequently advised that he had successfully passed both the selection testing and the interview processes for the positions. He was advised that the success of his application was subject only to: (a) satisfying a pre-employment medical assessment (b) attainment of MR Class (manual specification NSW Driver's Licence (c) a criminal record check; and (d) referee checks. 5 The Applicant claimed that he underwent a health assessment conducted by HealthQuest Workforce Health Management on behalf the Respondent. 6 The Applicant claimed that by a report dated 20 June 2001 Dr Casolin of HealthQuest concluded that the Applicant did not meet the medical fitness criteria for commercial drivers and as such did not meet the specific job demands of the positions because the Applicant had a protan (red colour deficiency) vision deficiency. 7 The Applicant claimed that he had been identified as a protan during the medical examination using the Ishihara and Medmont C100 clinical tests. The Applicant claimed that he was told that on this basis his employment application would no longer be processed. 8 In a letter dated 8 October 2001 to the Applicant's solicitors the Respondent stated that: It is noted and acknowledged that Mr Browne has had previous experience in a clinical setting and is the holder of an MR Driver's Licence. However, in addition to all applicants holding an MR licence, they must also have a standard of medical fitness appropriate to the requirements of the position. It is for this reason that we undertake comprehensive pre-employment health and fitness medical assessments that align with the inherent requirements in the working environment. This includes adherence to the medical standards applied by the Federal Office of Road Safety in their medical examinations of commercial drivers. The medical assessment conducted by Health Quest determined that Mr Browne had a protan deficit, meaning he does not meet the criteria for colour perception set out in these health standards. Further, there is an inherent requirement that Trainee Ambulance and Patient Transport Officers will be driving under varying weather conditions, often above the speed limit using warning devices and proceeding where necessary through red traffic signals. In these situations our officers make decisions quickly in response to traffic stimuli around them and in poor conditions some environmental cues are lost, increasing the risk of an accident or collision. …. The NSW Ambulance Service has determined that these standards are credible and relevant and wishes to advise that both the Victorian and Queensland Ambulance Services also use this standard for pre-employment medical assessments. 9 In its response dated 19 February 2002 to the enquiry conducted by the Anti-Discrimination Board the Respondent stated: The Ambulance Service of NSW provides high quality clinical care, including hospital care, rescue and patient transport services that are responsive and appropriate to the needs of patients. If an applicant for a position is found to have a medical condition, the Service examines how the condition or disability can be accommodated. However, medical experts have identified that protan deficiency is a problem in situations where the instant recognition of red lights, tail lights and signals is required and in relation to high medical standard of fitness expected by the public for ambulances [sic]. This is a medical standard set for commercial driving, including ambulances. As all Ambulance Officers and Patient Transport Officers are required to drive a range of ambulance vehicles, no reasonable adjustment is possible. ….. Other issues relating to officers and considered by the Service include: · Single Driver duties may be required · If two officers are rostered, both must be available to drive during the shift · Both officers must be able to maintain driver and clinical skills; and · Patients have a choice of which officer treats them based on the rapport developed, the sex of the officer or other characteristics to minimise patient trauma. Following consideration of the above issues, it was decided not to offer employment to Mr Browne on the basis of a pre-existing medical condition that could not be accommodated by adjustment in the workplace. As driving is an essential part of the positions, it is not therefore possible to consider Mr Browne's request that his application for employment be considered without reference to his colour blindness. 10 As at November 2001 the National Road Transport Commission stated in its Driving and Medical Fitness standards with respect to Vision and Eye Disorders: Some Studies have indicated that drivers with protan defect have a reduced visual distance for other vehicle's tail lights and for red traffic signal lights. Drivers with a protan defect have an increased nose to tail collision rate. The majority of drivers who have colour vision defects are able to distinguish traffic lights by the different intensities and position of lights as well as the movement of traffic and pedestrians. However, these conditions may not always be available in poor weather conditions or when there is a traffic light failure. In addition drivers with a protan defect have significantly reduced visual range for red signal lights and slower response to traffic lights. ….. The criteria are NOT met: · if the person is a protan 11 On 24 February 2003 the President of the Anti-Discrimination Board referred the complaint to the Administrative Decisions Tribunal pursuant to section 94(1) of the Anti Discrimination Act 1977 as the complaint was not able to be conciliated. 12 The complaint was heard by the Tribunal in Sydney on 10 and 11 November 2003 and on 6 February 2004. Both parties were legally represented – the Applicant by Mr D McCLure and the Respondent by Ms T Anderson. Evidence before the Tribunal 13 The Applicant gave oral evidence on his own behalf. He also called two expert witnesses to give oral evidence on his behalf – Dr Richard Wolfe, an Ophthalmic Surgeon, an expert in visual standards and Chairman of the Visual Standards Committee of the Royal Australian and New Zealand College of Ophthalmologists and a Naval Officer involved in the training of Navy medics and Dr Raymond Soames Job, currently General Manager of Road Safety for the NSW Roads and Traffic Authority and formerly, Associate Professor of Psychology at the University of Sydney whose expertise is in the psychology of learning, road safety and behavioural/human aspects of crash risk, risk perception and risk taking. 14 Two witnesses gave oral evidence of behalf of the Respondent – Associate Professor Stephen Dain, the Head of the School of Optometry and Vision Science at the University of NSW and William Donaldson, a Technical Educator employed by the Ambulance Service of New South Wales. 15 Both parties tendered witness statements without objection. 16 In addition to the witness statements and their annexures the Applicant tendered the following documents to the Tribunal: (i) Article by Professor Barry Cole of the Department of Optometry and Vision Sciences at the University of Melbourne bearing the title "Protan Colour Vision Deficiency and Road Accidents" dated July 2002 appearing in " Clinical and Experimental Optometry ". (ii) Bundle of Documents extracted from the Ambulance Service of NSW relating to medical conditions which should be considered for automatic exclusion from the Ambulance Service. (iii) Summaries of Interviews conducted for the Interim Review of the National Road Transport Commission Medical Standards for Drivers: Task 3 Report dated 18 March 2002 setting out a summary of a telephone interview with Professor Dain. 17 In addition to the witness statements and their annexures the Respondent tendered the following documents: (i) Colour Vision Standards for Ambulance Officers (Ambulance Services of NSW) by Dr Arthur Wong, Occupational Physician, Health Services Australia, dated 10 April 2003; (ii) Colour Vision Standards for Patient Transport Officers (Ambulance Service of NSW) by Arthur Wong, Occupational Physician, Health Service Australia, dated 10 April 2003; (iii) Report of Dr Michael Yapp, Optometrist at the University of NSW Optometry Clinic on David Browne together with three double-sided worksheets produced by the University of New South Wales dated 11 July 2001; (iv) Report of Dr R F Taylor provided to the Medical Appeals Panel of the NSW Department of Health dated 20 August 2001; (v) Letter from David Browne to the Medical Appeals Panel, NSW Department of Health, enclosing a reference from Major Pontil Pty Limited dated 7 July 2001 and a reference from Northern Sydney Health dated 9 July 2001. (vi) Extract re Vision and Eye Disorders – General Management Guidelines re Medical Standards for Licensing; (vii) Undated Draft Report of Professor Dain on Colour Vision, Lighting and Cyanosis; (viii) Article by J A B Spalding bearing the title "Medical Students and Congenital Colour Vision Deficiency: Unnoticed Problems and the Case for Screening" (Occupational Medicine, Vol: 49, No: 4 pp 247-252, 1999); (ix) Article by David A Atchison, Carol A Pederson, Stephen Dain and Joanne M Wood, "Traffic Signal Color Recognition is a Problem for both Protan and Deutan Color-Vision Deficients" (Human Factors, Vol: 45, No. 3 Fall 2003); (x) Australasian Fire Authorities Council Guidelines for Health and Fitness Monitoring of Australasian Fire and Emergency Service workers, 2002; (xi) Extract from "Assessing Fitness to Drive" booklet issued by the National Road Transport Commission in September 2003 that was enclosed with the letter dated 18 September 2003 to Associate Professor Dain. Summary of Evidence – For the Applicant David Browne - Applicant 18 The Applicant gave evidence to the Tribunal in the form of witness statements and oral evidence. In his witness statements he stated that he suffers from a slight form of colour vision defect called protanopia or protan deficiency which causes difficulties with colour perception. He stated that in practical terms he cannot distinguish subtle differences between shades of red and brown. He stated that he does not have difficulty distinguishing between other colours. 19 The Applicant stated that his protan deficiency does not generally interfere with his enjoyment of life and he is capable of carrying out both day-to-day and complex activities without difficulty. He stated that over the years he developed a number of ways to cope with his protan deficiency in situations where colour recognition is required. For example he relies on other ways of identifying objects, such as shape, size and texture. He also stated that he is able to recognise traffic signals traditionally identified as red. He stated that he is able to recognise stop lights, stop signs, vehicle brake lights and other red traffic signals without difficulty. He stated that he does not have difficulty distinguishing between a red light and a green light. He stated that he merely sees a red light in a different way than people without protanopia. He told the Tribunal that he cannot say what the difference is but he knows the top traffic light is red. 20 The Applicant stated that at the time of his supplementary statement dated 5 November 2003 he was employed by the Northern Sydney Area Health Service as a Trainee Enrolled Nurse at the RSL Veteran's Retirement Village. As part of his job he is undertaking a one year course to become an Enrolled Nurse. He told the Tribunal that at the time of the hearing in November 2003 his duties as a trainee Enrolled Nurse had been confined to the TAFE College but he had gone out on clinical placements to different hospitals once a week. 21 The Applicant stated that in this role he is required to undertake a number of duties and training in various areas including basic nursing activities such as : (a) assessing and monitoring blood pressure, oxygen and blood glucose levels; (b) urine analysis; (c) intramuscular injections; and general patient care. 22 The Applicant stated that upon successful completion of his course he will be qualified to undertake all Enrolled Nursing activities including the administration of certain intravenous drugs. 23 The Applicant stated that his protan deficiency has not prevented him from carrying out his duties as Trainee Enrolled Nurse despite there being a number of tasks which involve the identification of colour. 