CASE 10/94

Members:
P Gerber DP

Tribunal:
Administrative Appeals Tribunal

Decision date: 18 January 1994

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Dr P Gerber (Deputy President)

The applicant in this case is a police patrolman with the Western Australia Police Department. As part of his duties, the applicant uses a Harley Davidson motor cycle. When on patrol duty - usually up to five to six hours per day - he is issued with an open-face helmet with an external detachable plastic peak attachment. This helmet leaves the face unprotected. Whenever the applicant uses his own motor cycle for private purposes, he wears what was referred to as a full-face helmet, offering complete protection. I was informed that that species of helmet is not permitted to be worn on duty.

2. In the 1991 tax year, the applicant purchased a pair of Oakley ``wrap-around'' sunglasses for $120 from the Police canteen, described in his income tax return for that year as ``safety glasses'', and claimed the cost as a tax deduction. The claim was disallowed, hence this reference (quantum is not in dispute). These particular glasses - or rather their frame construction - is said by him to be the most suitable - and safest - when worn in conjunction with a police helmet:

``With these particular type of glasses, there is no bending down part that goes behind your ear. When your open face helmet is down, the cushioning will push against your ears - I have particularly big ears and this will push against the [conventional Police Department issue] sunglasses. We also have a microphone that goes into the helmet. It's only on one side, and this will cause, again, pressure to the ear because of the wings of the [conventional] sunglasses.... With the nose grip here, I sweat on the bridge of my nose, and I find that conventional sunglasses tend to slip, which means to say that every so often I get, like, an exposure. I'm constantly pushing them back up again.''

(tr p 7)

3. The applicant, whose evidence was given clearly and honestly, explained to the Tribunal that the Police Department had several types of sunglasses available on request.

4. Since none of the various sunglasses issued by the Police Department were available to the Tribunal at the time of the hearing, Dr Carr, of learned counsel for the respondent, requested that Commander Devlin (a witness for the applicant whose evidence is referred to subsequently) ``send a letter to the Tribunal and copies to ourselves, enclosing the details of when the particular sunglasses were issued - and which ones - and possibly even lending the Tribunal the examples in question''. Mr Fletcher, of learned counsel for the applicant, readily agreed to this. Commander Devlin duly sent the following letter dated 3 November 1993 to the Tribunal:

``RE: [TAXPAYER] -v- COMMISSIONER OF TAXATION WT92/76

In response to your inquiry concerning the issue of sunglasses to Police Traffic Branch personnel I advise.

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Enclosed herewith are the three types of sunglasses which have been issued to personnel and for identification purposes, are labelled Type 1, 2 and 3.

An exact date of supply cannot be ascertained from records held, however I am advised that Type 1 have been on issue since January 1990, Type 2 since October 1990 and the style labelled Type 3 since September 1992.

A further style was available to personnel from July 1989 to January 1990. This particular style is no longer available and stocks have been depleted.

From recollection of my evidence to the tribunal I may have inadvertently advised that glasses were first issued to police motor cycle officers in January 1991. This is incorrect. Sunglasses were first issued in July 1989. I apologise for any inconvenience this miscalculation may have caused.

Yours faithfully

RJ DEVLIN COMMANDER (COUNTRY TRAFFIC)''

5. The applicant maintained that none of the sunglasses available at the relevant time fulfilled his needs. He described the sunglasses issued by the Department thus:

``Generally they're of poor quality. The tint is not a good standard. There are varying shades - they're all light, and they're open - they don't wrap around your face. There was one particular wrap-around type which was, again, a light tint, but the wings are so designed that they cause headaches because they actually really push in behind. They're accentuated - the wings are actually accentuated. There are some other types that they were trying, and they have wings that come to the side. Again, they were pushing into your temples.''

(tr p 8)

When the witness was shown one pair of the departmental issue sunglasses, he dismissed them as unsuitable:

``This particular pair of glasses here I was issued with because at the present time, when I went up to try them out, they said that these were available. Naturally, because of the wrap-around, I thought they might be a very good glass. I took into consideration the tint and was prepared to ride with them, but if you see the wings there, it curves right in, and that's what was causing me to have severe pain round the back of the ears. They're also very chunky in the face here.''

