Residing at 19 Park Avenue, Beith, Ayrshire KA1 5TL

Victoria Quay, Edinburgh

On behalf of the Driver & Vehicle Licensing Agency

Longview Road, Swansea

An Executive Agency of the Department of Transport

Kilmarnock, 22^nd November 2005

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

1. The Pursuer is GILLIAN MARGARET CARRUTH who resides at 19 Park Avenue, Beith, Ayrshire. The Defender is the Advocate General representing the Driver & Vehicle Licensing Agency, Swansea (hereinafter referred to as "DVLA").

2. The Pursuer is aged thirty-seven and unemployed. She has held a driving licence for approximately twenty years. In 1990 she was diagnosed as suffering from bulimia. For the past sixteen years the Pursuer has required regular medical treatment and medication and in recent years she has been consulting her GP, Dr Sheila McCarroll of the Health Centre in Beith and Dr Toni Lock, Consultant Psychiatrist in Saltcoats. 3./...

3. The symptoms of bulimia include the Pursuer requiring to vomit regularly and up to ten times per day. A necessary consequence of that is that the potassium level in the Pursuer's body is consistently lower than normal. That condition is known as hypocalcaemia. The normal level is within the band of 3.5 to 5. The Pursuer's level, as revealed in electrolyte tests is consistently below the normal level at between 2.8 and 3.1.

4. Low levels of potassium in the body adversely affects physical health, particularly the strength and tone of the muscles. The Pursuer has suffered those effects for at least the past sixteen years.

5. The Pursuer attended a meeting with her Consultant Psychiatrist, Dr Toni Lock, on 23rd May 2005. Dr Lock was familiar with the Pursuer's health. At that meeting Dr Lock advised the Pursuer not to drive because of her poor state of physical health. The Pursuer's response to that advice was to say "no chance". In view of the Pursuer's refusal to voluntarily cease driving, Dr Lock wrote to the DVLA to inform them that the Pursuer was unfit to drive and that her licence should be revoked. Dr Lock also wrote to the Pursuer at about the same time to inform her of that decision. Those letters are respectively numbers 5/1/1 and 5/2 of Process.

6. By letter dated 6th June 2005 and Production No 5/1/2 of Process, the Pursuer was informed by the DVLA that her driving licence was revoked forthwith, on the basis that she was suffering from a medical condition the effects of which were such that she could not drive safely.

7. Following the decision to revoke her driving licence, the Pursuer consulted with her GP, Dr Sheila McCarroll of the Health Centre, Beith. Dr McCarroll had already received from Dr Lock a copy of her letter to the Pursuer dated 26 May 2005. That consultation took place in June 2005 following which Dr McCarroll wrote to the Pursuer's solicitors by letter dated 20th June 2005 which is Production No 5/1/3 of Process. Dr McCarroll also referred the Pursuer for a driving assessment and this assessment took place on 4th October 2005. Following that assessment, the Scottish Driving Assessment Service wrote to Dr McCarroll by letter dated 14th October 2005 with their findings. That letter was produced as No 5/3/1 of Process. 8./...

8. The Pursuer has been the holder of a driving licence for approximately twenty years without current endorsation. She has driven motor vehicles during that period until the revocation of her licence intimated on 6th June 2005.

9. The Pursuer's medical condition has been consistent throughout the past sixteen years and, in particular, has not deteriorated. The Pursuer suffers from a disability and is in receipt of Disability Living Allowance. There are occasions when she does, however, require medical attention from time to time when the effects of bulimia are acute. On those occasions her GP refers her for admission to hospital for necessary treatment. The Pursuer is normally discharged after one or two days. When the Pursuer feels particularly unwell she does not drive. Specifically, her mother always drives her to hospital.

10. The Defender's decision to revoke the Pursuer's driving licence on the grounds that the Pursuer was suffering from a relevant disability was notified in writing to the Pursuer in terms of the relevant legislation, namely Section 93(1)(b) of the Road Traffic Act 1988. The Pursuer has appealed that decision in terms of the appropriate legislation, namely Section 100(1)(c) of the Road Traffic Act 1988.

11. As at 6^th June 2005 the Pursuer's disability was not such that the driving of a motor vehicle by her would be likely to be a source of danger to the public.

