Dennis Rigon v CAMS Limited

IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992

ELIZABETH VARDON

No. H99/60

Number of pages -

PERTH, 14-18, 20 March, 6 April 2000 (hearing), 28 August 2000 (decision)

#DATE 28:08:2000

Appearances

Ms Penelope Giles for the Complainant instructed by Paiker & Overmeire, Barristers and Solicitors

Mr Phil McCann for the Respondent instructed by Phillips Fox Lawyers

Order

See final paragraphs.

ELIZABETH VARDON

1. INTRODUCTION

This matter concerns a complaint under s.28 of the Disability Discrimination Act 1992 (Cth) ("the Act"). The complainant, Dennis Rigon has no sight in his right eye. The respondent, CAMS Ltd ("CAMS") is the body which controls motor racing, including Formula Ford motor racing, in Australia. The respondent has refused to grant the complainant a general competition licence, thereby excluding him from participating in the sport of Formula Ford motor racing. The complainant alleges that he has been discriminated against on the ground of his disability.

The complainant was born on 24 November 1957 and is now 42 years of age. When he was two years of age he was diagnosed with carcinoma of the eye and had his right eye surgically removed.

The complainant has long been interested in motor racing, initially as a spectator and more recently as a participant. In 1996 he undertook an advanced training course for Formula Ford driving at Fastlanes Driving School in Perth.

In January 1997 the complainant applied to the respondent for a general competition licence in order to participate in Formula Ford racing. In his application for a licence the complainant declared that he had no sight in his right eye. He underwent a full medical examination as required by the respondent. The licence was granted in February 1997 and during 1997 the complainant competed in a number of events.

On 24 November 1997 the complainant turned 40 years of age and, pursuant to the respondent's rules, he was required to undergo a further medical examination. The medical examiner certified him fit to compete in motor racing. However, on 19 January 1998 the respondent refused to renew the complainant's licence on the grounds that he had been assessed as medically unfit due to having the use of only one eye.

The decision refusing to renew the complainant's licence was in accordance with the 1997 CAMS Medical Standards (exhibit 1 at 48) which relevantly provide:

"Visual acuity (before or after correction) sight for each eye should be at least 6/9. Furthermore, any subject whose visual acuity in one eye only is diminished and cannot be corrected and who necessarily has collateral vision, whether corrected or not, equal to or greater than 6/6, may be assessed as fit under the following conditions and after examination by an opthamologist:

* field of vision equal to or greater than 200 degrees

* functional stereoscopic vision

* condition of the fundus excluding pigmentary retinal damage

* any old or congenital damage shall be strictly unilateral

Blindness in one eye is absolutely forbidden and shall be assessed as unfit. An applicant with only one eye shall be assessed as unfit."

CAMS is affiliated to the Federation Internationale de l'Automobile ("FAI") which is the international body responsible for motor sports. The CAMS medical standards, including those relating to eyesight, are based on the equivalent FAI regulations.

The complainant seeks the following relief:

(i) an order requiring the respondent to consider his application for a general competition Formula Ford licence without the application of the policy that persons with only sight in one eye are ineligible; or

(ii) an order requiring the respondent to grant the complainant's application for the licence; and

(iii) an apology; and

(iv) compensation.

Section 28(1) of the Act provides:

"It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of the other person's associates by excluding that other person from a sporting activity."

The respondent concedes that it has discriminated against the complainant in refusing to grant him a licence but, relying upon s.28(3)(a) and (b) of the Act, contends that its conduct is not unlawful on the grounds provided for in those paragraphs.

Section 28(3) provides as follows:

"Subsection (1) does not render unlawful discrimination against a person:

(a) if the person is not reasonably capable of performing the actions reasonably required in relation to the sporting activity; or

(b) if the persons who participate or are to participate in the sporting activities are selected by a method which is reasonable on the basis of their skills and abilities relevant to the sporting activity and relative to each other ; ...."

In its details of defence the respondent provides particulars of the actions reasonably required of a competitor in Formula Ford motor racing as follows:

1. driving a Formula Ford racing vehicle at high speeds on a race track in competition with numerous other participants;

2. braking and manoeuvring the vehicle suddenly and/or at high speed to avoid other vehicles and objects on or near the track;

3. passing other vehicles;

4. allowing other vehicles to pass; and

5. maintaining a safe distance from other vehicles.

The respondent alleges that in order to perform all of the actions reasonably required of a Formula Ford racing driver it was necessary for the applicant to have:

1. stereoscopic vision in order to judge distances and, in particular, close distances;

2. a horizontal range of vision of not less than 200 degrees;

3. very good peripheral perception; and

4. ability to maintain vision in the event of grit or dust entering the eye.

The respondent further alleges that by reason of his disability the complainant:

1. lacks stereoscopic vision;

2. lacks a horizontal field of vision of 200 degrees;

3. lacks an adequate peripheral perception;

4. lacks ability to maintain vision if dust or grit enters his eye; and

5. has a scotoma or blind spot located in or adjacent to the central field of his left eye.

2. THE LEGISLATION

The relevant provisions of the Act are as follows:

5 Disability discrimination

(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

6 Indirect disability discrimination

For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply.

28 Sport

(1) It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of the other person's associates by excluding that other person from a sporting activity.

(2) In subsection (1), a reference to a sporting activity includes a reference to an administrative or coaching activity in relation to any sport.