24 The Applicant stated that he is in the process of being trained to carry out a variety of nursing tasks which require the ability to determine the colour of skin, blood and urine, identify various medical implements and instruments (including hypodermics and cannulas), identify and administer drugs and utilise and interpret technical machinery, including monitors. 25 The Applicant stated that in his current employment he has had experience with red and green LEDs. He stated that in particular types of surgery LEDs are used to identify carbon dioxide levels. The LEDs are either red to indicate full or green to indicate empty. The applicant stated that he has had no difficulty with identifying when LEDs are indicating full or empty. 26 The Applicant stated that LEDs are used to indicate carbon dioxide levels and they are not used to attract attention as they are too small. He stated that generally devices used to attract attention might include a light with an audible noise or a blinking or large light. 27 The Applicant stated that in his current employment he is aware of cardiac monitors/defibrillators. He stated that the wires and paddles associated with this type of machinery are clearly marked and identifiable as to their function. 28 The Applicant stated that safe medical practice requires that drugs are identified prior to administration by reading the label in order to avoid an error. He stated that this practice is "drummed" into trainees from the first day of training. He stated that he has also been instructed as part of his nursing training that particular drugs may only be administered after checking by two medical/nursing practitioners. 29 The Applicant stated that in his previous role as an Operating Theatre Assistant (OTA) at Mona Vale Hospital in New South Wales he was required to support the nursing and medical staff, including doctors and surgeons. He was required to undertake peri-operative care including prepping, positioning and helping with skin preparation prior to surgery as well as preparing operating equipment prior to surgery. He was also required to maintain equipment used in the operating theatres including tourniquets, television monitors and camera equipment and reporting on equipment maintenance as well as undertaking post-operative care. 30 The Applicant stated that a number of his tasks in that position involved the identification of colour. He states that whilst he is able to perceive all colours in the same manner as a person without a protan deficiency he has adapted his learning of colour coding and referencing so that he is able to carry out his tasks without difficulty. 31 He stated that the television equipment, the cameras and monitors which he had to maintain in his job are colour coded. He stated that he was also required as part of his patient care to identify and make use of gas cylinders of various colours including black, grey and grey with white, used to medicate patients before, during and after surgery. He stated that he was able to do this without difficulty. He stated that he was required for the purposes of stocking and maintaining the operating theatres, to recognise various solutions used in medical procedures that are identified by colour. He stated that similarly he was required to identify and distinguish between needles of various colours including orange, blue, brown and green which are used for medical procedures. He stated that he was able to do this without difficulty. 32 The Applicant stated that his protan deficiency has never prevented him from carrying out his duties as an OTA. He attached to his statement a reference from Jan McCraig, Nurse Unit Manager – Operating Theatre at Mona Vale Hospital dated 9 July 2001 who was responsible for the supervision of his duties as an OTA. In that reference Ms Mc Craig confirmed the Applicant's employment and position with the Mona Vale Operating Theatres. She confirmed his duties and responsibilities and stated that he "works well without supervision, is intelligent and helpful. He is efficient, motivated, dependable, works well with all levels of staff and exhibits well developed communications skills." She stated that "with regards to his protan deficiency, it has never prevented him from carrying out his duties in the Operating Theatre. In the course of these duties, he has to change gas cylinders (all different colours) and works with many pieces of equipment, most of which are colour-coded. He troubleshoots problems with camera systems, monitors and images, all of which are in colour". 33 The Applicant stated that he was employed by Major Pontil Pty Ltd ("Pontil") for a period of approximately seven years from January 1994 to March 2001 in the positions of Driller's Assistant and Driller. He stated his duties involved a range of tasks including the operation of heavy mining equipment, including heavy drilling rigs and ancillary equipment such as air compressors, pumps, generators and lighting plants for mining exploration and extraction as well as the driving of various types of vehicles including trucks ranging from light 4X4s to 14 tonne medium rigid trucks. 34 The Applicant stated that during his employment with Pontil he successfully completed a Certificate III in Mineral Exploration. He stated that there were various tasks which required the recognition and interpretation of colours. He stated that he was required and was able to recognise potentially dangerous equipment and physical dangers which were identified by the colour red. He states that he was also required to utilise colour coordination in the maintenance of equipment - for example the identification of various colours of wires for maintenance purposes. The Applicant stated that various mining equipment was identified by colour tagging. He stated that if he had been unable to identify tags in a competent way it could have resulted in a life threatening danger. 35 The Applicant stated that at no time during his employment with Pontil did his protan deficiency affect his ability to perform his duties and responsibilities. 36 The Applicant stated that since 1995 he has held a New South Wales MR Class Drivers Licence which allows the operation of various types of vehicles including 14 tonne trucks. He stated that he also has an International Drivers Licence. He stated that his duties involved driving company vehicles in various conditions including on both sealed and unsealed private and public roads, on mine sites (surface and underground), in all weather conditions including through clouds, snow, fog and sleet as well as driving overseas including left hand drive vehicles and in densely populated areas. 37 The Applicant stated that during his employment in Ghana, Africa he was required to drive on the right hand side of the road. Similarly in Irian Jaya he was required to drive on both the left and right hand sides of the road and in surface and underground mines which required a heightened level of awareness. He stated that in some of the underground mines, the "roads" were operated by complicated traffic light systems whereby drivers in dark areas were only able to safely proceed by identifying a red or green light. A failure to identify the correct colour may have resulted in a head-on collision with a vehicle travelling in the opposite direction. The Applicant stated that he was also required to identify orange tail lights of vehicles in poor lighting conditions on mine sites. 38 The Applicant stated that during his employment with Pontil he was able to undertake all of his duties as a Driller's Assistant and Driller without difficulty, including driving and other duties involving colour reference and identification. 39 Attached to his statement is a letter signed by Patrick Ayling, Contracts Manager, Major Pontil Pty Limited dated 7 July 2001 in which Mr Ayling confirmed the applicant's employment and duties and responsibilities. In this letter Mr Ayling stated: David's position of Driller Class 2 required both physical and mental demands to enable him to conduct his work in a safe and professional manner. The nature of the work David was required to undertake demanded alertness at all times as important decisions were needed quickly whilst under pressure to maintain schedules. David is licensed to drive all types of vehicles up to and including 14 ton medium rigid class trucks. David was also ticketed to operate any fork lift up to a 10 ton articulated fork truck and he also gained a National Accreditation of Competency to operate heavy drilling rigs, including all ancillary equipment such as high pressue air compressors, triplex pumps, generators and lighting plants. David was required to drive company vehicles on both sealed and unsealed public roads, as well as mine sites (both surface and underground) in all weather conditions, where there is a high level of danger due to the nature of the mining industry. As such, David was required to undertake and pass numerous mine site safety inductions, which included practical driving tests. ...... In all of David's seven years with Major Pontil no breaches of the company safety standards and no public road infringements were recorded against him". 40 The Applicant stated that he has not been involved in any traffic incidents or infringements as a result of his protan deficiency. He stated that he has had two driving infringements in which he was fined for exceeding the speed limit by not more that 15 kilometres per hour. The Applicant attached a copy of his Traffic Record Report dated 29 August 2003 provided by the Road and Traffic Authority of New South Wales. This document confirms that the Applicant has been issued with an Unrestricted MR licence valid until 27 February 2007. It also confirms the details stated by the Applicant regarding his driving record. 41 The Applicant stated that from his previous working life he has had no difficulty identifying individuals with skin that is pale, red or burnt. He stated that over the years he has developed a number of ways to cope with his protan deficiency where colour recognition is required. 42 In his supplementary statement the Applicant attached n extract from the "Assessing Fitness to Drive" booklet issued by the National Road Transport Commission in September 2003. In the section dealing with vision and eye disorders the following is stated at paragraph 23.2.4: The need for adequate colour vision regarding red lights is a matter of ongoing debate. There is evidence that persons with red deficient vision have difficulty in detecting red lights and stopping in laboratory testing but there is no unequivocal evidence that colour-blind drivers are less safe drivers. Also there have been significant improvements in road engineering with respect to red lights, the hue and intensity being enhanced to help compensate for persons with red deficiency. Therefore there is no longer a criteria regarding colour blindness and red-deficient persons (protans and protanomals) may obtain all classes of licence. Doctors should advise patients who are found to be red-deficient that they may be less aware of detecting red lights and hence should pay particular attention to traffic lights, rear braking lights and other sources of red light relevant to driving. 43 The Applicant stated that on or about 1 May 2001 he lodged applications for employment as a Trainee Ambulance Officer and Trainee Patient Transport Officer with the New South Wales Ambulance Service. These positions involved the driving of and other functions associated with the operation of an ambulance. He stated that his applications were processed and he successfully passed the selection testing and the interview process. He stated that he was advised of his success subject to satisfying four further criteria, being: (a) a pre-employment medical assessment; (b) attainment of MR Class (Manual Specification) New South Wales Driver's Licence (or above); (c) reference checks; and (d) a criminal record check. 44 The Applicant stated that on or about 19 June 2001 he undertook a health assessment conducted by HealthQuest Workforce Health Management (HealthQuest). 45 The Applicant stated that HealthQuest found that the Applicant did not meet the medical fitness criteria in the Commercial Vehicle Drivers Guidelines and as such did not meet the specific job demands of the positions. 