(tr p 8)

6. The applicant told me that it would be ``absolutely ludicrous'' not to wear some form of protective glasses when riding a motorcycle. It seems that bugs and debris coming off trailers were a patrolman's major hazards; indeed numerous patrolmen who did not wear glasses whilst on patrol duty had, to the applicant's certain knowledge, to consult a police surgeon to have local fauna removed from their eyes. Another hazard is said to be constituted by the elements, particularly rain and hail:

``Elements - when you're riding on the freeways and things like that, you have hail. I've had to actually stop with departmental issue glasses because the hail has come down into my face, and I've had to go underneath the bridge to hide.

When you say: `come into your face', what do you mean? You're wearing the glasses -?- Well, I also tried a different pair of these. I tried wearing the normal ones, like you're wearing, Sir, and I found them to be totally unacceptable because the elements were coming into them.

...

They have these plastic wing-type things here which are a nuisance. They just aggravate you as you're going along.... They actually pull into your temples. I'm fairly wide across here, and these metal stanchion bits, they really push in behind your ears as well. So you're compounding the problem by having that mike there which is an essential part. On a Harley Davidson, we have now these clip-on mikes which makes it easy to talk to. Where before we were bobbing forward to try and listen to a speaker, we actually have the headphone there now and, of course, you've got that, plus the padding, plus something like this jamming into the rear of your ear. It's not a pleasant experience at all.

Apart from being unpleasant, does it have any other effect? - It causes headaches. It does cause headaches, and by the time you've finished a long run - I live about 25ks from Perth - not only have you got the full time of patrolling, but you've also

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got 25ks of misery trying to get home as well.''

(tr pp 9-10)

7. The applicant described all the sunglasses held by the Department at the relevant time as being of poor quality. Having inspected the three pairs made available to me by Commander Devlin, it is a judgment I am not prepared to question. All hug the ear tightly, and I accept that their construction is such that it can cause the kind of discomfort and headaches described by the applicant when worn in conjunction with a helmet.

8. I also accept the evidence that the Oakley glasses the applicant purchased in 1991 are more suitable for him than the conventional glasses on issue - they hug his face, thus stopping any hail from penetrating his face, and, unlike the glasses available from the Department, the wings do not press against his head, thus preventing headaches. They have the additional advantage in that the:

``... nose bridge area there fits snugly into your nose, which gives you a nice feeling across there. It stops most glare from coming underneath the cheekbones as well. I can successfully ride in the rain with that type of glass. If I've got a particularly urgent job to go to, the last thing I want to do is being pulled up at the side of the road when possibly someone's life is at risk. That's the aspect I look at it - not only my own safety, but somebody else's. I feel that I have confidence in these Oakleys that I've purchased. I do not have confidence in the other glasses.''

(tr p 10)

9. In short, the subject glasses are said to be more adequate in meeting this applicant's needs, given his wide forehead and big ears. He claims that his Oakleys have the appearance of ``bikie'' glasses, and that he bought them only because their design fulfils his requirements, and that he wears other protective glasses on his own motorcycle when off duty. (It must be said that the Oakleys have an ``unusual'' colour, and, together with their frame and general appearance, they certainly defy the description ``conventional''.)

10. In addition to the departmental issue sunglasses, the Department also made available, on a trial basis, what the witness described as ``a clip-on bubble attachment'' made out of clear plastic. However, because it was rounded, the applicant experienced a slight distortion of vision on the side. He also noticed that when worn with certain departmental issue sunglasses, he experienced a distortion of colour. Furthermore, ``they kept misting up on the inside'' (tr p 12). The use of the ``bubble attachment'' has since been discontinued. For good measure, it was solemnly put to me that using the bubble device would reduce the applicant's assessable income. This ingenious link with glasses and income was made on the basis that, being a patrolman riding his motor cycle home at night:

``you do detect a lot of drink-driving offences. Once you've stopped them, you have the ability to breath-test at the side of the road and invariably you will get overtime out of that, and that will be an extra bit into your wages.''