(3) Subsection (1) does not render unlawful discrimination against a person:

(a) if the person is not reasonably capable of performing the actions reasonably required in relation to the sporting activity; or

(b) if the persons who participate or are to participate in the sporting activities are selected by a method which is reasonable on the basis of their skills and abilities relevant to the sporting activity and relative to each other; or

(c) if a sporting activity is conducted only for persons who have a particular disability and the first-mentioned person does not have that disability.

99 Consideration of exceptions and exemptions

In determining whether an act is unlawful under a provision of Part 2, the Commission is not required to have regard to any exception or exemption provided for in that Part unless there is evidence before the Commission that the exception or exemption is or may be applicable in relation to that act.

3. LEGAL ISSUES

The complainant contends that the respondent bears the legal burden of proving on the balance of probabilities that one or other of the exceptions in section 28(3) applies. The respondent argues that it bears the evidentiary, but not the legal, onus of proof.

In my view, the matters contained in sections 28(3)(a) and (b) constitute exceptions for the purposes of section 99 and therefore the respondent at least bears the onus of calling evidence to establish them. However, section 99 cannot be construed as casting a legal burden upon the respondent to prove exceptions or exemptions.

In my view, the respondent's concession that it discriminated against the complainant together with its reliance upon the exceptions in section 28(3) is akin to a plea of confession and avoidance. In such cases, the legal onus lies upon the party seeking to establish the exception: Webster v. Lampard (1993) 177 CLR 598; Currie v. Dempsey (1967) 2 NSWLR 532. This conclusion is also in accordance with the general approach to allocating the onus of proof by asking who will succeed if no evidence is lead by either party on a particular issue. In this case, if no evidence were lead as to the matters contained in section 28(3) the complainant would succeed in his claim.

For these reasons I am satisfied that the respondent bears both the evidentiary and legal burden of proving that:

(a) the complainant is not reasonably capable of performing the actions reasonably required in relation to Formula Ford motor racing; or

(b) persons who participate in Formula Ford motor racing are selected by a method which is reasonable on the basis of their skills and abilities relevant to the sporting activity and relative to each other.

The complainant's primary claim is one of direct discrimination under section 28(1) of the Act. He also alleges indirect discrimination contrary to section 6 of the Act.

The complainant argues that the requirement for sight in both eyes amounts to indirect discrimination. In my view, for the purposes of section 6 of the Act, the legal onus of proof lies upon the complainant to prove each of the elements contained within that section including that the requirement for sight in both eyes is not reasonable having regard to the circumstances of the case.

4. EVIDENCE FOR THE COMPLAINANT

4.1 The complainant

After obtaining his licence in February 1997, the complainant immediately began preparations to take part in the 1997 racing season. He purchased a Formula Ford motor vehicle for the sum of $34,000.00 and set about obtaining sponsorship.

In his first five race meetings the complainant, as a new driver, was required to display P-plates and his races were monitored by CAMS officials. During the 1997 season the complainant generally raced towards the back of the field. His best performance was late in the season when his midfield battle with another driver was reported in a national motor racing magazine.

Mr Rigon was not satisfied with his racing performance during the 1997 season. In part, he attributed his poor performance to the vehicle. With some modifications to the car, he felt that he could have improved his times by about 2 seconds per lap which would enable him to race at the front of the field.

Towards the end of 1997 the complainant was planning to upgrade his vehicle in an attempt to improve his performance. He advertised this car for sale but had no response. He eventually sold the vehicle on 3 April 1998 for $27,000.00.

The complainant obtained sponsorship and mechanical support for the 1997 racing season. However, he still made a loss from the motor racing venture. He conceded in cross-examination that he would not have been able to obtain a level of sponsorship to cover all expenses in 1998.

The complainant said that he relied upon a number of different cues while driving. These included the flags displayed on the course, side mirrors, his vision and his hearing. He said that he generally knew the positions of other vehicles in his proximity.

Red and yellow flags are used by course marshals to indicate debris or oil on the track. A blue flag indicates that a driver should move off the racing line and allow a faster driver to pass. A black flag indicates that a driver must leave the track.

Early in the 1997 season the complainant was fined by CAMS for failing to comply with a black flag. The incident began when he moved off the starting line. This resulted in a "stop-go" penalty which was signalled from the control box. The complainant did not see the signal. Nor did he see the black flag. Under cross-examination he explained that he failed to notice the signals because he did not look at the control box. His attention was focused on the race. He attributed this to his inexperience and said that the incident taught him a valuable lesson.

The complainant described how he had been victimised as a child at school due to his disability. The other children called him names and as a result he was shy and had few friends. After leaving school he obtained a better prosthesis and succeeded in business and generally gained more confidence. He did not consider himself to be disabled.

Upon receiving the letter from CAMS refusing renewal of his licence, the complainant felt that he was pushed aside due to his disability. He felt the return of the victimisation he suffered as a child. He said this impacted adversely upon his business and his relationship with his wife.

4.2 Brett Lupton

The complainant called Mr Brett Lupton, the owner of the Fastlane Racing Driver School. Mr Lupton supervised the training course which the complainant undertook in 1996. At the time of the training course, Mr Lupton was unaware of the complainant's disability. The complainant performed well in the training course and did not give any indications of problems with his vision. Mr Lupton thought that the complainant was good enough to race locally and good enough not to be at the back of the field. He said that he had no cause for concern in relation to the complainant's ability to participate in motor racing.

4.3 Raymond Stubber

Mr Raymond Stubber also gave evidence on behalf of the complainant. He has been involved in motor racing since 1994 and is one of two elected state delegates from Western Australia to the National Formula Ford Association. He raced against the complainant in the 1997 season on approximately 20 occasions. He was not aware of the complainant's disability and observed that the complainant handled himself well on the circuit.