12. The Defender was not entitled to revoke the Pursuer's driving licence.

1. This Court has jurisdiction.

2. The condition suffered by the Pursuer is not a relevant disability in terms of Section 93(1)(a) of the Road Traffic Act 1988.

3. The Defender was not entitled to revoke the Pursuer's driving licence.

FINDS IN LAW/...

The Defender not being entitled to revoke the Pursuer's driving licence, that the Pursuer's crave for reversal of the Defender's decision issued on 6^th June 2005 should be allowed, to ordain the Defender to grant a licence to the Pursuer, THEREFORE SUSTAINS the Plea-in-Law for the Pursuer and REPELS the First and Second Pleas-in-Law for the Defender; FINDS the Pursuer entitled to the expenses, allows an account to be made up and to remit same when lodged to the Auditor of Court to tax and report.

This is an Appeal under Section 100(1)(c) of the Road Traffic Act 1988 at the instance of the Pursuer against a decision of the Defender to revoke the Pursuer's driving licence with effect from 10^th June 2005, the Defender having served written notice on the Pursuer on 6^th June 2005 in terms of Section 93 of said Act. This Appeal is of course by way of Summary Application and it called before me for a Hearing on 27^th October 2005. The Pursuer was represented by Ms Blackwood, Solicitor and the Defender by Mrs Grant, Solicitor. Although a Summary Application I have decided it would be helpful to parties by issuing Findings-in-Fact and in Law over and above my Note containing the conclusions which I have drawn from the evidence.

At the outset of the Hearing Ms Blackwood was granted leave to lodge an Inventory of Productions, although late, and to amend the crave. Mrs Grant did not object to either motion. Ms Blackwood then led two witnesses on behalf of the Pursuer namely the Pursuer herself and Dr Sheila McCarroll. Mrs Grant led evidence from only one witness namely Dr Catherine Watts. There was little factual evidence in dispute.

The Pursuer confirmed she had been driving for about twenty years and she held a clean licence. During the past sixteen years she had suffered the effects of bulimia and that her potassium level had been consistently below the normal level throughout those sixteen years. Her usual level was between 2.8 and 3.1 as against the norm of 3.5 to 5 and she had learned to live with this without any particular problems. If/...

If the level dropped further then she would be unfit to leave her home but the condition could be corrected with medication. In that event she would consult her GP who would refer her to hospital. She would never drive a motor vehicle in that condition and her mother would always drive her to hospital. She would be admitted overnight and usually discharged the following day. Her incapacity at that time would last for about two days. In recent years she has been consulting her GP Dr McCarroll and also Dr Toni Lock a Consultant Psychiatrist. She met with Dr Lock on 23^rd May 2005 to decide what further treatment she required. She had seen Dr Lock some eighteen months previously. There was no physical examination as such but at the end of the meeting Dr Lock asked her if she was still driving. When the Pursuer confirmed she was Dr Lock expressed surprise and commented that she should not be driving and that she would be contacting the DVLA about this. She agreed that her response to Dr Lock's advice not to drive was to say "no chance". The Pursuer subsequently received a letter dated 26^th May 2005 from Dr Lock confirming that she was notifying the DVLA of the position and to request that her driving licence be revoked. She then received written intimation from the DVLA dated 6^th June 2005 revoking her licence. The Pursuer then decided to consult Dr McCarroll in June who referred her for a driving assessment to the Scottish Driving Assessment Service in Edinburgh. She was assessed on 4^th October 2005. She said that the results of the test were such that she was encouraged to reapply for her driving licence. She accepted that Dr Lock's view was that she shouldn't be driving. She agreed that she was still a patient of Dr Lock and was still under medication. She agreed that she had a disability in respect of which she continues to receive a Disability Living Allowance. She disputed that her condition could be described as fluctuating but instead could properly be described as stable.

Dr Sheila McCarroll is the Pursuer's GP and holds the qualifications of MB, Chb. She has been a GP for twenty years and is familiar with the Pursuer's condition. She has been responsible for referring the Pursuer on occasions to hospital. She describes the Pursuer's condition as chronic but usually stable. Her potassium levels have been below the normal level for years and she described that as being normal for her. She copes with that condition on a day to day basis. It had never occurred to her that the Pursuer would be unfit to drive. She was surprised when the Pursuer informed her that the DVLA had revoked her licence due to her disability. Before June the last time she had seen the Pursuer was in either January or February 2005. She/...

