Scottish Sheriff Court Decisions

IRENE STEWART MYLES v. THE SECRETARY OF STATE FOR TRANSPORT [2000] ScotSC 13 (9th May, 2000)

Ref B425/99

JUDGMENT OF SHERIFF A.L. STEWART, Q.C.

in causa

IRENE STEWART MYLES

against

THE SECRETARY OF STATE FOR TRANSPORT

DUNDEE.

The sheriff, having resumed consideration of the summary application FINDS IN FACT:-

FINDS IN FACT AND IN LAW-

FINDS IN LAW that the defender having been entitled to revoke the pursuer's driving licence the pursuer's crave for recall of the defender's decision must be refused.

THEREFORE, SUSTAINS the pleas-in-law for the defender and REPELS the pleas-in-law of the pursuer; REFUSES to recall the defender's decision to revoke the pursuer's driving licence with effect from 13 December 1999; FINDS the defender entitled to the expenses of the summary application so far as not already disposed of; allows him to make up an account thereof and remits the same when lodged to the Auditor of Court to tax and report.

This is an appeal by way of summary application in terms of the Road Traffic Act 1988, section 100 against a decision of the defender acting through DVLA to revoke the pursuer's driving licence. The appeal took the form of a proof. I have therefore thought it appropriate to make findings in fact.

The pursuer was the only witness on her own behalf. She was clearly under considerable strain both while giving her evidence and while listening to the evidence called on behalf of the defender. At one stage during her cross-examination she broke down. She eventually left the court somewhat dramatically in the course of the evidence for the defender.

I am, of course, prepared to make allowances for the stressful situation in which the pursuer was placed, and I also take into account that, in the eyes of the medical profession if not of her own, she is suffering from a mental illness of a relatively serious sort. However, I do not consider that these factors can really explain the evasive way in which the pursuer answered many questions. The sad fact is that the pursuer is simply not prepared to accept that she has suffered and is still suffering from a mental illness. That she is in fact so suffering is, in my opinion, amply confirmed by the evidence which I heard from Dr Dick, and it is, of course, most noteworthy in a case of this sort that no contradictory medical evidence was called on behalf of the pursuer.

The two witnesses for the defender were Dr Dick and Dr Anten. I found their evidence to be entirely acceptable.

For the pursuer Mr McLaughlin was conscious of the difficulties which he faced in the absence of any medical evidence having been called on her behalf.

He drew my attention to the fact that there was an important difference between the terms of sections 92 and 93 of the Road Traffic Act 1988. Section 92, the sidenote to which reads "Requirements as to physical fitness of drivers" provides in subsection (3) that if it appears from the declaration of an applicant for a driving licence that the applicant is suffering from a "relevant disability" (subject to the terms of subsequent subsections) the Secretary of State must refuse the application. Section 93, the sidenote to which reads "Revocation of licence because of disability or prospective disability" provides that if the Secretary of State is satisfied that a licence holder is suffering from a relevant disability and that the Secretary of State would by virtue of section 92(3) be required to refuse an application for a licence he may serve a notice revoking he licence.

Next, under reference to the case of Hamilton v Chief Constable of Strathclyde 1978 S.L.T. (Sh. Ct) 69, Jackson v Chief Constable of Tayside Police 1993 S.C.L.R. 160 and McFarlane v Secretary of State for Scotland 1988 S.C.L.R. 623, Mr McLaughlin submitted that in an appeal such as this I was exercising a judicial rather than an administrative function. I should therefore have regard to the pursuer's evidence that she was not suffering from any mental illness.

Mr McLaughlin emphasised that section 93 used the present tense. He submitted that in terms of the information available to DVLA as at 9 December 1999 there had been no justification for revocation.

Looking to the terms of section 92(2)(b) of the 1998 Act and under reference to Bennington v Peter [1984] R.T.R. 383 which is referred to in McFarlane v Secretary of State, cit. supra, Mr McLaughlin submitted that "likely to cause the driving ... to be a source of danger to the public" meant "more than a bare possibility". At its highest the evidence available to DVLA showed nothing more than a slight possibility of danger to the public. Therefore, if, as he invited me to do, I were to hold that any disability suffered by the pursuer were not a "prescribed disability" I could not hold that DVLA had been entitled to find that any disability suffered by the pursuer justified revocation. Dr Asten had read inferences into Dr Dick's letter which it had not been open to her to read.

On the whole matter I should allow the appeal.

Miss Shand moved me to refuse the appeal.

She accepted that the appropriate test was that applied in McFarlane v Secretary of State, cit. supra and that I was therefore entitled to have regard to the evidence led. Counsel referred me to an unreported decision of Sheriff McInnes in Perth Sheriff Court (B397/91) and to what is stated in Macphail's Sheriff Court Practice (2nd edition) at paragraphs 25.07 and 25.08. I should not interfere with the decision appealed against unless it was demonstrated to be clearly wrong or unreasonable in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). Neither was the case here.

The distinction between section 92 and 93 was not significant. The discretion afforded in section 93 might be to take account of the exceptions to section 92(3) created in the subsequent subsections of section 92. In any event the important issue was whether the Secretary of State was satisfied that there was a relevant disability. The mere fact that the Secretary of State had a discretion not to revoke did not mean that his decision in the present case was wrong.

If the pursuer had come forward with evidence to show that her condition was under control the situation might be different, but there was no such evidence. Once the medical adviser had been presented with prima facie evidence of a disability there was no obligation on him or her to make further inquiries.