4.4 Leone Magistro

Mr Leone Magistro was employed as the complainant's team manager. He was responsible for maintaining the complainant's car. Mr Magistro gave evidence that the complainant had very good skills for a driver in his first year of racing and was not involved in any accidents during the 1997 season.

5. EVIDENCE FOR THE RESPONDENT

5.1 Timothy Schenken

The respondent called Mr Timothy Schenken, the manager of motor sports for CAMS. Mr Schenken has 35 years experience in numerous forms of motor racing including Formula Ford. He is responsible for implementing the rules and regulations of racing in Australia, and making recommendations in regard to such rules. Mr Schenken confirmed that, whilst the 1997 Medical Standards are based on the equivalent FAI standards, there was nothing to prevent CAMS from implementing its own local rules as to visual requirements for drivers.

Mr Schenken was unable to say whether applicants for licences were routinely tested for peripheral vision or stereopsis.

5.2 Dr Geoffrey Wigley

The respondent also called Dr Geoffrey Wigley, a medical practitioner and member of the Medical Advisory Committee ("the Committee") to the Board of CAMS. The respondent did not rely upon Dr Wigley as an expert witness but rather as a witness in relation to the deliberations of the Committee and his observations of motor racing. He gave evidence that the Committee met in 1996 to review the medical standards of CAMS, including the blanket ban on monocular drivers being granted general competition licences. He thought that the Committee would be unlikely to depart from the FIA standards without evidence that monocular drivers did not pose an additional safety risk.

In cross-examination, Dr Wigley agreed that the requirement for 200 degrees horizontal peripheral vision was unreasonable. In his view the minimum requirement should be 180 degrees.

6. EXPERT EVIDENCE

The parties presented two types of expert evidence at the hearing of this matter: first, the medical evidence and second, the evidence regarding various aspects of motor racing. I propose to deal with the medical evidence and the motor racing evidence together as the latter provides the context for the former.

The complainant called Mr Michael Anthony Burdon, a consultant ophthalmic surgeon from the United Kingdom. Mr Burdon specialises in neuro-ophthalmology, a sub-speciality of ophthalmology dealing with the visual pathway to the brain and the manner in which the brain controls the eye. Mr Burdon has impressive academic and clinical credentials.

He also has a previous interest and involvement in motor sport. Since 1998 he has advised the British Motor Sport Association ("the MSA") on visual requirements for motor racing in the United Kingdom. He has also been involved in examining applicants for motor racing licences, with particular emphasis on visual fields. However, he has no previous experience of Formula Ford motor racing.

The respondent called Dr William Westlake, also a consultant ophthalmologist. Although qualified as a consultant, Dr Westlake has not worked as such and is presently engaged as a visiting research fellow at the Lions Eye Institute in Perth conducting clinical research into glaucoma. Dr Westlake quite properly conceded that he was less expert than Mr Burdon in the field of neuro-ophthalmology.

Both Mr Burdon and Dr Westlake prepared detailed written reports prior to the hearing. By the time of giving evidence each of them had also reviewed a large body of literature.

In essence, Mr Burdon's opinion is that the complainant, in terms of his vision, is perfectly capable of competing as a motor racing driver. Dr Westlake's opinion is that the deficit in the complainant's peripheral vision and the existence of the scotoma (or blind spot) are such as to render him unfit to participate in motor racing. The blind spot is where the optic nerve enters the eye. Of course, these conclusions go to the ultimate issue for decision. As such they are of limited evidentiary value but they do serve to illustrate the distance between the two expert opinions.

A number of discrete issues arose during the course of the expert testimony and I propose to deal with each of these in turn.

6.1 The extent of the complainant's disability

The complainant lost his right eye at age 2 years. According to Mr Burdon:

"... it is not possible for a binocular person to appreciate the visual perception of a long standing monocular individual simply by covering one eye. Mr Rigon lost his right eye in early childhood. He has had many years to adapt to monocular vision. Furthermore, as Mr Rigon lost his right eye at a time when his visual system was still developing it is reasonable to argue that he is fully adapted to his monocular condition."

The complainant's visual field and blind spot were measured on two occasions. Visual field refers to the area seen by a person when looking directly in front of him or herself. On 12 March 1998 an assistant to a Dr Douglas Candy, an ophthalmologist, conducted the measurements using the Goldman Perimeter machine. A Goldman Perimeter machine is one of the types of machines that can be used to assess a person's visual field. The respondent tendered the results of these tests in evidence but neither Dr Candy nor his assistant gave oral evidence at the hearing. The results show that the complainant's blind spot was found to be approximately 8 degrees in the horizontal and his visual field was found to be approximately 120 degrees (approximately 70 degrees to the left and 50 degrees to the right of the centre line of his face).

Mr Burdon used the Goldman Perimeter machine to measure the complainant's visual field two days prior to the hearing. He found that Mr Rigon's blind spot measured 6 degrees in the horizontal. The normal blind spot is approximately 5.5 degrees in the horizontal and 7 degrees in the vertical. Mr Burdon stressed that the blind spot is an area rather than a horizontal measure and is often expressed as a percentage of a visual field. In the case of Mr Rigon, his blind spot represents 2.5 percent of his visual field.