She disagreed with Dr Lock's view as to the Pursuer's fitness to drive although she accepted that at the time of Dr Lock's decision in May 2005 that it had been some months since she herself had seen the Pursuer. She agreed to write to the Pursuer's Solicitors to express her views and she confirmed that her letter of 20^th June 2005 to William Crate & Co, Solicitors, Dalry accurately reflected her views. She was of the view that the Pursuer has learned to live with her low levels of potassium, as indeed have others with a similar condition such as persons suffering from diabetes. She agreed there were occasions when the Pursuer was unwell and would require hospital treatment and would be obviously unfit to drive but the Pursuer dealt responsibly with her condition and was at the stage when she could make her own decisions. One of the main conclusions she was able to draw from her examination of the Pursuer was that her muscle tone was good. That view conflicted with the view expressed by Dr Lock to the Defender.

Dr Catherine Watts gave evidence for the Defender. She is a Registered Medical Practitioner with the DVLA and her qualifications include MB, Chb. She is a full-time Medical Advisor to the DVLA and is part of a group of seventeen. Although her colleague Dr Boyd took the decision to revoke the Pursuer's licence she was aware of this and was in full agreement with it. She was aware of Dr Lock's letter of 26^th May 2005 and was aware of the contents of the letter from the DVLA to the Pursuer dated 6^th June 2005. The decision to revoke the Pursuer's licence was taken on the basis of the information supplied by Dr Lock who the Defender knew was the Pursuer's Consultant Psychiatrist. The view taken by the Defender was that the Pursuer had a relevant disability which was likely to cause a danger if she continued to drive. Although she had seen the letter from Dr McCarroll dated 20^th June 2005 to William Crate & Co, Solicitors, that was only received after the decision had been taken to revoke the licence. She stressed that muscle weakness was one of the important side effects of low potassium levels. This results in a lack of co-ordinating muscle action adversely affecting the Pursuer's ability to physically control her vehicle. The particular danger here was that the Pursuer has had low potassium levels for some time and so she may have become accustomed to her muscle weakness. She stressed that her department did consider Dr McCarroll's letter of 20^th June 2005 but that her opinion was based on an examination held in January or February 2005 whereas Dr Lock's information related to a meeting with the Pursuer as recently as May 2005. She viewed Dr Lock's opinion as being very clear and that no other decision could have been taken by the Defender other than to revoke the licence on the basis of that information. Ms/...

Ms Blackwood invited me to hold that the evidence did not support a conclusion that the Pursuer was suffering from a disability such as would cause her driving to be a source of danger to the public. Although her potassium levels were always low the evidence from Dr McCarroll was that she was able to cope with those levels. Dr McCarroll's opinion in her evidence was different to that expressed by Dr Lock in her letter of 6^th June 2005 to the DVLA as regards the Pursuer's muscle strength. She maintained that Dr Lock had not conducted any examination of the Pursuer, for example, did not test her potassium levels or refer her to her GP in order to do that. Indeed, the stage had been reached whereby Dr Lock was encouraging the Pursuer to exercise self-control and be responsible for her own day to day decisions. So far as driving is concerned the Pursuer takes responsible decisions. When she feels unwell she does not drive. The DVLA did not act reasonably in taking a decision to revoke the Pursuer's licence on the basis of the opinion expressed by Dr Lock and without conducting further enquiries. She felt that Dr McCarroll's evidence was particularly important in that it had never occurred to her that the Pursuer's driving could constitute a danger to the public on the basis of her physical condition. She invited me to hold that the Defender had not made sufficient enquiries such as would justify a reasonable exercise of discretion to take the decision to revoke and to hold that the Pursuer's disability was not such that her driving was likely to cause a danger to the public. Accordingly she invited me to find in favour of the Pursuer and to reverse the decision to revoke her licence and to ordain the Defender to grant the Pursuer a licence.