46 The Applicant stated that he appealed the HealthQuest Assessment with the New South Wales Health Department's Appeal Panel. Dr R F Taylor was briefed by the Medical Appeals Panel to examine the Applicant. The Applicant attached a copy of Dr Taylor's report dated 20 August 2001 to his statement. In that report Dr Taylor stated: Previous testings reveal that Mr Browne has a red colour defect known as protanopia and guidelines produced by the National Road Transport Commission, protans do not meet the criteria for a commercial drivers licence…. .... As mentioned above Mr Browne does not meet the criteria for a commercial driver's licence because of his colour vision defect of protanopoia. The National Road Transport Commission bases this restriction on the fact that there is evidence that protanopes have a reduced visual distance for other vehicles' tail lights and for red traffic lights and also have an increased nose to tail collision rate. In addition there is evidence that drivers with severe colour blindness are at an increased risk of motor vehicle accident. …. Mr Browne has to the best of my knowledge a good driving record and has driven heavy machinery and heavy vehicles in Australia and overseas and this has entailed at times driving left hand drive vehicles. He was involved a rear end collision in 1993 but in this case he was the front car. He also holds an MR licence (Medium Rigid) truck licence which entitles him to drive a light truck up to 16 tonnes and he has held this for five years. It is perfectly possible that Mr Browne will retain a good driving record and never have an accident but nevertheless he suffers from a defect which is associated with an increased risk of motor vehicle accident and the employing authorities are entitled to bear this in mind. Given the above I would not recommend that he become an ambulance driver and therefore be put in a position where he may have to drive at speed under adverse circumstances. 47 The Applicant's appeal was disallowed. 48 On 24 September 2001 the NSW Ambulance Service confirmed its decision not to offer him employment on the basis of his protan deficiency in that he was medically unfit to perform the duties and requirements of the position of either Trainee Ambulance Officer or Trainee Patient Transport Officer. Dr Richard Wolfe 49 Dr Richard Wolfe stated in his witness statement that he has been involved in a number of reviews concerning visual standards and road traffic safety and most recently, the National Road Transport Commission's (NRTC) review of the medical standards contained in the National Commercial Vehicle Driver's Guidelines (Guidelines). 50 Dr Wolfe stated that the Guidelines are designed to provide clear medical criteria for assessing commercial vehicle driver's medical fitness to drive. He stated that until recently the Guidelines contained an exclusion based on a red colour defect in colour vision. The effect of this was that the Guidelines recommended that persons suffering from such a defect be deemed unfit to hold a commercial vehicle driver's licence. He stated that he understood that the Ambulance Service has traditionally based its policy of excluding applicants with a protan defect on the Guidelines. 51 Dr Wolfe stated that as part of the review process the NRTC consulted numerous groups of people for opinions, including general practitioners, medical specialists, allied health professionals and licensing authorities. He stated that he wrote some submissions for the NRTC advising that, based on current medical research and evidence, it is unreasonable to exclude any colour deficients from holding a private or commercial driver's licence. 52 He stated that the conclusion of the review was that the existing exclusion in the Guidelines for persons with protan colour vision defects was unnecessary and without medical foundation and the requirement should be dropped from the revised version of the Guidelines due to be published in September 2003. Dr Wolfe stated that "under the revised Guidelines, Mr Browne's red colour vision deficiency would not exclude him from commercial driving if the guidelines were applied." 53 Dr Wolfe stated that in his opinion the practical effect of the Applicant's condition of protanopia is that he has difficulty in distinguishing colours involving red and green at some levels of illumination in addition to having a reduced sensitivity with respect to detecting red light. 54 Dr Wolfe stated that the reports of Dr Yapp and Dr Taylor confirm the standard of the Applicant's colour vision from an optometric standpoint. He stated that the optometric testing is capable of determining that the Applicant cannot properly distinguish the colour red but it cannot alone conclusively determine the practical effect of his condition on the day to day duties required to be undertaken by an Ambulance Officer or Patient Transport Officer as outlined in the position descriptions prepared by the Ambulance Service of New South Wales. 55 In Dr Wolfe's opinion "there is no medical evidence which specifically provides that colour vision is an essential function for driving or the processing of dynamic events including in emergency situations. In his opinion there is no credible evidence that "shows that red deficient drivers are any more dangerous or at increased risk of motor vehicle accidents." 56 Dr Wolfe stated that two studies by Norman and Verriest show that red deficient drivers are not over represented amongst those drivers that have had an accident. He stated that there is evidence however, to suggest "that no difference exists in the rate of accidents of drivers with protan deficiency when compared to drivers with normal colour vision." 57 Dr Wolfe stated that in his opinion "there is no evidence of an increased risk of traffic accidents in the context of both general and commercial driving, as a result of a red colour vision defect of Mr Browne's type". There is no evidence therefore that can in his opinion "support a presumptive exclusion of a person with a protan defect, based simply on their standard of colour vision, from such driving duties, particularly in light of the lack of evidence suggesting Protans are at, or pose a greater risk in the context of general commercial driving. This is evidenced by the revised National Commercial Vehicles Drivers Guidelines which no longer contain any exclusion based on a driver being a Protan". 58 Having said that however Dr Wolfe stated that there is currently no study that examines the effect of colour vision of drivers who are required to drive at high speeds under adverse circumstances and so, no definite conclusion can be drawn on whether protans are or are not more likely to be dangerous drivers in this capacity. 59 Dr Wolfe stated that "testing for protanopia cannot determine whether an individual can adequately recognise intravenous cannulas and ampoules by a form of colour coding. In order to ascertain this with any certainty, any applicant should undergo some practical testing which replicates any tasks that would require such identification according to colour codes. In any case, any competent medical practitioner, at any level, would not rely on the colour of an intravenous cannula, without reading and being sure of the contents. Reading the contents of an ampoule is mandatory before administration under any circumstances". 60 In Dr Wolfe's opinion "there is no credible basis for why Mr Browne should be excluded from the positions of Trainee Ambulance Officer and/or Trainee Patient Transport Officer simply because he has been identified as a Protanope. Such an identification cannot determine whether Mr Browne can satisfy the inherent requirements of the roles. Any adverse presumption made against Mr Browne in this regard is not supported by any conclusive medical evidence". 61 Dr Wolfe stated that while there are a range of general duties and responsibilities identified by the Ambulance Service associated with the positions of Trainee Ambulance Officer and Trainee Patient Transport Officer, the inherent requirements of the positions are the ability to drive in emergency situations in all weather conditions and the ability to effectively identify and administer medication to patients. In his opinion "the ability to effectively administer medicine will almost never come down to a simple ability to recognise colour coding. A determination of Mr Browne's ability to correctly identify and administer clinical medication can only be made following practical testing." 62 Attached to Dr Wolfe's statement is a copy of a report on the review conducted by Dr Wolfe in relation to the Medical Criteria for Commercial and Private Drivers. In this report Dr Wolfe referred to several studies which concluded that "defective colour vision is no bar to safe driving". He referred to the Verriest study which he stated is the "most cited and most important work". He stated that Verriest concluded from his studies that "we now have definite proof that colour-defective drivers, either protan or deutran [sic], do not have more traffic accidents than drivers with normal colour vision". Dr Wolfe stated that Verriest found that "whilst there was no difference in the number of accidents, differences in type were found that deutrans [sic] were twice as likely to be involved in accidents at intersections controlled by traffic lights and protans were twice as likely to be involved in rear end collisions". 63 He stated that "these observations have been interpreted by [Cole] as an argument to exclude protans from commercial driving" but in his opinion this interpretation is a fundamental misinterpretation of Verriest's paper. 64 Dr Wolfe stated that Professor Cole in his studies demonstrated reduced sensitivity to red and increased reaction times in protans but that the relationship between these laboratory observations and driving performance and accident rates is lacking. In his opinion it is not enough the use these data to exclude protans from commercial driving although it might be helpful to notify colour defective applicants of their condition and possible limitations so they could take it into account in their driving technique. 65 In a supplementary statement Dr Wolfe commented on the statement of William Donaldson and the reports of Associate Professor Dain. 66 In his supplementary statement Dr Wolfe commented on William Donaldson's statement as follows: (i) Illumination of screens is irrelevant to normals and colour defectives unless background is very bright and both groups will be affected. (ii) Colour coding of ampoules, cannulae, needles, airways and other equipment is not relevant. The colour disposables is a minor aid at best and contributes nothing or very little to their rapid location and their certain recognition. To rely on such coding is very dangerous – the drug name, concentration and volume must be confirmed by the print on the vial. (iii) In choosing an intravenous cannula the size of the vein available is assessed and then the appropriate cannula is selected. The cannula may be selected by remembering the colour of the pack or simply by looking at the size of the cannula or the number on the pack. Either way it will be chosen promptly. (iv) To suggest significant time is saved by a colour normal over a colour defective is wrong. It is of concern that a fraction of a second delay is considered significant by the Ambulance Service of NSW for the administration of deadly drugs by non medical personnel. The Ambulance Officer should read the contents of the vial before injecting them through the cannula. (v) In all emergency situations medical practitioners and intensive care practitioners including nurses and paramedics have no restriction based on protanopia and no colour test is applied to nearly all of them. (vi) Oral airways and cervical collars are colour coded but the usefulness is even less than colour coding of drugs, needles and cannula because their size is immediately apparent. Cardiac monitor leads are labelled and the label needs to be read to be certain of correct connection. Colour cannot be used to discriminate leads as some leads are the same colour and reliance on colour would lead to errors as the operator would have to remember which lead goes to which limb. (vii) Skin and conjunctival hues should be no problem as they involve judgments of depth of colour and not hue discrimination. 