Mr Burdon measured the complainant's visual field as being 90 degrees to the left and 65 degrees to the right of the centre line of his face, a total of 155 degrees. I accept his evidence in this regard but note that on the right hand side a field of 65 degrees is equivalent to a total field of 130 degrees in a binocular person. Mr Burdon was cross-examined at length in relation to his measurements of the blind spot and visual fields. His evidence indicated that he had extensive experience using the Goldman Perimeter machine to measure visual fields. I accept Mr Burdon's evidence as to the measurement of the complainant's visual field and blind spot and his evidence that the complainant has excellent visual acuity in his left eye. Visual acuity refers to the eye's resolving power.

6.2 The physiological blind spot

The blind spot occurs at the point on the retina where the optic nerve enters the eye, approximately 15 degrees off centre from the central visual axis. In a binocular person the blind spot is insignificant because it is "filled in" by the other eye. In a monocular person, such as the complainant, the brain effectively fills the gap so that he is unaware of the presence of the blind spot. However, there is the potential for an object in the blind spot to go undetected because what the brain "puts in" the blind spot is not necessarily there.

Dr Westlake regarded the blind spot as the most important factor for excluding a monocular person from participating in the sport of motor racing. This is because, in his opinion, it is possible for a monocular person to miss seeing an important object on the track during a race.

Using a number of diagrams (exhibits H4 to H6), Dr Westlake demonstrated a number of hypothetical situations which he said could arise during the course of a Formula Ford race. Each diagram represented a frozen moment in time showing the relative positions of the cars on the track and the effect of the blind spot. He demonstrated that objects of various sizes could become obscured in the blind spot at various distances. The object would remain obscured so long as the eye and the object were stationary relative to one another; that is if the eye and the object were moving in the same direction and at the same speed (the object would also remain obscured in the blind spot if moving directly away from the eye).

Dr Westlake relied upon a 1970 study by Mourant and Rockwell[1] (exhibit G). This was a simulated driving study in which the subjects were allocated various driving tasks and their rates and angles of visual fixations and refixations (being the constant, automatic and unconscious changes in direction of gaze) were measured. The study found that when drivers were told to concentrate on the vehicle in front and not to read signs, the majority of their refixation movements occurred within a visual angle of 4 degrees. Dr Westlake argued that the simulation was analogous to motor racing where the driver would focus his attention on the vehicle in front and therefore his refixations would remain in a similarly narrow visual angle. In the complainant's case, this would reduce his blind spot by 2 degrees on either side but not remove it completely.

As a result of this analysis Dr Westlake came to the conclusion that there was some risk, "not a great risk, but a measurable risk", that Mr Rigon would miss an important event on the racetrack as a result of his blind spot.

The larger an object the further away it would have to be for it to become obscured in the blind spot. However, the greater the distance, the more likely that refixation of the eye would allow the driver to see the object in time to avoid it or take other appropriate action. The most compelling example given by Dr Westlake of an object which might be missed in the blind spot was a hand signal from a driver in front but 15 degrees to the left of the complainant's vehicle.

Mr Burdon was cross-examined at length in relation to the blind spot and the hypothetical diagrams. He expressed the opinion that the blind spot was of no significance in terms of participation in motor racing because of its small size and the continual movement of the eyes (that is, refixation). He said that it would be impossible to lose sight of a car in the blind spot due to these factors; something small enough to fall into the blind spot would be such that neither a binocular nor monocular driver would have time to react to its presence. Mr Burdon expressed the view that in the dynamic context of a race none of the hypothetical situations depicted in the diagrams could or would arise.

I prefer the evidence of Mr Burdon in relation to the significance of the blind spot. Firstly, I do not regard the Mourant and Rockwell simulation as sufficiently analogous to motor racing. The drivers in that study were asked to maintain a fixed distance between their vehicle and the lead car and to complete the route without reading any signs. It is therefore not surprising that their refixations were within such a narrow range. Further, a large percentage of refixations were within 4 degrees but the study did not show that 100 percent of refixations were within 4 degrees. Only one re-fixation outside this range would be sufficient to remove the blind spot. Dr Westlake relied heavily upon the results of the Mourant and Rockwell study in reaching his conclusion that there was a risk that an object could become obscured in the complainant's blind spot resulting in him missing an important event on the racetrack.

There was an artificial quality to Dr Westlake's evidence in relation to the blind spot. His evidence did not take account of the fact that a driver would retain in his memory the existence of other vehicles and objects on the racetrack. During the course of a race vehicles do not simply materialise. The driver is generally aware of the position of vehicles in his immediate vicinity even if his attention is not focused on a particular vehicle at a particular time. In planning to pass a vehicle in front one would expect a driver to focus his attention on that vehicle and it is very unlikely in these circumstances that he would miss a hand signal. Dr Westlake's theory would require the driver to focus on some other object 15 degrees to the right of the relevant vehicle and for his vehicle and the vehicle in front to remain stationary in relation to one another during the course of the hand signal for it to be missed. As previously noted, at a greater distance a larger object may be concealed in the blind spot but equally there is more time for the blind spot to move by refixation and for the driver to react.

6.3 Visual fields and peripheral vision

A person's visual field is essentially all the person can see at any given time. Mr Burdon gave evidence that a visual field in the range of about 120 to 140 degrees is considered normal. He said that it was impossible to measure a visual field of 200 degrees using the Goldman Perimeter machine. Dr Westlake disagreed with this but conceded that any measurement over 180 degrees was of limited relevance.

In 1998, Mr Burdon recommended to the MSA in the United Kingdom that persons with visual fields of 120 degrees or more should be regarded as fit to drive in motor races. Dr Westlake was of the view that a reasonable visual field for drivers in motor races would be about 160 to170 degrees. Neither expert supported the respondent's minimum standard of 200 degrees, which seems to be the maximum possible visual field.

