John Sparks and Repatriation Commission - [2016] AATA 793

Sparks and Repatriation Commission (Veterans’ entitlements) [2016] AATA 793 (11 October 2016)

Division

VETERANS' APPEALS DIVISION

File Number

2015/5305

Re

John Sparks

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President I R Molloy

Date 11 October 2016

Place Brisbane
The decision of the Commission as varied by the Board is affirmed.
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Deputy President I R Molloy
Catchwords
VETERANS’ ENTITLEMENTS – pensions and benefits - whether condition defence-caused – whether bipolar disorder defence-caused injury or disease under the Act – whether within relevant period of clinical onset – decision of the Commission as varied by the Board affirmed.
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Hardman v Repatriation Commission [2004] FCA 1174.
Kaluza v Repatriation Commission [2010] FCA 1244.
Lees v Repatriation Commission (2002) 125 FCR 331.
Repatriation Commission v Cooke [1998] FCA 1717.
Repatriation Commission v Deledio (1998) 83 FCR 82.
Repatriation Commission v Hill (2002) ALD 581.
Repatriation Commission v Cornelius [2002] FCA 750.
Youngnickel v Repatriation Commission [2004] FCA 1691.
REASONS FOR DECISION
Deputy President I R Molloy
11 October 2016

On 11 June 2014 the Repatriation Commission (“the Commission”) refused Mr Sparks’ claim under the Veterans’ Entitlements Act 1986 (“the Act”) in respect of bipolar disorder on the ground no diagnosis was confirmed.
On 29 September 2015 the Veterans’ Review Board (“the Board”) varied that decision to include a diagnosis of bipolar disorder but otherwise affirmed the Commission’s decision. On 12 October 2015 Mr Sparks applied to the Tribunal for review of the Commission’s decision as varied.
ISSUES
The issues are whether Mr Sparks suffers from bipolar disorder being a defence-caused injury or disease coming within the Act.
FACTS
Mr Sparks was born on 19 January 1968. He was a member of the RAAF from 4 June 1985 to 16 February 1990. He was therefore seventeen when he joined. His service constitutes defence service for the purposes of the Act.
Mr Sparks gave oral evidence of experiencing three significant deaths in three months during his recruitment training in South Australia. These included a baby whose parents were friends of his parents, and with whom he stayed on weekends. He said he was not permitted to attend the funeral.
Mr Sparks gave evidence of bullying he experienced throughout his time in the service. He was first posted to Fairbairn, ACT, as an AC Cooks Assistant. His evidence was that he was subject to bullying and ridicule there from the section Warrant Officer.[1]
[1] Exhibit 1, T Documents, T 8, page 40, Statement by the veteran dated 14 March 2014.
In late 1986 Mr Sparks unsuccessfully applied to remuster as a cook. An assessment was that he was unco-operative at each of two interviews. Two of his superiors, including his Warrant Officer, were reported as describing him as a liability in the kitchen, irresponsible, immature and having a volatile temper such that they “were afraid he might do something stupid such as (eg throw knives) in the kitchen.”[2]
[2] Exhibit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading John Sparks and Repatriation Commission

Details

AGLC: John Sparks and Repatriation Commission [2016] AATA 793
Case: [2016] AATA 793
Decision Date: 11 October 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the claim of Mr John Sparks against the Repatriation Commission concerning his entitlement to a pension. Mr Sparks sought to establish that his bipolar disorder was a defence-caused injury or disease under the relevant Act, arising from his service in the Royal Australian Air Force (RAAF) between 1985 and 1990. The core of the dispute revolved around whether the onset of his condition occurred within the period stipulated by the Act following a recognised stressor.

The Tribunal was required to determine whether Mr Sparks' bipolar disorder constituted a defence-caused injury or disease. This involved assessing whether the condition's clinical onset fell within the relevant period following a Category 2 stressor, as defined by the Statement of Principles (SoP). The Tribunal also had to consider the evidence presented regarding Mr Sparks' experiences during his RAAF service, including allegations of bullying, significant personal losses, and the medical and psychological reports generated during and after his service.

