Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Smith v Roads and Maritime Services [2014] NSWCATOD 80 Hearing dates: 12 May and 15 June 2014 Decision date: 23 July 2014 Before: Naida Isenberg, Senior Member Decision: The decision under review is affirmed Catchwords: Bus driver -medical assessment - deafness - failure to provide medical evidence as requested Legislation Cited: Passenger Transport Act 1990 Passenger Transport Regulation 2007 Cases Cited: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [639-645]. Texts Cited: "Assessing Fitness to Drive for Commercial and Private Vehicle Drivers" published by the National Transport Commission Category: Principal judgment Parties: Colin Smith (Applicant) Roads and Maritime Services (Respondent) File Number(s): 1420101 reasons for decision 1In November 2013 the Respondent decided to suspend the applicant's driver authority because he had failed to supply a specialist medical report in relation to his hearing. That decision was affirmed on internal review and the Applicant now seeks review of that decision. The relevant legislation and Guidelines 2The relevant legislation for the purposes of this application for review is the Passenger Transport Act 1990 ('the Act') and Passenger Transport Regulation 2007 ('the Regulation'). 3Section 14 of the Act states: Having regard to the purpose of an authority, RMS may at any time vary, suspend or cancel any person's authority. 4 One of the criteria for authorisation to drive a public passenger vehicle is that an applicant must meet any criteria set out in the regulations and must satisfy RMS as to any matter RMS considers relevant: s.12(2) of the Act and Reg. 29(1). Regulation 29(2)(d) provides that a must have passed an examination or assessment, at a level determined by the respondent, in medical fitness. 5Fitness to drive a public transport vehicle is determined in accordance with the Guidelines "Assessing Fitness to Drive for Commercial and Private Vehicle Drivers" published by the National Transport Commission ('the Guidelines'). CONSIDERATION 6The Guidelines note in its section headed "Purpose" that as driving a motor vehicle is a complex task involving perception, appropriate judgment, adequate response time and appropriate physical capability, a range of medical conditions, disabilities and treatments, including hearing loss, may influence these driving prerequisites. Such impairment may adversely affect driving ability, possibly resulting in a crash causing death or injury. 7The Guidelines, which have been endorsed by a number of peak bodies including the Audiological Society of Australia, contain a section specifically in relation to hearing loss. Only drivers of commercial vehicles are required to meet a hearing standard. Compliance with the standard should be clinically assessed and if there is doubt about the person's hearing, audiometry should be arranged: at [4.2]. 8In particular the Guidelines set out in Part B:4: A person is not fit to hold an unconditional licence if the person has unaided hearing loss greater than or equal to 40db in the better ear (averaged over the frequencies 0.5, 1, 2 and 3 KHz). A conditional licence may be considered by the driver licensing authority subject to periodic review, taking into account the nature of the driving task and information provided by an ear nose and throat specialist or audiologist as to whether: -the standard is met with a hearing aid. 9As part of the authorisation process the applicant was required to complete a medical assessment. A medical report from his GP dated 8 November 2001 reported deafness but his hearing was said to be normal with hearing aids (sic). An audiogram was conducted in November 2009 at which the applicant's hearing was significantly below the standard. A hearing aid was fitted and on an aided test conducted by Mr Khairy, clinical audiometrist, on 3 December 2012, his hearing was found to be within the standard. A medical review was conducted and he was required to have an aided audiogram every 2 years. 10In 2011 and 2013 the applicant provided to the respondent reports from Mr Khairy where he wrote only that the applicant met the criteria. The applicant's GP wrote that the applicant's hearing is "stable with hearing aid". A medical review conducted by the respondent required an aided audiogram in a free-field booth. When he failed to provide the audiogram his authority was suspended. 11The applicant provided a letter from his GP, Dr Siddiqui dated 19 November 2013 to the effect his hearing is normal if he wears his hearing aid and he believed the applicant could drive a bus without any restrictions. The applicant supplied 2 unaided test results of 19 August 2013 and 24 January 2014. 12The applicant also provided a report from Dr Hunter, Ear Nose and Throat specialist dated 7 April 2014. Dr Hunter wrote that the applicant reported that he can converse normally when wearing his hearing aid. The doctor considered the applicant's hearing adequate for his job as an Australia Post truck driver. The doctor made no comment about the applicant's capability to drive a bus. While he attached an audiogram, it was unaided and showed hearing below the standard. There was no audiogram conducted using a hearing aid. Dr Hunter was unavailable to give evidence. 