67 In his supplementary statement Dr Wolfe commented on Associate Professor Dain's report as follows: (i) No one except a protanope knows what a protanope sees and whilst the Vischeck software is interesting it cannot represent what a protanope sees and the attempts to reproduce the picture of traffic lights as seen by a protanope is "wildly misleading" as are the processed images of the street directory. The Ambulance Service should test applicants with a street directory rather than relying on theoretical considerations or non-validated tests such as the Vischeck software. (ii) The concern over the correct detection of cyanosis by protanopes can be easily tested by showing subjects cyanotic patients under a range of lighting conditions. It would be an easy study. The threshold of oxygen, desaturation for detection could be determined by varying skin coloured patient, for central and peripheral cyanosis and by observers of differing colour vision status. (iii) CIE 2001 is not an "accepted international document" because if it were the EEC, Britain, the USA and Australia would have adopted it but they have not. (iv) Practical tests are the key to determining the issues. There is no problem designing them so that they are valid, repeatable and fair. The most important requirement of a test is that it is measuring the right thing. Dr Wolfe does not doubt that the CIE recommends against tests as it is against its interests. 68 In oral evidence to the Tribunal Dr Wolfe confirmed his written evidence. 69 Under cross examination he stated that colour testing is carried out in the Navy. He said that the Defence Forces use a colour test which mirrors what happens – a practical test. He conceded that the Applicant would not pass such a test. Dr Wolfe conceded that colour tests are conducted on personnel driving ships because although speed is not an issue the driver must drive through a maze a lights and the risk is too high as the driver is commanding a billion dollar piece of equipment. 70 In cross examination Dr Wolfe was asked whether the potential of an accident is increased with a protanope driving if the ambulance is required to drive in excess of the speed limit as is frequently required of ambulance drivers. Dr Wolfe stated that protanopes are not associated with more accidents at traffic lights and that a small percentage increase in speed such as 20 kilometres is unlikely to be significant and in any event the potential for an accident is not increased because of the person's protanopia. 71 In cross examination Dr Wolfe stated that he did not agree with Dr Taylor's conclusion that persons with protanopia should be excluded. He said that Dr Taylor's report was written at a time when the old standards restricting protanopes from driving commercial vehicles applied but there is no longer any such restriction. 72 In cross examination Dr Wolfe's statement that "all the individual requirements should be tested" was challenged. He was asked whether it was possible to test clinical duties in various environmental conditions such as in a stairwell, in a toilet block with a host of different lighting conditions. Dr Wolfe stated that William Donaldson had specified what was of concern and in his opinion these specified matters could be tested even if the test was not easy. 73 It was put to Dr Wolfe that Associate Professor Dain had recommended against practical tests because they were fraught with pitfalls as does the CIE. Dr Wolfe stated that the output of the CIE in this matter is authored by Associate Professor Dain. In his opinion these experts are all distinguished people who believe they are doing the right thing but they are influenced by their own science and the information needs to be balanced by people with an opposing view. 74 Dr Wolfe agreed that there was evidence that red deficient persons were over represented in rear end collisions. 75 In cross examination Dr Wolfe was referred to the Spalding article which was tendered on behalf of the Respondent. This article stated that the screening of medical students for congenital colour vision deficiency is practised in only one university in the United Kingdom but that there is a strong case for such screening as it enables a doctor to become aware of limitations in his/her powers of observation and to devise ways of overcoming them and patients can be protected from harm. 76 According to the article, forty doctors participated in some colour vision tests and questionnaires. The colour vision tests included amongst others Ishihara, Farnsworth D15, Farnsworth Munsell 100-hue and Nagel Anomaloscope. According to the study, 26 of the 40 doctors reported difficulties in medical practice as students with "widespread body colour changes: pallor (12), cyanosis (9), jaundice (3) and cherry-red (2). 25 reported difficulties with dermatology/rashes/erythema of skin and 18 reported difficulties with body products: blood or bile in urine, faeces, sputum, vomit. 77 The Spalding article stated that "seventeen subjects overcame difficulties by close observation or cross-checking – they specified looking, touching, doing special investigations and giving attention to lighting. Only one GP specified that he used a meter for colormetric tests. Seven asked help of others and four said they gave special attention to the history. 78 The Spalding article quoted a verbatim comment from a protanope (dichromat) (severe) as follows: My impression is that if the doctor is aware of his defect he will function satisfactorily, but the problem arises in teaching. I suppose the big landmarks for me regarding difficulties with colour vision were as a second year undergraduate trying to make sense of histology slides and wondering whether my defective colour vision was part of the problem with the various colour stains used. The next stage in clinical work was at about fourth year of the six year course when we were 'exposed to patients' and great emphasis was out on cardiac disease. At that time I had great uncertainty about the degree of cyanosis in these patients. 79 The article also stated that "doctors with a slight deficiency reported significantly fewer difficulties as compared with those with moderate and severe deficiencies taken together". 80 The article also stated that the study revealed that "many doctors do not know the severity of their condition and tend to assume it is slight – it is clear that the problem needs attention". 81 Dr Wolfe agreed that the test in the Spalding article was for the correct purpose but in his opinion as a scientific paper it was next to worthless because the doctors who responded to the survey were the ones who had felt they had trouble. He said that the doctors were self selected and there was already a bias. Dr Wolfe stated that there were 5800 doctors with protanopia in Britain but only 40 responded to the survey. He said there was no control group and the same questions should have been asked of 40 normals. Dr Wolfe stated that screening is vital but there is a need for further testing. 82 Dr Wolfe stated that he had been involved in the writing of the visual standards for the Australian Defence Forces. He said that the system must be fair and the standards do not provide for every case. There may be situations where a person may be a very suitable candidate but they do not pass for other reasons. In his opinion screening is not the final arbiter and the final arbiter might be practical testing. Dr Soames Job 83 Dr Job stated in his written statement that the Applicant has limited colour vision for red. He stated that the Applicant reports seeing red as brown rather than as a clearly distinct colour. Dr Job stated that while the Applicant is not able to see red in the same way as a normal vision person he is able to generally discriminate red from other colours. 84 Dr Job stated that the Ishihara test is a legitimate and pure test of colour vision for clinical diagnosis, the purpose for which it was developed. However the test does not allow for the effective use of other cues which are commonly available in real world situations. Dr Job stated that whether or not the Applicant is able to effectively use other cues is not addressed by the tests. In his opinion the best guide to the Applicant's capacity to operate effectively with all the cues available is best judged by his behaviour to date. Dr Job stated that he inspected the Applicant's driving record. He stated that the Applicant lives in a heavily populated area of Sydney with many traffic lights and heavy traffic. Dr Job stated that the Applicant drives regularly under these conditions. The absence of crashes on his record and the absence of offences such as negligent driving or failure to stop at a signalised intersection (running a red light) despite the heavy enforcement by police including fixed red light cameras strongly suggests that the Applicant is able to function well and drive safely regardless of his protanopia. 85 Dr Job stated that in his opinion the best crash predicting factors for drivers are not the skill or ability factors but are motivational and attitudinal factors which might lead drivers to take risks. Licensed race and rally drivers have much higher crash rates that average. According to Dr Job the Applicant's record indicates an appropriate attitude which is much more important as a crash predictor that protanopia. 86 According to Dr Job the extent to which individuals are able to compensate for their vision varies and on that basis, in his opinion, regardless of the more general evidence for the driving risk for protans, the Applicant's driving record indicates safe driving ability. 87 In an Appendix to his written statement Dr Job reviewed the evidence supporting regulation of colour vision deficiencies for ambulance driving. In this Appendix Dr Job stated that the National Road Transport Commission's former policy precluding people with protan deficiency from holding a heavy vehicle licence (classes MR, HR, HC and MC) is based on the research work of Professor Barry Cole and co-authors. 88 Dr Job stated that Professor Cole's research claims that: (i) Studies of the overall crash involvement of protans (and other colour vision deficients [CVDs] suggests that they are over-involved in crashes compared with the population incidence of the CVD; (ii) Protans, compared with colour vision normals (CVNs) , have a higher ratio of crashes involving not seeing red lights; (iii) In lab studies, protans and CVDs show slower reactions and other performance limitations when tested on red signals; (iv) CVDs are more likely to report that they have difficulty seeing red signals and other relevant signals while driving. 89 According to Dr Job the research considered by Professor Cole does not unambiguously support the conclusion that CVDs, or protans in particular, are at a greater risk of crash involvement. He also stated that the evidence does not allow the conclusion that CVD is not a factor in crash involvement. Dr Job stated that there are quite a few studies which show that there is no difference between crash rates for protans and colour normals. 90 Under cross examination Dr Job conceded that under some conditions such as wet and slippery conditions protans may be involved in more crashes but he stated that there is no difference in the overall crash rates. In his opinion there is insufficient information in the data and therefore it is difficult to conclude much from the data. 91 In cross examination Dr Job was asked whether the Applicant could drive safely at excessive speeds. He said that it is estimated that speeding is a factor in 46% of crashes and speeding increases the chance of an accident. However he stated that although there is no evidence that protanopes can drive safely while speeding, there is also no evidence that they drive safely because they drive slowly. He stated that the violation rate of protanopes is the same as normals, although he qualified this by saying that the study did not differentiate between protanomalous and protanopes. 