The majority of the literature reviewed by the two experts concerned the relationship between impaired visual field and crash rates in commercial and domestic driving. The impairment of visual field in the study subjects was due to a number of causes including glaucoma, retinitis pigmentosa and loss of an eye.

In his report dated 27 January 2000 (exhibit M), Dr Westlake refers to a number of studies in which glaucoma patients reported driving difficulties and increased crash rates. Dr Westlake regarded the glaucoma studies as being relevant because they were associated with loss of visual field. He said that whilst he would not "put great store on" the glaucoma evidence, it was not irrelevant. Mr Burdon regarded the glaucoma studies as irrelevant and unhelpful in that they dealt with older drivers who were generally more prone to accidents, convictions and fatalities. He also criticised the studies as being mainly reliant upon subjective accounts rather than accident records and tests of drivers' performance. Further, he said that glaucoma tends to be a bilateral condition which results in generalised loss of visual field which is not analogous to the condition of a monocular person such as the complainant. Retinitis pigmentosa is also a bilateral disease which results in generalised reduction of the visual field.

I do not propose to deal with each and every paper tendered in evidence. I have read the relevant extracts from these papers and was directed to various aspects of the papers both during examination-in-chief and cross-examination of the expert witnesses and in the written closing submissions of the parties. However, there are two papers which received considerable attention during the hearing. The first was a 1999 paper by Owsley & McGwin entitled Vision Impairment and Driving[2](exhibit 35). The paper contains a review of numerous studies including those on loss of visual field and crash rates. The authors found (at page 541) that:

"The most prudent conclusion based on the literature may be that, although severe binocular visual field loss elevates crash risk, more subtle visual field impairment by itself is not likely to play a significant role in adverse driving events."

As to monocular drivers the authors (at page 540) referred to various studies including Johnson and Keltner[3], a study of 10,000 drivers in which drivers with monocular visual field loss had a crash rate equal to that of the control group of drivers with both eyes. However, the authors noted that not all studies supported a conclusion that monocularity does not create a safety problem of itself.

Mr Burdon relied upon Owsley & McGwin in support of his opinion that the so-called "useful field of view" is of critical importance. He defines the useful field of view as being the visual field area within which one can use rapidly presented visual information. This area is generally regarded as being the central 30 degrees of the visual field. In their paper Owsley & McGwin (at page 541) refer to studies which:

"imply that visual attention and visual processing speed are critical considerations in the evaluation of safe driving skills and may be better screening tests than visual sensory tests for crash-prone older drivers."

The other paper which received considerable attention during the hearing was a study by Council & Allen[4] (exhibit R). Both Mr Burdon and Dr Westlake agreed that this study was flawed in a number of respects, in particular regarding the methodology for measuring visual fields. Over the two-year period of study, crash rates did not differ between those subjects with limited visual fields (140 degrees or less) and those of normal visual fields (greater than 160 degrees). It is interesting to note that the results omit any reference to subjects with visual fields in the range of 141 - 159 degrees, especially as the complainant's visual field lies within this range. Whilst overall crash rates did not differ between the two groups there was some evidence that restricted visual fields may be slightly related to a higher proportion of side impact collisions. Dr Westlake regarded this latter finding as being particularly relevant to the present case.

6.4 Stereopsis

Stereopsis is the binocular perception of depth made possible by the fact that the two eyes view the external world from different vantage points. Stereopsis provides depth perception but can be replaced by secondary cues in a monocular person. For example, the relative size of an object provides a cue as to its distance from the viewer.

Mr Burdon gave evidence that the incidence of reduced or absent stereopsis in the general population may be as high as 15 percent. I note that applicants to CAMS for general competition licences are not routinely tested for stereopsis. It is therefore possible that a number of licence holders have reduced or absent stereopsis. Mr Burdon is of the view that stereopsis is not essential for motor racing or road driving. In his view monocular visual cues can fully replace the need for stereopsis in driving.

Dr Westlake conceded that absence of stereopsis is far less significant than the blind spot or peripheral vision. However, he referred to some Canadian studies of commercial drivers as evidence of a link between absence of stereopsis and crash rates. The first was a 1996 study by Maag et al[5] (exhibit S) which showed more crashes for taxi drivers with binocular vision problems compared with healthy ones, but not more severe in terms of the number of victims. However, the authors noted that the results were not entirely clear-cut due to the relatively small numbers of individuals. The drivers' past record and age were also significant predictors of the number of crashes. Dr Westlake said that the Maag study provided a very good analogy because taxi drivers would be driving quickly and impatiently wanting to get the next fare. I found his evidence in this regard unpersuasive.

The other commercial driver study is McKnight et al[6] (exhibit P) which compared the performance of 40 monocular and 40 binocular truck drivers on measures of both visual and driving performance. The results on driving performance are particularly interesting. Driving measures of visual search, lane keeping, clearance judgement, gap judgement, hazard detection and information recognition showed no differences between monocular and binocular drivers. However, monocular drivers proved poorer than binocular drivers in sign reading distance in both day-time and night-time conditions. Mr Burdon expressed the view that the complainant would be unlikely to experience difficulties in sign reading due to his above average visual acuity. Dr Westlake did not think such an assumption could be made in relation to the complainant.

There is no evidence that the complainant has any better or worse depth perception than other participants in motor racing. More specifically, there is no evidence that he is not reasonably capable of judging the distance between his vehicle and the vehicle in front. In my view, the evidence is insufficient to establish a definitive link between increased crash rates and absence of stereopsis.