Alas, it seems the bubble gets in the way between a patrolman's nose and a driver's breath, causing sniffing to become a most contorted manoeuvre. Verbal communication is also not easy - ``It was almost embarrassing; I was shouting at them through the bubble. Probably that's why they're not issued [any longer]'' (tr p 13). When asked how much he earned, the applicant replied that his basic pay was approximately $900 per fortnight. However, with overtime:-

``I would say about $1100 to - sometimes it would go up to $1200.

THE D PRESIDENT: It depends on how many drink-drivers there are, does it? - There is heaps out there.

And the overtime is a function of drink- driving? - Not only drink-driving, it could be a domestic situation.''

11. Dr Carr sought to identify the exact problem which conventional sunglasses posed to this applicant. The following took place at the close of cross-examination:

``I think you said you had particularly large ears. Do you mean they are thick ears, is that the problem? I do not mean to be in the slightest bit insulting, but is that the problem as you perceive it? - They're very big, they're very big.

So there is not enough space between the inside padded part of the helmet and your head, is that the problem? - No, no, that's [not] the problem at all. My ears are just very big for any helmet.

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Yes, but in relation to the sunglasses, what creates the problem? - The actual wings that go through. In relation to this pair - I'm trying to answer you as directly as possible - with that particular pair that I tried, as you can see, they curve right round, and because of having - I don't know whether I'm broad across here as well, I've never found this out - but I've found a great pain coming in through here, and these ears just crush against it. I don't think a gentleman like yourself would have a problem.

It is the back of the ears that causes the problem then? - This area here, Sir. [pointing to an area just above his ears]

Did you try modifying them? [meaning the wings, not the ears] - That's why I bought those, because there's no section there.

Do I take it the answer to my question is that you didn't try modifying the Police Department issue? - No, no, I didn't. Not in relation to the wings anyway.''

(tr pp 23-24)

12. The applicant called Dr Brian Dare, the Director of Health Services with the Western Australian Police Department who specialises in occupational medicine. The witness stated that:

``The reason we like people to wear eye protection when riding a motorcycle is obviously to prevent eye injury and eye fatigue. So from the injury point of view, we are concerned about objects in the eye, insects, dust, etc, or rain. The other factor is being out on the road. We're concerned about the effect of ultra-violet light on the eyes, so we'd certainly recommend having a tinted or UV protection, so they wouldn't be suffering from the effects of ultra-violet radiation. So really, we're looking at something that gives maximum protection to avoid particles getting into the eye, and also stopping wind, and also protection for the ultra-violet light and glare as well.''

(tr p 25)

13. When asked what sort of glasses offered ideal protection, the witness replied that the kind of goggles worn in the early days of the internal combustion engine would be ideal:

``But I don't think in this day and age we could really get motorcyclists to wear goggles as such. But obviously the next best thing to that is something that's quite `wrap- around'. In other words, [something which] gives good side protection, protection underneath the eye, so you're reducing - really, what you're about is trying to reduce the ability for anything to get into the eye cavity or hit the eye.''

(tr p 25)

When asked to make a comparison between conventional sunglasses and wrap-arounds, ``as to which is the more effective and most approaches the ideal'' the witness replied:

``Well, obviously the wrap-around do. The problem with the type of glasses you're wearing, the conventional sunglasses, you do have large spaces where foreign objects can enter from.''

(tr p 26)

To make matters worse, conventional sunglasses allow raindrops to hit the eye at high speeds, which:

``would certainly cause, at the minimum I think, irritation and possibly cause much more damage than just plain irritation. Obviously it could have the potential to cause damage to the cells on the eye, and therefore the potential again for ulceration and infection.''

