Jonathan Denison has won his appeal to the Administrative Appeals Tribunal against the restrictions on his commercial licence that were in place because of his defective colour vision. The decision is a landmark victory for all colour defectives.
For the readers that have not been following the previous episodes of the saga, let me briefly say a little about colour defective vision (often wrongly called "Colour Blindness"). There are two main common types of colour defective vision, depending on which of the pigments of the retina of the eye is defective. A person who has faulty green receptive pigment is said to be a "Deutan" while a defect of the red receptive pigment renders the victim a "Protan". Both types make up what is popularly known as the "Red-Green colour blind" group. Both types have traditionally been denied unrestricted licences (except the milder deutans) on the theory that it is important to be able to name the colours red and green on such things as navigation lights, runway thresholds, obstruction lights and so on. Protans have also a problem that they may have a reduced sensitivity to red lights, that is, they need to be closer (than the colour normal) to the light before they can see it.
The colour vision question has been a thorn in the side of the Civil Aviation Authority and its predecessors for many years, with frequent challenges by disgruntled colour defective pilots (of which I happen to be one). Almost two years ago I was successful in my appeal to have the restrictions lifted from my Private Pilots Licence. However, the decision did not flow on, as it should have, to the many other colour defective pilots who wanted relief. On their behalf a new appeal was launched which was designed as a test case and which both sides fought on that basis. The result of that case constitutes an unprecedented victory for all colour defectives. The decision is the law and must result in the abandonment of the colour perception standard.
An enormous amount of public money was spent to run this case on both sides. My private estimate is that the all-inclusive costs were of the order of a million dollars. What was achieved was the most extensive, comprehensive and independent review of the colour vision standard ever conducted anywhere in the world. I have had it on the word of Captain Neil Jonassen, who oversaw the proceedings for the CAA, that the decision would be promoted at international level by the CAA. That was on the last day of the hearing, before the extent of the decision was known. If the Australian CAA adopts the strategy alluded to by Capt Jonassen, it will end a period of twelve years of often bitter dispute over this issue.
The decision document is sixty pages long, so I can do no more than provide a very brief overview of it. Anybody interested in studying it more should obtain a copy of it from their Capital city office of the Commonwealth Administrative Appeals Tribunal.
Briefly, the decision is that Denison will have night flying restrictions lifted from his Commercial licence. The only restrictions are that he must be radio- equipped in control zones and that he may not fly internationally without the permission of overseas licensing authorities. The Tribunal has made the recommendation that all deutans should have the same benefits as Denison (he is a severe deutan).
Additionally, the Tribunal has recommended that protans be given the same benefits provided they have otherwise perfect distance vision (6/6 or better visual acuity), The Tribunal reasoned that a protan with 6/6 vision was no worse off than colour normal with 6/12 distance visual acuity (which is the minimum requirement laid down), These visual acuities are for corrected vision, in other words with glasses if need be.
The significance of this decision is that approximately some three thousand colour defective Australian pilots can now look forward to virtually unimpaired flying privileges, provided of course they undergo the appropriate training for the particular licence or rating. If, as I believe should happen, the CAA adopts this decision and promotes it overseas, the potential population that might benefit will number in the many tens of thousands.
Australian AOPA has adopted this matter as its own and was successful at the last International AOPA Conference in having that conference adopt a motion that ICAO be asked to remove colour vision testing from the licensing requirements.
Many thanks are due to the people who made this result possible. In particular, the firm of Howie and Maher, solicitors of Melbourne and Mr Kevin BeII, the barrister who conducted this case for us in a superb manner. Their combined efforts in the preparation of the incredibly difficult and complicated evidentiary material went far beyond the call of normal duty. We had the benefit of tremendous witnesses: Professor Boris Crassini and Dr Patrick Flanagan from the Department of Cognitive Science at Deakin University, Dr Martin Samuel, a Melbourne ophthalmologist and pilot, Dr Norman Roth of Geelong, Captain Max Langshaw of Kendall Airlines and Captain Ray Vullermin of Australian Airlines. In addition, this hearing was a natural extension of the appeal that I had run some twelve months before and all of the participants in that hearing have contributed again, albeit indirectly to the more recent proceedings, I thank them once again for their efforts. Thanks to Jonathan Denison for having the courage, conviction and professionalism to be the subject of this important test case.
Finally, the members of the Tribunal deserve congratulations for the unprecedented thoroughness with which they have taken this issue on board. Their decision document represents the most definitive and unambiguous statement on colour vision in aviation in existence.