It was not correct to say that the conditions for "satisfaction" under section 93 had to exist on the very day when the notice was issued, but, even if it were, the evidence showed that the pursuer's condition was likely to continue. Medication could only control it; medication could not cure it. It was clear that by at least November there had been no resolution of the condition.

The question whether the pursuer's condition was "likely to cause the driving ... to be a source of danger to the public" was not relevant because the pursuer's disability was a "prescribed disability". The evidence of the two doctors to this effect had not been challenged. In any event there was evidence of a likelihood of danger. The prognosis of the pursuer's condition was unpredictable. It was also unpredictable whether she might meet someone by whom she considered that she had been done down. Because of these unpredictabilities it could properly be said that her condition fulfilled the necessary criteria.

The relevant statutory provisions are contained in the Road Traffic Act 1988 and the Motor Vehicles (Driving Licences) Regulations 1999 (S.I. No. 2864).

Section 92 of the 1988 Act provides inter alia:-

Section 93 provides inter alia:-

Section 108 provides inter alia:-

Regulation 71 provides inter alia:-

There was no dispute about the correct approach which I should take in an appeal of this sort. I am acting in a judicial capacity. I am not concerned only with procedural irregularities. I am entitled to have regard to the evidence which I heard but, unless I am satisfied that the decision of the defender is clearly wrong or unreasonable in the Wednesbury sense, I am bound to refuse the appeal.

I found the medical evidence led on behalf of the defender to be entirely convincing. I am satisfied that the pursuer was suffering from a mental illness at the time when the revocation notice was issued. I am satisfied that she is still suffering from that illness. I accept that the pursuer herself thinks otherwise. However, in a case of this sort the absence of any medical evidence to contradict that led on behalf of the defender creates an almost insuperable obstacle for the pursuer. She herself has no medical qualifications. I am afraid that the lack of such qualifications makes her own evidence of little value so far as it relates to the crucial question of whether she is suffering from a mental illness.

It is perhaps not without significance that the suggestion made by the pursuer's solicitors in their letter to DVLA of 2 August 1999 to the effect that an independent report was to be obtained has apparently not borne fruit. In my opinion, it is a not unreasonable inference that no report contradicting the clearly expressed view of Dr Dick could be obtained.

I am satisfied that the condition diagnosed by Dr Dick, viz schizo-affective illness is a mental illness in terms of regulation 71(4)(a) and as such is a severe mental disorder in terms of regulation 71(1)(b) of that regulation. It is thus a "prescribed disability" within the meaning of section 92(2)(a) of the 1988 Act.

In my opinion, the disability has also been demonstrated to be one which is "likely to cause the driving of a vehicle by [the pursuer] in pursuance of a licence to be a source of danger to the public" in terms of section 92(2)(b). I have reached this conclusion on the basis of Dr Dick's evidence about the instability of the pursuer's condition and its unpredictability. Without medication, which the pursuer is unwilling to take, the chances of an improvement in her condition are greatly reduced. There is thus a real possibility that the condition will deteriorate. If it does so there is a distinct risk that the pursuer may behave quite irrationally and violently when behind the wheel of a vehicle, even though she has not done so in the past. This is of special significance in the light of the evidence that the pursuer can develop a strong dislike of a person who she considers has done wrong by her.

The inevitable conclusion to which I am led is thus that the pursuer's disability is a "relevant disability" within both definitions of section 92(2). That being so the Secretary of State has a discretion in terms of section 93(1) to revoke the licence. On the evidence available to me there is no basis for holding that his exercise of that discretion was in any way unreasonable or that his decision was clearly wrong. That is sufficient for me to hold that the appeal must fail. However, I feel able to go further and to say that in my opinion the decision was entirely reasonable and one which was manifestly correct.

For the avoidance of doubt I should make it clear that the pursuer's driving skills are not in question. She was anxious to put before the court the fact that she had obtained a Police Advanced Driving Certificate, and that she had a clean driving record. I of course accept that evidence, but it avails the pursuer nothing. The issue is not whether she is or has been a skilled and competent driver. It is whether, given her disability, she should be allowed to continue to drive. It is that question and that question only which I have answered in the negative.

Counsel for the defender moved me to find him entitled to expenses in the event that he was successful.

This motion was opposed by Mr McLaughlin, who submitted that, in the event of the pursuer's being unsuccessful there should be no award of expenses in favour of either party. He argued that it would not be reasonable to make any award of expenses against he pursuer as the present proceedings had been the only means open to her to seek a review of the defender's decision and maintain her right to drive. The defender was a public body. The previous two hearings of the case which had been concerned with interim revocation had proceeded on a basis of no expenses due to or by either party.

In reply counsel submitted that any concession previously made had been only in respect of the interim hearings. There was no reason why the defender should be prejudiced because the pursuer was ill. The pursuer had chosen to take the appeal the whole distance.

In my opinion, there has been nothing said on her behalf which would entitle me to do other than find the pursuer liable to the defender in the expenses of the appeal. It is true that I have held it to be established that the pursuer is ill. However, the evidence of that was substantial, and there was no contradictory medical evidence led on her behalf. The pursuer's submission carried to its logical conclusion would mean that in every case of an appeal of this sort, where the appeal failed on the basis that the appellant was indeed ill, there should be no award of expenses. This would be so contrary to the normal practice of the courts that I consider that it would be justified only if Parliament had made special provision to that effect. There is no such provision. The normal rule should apply, and I have therefore found the defender entitled to his expenses from the pursuer.

Whether the defender chooses to enforce the award of expenses will of course be a matter for him. No doubt he will have regard to the pursuer's state of health when reaching a decision about that.