13The applicant said he wanted his bus driver authority in the event his job with Australia Post should come to an end. He has not driven a bus as a fulltime job since 1996, and only drives these days, that is, until the suspension, for charity. He still receives calls to do some driving when, for example, a rail line is being repaired and buses are needed to provide alternative transport. About 20 years ago he drove school buses for 6 or 7 years, which he described as 'mayhem'. 14The applicant repeatedly stated, both in his submissions to the respondent, and before me, that the respondent knew of his hearing problem. It seemed to me that this completely missed the point. While the respondent was indeed aware, it repeatedly asked the applicant to have his hearing objectively tested, that is, by an aided audiogram. The applicant said that could not be done because, when it had been tried in the past, the earmuffs just made the hearing aids 'whistle'. It was pointed out to him that he had in fact undertaken an aided audiogram in 2009, which had shown a significant improvement compared to his unaided audiogram taken at about the same time. 15The respondent provided two reports by a contracted occupational physician, Dr Garvan dated 24 April 2014 and 26 June 2014. Dr Garvan also gave evidence. He was referred to the evidence that the applicant is able to converse normally while wearing a hearing aid and was asked if he could estimate the level of improvement while wearing an aid, and in particular, if the applicant might meet the standard. He was unable to express a view as to the applicant's hearing level, and said that a free-field test was required to test the applicant's hearing while using a hearing aid. He observed that not all audiologists have that test facility. Dr Garvan observed that the test is an objective one and is not set especially high. He noted that the standard is endorsed by the Audiological Society. 16Dr Garvan accepted that the applicant may be able to converse normally when aided and that the applicant's doctors had expressed positive views of his conversation ability and his ability to drive a truck. He observed that the applicant's condition of otosclerosis is a progressive one and the applicant's hearing was also likely to deteriorate with age in any event. He observed that just because the applicant wears only one hearing aid does not mean the hearing in the other ear is normal. 17 One of the objects of the Act is to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services: s.4(e) of the Act. 18The Guidelines note at [4.1.2.C] : While driving ability per se might not be affected by a hearing deficiency, responsiveness to critical events is an important safety consideration for drivers of commercial vehicles. These drivers therefore require a reasonable level of hearing to ensure their awareness of changes in engine or road noises that may signal developing problems, and their awareness of horns, rail crossings, emergency signals and sirens. 19I agree with the respondent's submission that taking into account the nature of the driving task distinguishes the role of a bus driver from that of a truck driver. The exigencies of bus travel and the responsibilities associated with managing passengers, especially in time of emergency, require a high level of hearing capability. I note the 'mayhem', to which the applicant referred, when driving school children. 20It may not be that the only way to evaluate whether the standard is met is by an aided test; a treating ear nose and throat specialist or audiologist may be able to make the evaluation against the standard, taking into account the nature of the driving task, independently of conducting an audiogram. In that regard I note that whilst I am not bound to apply policy guidelines the Tribunal will usually apply guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [639-645]. 21Of course, an audiogram would provide the preferred and unequivocal evidence. In any event, in this matter though, the specialist's evidence fell well short of that. Similarly, the GP's evidence did not reference the standard. The report of Dr Hunter made no comment about the nature of the driving task, commenting only the applicant's suitability for truck driving. 22Dr Garvan observed that as the applicant's hearing was demonstrably better when tested following the fitting of a hearing aid, it was still possible that the fresh test results may be similarly positive and demonstrate that the applicant meets the standard while wearing his hearing aid. 23The Applicant does not presently satisfy medical criteria as he is required to do by s.12 of the Act. The decision to suspend under section 14 for failure to satisfy the criteria was the correct and preferable decision. 24The decision under review is therefore affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2014