92 In his opinion the conclusion that protans should be excluded from any specific form of driving is not clearly supported by the research and that it is quite possible that protans effectively compensate for their vision by driving more cautiously and /or more slowly or they do not compensate at all. 93 Dr Job conceded that it may be the case that protanopes do not recognise red traffic signals as far back as normal colour vision drivers but this, in his opinion, is not evidence that they will crash more. Dr Job stated that "the data from Verriest indicated that normal vision allows recognition from 600m to 1000 m away on average for various colour signals, whereas for protanopes the figures are 500m to 700m on average, yet if to react appropriately only requires that the signals be recognised from say 100m away the extra distance is irrelevant to effective response to the signals". 94 Dr Job conceded that protans need to be closer to the red light to see it but in his opinion this does not matter because they will see it at a sufficiently safe distance to brake in any case. 95 Dr Job provided a supplementary statement to the Tribunal in which he commented on the reports of Associate Professor Dain dated 3 October 2003 and the statement of William Donaldson. 96 Dr Job conceded that the detailed descriptions provided by Associate Professor Dain were correctly identified and more precise than his own general description. He stated however that the essential point regarding driving is not whether the Applicant sees things as normals but how well the Applicant is able to handle the situation. In his opinion, the Applicant has been doing this all his life and has no doubt learnt many ways to make discriminations based on cues normals may miss. In Dr Job's opinion it is well established that with extensive exposure people learn to make more and more subtle discriminations, for example, people who live much of their lives in white terrain learn many shades of white – an effect called "perceptual learning". 97 In cross examination Dr Job conceded that there is a reason for brightly coloured equipment but in his opinion it is probably misguided. He said that there are other cues which enable a person to do the task properly. Traffic signals give cues such as hue, reflection of a reflector above the light or position of the light. Dr Job stated that perceptual learning which is the capacity to learn to make discriminations quickly as a result of obscure cues is permanent. If a person has appropriate visual acuity the person will pick up other visual cues. 98 Dr Job stated that the Applicant has been making successful discriminations for years, resulting in his crash free driving record. Dr Job also stated that the photographs put together by Associate Professor Dain allegedly presenting the way the Applicant sees various things is potentially misleading because the photographs are small and grainy, with picture affected by the quality of the camera and the quality of the printing. 99 In relation to the difficulties raised by Associate Professor Dain with respect to lighting and coloured leads, identifying coloured needles, drugs, cervical collars, colour-coded disaster labels and clinical issues, Dr Job stated that if the Applicant is unable to makes these discriminations, it will be evidenced in training or perhaps it could be directly tested. In his view it is pointless to make estimations based on generalisations. 100 Dr Job noted that Associate Professor Dain stated that alternate cues are not always present, most notably in the clinical assessment of patients. In Dr Job's opinion, the best way to determine the Applicant's capacity to function in a clinical setting is either from his existing record or direct testing in the course of training. 101 Dr Job stated that although practical testing is imperfect, it is a better guide to capacity than estimations from experts based on generalisations across a group of protans. Dr Job stated that one limitation of practical testing is the motivation to perform well for the test. In his opinion, therefore, it is better to consider the Applicant's ongoing safe driving record as the best guide. The Applicant has been driving safely for years even managing unfamiliar locations. 102 In Dr Job's opinion the data suggests that protans are able to drive with a level of safety which is not significantly different from normal vision drivers and in this regard it is noted that the National Road Transport Commission has removed its criteria regarding colour blindness and accordingly, red-deficient persons, including protans may now obtain all classes of licence. 103 In his oral evidence Dr Job reiterated his written evidence. He stated that the core issue is whether Mr Browne can perform the task. He stated that psychology and motivation are important factors. He stated that the Applicant knows that he is a protanope and is motivated to perform the task properly. Summary of Evidence – For the Respondent Associate Professor Dain 104 Associate Professor Dain stated in his report dated 3 October 2003 that "protanopia affects 1% of the male population of Australia. It is an inherited condition in which three receptors for daytime vision (cones) normally present in the retina are reduced to two. The retina contains only the short and middle wavelength sensitive cones (loosely referred to as blue and green cones) and lacks the long wavelength, or red, cone." 105 He stated that "since the colour visions system is now, in effect, only two dimensional compared with the normal three dimensional, there are colours that cannot be distinguished which are distinguished by those with normal colour visions using the now (missing) long wavelength receptor. Associate Professor Dain stated that "the occupational consequences will depend on the precise colour coding adopted but the colour coding that can be reliably identified by a protanope will be limited to [sic] about 4 colours (in addition to black and white) being one from red/orange/yellow/yellow-green, one from blue/green/grey, one in the deep blues and one in the pale blues". 106 Associate Professor Dain stated that "a second consequence of protanopia is a substantial loss of sensitivity to red such that red appears substantially darker to a protanope than to someone with normal colour vision." In Associate Professor Dain's opinion, the "consequence of this phenomenon is that red signals have substantially less intensity to a protanope than to a normal observer. According to his studies "the reduction is down to 25% in the case of conventional road and rail traffic signals and automotive brake and tail lights … and down to about 12% if light emitting diodes are used…The consequence is that red signals need to be brighter to attract the attention of a protanope or the observer needs to be closer to the signal to see it. Typically the seeing distance is reduced to around 1/3rd compared with normal colour vision." 107 In his report Associate Professor Dain attempted to demonstrate by way of photographic representation what a protanope sees with respect to traffic lights, road maps and LEDs in the Ambulance Cabin Control Panel as well as the equipment used by Ambulance Officers in the course of their duties. He also provided commentary on the identification of various clinical issues that involve colour. 108 Associate Professor Dain also stated in his report that "the issue of protanopes and driving has been the subject of sharp exchange recently …. and the only epidemiological evidence comes from Verriest at al (1980) and that is not strong enough to settle the issue either way". In his opinion "it must be considered inevitable that the risk of an accident can only increase". 109 Associate Professor Dain commented on the report prepared by Dr Richard Wolfe for the Applicant. Associate Professor Dain stated that he was aware that the exclusion of protans from holding a commercial driving licence has been removed from the requirements for commercial drivers and he stated that he understood that much of that representation came from Dr Wolfe. In Associate Professor Dain's opinion there is little data on protans and road accidents but in his opinion this fact should not be taken to say that there is no issue, rather it is because of the difficulty of collecting such data. In his opinion, although there is an absence of hard accident evidence, it is "extremely difficult to infer that a reduction in seeing distance of red lights and signals down to 1/3 that of a normal …, a reduction in apparent brightness of red lights and signals to 25% of that of a normal, and extension of reaction time to red lights and a reduction in apparent brightness of red light emitting diode lights and signals to 10% of that of a normal is without consequence to the driving task". 110 In Associate Professor Dain's opinion, practical tests are fraught with pitfalls because there are many issues which affect the ability to replicate all the relevant factors including lighting level, pressure of the situation and time constraints although he also stated that "fully validated controlled simulated practical tests are a possible viable procedure". 111 Associate Professor Dain took issue with Dr Wolfe's claim that "there is no credible evidence that red deficient drivers are any more dangerous". He stated that the Verriest paper stated that "protans showed significantly more rear end collisions and accidents by overlooking red rear, stop and warning lights than colour normals…" and that "Protans caused significantly more accidents in wet and slippery streets than normals". 112 Associate Professor Dain noted that the Applicant described his colour deficiency as "slight". In his opinion "it would be difficult for him [the Applicant] to make this judgment accurately since he has no experience of normal red-green discrimination". Associate Professor Dain stated that protanopia results in the loss of red-green discrimination and "it is generally considered to be the condition of most occupational concern since it combines the loss of red-green discrimination with the loss of sensitivity to red lights". 113 In oral evidence to the Tribunal Associate Professor Dain agreed that colour was not the only cue by which a decision could be made and that there were other cues but in his opinion, if colour is removed then the person with the colour vision deficiency falls short of a normal person. He conceded that the Applicant may be very good at using the brightness cue to discern the red light. 114 In oral evidence Associate Professor Dain confirmed his opinion that protanopes should not hold commercial licences and should not be ambulance drivers because he is concerned that they are not safe drivers and they cannot perform the paramedic functions. 115 Under cross examination Associate Professor Dain stated that the Ambulance Service should ascertain whether a person is a protanope by using the Medmont test and if that test is failed then the person should not either be an ambulance officer or hold a commercial licence. In his opinion practical tests are too difficult and he would advise against them. Associate Professor Dain stated however that he had given some consideration to the question of practical tests and in his opinion, the most significant/critical tests would need to be identified. He stated that he had developed some tests for the NSW Fire Brigades. 116 He conceded that there was no scientific research analysing how protanopes use other cues but there have been studies which show how well they use them. Associate Professor Dain stated that the Ishihara test is designed to identify red/green deficiency and the Medmont is designed to separate protans and deutans. He conceded that these tests do not test a person's ability to perform functions involving the colour red. 117 Under cross examination Associate Professor Dain was asked why he referred to the CIE (Commission Internationale de l'Eclairage) 2001 standards in his report dated 3 October 2003 which are not the standards used in Australia. In his report dated 3 October 2003 Associate Professor Dain had stated: ...there is an accepted international document (CIE 2001) that sets out recommendations for colour vision standards in the transport industry which sets out the standards for drivers that include taxis and buses and it seems logical that ambulance drivers are no less at risk that [sic] these categories of drivers. 