(tr p 26)

14. The witness was then asked ``from a medical point of view'' as to the effect of sunglasses causing pressure on the side of the head ``say the temples and behind the ears''. He replied:

``I think the main thing from that sort of pressure would be certainly irritation to the skin where - which I'd imagine - depending on the amount of pressure, would cause pain. It can irritate the muscles there, and I believe certainly cause headaches. That would be the main thing. Obviously if there was a roughness on the sunglasses or the glasses that were being worn, it could ulcerate the skin, but one would think that the pain factor would tend to cause the person to remove them before they would actually get ulceration or whatever. So the main thing I would see would be pressure on those muscles, the skin there which could predispose to headaches.''

(tr pp 26-27)

15. The following is the concluding part of this witness' evidence-in-chief:

``Have you had any occasion to give consideration to the quality of the police issue sunglasses here in Western Australia? - No. As I said, we had recommended that patrol officers be issued sunglasses. This

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was not implemented mainly because of a cost factor. In the type of sunglasses we recommended, we had looked at various brands and obviously taking costs into account, and looked at a number of various sunglasses on the market. I am aware now, have just become aware over the last day or so, that the Traffic Branch had issued - were issuing sunglasses to the motorbike personnel. I had seen them outside just before this hearing. These were fairly standard safety-type glasses, again quite standard, straight if you like, not the wrap- around kind.''

(tr p 27)

16. Whereas the thrust of Dr Carr's cross- examination was to try and establish that the ocular needs of motorcycle patrolmen were really no different from anyone else riding a motorcycle, Dr Dare went so far as to claim that wrap-arounds were the ideal that should be worn not only by all motorcyclists, but bicyclists and horsemen; indeed, anyone venturing outdoors, including people engaged in sunbathing and gardening.

17. The final witness to be called, Commander Devlin, has spent some 30 years with the Western Australia Police Force, the bulk of which involved ``traffic related matters''. This witness assured me that it was essential for motorcycle patrolmen to have ``acute vision''. There was initially some confusion in his mind as to when the first set of sunglasses were issued by the Department. His subsequent letter (referred to in paragraph 4 above) makes it clear that one type of sunglasses was first issued by the Department in July 1989, but that this particular model was no longer available.

18. The following then took place in evidence-in-chief with respect to the three types of departmental issue sunglasses enclosed with the witness' letter, which subsequently became exhibits: (I have condensed the evidence slightly)

``Are you aware of any glasses that are available that you would consider to be more suitable for a motor cycle patrolman? - There is always something better than what we have, I mean the glasses that we issue have Australian Design Rule standards and they are the ones that we purchase for the patrols. But, yes, to answer your question, there would be a better type.... We get the types of glasses in, we put them out to the patrols, let them wear them and let them choose the style. What we really look at is whether it is an Australian Design Rule standard. However it is their choice of which glasses we purchase.

Are you familiar with what could be described as wrap-around Oakley style sunglasses? - No, I can't say that I am, unless it is -

Well, did the taxpayer show you a pair of glasses? - No.

Well, can I ask you whether or not a pair of glasses which fits snugly from the eyebrow to the cheekbone and wrap-around to a considerable extent to beyond the orbit of the eye, in your experience in the Force and as a motor cyclist, would they or would they not have any advantage over the glasses that are the Police issue glasses? - I believe the ones that we issue are adequate, but there are times, I would have to say - that there could be a time where something could go under the ones that we issue.

Or over? - Yes, or over.

Why is that? - They don't fit close to the face, and one of those that are there does fit neatly to the - reasonably neatly to the face.''

(tr pp 30-32) (my emphasis)

19. The witness was shown one pair of sunglasses which had been previously on issue but subsequently withdrawn:

``Why did you stop issuing those? - One of the reasons is because of the shape at the back there, and the pressure with the helmet, it was pressuring on our people. They didn't like the style, we had too many of them, so we stopped issuing them. But this set here does, in some ways, fit close to the face too.

In some ways? - Yes, across the top.

Perhaps I could describe it as being semi wrap-around, are you aware that there are - or can you say whether or not you are aware that there are more snugly fitting glasses available than those? - There are.

And can you venture an opinion as to whether or not they would be more effective in terms of excluding rain, hail, wind, dust and debris, as well as ultra violet rays? - Probably, yes, they would be better.

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Why aren't they issued by the Police Department? - Probably because of the budget.''

