Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Singh v Road and Maritime Services [2016] NSWCATOD 114 Hearing dates: 21 March 2016, 1 June 2016 Date of orders: 01 June 2016 Decision date: 01 June 2016 Jurisdiction: Occupational Division Before: S Montgomery, Senior Member Decision: The Respondent's decision to cancel the Applicant's driver authority is affirmed. Catchwords: Passenger transport - taxi driver – seizure – unable to meet medical standards - fitness to drive - whether driver authority should be cancelled Legislation Cited: Passenger Transport Act 1990 Passenger Transport Regulation 2007 Texts Cited: Assessing Fitness To Drive For Commercial And Private Vehicle Drivers - Medical Standards For Licensing And Clinical Management Guidelines - March 2012 Category: Principal judgment Parties: Sandeep Singh (Applicant) Road and Maritime Services (Respondent) Representation: S Singh (Applicant in person) Solicitors: Smythe Wozniak Lawyers (Respondent) File Number(s): 1520253 reasons for decision 1. The Applicant, Mr Singh, held a taxi driver authority under the Passenger Transport Act 1990 ("the Act"). Road and Maritime Services ("the Respondent" or "RMS") determined to suspend the Applicant's driver authority after receiving advice that he was involved in a motor vehicle accident in May 2014 and suffered a possible seizure. The Respondent determined that the Applicant was unable to meet the medical standards that apply to taxi drivers. Those standards are set out in licensing and clinical management guidelines published by Austroads and the National Road Transport Commission. 2. The Respondent subsequently determined to cancel the Applicant's driver authority. That determination was affirmed on internal review. The Applicant has applied to this Tribunal for external review of the determination to cancel his driver authority. 3. The matter first came before me for hearing on 21 March 2016. On that occasion I adjourned the matter to allow the Applicant time to obtain medical records that he thought would assist him to establish that he had not suffered a seizure. The matter resumed for further hearing on 1 June 2016. At the conclusion of the hearing I determined to affirm the decision to suspend the Applicant's driver authority. The Applicant has requested written reasons for my decision and these reasons are provided in response to that request. Background 1. The relevant background is set out in the Respondent's statement of reasons for the cancellation of the authority. ● On 11 March 2015 the Applicant's driver authority was suspended based on advice that the Applicant was involved in a motor vehicle accident where he had suffered a possible seizure. This suspension was to remain in force until RMS received a satisfactory health assessment of the Applicant from a suitably qualified medical practitioner. ● On 8 July 2015 RMS determined to cancel the Applicant's driver authority as a determination had been made by Dr. Christian Zenter that the Applicant did not meet the medical standards for licensing and clinical management guidelines. ● On 21 July 2015 RMS received a medical form from the Applicant with a specialist opinion from Neurologist Dr Raymond Schwartz. That opinion indicated that the Applicant was eligible to drive a motor vehicle that this should be reviewed in 12 months. ● On 24 July 2015 Roads and Maritime referred this report to Medibank Health Solutions for opinion on the Applicant's medical fitness to drive in accordance with the medical standards and guidelines. ● Medibank Health Solutions determined that the Applicant was unsuitable for unconditional licensing. It further determined the Applicant's suitability for conditional licensing would require further medical information. It further stated that clarity regarding the Applicant's epilepsy diagnosis and management was needed. The recommendations were that the Applicant was unfit for a conditional commercial licence pending review of further medical information. ● The Applicant was not satisfied with the decision to cancel his driver authority and requested an internal review of the decision. In his application the Applicant indicated that he wished the internal review to take into consideration the following information: 1. the Medical assessment form completed by Neurologist Dr Raymond Schwartz. 2. a Police Report for accident 3. information from Jasbir, a witness to the incident, ● The Police report that the Applicant referred to is actually a Penalty Infringement Notice for 'Use unsafe unserviceable vehicle on road related area'. The Notice states that 'Vehicle lost control by unknown means and that 'the accused stated he pressed brakes prior to turning into service station, however they did not work'. The notice did not rule out the Applicant having an apparent seizure. ● When the witness Jasbir was contacted he stated that he was merely on the phone with the Applicant leading up to the incident. Jasbir indicated that he heard the Applicant yell "brakes" before the phone disconnected. He did not actually witness the incident. The Guidelines 1. The relevant guidelines are set out in a document titled Assessing Fitness To Drive For Commercial And Private Vehicle Drivers - Medical Standards For Licensing And Clinical Management Guidelines dated March 2012 ("the Guidelines". Part B of the Guidelines sets Medical Standards. 2. Chapter 6 within Part B of the Guidelines deals with Neurological Conditions. It states: Safe driving is a demanding task that requires a number of intact neurological functions including: • visuospatial perception • insight • judgement • attention and concentration • reaction time • memory • sensation • muscle power (refer to section 5 Musculoskeletal conditions) • coordination • vision (refer to section 10 Vision and eye disorders). Impairment of any of these capacities may be caused by neurological disorders and thus affect safe driving ability. In addition to these deficits, some neurological conditions produce seizures. 