118 Associate Professor Dain was asked why he had not referred instead to the new NRTC (National Road Transport Commission) Guidelines which set the standard in Australia at the time of his report and which have removed the exclusion of protans from commercial drivers' licences. Associate Professor Dain told the Tribunal that he did not think they were utterly necessary. 119 In an undated draft report on "Colour Vision, Lighting and Cyanosis", Associate Professor Dain stated that "the accurate detection and recognition of cyanosis is known to be dependent on lighting". Associate Professor Dain stated that "the most pressing importance is the early detection of cyanosis, a 'blue' colouration of the skin and mucous membranes associated with a decreased amount of oxygen in the blood. The sudden onset of cyanosis may mean a medical emergency needing urgent treatment". He also stated that "pulse oximeters are now widely used to monitor the oxygen saturation of the blood continuously. However it is still necessary to be able to detect cyanosis visually in some hospital areas." 120 Associate Professor Dain stated in his draft report that "observers with red-green colour deficiencies can be expected to be substantially less reliable in their detection of cyanosis. The errors will, obviously increase with increasing colour vision deficiency. The provision of lighting to ameliorate their problem will do little to return them to levels of performance comparable with normals and lighting, that may help a little, will also significantly impede the detection and recognition of cyanosis by those with normal colour vision. For practitioners with significant colour vision deficiencies, they will need to rely at all times on pulse oximeters or colleagues when monitoring potentially cyanotic patients". William Donaldson 121 William Donaldson, Technical Educator employed by the Ambulance Service of New South Wales Pt Clare Training Unit told the Tribunal that he has been employed by the Ambulance Service since June 1975. He stated that he completed paramedic training in July 1978 and holds an Advanced Diploma Paramedical Science (pre-hospital care). He stated that he has been awarded the Centenary Medal for service to the community for training and mentoring ambulance officers. He stated that he has been involved in on-road workplace training and assessing since 1980. 122 Mr Donaldson stated that in May 2003 he was the Acting Manager Clinical Quality. He attached to his witness statement a document which he prepared in May 2003 which sets out how colour vision is relevant to the work of ambulance officers. 123 Mr Donaldson stated that it is sometimes necessary for ambulance officers to drive an ambulance at a speed in the order of 20 to 30 kilometres an hour in excess of the speed limit and it is sometimes necessary for ambulance officers to proceed through red traffic signals. Ambulance officers must be able to brake quickly. 124 Mr Donaldson stated that the treatment provided to patients who are being transported depends on the nature of their condition. It may include intravenous infusions, cardiac massage, artificial airway support and administration of drugs. 125 The May 2003 report prepared by Mr Donaldson identified various medical and non-medical equipment which involve colour. It stated that maps and street directories are multi-coloured. The Ambulance Cabin Control Panel has switches to activate the siren, beacons, internal lighting, air-conditioning, external spotlights and external work lights. A red LED light indicates activated switches but there is a green Led light when the main switch is on. Both the mobile data terminal and the radio terminal have red "busy' lights when transmitting. The battery charger has a red "charging light". 126 Mr Donaldson stated in his May 2003 report that the Ambulance uses three different cardiac monitor/defibrillators – the Heartstart 3000, LifePak 10 and Zoll M series. The Heartstart has a light grey LED screen with black writing, a green "On" button and cardiac monitoring leads coloured red, black and white. The LifePak 10 has a black LED rhythm screen with green writing and cardiac monitoring leads coloured red, black and white. Battery selection control has a red LED light for each battery that flashes when the battery is low but also has an audible alert. The battery charger has a display for "Ready" in red when the battery is fully charged. The battery tests have an array of LED lights from red (low) to green (full). The Zoll has a black LED rhythm with yellow/orange writing and cardiac monitoring leads coloured red, black and white. The shock ready light is red but has a loud audible warning. 127 Mr Donaldson stated in his May 2003 report that disposable needles, cannulas, oral airways and cervical collars are colour-coded to reflect various sizes. Disaster labels are colour-coded to identify various triage categories. "Red" connotes life threatening – requires urgent resuscitation. 128 Mr Donaldson's May 2003 report states that the external packaging of pre-loaded drug syringes is colour-coded to assist in the identification of various drugs. However Mr Donaldson also noted that it is a mandatory requirement that all ambulance officers read the label prior to administration of a drug rather than identify that drug by colour alone. He stated that colour coding does aid in the rapid identification of a drug but when used in isolation could result in the incorrect administration of the wrong drug. He stated that drug boxes could be organised so that a person with colour vision deficiency would be able to learn the layout and the position of emergency drugs to assist with rapid identification. 129 Mr Donaldson stated in his May 2003 report that diagnostic signs using colours or shades of colours might also present a problem for persons with colour deficiencies. He stated that skin colour is used to check profusion by visual interpretation of skin colour tone such as pale (white/grey), flushed (red) or normal (pink). Capillary return from a blanched (white) state to return of capillary circulation (red) within a 2 second time frame or cyanosis (bluish tinge) are significant indicators as to a patient's condition. Cyanosis can be used as a diagnostic indicator in hypoxic patients and can also be seen as a side effect of some medications. Blood colour/tone assists in differentiating between venous and arterial haemorrhage. Old blood or bright red blood in vomit, urine, cerebrospinal fluid, sputum and stools is used as clinical evidence to identify various problems and complaints. Mr Donaldson also stated that deliberate or accidental ingested poisoning can cause changes to the colour of the tongue by chemical reaction and so colour can be an important sign in the diagnosis of a condition. Mr Donaldson stated that skin tones and hues are routinely utilised in the performance of the duties of an ambulance officer. 130 Mr Donaldson stated in the May 2003 report that the duties of an ambulance officer are sometimes time pressured and frequently performed in unusual and often poorly illuminated work areas. He stated that illumination is often reduced and may accentuate a colour vision deficiency particularly when so many colour variables in clinical application of skills and recognition of diagnostic signs are colour dependant. However he added that in poor lighting, an ambulance officer would rely on letters or labels. 131 In cross examination Mr Donaldson stated that cyanosis indicates that the situation is critical as it is a late feature of respiratory problems. If a patient appears quite cyanosed 100 percent oxygen would be administered. He agreed however that it is not harmful to give a patient more Oxygen unless a person suffers from chronic airways limitations. Mr Donaldson stated that it is not always possible to rely on a pulse oximeter to ascertain the lack of oxygen and that sometimes it is necessary to rely on the level of profusion in the skin. He added that in diagnosing cyanosis the level of consciousness, skin temperature and capillary return are also factors relevant factors. If skin colour is not considered the patient might be incorrectly diagnosed as being in shock and be given an intravenous fluid which could have adverse consequences. 132 Mr Donaldson told the Tribunal that a trainee ambulance officer completes a seven week introductory course at the ambulance education centre. They then spend 33 weeks in the workplace with a training officer on the road. They then return to the ambulance education centre for another five weeks and then this completes their probationary period. 133 Paragraph 23.2.4 of the current National Road Transport Guidelines relates to Vision and Eye Disorders - Colour Vision. It states: The need for adequate colour visions regarding red lights is a matter of ongoing debate. There is evidence that persons with red deficient vision have difficulty in detecting red lights and stopping in laboratory testing, but there is no unequivocal evidence that colour-blind drivers are less safe drivers. Also there have been significant improvements in road engineering with respect to red lights, the hue and intensity being enhanced to help compensate for persons with red deficiency. Therefore there is no longer a criteria regarding colour blindness and red-deficient persons (protans and protanomals) may obtain all classes of licence. Doctors should advise patients who are found to be red-deficient that they may be less aware of detecting red lights and hence should pay attention to traffic lights, rear braking lights and other sources of red light relevant to driving. 134 The two reports dated 10 April 2003 prepared by Dr Arthur Wong and commissioned by the NSW Ambulance Service on Colour Vision Standards for Ambulance Officers and Patient Transport Officers recommend that a colour vision standard be set for ambulance officers and patient transport officers. 135 The reports state that colour vision is generally accepted as important for correct interpretation of traffic signals and that research done by Professor Cole found that individuals with colour vision deficiency make errors when identifying signal colours and their response time to signal lighting is also longer than individual with normal colour vision. Reported difficulties included distinguishing traffic signals, confusing street lights and traffic lights, seeing brake lights and difficulties reading road signs. However the reports also stated that "recent studies have failed to sho9w a statistically significant increase in the risk of traffic accidents due to colour visions deficiencies". Dr Wong surmised that this was probably due to "drivers with colour deficiencies taking extra precautions on the road and authorities implementing strategies to assist drivers with colour vision deficiencies". 136 Dr Wong stated that there is no published data on emergency driving and colour vision deficiencies. 137 Dr Wong stated that the task of driving an ambulance requires the complex and demanding processing of dynamic events which is critical in avoiding traffic accidents. Dr Wong stated that in 1997 the Federal Highway Administration (USA) convened a panel of medical experts to review the vision standard for Commercial Motor Vehicles Drivers. The panel examined various visual functions and their relative importance to driving but colour vision was not considered to be important in the processing of dynamic events. Despite this conclusion Dr Wong recommended that "it is prudent for Ambulance Services of New South Wales to adopt the approach that all ambulance officers must be able to demonstrate the ability to reliably recognise traffic signals and see red lights. He recommended that an ambulance officer "will have to pass the Ishihara pseudo-isochromatic plate test or the Medmont C100 and Farnsworth Lantern test". 138 Dr Wong also stated that a person's ability to detect colour differences diminishes with reduction in illumination levels. A person with colour vision deficiency will not be able to detect subtle changes in surface colour. He stated that it must be recognised that ambulance officers work in unique situations whereby a minor error can translate to devastating consequences and a delay in giving the correct medication during cardiopulmonary resuscitations may result in fatal consequences. He stated that "valuable time is saved when the ambulance officer can easily identify the vial by colour codes rather than by the small print on the vial". REASONS FOR DECISION 139 The Applicant claimed that the Respondent unlawfully discriminated against him in contravention of section 49D(1)(a) or alternatively, section 49D(1)(b) of the Anti Discrimination Act 1977 (ADA). 