Mrs Grant, on the other hand, invited me to refuse the Appeal. She maintained that the Pursuer did have a relevant disability at the time the Defender made the decision to revoke her licence. Her licence was revoked in June 2005 by the Defender upon receipt of Dr Lock's letter of 6^th June 2005. The Defender had no alternative but to revoke. The contents of Dr Lock's letter were clear. The author of that letter was the Pursuer's Consultant Psychiatrist who was familiar with the Pursuer's medical history. Notwithstanding the divergence of views between Dr Lock and Dr McCarroll the information from Dr Lock was the only relevant information at the time so far as the Defender was concerned. It formed the basis of a reasonable decision taken by the Defender, particularly in the light of the further information received by the Defender from Dr Lock that in answer to her advice to the Pursuer to stop driving the Pursuer had replied "no chance". There/...

There was no requirement for the Defender to carry out any further enquiries due to the clarity of the view expressed by Dr Lock in her letter to the DVLA. So far as Dr McCarroll's views are concerned she had simply given no thought as to whether the Pursuer's condition was likely to cause a danger to the public when driving. In any event, if the Pursuer were to apply now for a driving licence, following the earlier revocation, she would be required to undergo a further medical examination, according to Dr McCarroll. There had been no additional information adduced in evidence as regards to the Pursuer's condition other than that which existed at the time of Dr Lock's letter. Accordingly the question has to be asked, "What additional information could have been available to the DVLA following further enquiries?". There had been no evidence led on behalf of the Pursuer that the decision reached by the DVLA was either wrong or unreasonable. Mrs Grant did not go so far as to say that my decision had to be based on the application of the principles laid down in the case of Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation 1948 1KB223, and that I was entitled whilst acting in my judicial capacity to consider the merits of the case. She also cited in support of her submissions the case of McFarlane -v- Secretary of State for Scotland 1988 SCLR 623. If I was simply applying the Wednesbury principles then she submitted that I would have little difficulty in holding that the Defender's decision was neither wrong nor unreasonable. She also conceded that I could consider any new evidence about the Pursuer's condition which existed at the time the Defender decided to revoke her licence but of which the Defender was unaware. Such evidence would have been relevant to the decision taken at the time. However in the present case there was no such evidence. I was invited by Mrs Grant to refuse the Appeal.

So far as expenses were concerned Ms Blackwood for the Pursuer invited me to award expenses in the event of the Appeal being successful. However if the Appeal was unsuccessful then I should make a finding of no expenses due to or by either party on the basis that the Pursuer had no other remedy other than to pursue this Appeal against a decision of a public body with which she disagreed. Mrs Grant, on the other hand, submitted that expenses should follow success and she cited the case of Myles -v- Secretary of State for Transport reported 2000 GWD 17-702. This was a Sheriff Court Judgment dated 9^th May 2000 and I was provided with a full copy of that decision.

OPINION/...

I accepted Mrs Grant's contention that the paramount consideration of the Defender in revoking the Pursuer's licence was in the interests of public safety. However, that was done simply on the basis of the information received from Dr Lock. On the other hand, I have had the benefit of hearing evidence from the Pursuer and her GP over and above the evidence adduced on behalf of the Defender. I wish to stress that I viewed all of the witnesses in this case as being credible. Very little of the evidence was in dispute. Whilst I can understand that there would be concerned reaction by the Defender in response to the letter received from Dr Lock, I take the view that the revocation of the Pursuer's driving licence was an excessive reaction. Dr Lock is a Psychiatrist and did not physically examine the Pursuer. No further steps were taken by the DVLA to make further enquiries as to the Pursuer's fitness to drive. I had the benefit of hearing evidence, which I accepted, that the Pursuer had learned to live with her condition and had approached her driving responsibly. She was able to anticipate when it would be unwise for her to drive in view of her state of health. She would not drive when she felt unwell. She has been driving for twenty years. There was no evidence that she had ever driven a car in a careless or unsafe manner. Although I had no evidence of her full history of driving I did hear evidence that she had a clean driving licence. She is also someone who relies heavily upon being able to drive her car. In terms of Section 100(2) of the Road Traffic Act 1988 I am given a wide discretion to make any Order I see fit. Although I have some sympathy with Mrs Grant's submission that the DVLA could not ignore the information and recommendation from Dr Lock I cannot accept that the Defender's decision to revoke her licence is a correct one, or indeed a reasonable one. In these circumstances I shall allow the Appeal.

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