1. Chapter 6.2 provides guidance and medical criteria for Seizures and Epilepsy. Chapter 6.2.1 states: 6.2.1 Relevance to the driving task Effects of seizures on driving Seizures vary considerably, some being purely subjective experiences, for example, some focal seizures, but the majority involve some impairment of consciousness (e.g. absence and complex partial seizures) or loss of voluntary control of the limbs (e.g. focal motor and complex partial seizures). Convulsive (tonic–clonic) seizures may be generalised from onset or secondarily generalised with focal onset. Seizures associated with loss of awareness, even if brief or subtle, or loss of motor control have the potential to impair the ability to control a motor vehicle. 1. The standards applicable to public passenger vehicles state: A person is not fit to hold an unconditional licence: • if the person has experienced a seizure. A conditional licence may be considered by the driver licensing authority subject to at least annual review, taking into account information provided by a specialist in epilepsy as to whether the following criteria are met: • there have been no seizures for at least 10 years; and • the EEG shows no epileptiform activity; and • the person follows medical advice, including adherence to medication if prescribed. Shorter seizure-free periods may be considered by the driver licensing authority if the person's situation matches one of those in the remainder of this table. … Possible reductions in the non-driving seizure-free periods for a conditional licence A history of a benign seizure or epilepsy syndrome usually limited to childhood does not disqualify the person from holding an unconditional licence, as long as there have been no seizures after 11 years of age. If a seizure has occurred after 11 years of age, the default standard (refer above) applies unless the situation matches one of those listed below … 1. None of the circumstances that could allow a reduction in the non-driving seizure-free periods are relevant to this matter. In any event, in order to hold a taxi driver authority, the Applicant would need to hold an unconditional licence. Clause 29(4) of the Passenger Transport Regulation 2007 provides 29 Criteria for authorisation to drive public passenger vehicles ... (4) An applicant for an authority to drive a taxi-cab: (a) must hold a driver licence that is not a … restricted licence or conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving... Other Applicable Legislation 1. Division 5 of the Act provides for taxi driver authorities. Within that Division, section 33 provides: 33 Authorities (1) RMS may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver". (2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. Maximum penalty: 100 penalty units. (3) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: (i) in accordance with the conditions under which the taxi-cab service concerned is operated, and (ii) in accordance with law and custom. (4) The regulations may create categories or grades of authorities. (5) Without limitation, the regulations may provide that subsection (2) does not apply in specified circumstances, including, for example, when a taxi-cab is being driven to a place to have it repaired or serviced. 1. Section 33F provides: 33F Variation, suspension or cancellation of authority Having regard to the purpose of authorisation under this Division, RMS may at any time vary, suspend or cancel any person's authority under this Division. 1. The Tribunal's jurisdiction is pursuant to section 52 of the Act which provides: 52 Applications to Civil and Administrative Tribunal (1) Any person whose application under Part 2, 4 or 4A has been refused, or whose accreditation, authority or authorisation has been varied, suspended or cancelled may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the refusal, variation, suspension or cancellation. (2) If, on an application to the Civil and Administrative Tribunal by a driver employed by the State Transit Authority whose authority has been varied, suspended or cancelled, the Civil and Administrative Tribunal is satisfied that another dispute pending before the Transport Appeals Board involves substantially the same issues, it may remit the application for hearing by that Board. In that event, the Transport Appeals Board has jurisdiction to hear and determine the application as if it were the Civil and Administrative Tribunal. (3) A person aggrieved by a decision of RMS: (a) to refuse to issue or transfer a licence to the person, or (b) to suspend or cancel the person's licence, or (c) with respect to the conditions imposed on the person's licence, or any variation or proposed variation of them, may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. The evidence 1. The Applicant appeared and gave evidence in support of his application. He also relied on an opinion from Neurologist Dr Raymond Schwartz. 2. Dr Schwarz's report states that he assessed the Applicant who undertook a sleep deprived EEG. He could not find any objective evidence of neurological dysfunction and felt that the Applicant was eligible to drive a motor vehicle. 3. In a report of the 20 July 2015 Dr Schwarz stated: An MRI scan of the brain reveals a cavernoma in the right frontal pole which has not increased in size compared to a study in May 2014. I am unable to demonstrate objective evidence of neurological dysfunction on Sandeep's neurological assessment apart from his MRI findings which I feel are incidental. In further discussion with Sandeep, he assures me that he retained consciousness and awareness during his motor vehicle accident with some issue losing control of the car because of a fault in his cruise control. Sandeep says he has never suffered a seizure or funny turn before the accident or since and with a normal neurological examination, sleep deprived EEG and given the fact that it is now well over a year since his accident without any further issues, I think that it is safe for him to return to driving. 