140 Section 49D(1) of the ADA provides as follows: It is unlawful for an employer to discriminate against a person on the ground of disability: (a) in the arrangements the employer makes for the purposes of determining who should be offered employment, or (b) in determining who should be offered employment, or …. 141 In order for the Applicant to succeed in a complaint based on a contravention of section 49D(1) of the Act it is necessary for the Tribunal to be satisfied that: (i) the Respondent was an employer within the meaning of the Act; (ii) the Applicant had a disability within the meaning of the Act (iii) the Applicant was a person who sought employment with the Respondent, and (iv) in determining whether to offer employment to the Applicant, the Respondent discriminated against him on the ground of his disability. 142 Section 49B of the Act defines discrimination on the ground of disability. Section 49B contains definitions of both direct and indirect discrimination. 143 There are two aspects to the statutory definition of direct discrimination: differential treatment and causation (see Commissioner for Corrective Services v Aldridge [2000- NSWADTAP 5). 144 "Differential treatment" is concerned with determining whether the Respondent treated the Applicant less favourably than it treated or would have treated a person who did not have the Applicant's disability in the same or similar circumstances. "Causation" describes the reason or ground for the differential treatment. It is therefore necessary to determine whether the Respondent treated the Applicant in the way that it did for reason of or on the ground of his disability. 145 It is common ground that the Applicant has a disability being protanopia, which is the medical term for red colour blindness. 146 It is common ground that the Applicant's condition of protanopia brings him within one of the statutory definitions of "disability" being " a total or partial loss of a person's bodily or mental functions or of a part of a person's body". 147 It is common ground that the Applicant sought employment with the Respondent by applying for two positions with the Respondent, being Trainee Ambulance Officer and Trainee Patient Transport Officer. 148 It is common ground that the Applicant successfully passed the selection testing and interview process but that before he could be offered employment he had to satisfy a pre-employment medical assessment. 149 It is common ground that HealthQuest administered to the Applicant the Ishihara and Medmont C100 tests on behalf of the Respondent and that these identified the Applicant as a protanope. 150 It is common ground that the Respondent did not continue to process the Applicant's application for employment because he did not meet the medical fitness criteria for commercial drivers in place at the time in that he had been identified as a protanope. 151 In determining that the Applicant's application would not be processed and the Applicant would not be offered employment because he did not satisfy the medical fitness criterion, the Respondent made a decision based on the Applicant's disability - that is, the decision to no longer proceed with the application and not offer the Applicant employment was made because the Applicant had been identified as a protanope. 152 In determining that the Applicant's application for employment would not continue to be processed and the Applicant would not be offered employment because he had been identified as a protanope, the Respondent treated the Applicant less favourably on the ground of his disability than it would have a person who did not have protanopia but who possessed the Applicant's skills and qualifications because that person would have been able to continue with his application for employment as either a Trainee Ambulance Officer or Trainee Patient Transport Officer. 153 The Tribunal finds therefore that the elements of differential treatment and causation are made out and the Tribunal finds that the Respondent contravened the provisions of Section 49D(1)(b) and directly discriminated against the Applicant within the meaning of section 49B(1)(a). 154 The Applicant claimed that the Respondent also indirectly discriminated against him in that the Respondent made arrangements for the Applicant to undergo optometric testing and that the effect of those arrangements was to discriminate against the Applicant on the grounds of his disability in that the requirement that the Applicant test negative for protanopia was not reasonable having regard to his good driving history, his good employment history, his demonstrated ability to cope with the disability, the fact that he has held an MR class driver's licence on New South Wales since 1995 and the inability of the testing to properly determine whether the Applicant is capable to carry out the duties of the positions of Trainee Ambulance Officer and Trainee Patient Transport Officer. 155 As the Tribunal has found that the Respondent directly discriminated against the Applicant it is of the view that it is not necessary for it to make any findings in relation to whether or not the elements of indirect discrimination have been made out. 156 The Respondent has relied on the defence to or exception to liability in section 49D(4) of the Act which states: Nothing in subsection (1)(b) or 2(c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability: (a) would be unable to carry out the inherent requirements of the particular employment; (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer. 157 Section 49C explains what constitutes "unjustifiable hardship". That section states: In determining what constitutes unjustifiable hardship for the purposes of the this Part, all relevant circumstances of the particular case are to be taken into account including: (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and (b) the effect of the disability of a person concerned, and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship. 158 Section 109 of the Act stipulates that the burden of proving the exception to liability contained in section 49D(4) of the Act is borne by the Respondent. 159 Accordingly in order for its actions to not be unlawful within the meaning of section 49D(4) the Respondent must firstly identify the inherent requirements of the position in question and secondly, must prove that the Applicant is unable to perform those inherent requirements either alone or with some assistance which would impose an unjustifiable hardship on the Respondent. 160 It was submitted by the Respondent that the relevant inherent requirements of the positions which the Applicant would be unable to carry out are patient care duties that require accurate colour identification skills and driving an ambulance in circumstances in which it is necessary to exceed the speed limit. 161 It was submitted by the Respondent that in the context of an important emergency service, the issue of whether the disability of protanopia prevents the Applicant from carrying out the inherent requirements involves not only the parties but also the public interest. It was submitted that the Applicant's performance of the inherent requirements would impose a real risk to the safety and health of patients, members of the public and other staff of the Respondent and be inconsistent with the Respondent's legal obligations and place the Respondent's property at risk. It was further submitted by the Respondent that the duty imposed on employers by section 8(1) of the Occupational Health and Safety Act 2000 is a factor to be taken into account in determining whether a Respondent has a good defence to a complaint of discrimination on the ground of disability. 162 The Tribunal notes that the equivalent provision to section 49D(4) in the Commonwealth legislation (section 15(4) of the Disability Discrimination Act 1992 [Cth]), which is in identical terms to section 49(D)(4) of the NSW Anti Discrimination Act provision, was considered by the High Court in X v The Commonwealth (1999) 200 CLR 1992. The High Court decision and statements contained therein by the Court are binding on this Tribunal. 163 In considering the phrase "inherent requirements" McHugh J (with whom the majority of the Court either expressly or impliedly agreed) stated: Whether something is an "inherent requirement" of a particular employment for the purposes of the Act depends on whether it was an "essential element" of the particular employment. However, the inherent requirements of employment embrace much more than the physical ability to carry out the physical tasks encompassed by the particular employment. Thus implied in every contract of employment are obligations of fidelity and good faith on the part of the employee… Similarly, carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment. It is not merely "so obvious that it goes without saying" – which is one of the tests for implying a term in a contract to give effect to the supposed intention of the parties. The term is one which, subject to agreement to the contrary, the law implies in every contract of employment. 164 McHugh stated that section 15(4) must be read as a whole. He stated: When it is so read, it is clear enough that the object of the sub-section is to prevent discrimination being unlawful whenever the employee is discriminated against because he or she is unable to either alone or with assistance to carry out the inherent requirements of the particular employment. If the employee can carry out those requirements with services or facilities which the employer can provide without undue hardship, s 15(4) does not render lawful an act of discrimination by the employer that falls within s 15. For discrimination within s 15 to be not unlawful, therefore, the employee must have been discriminated against because he or she was: (a) not only unable to carry out the inherent requirements of the particular employment without assistance; but was also (b) able to do so only with assistance that it would be unjustifiably harsh to expert the employer to provide. If s 15(4)(a) provided a defence independently of s 15(4)(b), the employer could lawfully discriminate against an employee even though the employee could carry out the inherent requirements of the particular employment once he or she was provided with services or facilities the provision of which imposed no undue hardship on the employer. 165 In Commissioner of Corrective Services v Maxwell (2001) NSWADTAP 21 at pages 89 to 93 an Appeal Panel of this Tribunal explained its understanding of the proper approach to a case in which the "inherent requirements" defence is raised: [89] Thus as the Tribunal pointed out in Coleman v Commissioner of Police (2001) NSWADT 34 at paragraph 40, "it is necessary for an employer to consider not only whether a person with a disability is able to carry out the inherent requirements of a particular job without assistance, but also whether that person may be able to carry out the inherent requirements with a level of assistance which does not impose an unjustifiable hardship on the employer". In order to undertake this analysis, and thus fall within the exception created by section 49D(4), an employer must do at least two, and possibly three things when considering a job application by a person with a disability. First the employer must determine the inherent requirements of the particular position in question. Secondly, the employer must determine whether the applicant with a disability is able to perform those inherent requirements without assistance. Thirdly, if the second issue results in a finding adverse to the person with a disability, the employer must determine whether the applicant may be able to carry out the inherent requirements of the position with a level of assistance which does not impose an unjustifiable hardship on the employer. 