In closing, I would like to say simply that any further financial assistance in covering what this project has cost me will be very welcome.
The AAT's conclusion in Jonathan Denison's case is reproduced in full below:
76. Having given consideration to all of the very considerable amount of evidence presented during these proceedings and with our knowledge of the evidence which was presented in the proceedings in Re Pape, we have come to the conclusion that a pilot who is a deutan does not, simply because of his defective colour vision, pose a significant and unacceptable risk to the public by flying an aircraft at all or at night or by flying an aircraft equipped with EFIS and EICAS instrumentation. During the course of these proceedings and those in Re Pape we received evidence which makes it clear that, although a country may be a signatory of the Convention on International Civil Aviation and a member of the ICAO, different countries have effectively set different standards of the colour vision required for the grant of a pilot licence in those countries, by varying the method of testing. In some countries the standard and the tests imposed are stricter than those in Australia. In some other countries they are less strict or less strictly applied or both. Although the pilots who are accepted by one of those countries as having attained the requisite colour standard are granted unconditional licences which enable them to fly anywhere an aircraft registered in that country provided that their licences are endorsed for aircraft of that type, we consider that the comity of nations requires that, where a licence is granted under the provisions of regulation 63, that is to say where the medical standard set by regulation 62 has not been met, the licence should be granted subject to a condition that the pilot is not to fly an aircraft in any country other than Australia except with the express approval of the civil aviation authority of that country.
77. The licence should also be subject to a condition that the aircraft is equipped with adequate radio equipment maintained in working order suitable to enable him to be in voice radio communication with air traffic control while flying in a control zone. Those are the only two conditions to which, in our view, Iicence granted to a deutan under regulation 63 should be made subject. Accordingly, we have set aside the decision under review and in substitution for it decided that a commercial pilot licence is to be granted to the applicant subject to the conditions to which we have just referred.
78. As the respondent has requested us to do so, we have stated our views in relation to pilots who are protans. In summary, we are satisfied that, so far as the instrumentation of aircraft is concerned, a pilot who is a protan will not be at a significant disadvantage compared with a pilot with normal colour vision. However, some protans may be 'significantly disadvantaged by an inability to see red obstruction lights at the same distance as pilots with normal colour vision. Whether a particular pilot will be disadvantaged to the extent that the granting of a licence without a condition prohibiting him from flying at night would be likely to affect the safety of air navigation depends on two factors, his distant visual acuity and, if he is not a protanope, the degree of his protanomaly. We recommend that in certain circumstances pilot licences should be issued to protans under regulation 63 and be subject to only the same two conditions as those to which we have made the applicant's licence subject. Those circumstances are that, for the licences for which Medical Standard No.1 is required, the pilot has distant visual acuity of 6/5, while meeting the other requirements of ANO 188.8.131.52, and for the licences for which Medical Standard No.2, is required, he has distant visual acuity of 6/6 while meeting the other requirements of ANO 184.108.40.206. Otherwise, a licence granted to a protan under section 63 should be subject to the additional condition that he does not fly an aircraft at night.
79. We recommend that suitable practical tests should be devised so that a protan can be tested individually, if he wishes, at his own expense to ascertain the extent of the loss of his ability to perceive the intensity of red lights. If his distant visual acuity is such that, when allowance is made for the loss of ability to perceive the intensity of red lights, he is able to see red lights at the furthest distance that they can be seen by persons who have normal colour vision and the distant acuity required by ANO 220.127.116.11 or ANO 18.104.22.168, as appropriate to the type of licence sought, a licence should be granted to him under regulation 63 subject to only the two conditions referred to above. If a change in his visual acuity is detected thereafter in the course of any routine medical examination, he should be required to undergo the practical test again. Otherwise a licence granted to a protan under regulation 63 should be subject to the additional condition that the pilot does not fly an aircraft at night.
80. Finally, while recognizing that the Tribunal has no power to review decisions of the Authority to set medical standards under regulation 62, we suggest that protanomals ought not to be totally prevented, as they are at present, from meeting the colour vision standard. It appears from Dr Samuel's evidence that some persons with mild protanomaly are able to perceive the existence of red lights at a distance which is as great as, or greater than, the furthest distance at which a person with normal colour vision and distant visual acuity of 6/6 can do so. We suggest that the colour vision standard be altered so as to permit such mild protanomals to take the Farnsworth lantern Test and, if they pass it, to meet the standard and so be qualified, so far as colour vision is concerned, for the grant of an unconditional licence.