1. In an opinion dated 18 January 2016 Dr Schwarz confirmed that he was unable to demonstrate objective evidence of neurological dysfunction on clinical examination and sleep deprived EEG. He stated that an MRI scan of the brain reveals a right frontal cavernoma which is stable in size over one year. He recommended that he Applicant return to taxi-driving with review in one year. 2. The Respondent relies on a report from Dr. Christian Zenter of the South Eastern Sydney Local Health District. By letter dated 9 June 2015 Dr. Zenter advised: I am writing to you concerning this man's fitness to drive. As you know, Mr Singh had a generalised tonic-clonic seizure on 17 May, 2014. According to the patient's history, it was unclear whether the seizure caused the accident or the accident caused the seizure. I saw Sandeep on the 30 March, 2015, in the clinic to clarify the underlying medical condition. I will attach my clinic letter to provide you with further information. In conclusion, even after contacting his friend, who witnessed the event on the phone and after receiving the original ambulance report as well as the discharge summary of Westmead Hospital, the statement of the Office of State Revenue and after contacting Granville Police Department, it remains unclear whether the accident was caused by technical issues as stated by the patient or due to an epileptic seizure. The patient suffers from a right frontal meningioma, which brings him at least at significant risk to develop epilepsy. Should the epileptic seizure be the result of the accident, it has to be assessed as an acute symptomatic seizure, which will cause unfitness to drive for 12 months for a commercial licence. However, the mechanism is not totally clear. The patient stated that he was driving at 50 km/hour beforehand, but when driving into a petrol station, as described by the patient, it is most likely that the speed was much slower and also the fact that the airbags did not open would support this assumption. Should the seizure be the cause of .the accident, it would have a significant impact to this person's fitness to drive, especially with a commercial driver licence. He would not be fit to drive commercially for at least 10 years. However, also the patient's history was slightly inconsistent with the history provided in the hospital discharge notes. Mr Singh stated that he was never told he was unfit to drive, which is in clear contrast to the discharge summary from Westmead Hospital, which pointed out on the 'follow up plan and appointments' "The patient advised not to drive whilst being investigated for seizures". Also, the fact that the EEG showed right temporal slowing in the region of the meningioma is suggesting at least the risk of developing a focal epilepsy. Due to the fact that even after receiving all available information the cause of the accident can't be clarified, we ask you for a definite decision as to his fitness to drive both privately and commercially. 1. The Respondent also relies on a report from Dr Andrew Duggins of Westmead Hospital which records that bystanders who were at the scene of the accident witnessed the Applicant having "tonic-clonic movements". 2. The Respondent also relies on the hospital records from Westmead Hospital for 17 May 2014. These notes record that a tonic–clonic seizure was noted by paramedics. The notes also record that the Applicant was unable to remember the impact in the incident on 17 May 2014. 3. The Respondent also relies on the evidence of Dr Guillermo Ruggeri of Medibank Health Solutions. Dr Ruggeri provided a report in which he concluded that the Applicant was unsuitability for unconditional licensing. He also considered that further information was required in regard to the Applicant's suitability for conditional licensing. He noted that a specialist is required to provide further medical information as the results of the sleep deprived EEG was not provided and the MRI findings could not be read clearly. He also noted that clarity is needed regarding his epilepsy diagnosis and management. He considered that the Applicant was unfit for a conditional commercial licence pending review of further medical information. 4. Dr Ruggeri appeared at the hearing by telephone, gave evidence and was cross-examined. His evidence was that tonic-clonic movements are consistent with an epileptic seizure. He also said that the cause of the seizure is not significant. It would make no difference to his opinion whether the seizure caused the accident or the accident caused the seizure. 5. Dr Ruggeri was satisfied that there is enough information available to be satisfied that the Applicant had suffered a seizure. That being the case he does not meet the standards to be able to hold a commercial driver's licence. Dr Ruggeri was questioned in regard to the different opinions of Dr Zenter who stated that the Applicant has a meningioma and Dr Schwarz who stated that the Applicant has a cavernoma. Dr Ruggeri said that for the purposes of meeting the standards it would make no difference whether it is a cavernoma or a meningioma. He said that if the Applicant had a seizure he cannot meet the standard. 6. When asked whether he had any doubts that the Applicant had a seizure he stated that with tonic-clonic movements and other signs it is most likely that the Applicant had a seizure. Consideration 1. I have considered Dr Ruggeri's evidence, the medical reports that are in evidence and the hospital records that record the information that was available at the time the Applicant was taken to the hospital after the accident on 17 May 2014. The hospital notes record that a tonic–clonic seizure was noted by paramedics. 2. The Applicant gave evidence that he retained consciousness and awareness during his motor vehicle accident. However, the hospital notes indicate that he was unable to remember the impact. I have no reason on which I could form the view that the hospital notes would not have accurately recorded what the Applicant had said at the time. 3. On the basis of the information that is before me it is my view that the Applicant probably had a tonic-clonic episode at the time of his motor vehicle accident. It is probable that he had a seizure. It makes no difference whether the seizure caused the accident or the accident caused the seizure. 4. The Applicant is therefore unable to satisfy the applicable standard in order to be eligible to hold a taxi driver authority. It follows that the Respondent's decision to cancel his driver authority is the correct decision. It should therefore be affirmed. Order The Respondent's decision to cancel the Applicant's driver authority is 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: 25 August 2016