6.5 "The spare eye"

It is common ground that the temporary incapacitation of the complainant's left eye for any reason may prevent him from having the requisite vision to drive safely. The respondent pointed to a number of circumstances in which the complainant might lose the vision in his left eye, including dust or grit in the eye, conjunctivitis or blepharospasm (the automatic and involuntary closing of the eye).

I accept that conjunctivitis is not a condition of sudden onset. The rules of motor racing provide that a driver must not participate in a race when he or she knows of a condition which may affect the ability to drive safely. There is no reason to suggest that the complainant would participate in a race if he had conjunctivitis in his left eye.

Blepharospasm occurs in one of two circumstances. Firstly, it can result from a rare vascular event. It was common ground between the expert witnesses that this event was highly improbable, however, Dr Westlake said it could not be completely discounted. Blepharospasm can also occur as a result of corneal abrasion.

I am satisfied that the only issue of significance in relation to the "spare eye" is the possibility of grit or dust entering the eye during the course of the race leading to blepharospasm or significant watering. The complainant gave evidence that he had not experienced any problem of grit or dust in his eyes. He described and demonstrated the equipment: a full-face helmet and visor and a bib arrangement to prevent dust and other foreign material from entering the helmet. Other witnesses experienced in motor racing (Stubber and Magistro) gave evidence that they had not experienced grit or dust entering the helmet. Mr Magistro believed it was impossible for this to occur. Mr Lupton also discounted the possibility.

Only Mr Schenken thought that there was a risk of grit or dust entering the helmet. I note that he last raced competitively in 1977 and did not seem to have any personal experience using the equipment described by the complainant. There is insufficient evidence to establish any real or significant risk of grit or dust entering the helmet of the complainant during a race.

By letter dated 26 July 2000 the respondent applied to adduce fresh evidence in relation to this issue. The fresh evidence consisted of a report in a motor racing magazine of a driver getting dirt in his eye during a race. I note that the incident occurred in a completely enclosed vehicle and the driver was reported as saying that he had the air vent positioned directly into his face. The report gives no indication as to whether or not the driver was wearing a full-face helmet. Consequently, I am unable to draw any useful conclusions or analogies from the report.

6.6 The evidence in relation to motor racing

Mr Burdon gave evidence that he was aware of two monocular British racing drivers. The first of these lost his eye at age 16 and holds an international C class licence. The second is functionally monocular, although he has two eyes. He is 57 years of age and has been engaged in the sport of motor racing for the past 28 years. At first he was refused a full licence but performed well in single vehicle events and obtained his track licence in 1984. Since then he has been racing very successfully.

In Mr Burdon's opinion, there was no evidence that the visual demands of motor racing are greater than for road driving. In fact, he pointed to various differences between motor racing and road driving which would decrease rather than increase the visual demands. For example, there are no unexpected junctions, no oncoming traffic and very few road signs. He also pointed to the fact that motor racing drivers are at all relevant times focused and very alert.

However, as the respondent rightly points out, these differences need to be balanced against the following factors (which were the subject of evidence from Mr Schenken):

1. Racing cars have no tail or brake lights, indicators, windscreen wipers, protection from rain, dust or grit;

2. Racing cars have only two small rear view mirrors;

3. Racing cars are not required to travel in marked lanes and may pass on either the left or right without indicating or signalling;

4. Racing car driving takes place at very high speeds with very high speed cornering;

5. Racing car driving takes place in a competitive and aggressive environment;

6. Tailgating is permitted, indeed commended in racing car driving; and

7. Racing drivers function at the limits of their physical abilities and the capabilities of their vehicle with minimal margin for error.

Having regard to these various factors, I am satisfied that racing car driving is more demanding than road driving. However, I also accept that racing car drivers as a group are likely to be more attentive and alert when racing than the average person when driving on the public road. Racing car drivers are arguably more skilled than the average road driver.

There was a dispute between the witnesses called on behalf of the complainant and the respondent as to whether the helmets worn by drivers lead to any significant restriction of visual field. During the course of the hearing a viewing took place at the Barbagello race track, Wanneroo. In the presence of both parties, I wore a helmet and sat in a Formula Ford vehicle. On the basis of the evidence led at the hearing and on the basis of my own experience at the viewing, I have come to the view that the helmet does not restrict horizontal peripheral vision.

However, the design of the vehicle cockpit restricts the driver's view to the front and, depending upon the specific design of the cockpit, could also restrict the side view. In his statement, Mr Schenken said that

"the body work of the car inhibits sideways vision, because the cockpit sides are high to stop the air spilling in, and there are often protective structures at the side and the back of the driver's head".

Various photographs depicting vehicles and drivers and a video of a Formula Ford race were tendered in evidence. These show some drivers sitting very low in their vehicles with high side impact panels so that side vision would appear to be limited. Other drivers are positioned so that no such limitation would result. Any restriction of visual field would seem to depend upon the stature of the driver, the specific design of the cockpit and the driving posture adopted by the driver during the race. This means that drivers with peripheral vision at the upper limit of the possible range might nevertheless be limited in their view of passing vehicles.

During the viewing at the Barbagello race track I also noted that the rear view mirrors were very small. There was evidence during the hearing that the mirrors are subject to vibration under race conditions. Dr Westlake said he thought the driver would have obtained no useful information from the mirrors. I cannot accept his evidence in this regard. There seems to be no point in having mirrors if they serve no useful function. In my view the mirrors would give the driver some indication of the presence of vehicles behind. The complainant gave evidence that he relied upon the mirrors in precisely this manner.