Deputy President Molloy P reasoned that the material before the Tribunal did not demonstrate the clinical onset of bipolar disorder within six months of Mr Sparks experiencing a Category 2 stressor. Consequently, the hypothesis that the disorder was defence-caused could not be considered reasonable. The Tribunal affirmed the decision of the Repatriation Commission, as varied by the Board, which had refused Mr Sparks' claim.

Orders

Orders of the court

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Background

Background to the litigation

The issues are whether Mr Sparks suffers from bipolar disorder being a defence-caused injury or disease coming within the Act.FACTS Mr Sparks was born on 19 January 1968. He was a member of the RAAF from 4 June 1985 to 16 February 1990. He was therefore seventeen when he joined. His service constitutes defence service for the purposes of the Act. Mr Sparks gave oral evidence of experiencing three significant deaths in three months during his recruitment training in South Australia. These included a baby whose parents were friends of his parents, and with whom he stayed on weekends. He said he was not permitted to attend the funeral. Mr Sparks gave evidence of bullying he experienced throughout his time in the service. He was first posted to Fairbairn, ACT, as an AC Cooks Assistant. His evidence was that he was subject to bullying and ridicule there from the section Warrant Officer.[1] [1] Exhibit 1, T Documents, T 8, page 40, Statement by the veteran dated 14 March 2014. In late 1986 Mr Sparks unsuccessfully applied to remuster as a cook. An assessment was that he was unco-operative at each of two interviews. Two of his superiors, including his Warrant Officer, were reported as describing him as a liability in the kitchen, irresponsible, immature and having a volatile temper such that they “were afraid he might do something stupid such as (eg throw knives) in the kitchen.”[2] [2] Exhibit 1, T Documents, T 7, page 29, para 2, Service medical evidence: Psychology records dated 22 December 1986. The records contain a number of reports of Mr Sparks describing him in terms such as immature, self-opinionated and headstrong.[3] There were aspects of the reports with which Mr Sparks disagreed or which he thought did not disclose the full picture. [3] Exhibit 1, T Documents, T 7, page 36, para 2, Service medical evidence: Psychology records dated 14 Nov 1989. He did not dispute that he had been involved in fights. However he rejected any notion that he might be given to throwing knives or violence of that nature. He did not dispute that he was correctly reported as saying, in 1989, he was having increasing difficulty tolerating the RAAF environment and was trying hard to conform but always messes it up.[4][4] Ibid para 4. Mr Sparks had a hernia operation in February 1988. There were related problems for six or seven months which required him to take sick leave but remain on base. Further complications led to his having a testicle surgically removed in July 1989.[5] [5] Exhibit 1, T Documents, T 4, page 12, Service medical documents dated 15 Feb 1999. He said his condition was well-known on base. Mr Sparks said that in consequence he was subjected to what he variously described as light-hearted banter, ridicule, tormenting and taunts from other RAAF members. He said he did not react well to this conduct. He described his reaction in terms of gutted, bitter and paranoid. In 1989 Mr Sparks was referred for psychological support. Records and medical notes at that time do not include any reference to the conduct of the other RAAF members.[6] In oral evidence Mr Sparks said the matter was mentioned but the notes are not a complete record of what he said.[6] Exhibit 1, T Documents, T 7, page 26, Service medical evidence: Psychology records dated Sept 1989.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have had regard to all of the material. In my view the material does not point to the clinical onset of bipolar disorder within six months of Mr Sparks having a category 2 stressor within the SoP. Consequently the hypothesis cannot be described as reasonable. Therefore the claim must be refused. CONCLUSION The decision of the Commission as varied by the Board is affirmed.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2015/5305
Re	John Sparks
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President I R Molloy
Date	11 October 2016
Place	Brisbane