(tr p 33)

20. Commander Devlin readily agreed with Dr Carr that in all his time with the Police Force, he had never personally received a complaint from any patrolman about the inadequacy of the issue type of sunglasses, although he was aware that one particular type was found unsuitable (``people who come under my command tell me that there were complaints about that one there'' [pointing to one particular set of glasses]).

21. At the end of his evidence, I asked the witness:

``As far as you are aware, there were no other (complaints) in terms of defect? - No.

In your opinion, given your background and your involvement with motor cycles, are the present issue and the ones that were issued after that particular model, adequate for the purpose? - Yes.''

(tr p 38)

22. The respondent called no evidence. I have no hesitation in accepting the evidence of the applicant and his witnesses.

23. On the whole of the evidence, I am satisfied that the following has been established by the requisite standard of proof:

``(i) Patrolmen on motorcycles should, for their own safety, wear some form of protective glasses to shield them against debris, insects, glare and ultraviolet radiation;

(ii) conventional sunglasses, whilst adequate for most purposes, are less protective than the wrap-around type of glasses in dispute in this case when worn whilst on motorcycles;

(iii) conventional glasses - or rather the wings of same - cause headaches when worn beneath police helmets due to pressure. This feature seems to be particularly acute to this taxpayer, given the topography of his head and ears.''

24. My findings set out above produce the following results. Whilst ``ordinary'' sun- glasses may be said to protect predominantly against sunlight, and thus, arguably, have an essentially private character (although the medical evidence in this case suggests that patrolmen's eyes should, in any event, be protected, inter alia, against ultra-violet radiation; cf para 12 above), the glasses here in dispute have additional safety features for police patrolmen, going well beyond the hazards of glare and ultra-violet radiation. They cannot therefore be regarded as ``conventional clothing''; they are what is claimed for them - protective equipment no different from, say, welders' goggles or the clear plastic shield worn by dentists to protect their eyes from the detritus thrown up by their patients' caries. The expenditure on the instant wrap-around glasses, offering as they do, superior safety features than the sunglasses on issue, is thus, in a very real sense, incidental and relevant to the derivation of the applicant's income. It follows that the expenditure on such glasses is incurred in gaining or producing that income, and is not an expenditure of a private or domestic nature.

25. Even if I am wrong in the above, the fact that sunglasses available to this applicant cause him headaches, whereas the ones he purchased do not, is itself sufficient to enable him to deduct the cost; cf Case U124,
87 ATC 741, a case not readily distinguishable from the facts before me. In that case, a taxpayer working on a visual display unit for eight hours a day under fluorescent lighting, found that her eyes became sore unless she wore tinted glasses. She bought such glasses and wore them only when using the VDU equipment. As in this case, her claim for the cost of the glasses was disallowed at first instance by the Commissioner. On review, a Full Tribunal (R Balmford (Senior Member), JE Stewart (Senior Member) and HC Trinick (Member)) found that:

``If the applicant were to continue in the employment by which she gained assessable income without suffering discomfort, it was necessary for her to protect her eyes by wearing tinted glasses.... We find that the cost of the glasses was an outgoing incurred in gaining or producing the assessable income.''

(p 743)

26. It seems to me that if the respondent was dissatisfied with the reasoning in Case U124, he should have appealed it rather than seek to re- argue it before me. The only reason I have dealt with the facts in greater detail than would be normally required is that, in the event this matter goes further, an appellate court will be able to examine the issue with all the relevant evidence at its disposal. As to the law, it is with no disrespect to the two counsel who appeared before me that, given my findings of fact, I do

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not deal with the numerous cases relied on, beginning with
Amalgamated Zinc (de Bavay's) Ltd v FC of T (1935) 3 ATD 288; (1935) 54 CLR 295 and running smoothly on to
Lunney v FC of T (1958) 11 ATD 404; (1957-1958) 100 CLR 478 and
Lodge v FC of T 72 ATC 4174, and ending up with
FC of T v Cooper 91 ATC 4396.

27. In the result, the objection decision under review is set aside and the applicant's objection allowed in full.