Mr Stubber gave some helpful evidence regarding his own experience of motor racing. He said that to determine whether someone was passing him on the track he mainly relied upon his mirrors and hearing rather than his peripheral vision. He thought both the helmet and the side impact protection limited his sideways vision. He said

"you just have to get an idea of where the other cars are... Your memory of where someone is... You are generally aware and you can still hear the car wearing earplugs."

He also said that an overtaking car would do so at its own peril and would not have right of way until already three-quarters of the way past his own vehicle.

Mr Lupton also gave evidence that the racing car driver relies upon instinct and a general awareness of the presence of other vehicles, especially when cornering. He also pointed to factors such as familiarity with the people you are racing against and the use of hearing to detect the presence of other vehicles. Neither Mr Lupton nor Mr Stubber considered peripheral vision significant in overtaking and cornering.

Mr Schenken thought good peripheral vision was particularly important during overtaking manoeuvres. He said that most overtaking took place at corners. There was an unwritten protocol that if the front of the nose cone of the passing vehicle came level with the steering wheel of the front vehicle then the front driver should concede to the overtaking driver. He said that it was very rare for a driver in front to signal to a following driver to overtake on one side or the other. This would usually only occur in the case of a mechanical problem.

6.7 General assessment of the expert evidence

For a number of reasons I generally prefer the evidence of Mr Burdon to that of Dr Westlake.

Mr Burdon first directed his attention to the issue of visual standards for motor racing before any involvement in the complainant's case. He undertook this task from an objective standpoint. By contrast, Dr Westlake became involved in this case as an expert witness for the respondent at a late stage of the proceedings. Indeed he admitted that he had not read many of the references cited in his original report due to very tight time constraints. Dr Westlake was obliged to retract a number of statements made in his original report after having read the relevant literature.

It was clear from Dr Westlake's evidence that he formed a strong view that the complainant should not be permitted to participate in the sport of motor racing before considering any of the literature or evidence. During cross-examination he said that his initial reaction was that:

"...more than 99 percent of people would think monocular people should not be [engaged in motor racing]."

This comment by Dr Westlake suggested an element of prejudice; not prejudice in the sense of bias, but in the literal sense of prejudgment; of a strongly held preconceived opinion which coloured his view of contrary evidence. He started from the premise that monocular people were unfit to engage in the sport and then looked for evidence to support this premise.

Dr Westlake was cross-examined in relation to a study by Wood & Troutbeck[7] (exhibit 49). This was a simulated driving study in which the subjects wore glasses affecting various aspects of their vision. Dr Westlake was aware of the study but did not mention it in his report. He explained that he did not mention it because he could not think of "anything nice to say about it". The results of the study show that simulated monocularity had no effect whatsoever on driving performance. Dr Westlake conceded in cross-examination that the results were contrary to his expectations. He concluded that the experimental design was fundamentally flawed. However, after extensive cross-examination, the only specific criticism he made of the experimental design was that the subjects had no expectation of any adverse event on the track. I note that results of the study showed that simulated cataract and simulated binocular visual field restriction adversely affected driving performance whereas simulated monocularity (without any adaptation at all) did not affect driving performance. Whilst I place little or no weight upon the results of this study (because the simulation is not analogous to the conditions of motor racing) Dr Westlake's comments on the study are a further demonstration of his prejudgment of the issues and an unwillingness to alter his original opinion in the face of conflicting evidence.

6.8 Findings on the expert evidence

On the basis of the evidence before me, I find the following:

1. The complainant is fully adapted to his monocularity.

2. The complainant has excellent visual acuity in his left eye.

3. The complainant's total visual field is 155 degrees, 90 degrees on the left and 65 degrees on the right in the horizontal. This is equivalent, on the left hand side, to an overall visual field of 130 degrees.

4. The complainant's blind spot is 6 degrees in the horizontal and approximately 15 degrees to the left of the visual axis. This represents 2.5 percent of his visual field.

5. The studies linking visual field loss (due to, inter alia, glaucoma and retinitis pigmentosa) and elevated crash rates do not support any conclusions regarding the increased risk of crashes in motor racing due to monocularity.

6. I accept there is a theoretical possibility that an object, for example a hand signal, may be obscured in the complainant's blind spot. However, having regard to the dynamic and quickly changing environment of motor racing, I consider that the risk is so small as to be insignificant.

7. There is no evidence that stereopsis is reasonably necessary for participation in motor racing.

8. Notwithstanding his limited peripheral vision, the complainant is reasonably capable of detecting the presence of vehicles behind him and beside him. He is able to do this using his hearing, his general awareness of the position of other vehicles on the track, his knowledge of fellow competitors, rear view mirrors and by turning his head to re-direct his effective field of vision. In any event the design of some Formula Ford vehicles would severely restrict a driver's sideways vision, regardless of peripheral vision characteristics.

9. The full face helmet with visor and bib is sufficient to prevent grit and dust from entering the helmet of a driver.

7. CONCLUSIONS

In reaching a conclusion, I must have regard to the complainant as an individual and not merely consider whether monocular drivers as a class should be permitted to participate in motor racing.

I place some weight upon the fact that Mr Rigon raced safely throughout the 1997 season. He was regarded by other competitors as a "gentleman driver". In the witness box, he presented as a careful and responsible person, eager to comply with the written and unwritten rules of the sport. The black flag incident occurred early in the season when the complainant was still very inexperienced. This was the only blemish on his record. The signals he missed were on his left where his peripheral vision is within normal limits. There is no evidence that he missed the signals due to his disability.