(Whilst AOPA recommends interested pilots write to the CAA requesting reconsideration of their restriction, the following letter from Laurence Gruzman, QC, is pertinent and is reproduced for information. EDITOR)
Dear Mr Wilkinson,
Following our discussion yesterday I am prepared to express, for publication in AOPA magazine and to pilots generally, my views as to the methods which should be adopted by pilots who wish to take advantage of the recent decision of the Administrative Appeals Tribunal in the case of Denison v Civil Aviation Authority.
Denison was an extension to Commercial Pilots of Dr Arthur Pape's case, Pape v CAA, which was applicable to private pilots and I am familiar with that case and its aftermath. That case broke new ground and after that decision there was no logical basis upon which the CAA could prevent private pilots from flying at night because they were duetans, or at worst, deutans with similar disabilities to those of Dr. Pape. That disability is commonly but wrongly referred to as "colour blindness", a term which has many intricate meanings. It is sufficient to state that Dr Pape's disability is the most common form of "colour blindness" and therefore the decision in his case was applicable to most so-called "colour-blind" pilots”.
The decision in Pape dispelled forever the notion that normal colour perception by a pilot is essential for safe flight at night. A Civil Aviation Authority whose sole reason for preventing flight at night by deutans was a perception of lack of safety would have immediately removed the restriction for pilots whose disability was embraced within the reasoning in Pape's case. In fact, the CAA did not regard itself as subject to the law as laid down by the AAT and has continued for over a year to apply the outmoded criteria by which it has restricted night flight.
In view of the decision in Denison it is wrong and illegal for CAA to discriminate against pilots who suffer from the colour perception defect identified in that case and pilots suffering from such a colour defect are entitled forthwith to exercise the privileges of their private and commercial licences at night. In so doing they will be fortified by the results of a massive investigation (at public expense on both sides) and the consideration of the evidence by a highly experienced aviation tribunal in what was regarded by both parties as a test case of general application. The judgment of the tribunal was arrived at after a most exhaustive review of evidence which included masses of expert evidence and expensive experiments carried out by CAA and are contained in 60 pages of learned and practical evaluation of all the evidence and the conclusions derived therefrom. The Tribunal in Denison upheld PAPE and extended it to Commercial Pilots.
The question is what can pilots do to enjoy the results of the decision if, as in the past, the Authority ignores the findings of the AAT and puts individual pilots to the great expense and inconvenience of appealing in each case to the AAT to remove the restriction. Seven cases are still pending before the AAT by pilots seeking to obtain the benefit of PAPE's case to which, in most cases, they were automatically entitled. This is a frivolous and vexatious abuse of power by the CAA.
In my view, in these circumstances, an illegal restriction of this kind may, after due notice and consideration of any matter put forward by the CAA in an individual case, be disregarded. The Authority (Assistant Manager, Flight Standards in the Region) should be informed in writing by each pilot that unless the illegal restriction is removed within say 7 days, the pilot will exercise the privileges of his licence without regard to the restriction.
This procedure will enable the Authority to reply to the pilot putting any reasons why it alleges that the decision does not apply to the particular pilot and to threaten any action they may contemplate. However, the Authority will doubtless bear in mind that any action taken against the pilot's licence is appealable to the AAT, which, upon the basis of the decision in Denison, will find that the night operation was quite safe and that any breach was purely technical and caused by the Authority's failure to implement the findings of the AAT. Similar reasoning would doubtless be applied by a Court if the Authority charges a pilot with a breach of the regulations by flying contrary to the restriction. This advice presupposes that a pilot is otherwise qualified to fly at night and complies with recency requirements. Obtaining the necessary qualification will in some cases impose problems.
In summary, the CAA is, bound by the law in the same way as any individual member of the community. If it places itself above the law it can expect little assistance from the Courts if it seeks sanctions from individuals who disregard CAA’s illegal restrictions on their activities. The Courts do have the power of making their views felt as by ordering the CAA to pay certain costs.
I congratulate Dr Pape on the successful conclusions of the long, lonely and expensive battle which he has almost single-handedly waged against CAA on behalf of colour defective pilots. The Judgement In Denison is an historic document and a great tribute to his skill, knowledge, perseverance and courage, aided, I should say, by his wife.
Laurence Gruzman, QC .
May, 1989 - A.O.P.A.