166 Having regard to the evidence of William Donaldson and also Dr Wong, the Tribunal is satisfied that the matters identified by the Respondent are the essential elements of the position of Ambulance Officer (Qantas Airways Ltd v Christie (1998) 193 CLR 280) and do constitute "inherent requirements" for the purposes of section 49D(4)(a) of the ADA. 167 The question the Tribunal must now consider is whether the Respondent has proven, taking into account the Applicant's past training, qualifications and experience relevant to the particular employment and all other relevant factors, that it is reasonable to take into account, the Applicant because of his disability would be unable to carry out those inherent requirements of the particular employment. 168 As their Honours Gummow and Hayne JJ stated in X v The Commonwealth (op cit.) at 208 when discussing the circumstances in which the inherent requirements defence is applicable: …the provision applies only if the person would be unable to carry out those requirements. No doubt inability must be assessed in a practical way but it is inability not difficulty that must be assessed. 169 The Tribunal heard lengthy evidence from three eminent experts in their fields. 170 Associate Professor Dain on behalf of the Respondent told the Tribunal that protanopes have a substantial loss of sensitivity to red in the order of a 25% reduction with respect to traffic lights and brake and tail lights such that red appears substantially darker to a protanope than to someone with normal colour vision and a 12% reduction with respect to light emitting diodes (LEDs). This was not disputed. In his expert view the fact of these reductions must have an adverse consequence of the task of driving. He cited the Verriest paper, which in his view, showed that protans showed significantly more rear end collisions and protans caused significantly more accidents in wet and slippery streets than normals. In his opinion, protanopes should not hold commercial licences. He also was of the view that they should not be ambulance drivers because of a concern that they are not safe drivers and because they cannot perform the paramedic function due to an inability to see red in poor lighting conditions. 171 Dr Wolfe and Dr Job disagreed with this view. In their view, the evidence suggests that no difference exists in the rate of accidents of drivers with protan deficiency when compared to drivers with normal colour vision and there is no evidence of increased risk of traffic accidents. In their view, testing for protanopia cannot determine whether an individual can adequately drive in adverse conditions or recognise cannulae, ampoules, oral airways and cervical collars or identify changes in skin hue, conjunctival hues or changes in the colour of the tongue. The Tribunal notes that Associate Professor Dain conceded that the optometric tests which the Applicant underwent do not test a person's ability to perform functions involving the colour red. 172 The Tribunal notes that Associate Professor Dain attempted to reproduce what a protanope sees in terms of red traffic lights, the equipment used by ambulance officers and the colour of deoxygenated blood. The Tribunal notes and accepts the criticisms by Dr Wolfe and Dr Job with respect to these representations in that the photographs may be affected by the paper quality, the camera and film used and that they, more importantly, do not take account of the phenomenon of perceptual learning and the use of a myriad of other cues about which even the experts know every little. In his own evidence Professor Dain admitted that a protanope would use other cues to identify the colour red such as the brightness cues. 173 The Tribunal is of the view that the evidence with respect to whether or not protans are safe drivers is equivocal. There is no definitive evidence that protans are not safe drivers or that they are involved in more collisions at traffic lights. 174 It is noted that the National Road Transport Commission has removed the exclusion of protanopes from obtaining commercial driver's licences because of the lack of definitive evidence and has even stated in its Guidelines that there is "no unequivocal evidence that colour blind drivers are less safe drivers" although there is evidence that persons with red deficient vision have difficulty in detecting red lights and stopping in laboratory testing. 175 The Tribunal notes that Commissioner Mahoney QC stated the following at page 9 of Losciaplo v NSW Police Service (unreported, Human Rights and Equal Opportunity Commission, 2 September 1999) when referring to the equivalent provisions of the Commonwealth Disability Discrimination Act 1992: The complainant has emphasised, in my opinion correctly, that the present legislation requires that, in deciding whether there has been discrimination, a judgement must be made of the individual disability and incapacity of the complainant and, that this judgement is to be made by reference not to classes or categories of persons or conditions, but by reference to the actual disabilities and capacities of the individual complainant. There is to be no stereotyping. In a case such as the present, I must consider the actual disabilities and incapacities of the complainant and determine the extent to which they affect what he can do. 176 The evidence before the Tribunal is that the Applicant is an intelligent, motivated and skilled individual. He holds a current MR Class NSW driver's licence as well as an international driver's licence and notes that he has a good driving history. There is evidence before the Tribunal, which is not disputed, that he has operated vehicles ranging from 4X4s to 14 tonne medium rigid trucks in all weather conditions on both sealed an unsealed roads. There is evidence that he has operated vehicles on mine sites both on surface and underground in hazardous conditions requiring a heightened level of awareness and he has driven overseas in extreme weather conditions and in densely populated areas. It is noted that he has a good driving record with only one accident in which he was run into from behind. 177 The Tribunal notes and accepts the evidence of Dr Job on the basis of his particular expertise in road safety and psychology, when he says that the Applicant has been a protanope all his life and has learnt many ways to make discriminations based on obscure cues and that this is evidenced by his good driving record. According to Dr Job this strongly suggests that the Applicant is functioning well and driving safely despite his protanopia. 178 The Tribunal accepts that an ambulance officer has to drive under varying and adverse weather conditions often above the speed limit using warning devices and proceeding where necessary through red lights and may have to undertake clinical duties in poor lighting. The Tribunal accepts that the Ambulance Service is an emergency response organisation and that the safety of the patient is paramount. The Tribunal accepts that the expectation of the public is that the NSW Ambulance Service will conduct its business, the business of responding to persons in medical danger quickly and effectively and transport those persons quickly and safely to hospitals. 179 Nonetheless, having regard to the totality of the evidence however, it is the Tribunal's view that being identified as a protanope by the optometric testing is not a sufficient basis from which to conclude that the Applicant is unable to carry out on the inherent requirement of driving an ambulance at a speed in excess of the speed limit or proceeding through a red light in adverse conditions given the Applicant's past experience, skills and demonstrated driving ability. 180 The Tribunal is of the view that the evidence with respect to whether or not the Applicant is able to carry out the paramedic functions is also equivocal. The evidence presented by the Respondent is based on speculation in that Associate Professor Dain attempted to reproduce what a protanope sees. As stated earlier in this decision however, these reproductions may be flawed and therefore unreliable. The reproductions do not take account of the perceptual learning and the individual capabilities of the Applicant. The Applicant's evidence to the Tribunal was that he has adapted to his protanopia in situations where colour recognition is required and he can read maps and street directories, he has been able to see LEDs in previous employment situations and that the equipment used by the ambulance service has other identifiers other than the colour red such as numbers or letters. This evidence is supported by the Applciant's employment references from Major Pontil and Mona Vale Hospital. The Applicant's evidence was not disputed and the Tribunal accepts it. In addition, Mr Donaldson agreed that it is a mandatory requirement that all ambulance officers read the label prior to the administration of a drug rather than identify it by colour alone. 181 The Tribunal is of the view that the views expressed concerning the Applicant's ability to identify skin colour, blood colour, conjunctiva and tongue colour are based on assumptions and conjecture about his protanopia. Again no account has been taken on the Applicant's perceptual learning and his ability to make discriminations based on obscure cues. The Tribunal notes the evidence before it in the Spalding article regarding the doctors who indicated that they had difficulties in clinical situations. However the Tribunal also notes the criticisms made of this study that the pool of doctors was small and self selected and there was no control group. Whilst the article is of some interest it is not definitive proof that the Applicant is unable to carry out clinical diagnoses because of his protanopia. It simply highlights that protanopes may have difficulties. 182 Accordingly, the Tribunal is not satisfied that the Respondent has demonstrated that the Applicant is unable to carry out the inherent requirements of the particular employment of ambulance officer. 183 The Tribunal finds that the optometric tests were not sufficient to test the abilities of the Applicant in that only identified him as a protanope. It is the Tribunal's view that, in determining whether the Applicant should be offered employment, insufficient regard was had to his past experience, skills and capabilities. 184 The Tribunal finds that the Respondent has not proven on a balance of probabilities that the Applicant is unable to carry out the inherent requirements of the employment and as such has not made out its defence pursuant to section 49D(4) of the ADA. 185 Accordingly, the Tribunal finds that the Respondent has unlawfully discriminated against the Applicant in contravention of section 49D(1)(b) of the ADA. 186 The Tribunal is of the view that the Applicant should be given the opportunity to demonstrate whether or not he is able to carry out the inherent requirements of the positions. The Tribunal is of the view that the Applicant should either undergo practical testing in a clinical setting, testing those matters identified by William Donaldson as being of concern and some practical testing of his driving in adverse conditions. It is noted in this regard that although Associate Professor Dain recommended against practical testing he conceded that "fully validated tests are a viable possibility" and that he had devised some tests for the NSW Fire Brigades. 187 If practical testing is not considered appropriate then the Tribunal is of the view that the Applicant should be given the opportunity to see if he can do the job by being offered employment by the Respondent and undergoing the training/probationary period. It is noted that during the training period the Trainee is supervised and only goes on the road after seven weeks of training but with a trainer. The Trainee then spends 33 weeks training on the road with a trainer, during which time the Applicant's suitability and ability to perform the functions of the job can be assessed. 188 The Tribunal is of the view that economic or general damages are not appropriate in this particular case because although the Tribunal has found that the complaint has been substantiated it is of the view that the Applicant's suitability for the positions is yet to be assessed and determined. ORDER (i) The complaint is substantiated. (ii) The Respondent is to process the Applicant's application for employment. (iii) The Respondent is ordered to pay the Applicant's costs of and incidental to these proceedings. Revised 10 September 2004: To correct typographical error in Order (ii)