I also take into account that Mr Rigon is fully adjusted to his monocularity and has excellent visual acuity in his left eye.

I accept that the participants in Formula Ford racing are reasonably required to drive at high speeds on a race track in competition with numerous other participants, brake and manoeuvre suddenly and at high speed in order to avoid vehicles and objects on the track, overtake and allow other vehicles to overtake. Having regard to Mr Schenken's evidence I do not consider that maintaining a safe distance from other vehicles is a requirement of Formula Ford racing. Indeed it is a feature of motor racing that vehicles travel in very close proximity. They are often involved in collisions and other incidents.

I am not satisfied that the respondent has established that Mr Rigon is not reasonably capable of performing the above actions. Nor am I satisfied that, in order to be capable of performing those actions, Mr Rigon must have stereoscopic vision, a horizontal range of vision of not less than 200 degrees and a very good peripheral perception.

First, there is no evidence that other participants in motor racing have stereoscopic vision, a horizontal range of vision of not less than 200 degrees and very good peripheral perception. Applicants are only routinely tested for their visual acuity.

Second, for the reasons set out above, I prefer the expert evidence of Mr Burdon to the effect that the "useful field of view" and reaction times are of paramount importance in safe racing driving. I also accept his evidence that stereopsis is unnecessary and a field of view of 155 degrees is adequate.

Further I am not satisfied that the respondent's system for selecting applicants to participate in Formula Ford racing is reasonable on the basis of their skills and abilities relevant to the sporting activity.

The 1997 Medical Standards in relation to vision are poorly drafted and somewhat ambiguous. A reasonable construction of the standards is that provided an applicant has visual acuity of at least 6/9 in each eye there is no need for him or her to be assessed by an opthalmologist and there is no need for testing of peripheral vision or stereopsis. The requirement for a 200 degree field of vision and functional stereopsis only applies to applicants whose visual acuity in one eye is diminished and cannot be corrected. Monocular drivers are completely excluded. Measures of their visual acuity and field of vision are irrelevant.

Under the current system, all binocular applicants with visual acuity of 6/9 or better are assessed as fit. All monocular applicants are assessed as unfit. Only those applicants with diminished visual acuity in one eye are required to have a visual field of not less than 200 degrees and functional stereopsis. This requirement is patently unreasonable in circumstances where 200 degrees is the maximum visual field and even Dr Westlake conceded that a normal visual field is 160 - 170 degrees.

I therefore find that the respondent engaged in unlawful conduct in that it discriminated against the complainant in refusing to renew his general competition licence. Having found direct discrimination under section 28 of the Act, I do not need to deal with the issue of indirect discrimination under section 6 of the Act.

8. RELIEF

I am not satisfied that the complainant has suffered any economic loss as a result of the failure of the respondent to renew his general competition licence. He did not obtain any economic benefit from racing in 1997 and there is no evidence upon which I can be satisfied that he would have made a profit in the succeeding seasons. Whilst the complainant made a loss on the sale of his vehicle, there is no evidence that he sold it for less than its value. He might have sold the vehicle for a similar amount in October 1997 if there had been a response to the advertisement. The complainant conceded that sponsorship would not have been sufficient to cover his costs in 1998 and this potential loss must be set off against any loss on the sale of the vehicle.

On the other hand, it is evident that the respondent has wrongfully denied the complainant the opportunity to participate in his chosen activity of motor racing and to derive the personal satisfaction and enjoyment which would be expected to flow from that participation. Moreover, the circumstances of that denial of opportunity were particularly distressing to the complainant, given his personal history of discrimination and victimisation. Having regard to these factors I consider the sum of $10,000.00 to be reasonable compensation for pain, suffering, humiliation, hurt feelings and loss of enjoyment.

In addition to compensation, the complainant seeks an apology from the respondent. I do not propose to make a direction for an apology. The finding of unlawful discrimination and the direction for compensation should be sufficient.

Accordingly, I find that the respondent discriminated against the complainant in breach of section 28 of the Act and declare that:

1. the respondent grant to the complainant a general competition licence; and

2. the respondent pay to the complainant compensation in the sum of $10,000.00 within 28 days of the date of publication of this decision.

I certify that this and the preceding twenty-seven (27) pages are a true copy of the Reasons for Decision of Commissioner Elizabeth Vardon.

Hearing Solicitor:

Date: 28 August 2000


FOOTNOTES:

[1] Mourant R & Rockwell T. Mapping eye-movement patterns to the visual scene in driving: an exploratory study. Human Factors, 12(1),81-87, 1970

[2] Owsley C. & McGwin G. Visual Impairment and Driving, Survey of Ophthalmology Volume 43, 535-550, 1999

[3] Johnson C. & Keltner J. Incidence of visual field loss in 20,000 eyes and its relationship to driving performance. Archives of Ophthalmology 101:317-375, 1983

[4] Council F. & Allen J. A study of visual fields of North Carolina drivers and their relationships to accidents. Highway Safety Research Centre University of North Carolina, 1974

[5] Maag U, Vanasse C, Dionne G & Laberge-Nadeau C., Taxi drivers' accidents: How binocular vision problems are related to their rate and severity in terms of the number of victims. Accident Analysis & Prevention Vol 29: 217-224, 1997

[6] McKnight A., Shinar D., Hilburn B. The visual and driving performance of monocular and binocular heavy-duty truck drivers. Accident Analysis and Prevention Vol 23(4):225-237, 1991

[7] Wood J. & Troutbeck R., Effect of visual impairment on driving, Human Factors, 36(3), 476-487, 1994