Benyk and Repatriation Commission
[2005] AATA 260
•29 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 260
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/18
VETERANS' APPEALS DIVISION ) Re MICHAEL BENYK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date29 March 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – war-caused condition of post-traumatic stress disorder – applicant claims he experienced severe stressors during operational service – reasonable hypothesis – decision affirmed
Veterans’ Entitlements Act 1986 ss 120, 120A
Statement of Principles Instrument No 3 of 1999
Statement of Principles Instrument No 54 of 1999REASONS FOR DECISION
29 March 2005 Senior Member WJF Purcell 1. This is an application for review of a decision of the Repatriation Commission (the Commission) of 19 July 2002, insofar as it rejected the applicant’s claim for payment of Disability Pension for the condition of post-traumatic stress disorder (PTSD). The Veterans’ Review Board (VRB) affirmed the decision on 13 November 2003.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents) together with exhibits tendered by the Commission. Mr Burnett was counsel for the applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist, Dr B Rowe, Psychiatrist and Mr B Koblyas, a former Naval colleague, as witnesses. Mr Doube appeared for the Commission, which called Captain H Stevenson, Historian, as a witness. Captain Stevenson gave evidence by way of telephone link-up.
3. The applicant, who is 60 years of age, was born in Germany, and came to Australia at the age of 4. After leaving school he commenced an apprenticeship with OTIS Elevators, but only completed six months before joining the Royal Australian Navy (the Navy). He served from 29 July 1963 to 28 July 1972. His last posting was as Petty Officer, HMAS Encounter, Adelaide. He has operational service on board HMAS Sydney (the Sydney), and HMAS Duchess (the Duchess), in Vietnam, as follows:
The Sydney 27 May 1965 to 26 June 1965
14 September 1965 to 18 September 1965
and operational service on board the Duchess and HMAS Hawk (the Hawk) in Malaya/Singapore/Brunei as follows:
The Duchess 20 September 1965 to 3 October 1965
26 October 1965 to 24 December 1965
4 January 1966 to 2 March 1966
The Hawk 3 August 1966 to 14 September 1966
4. The applicant maintains that his condition of PTSD was aggravated by his operational service, and the standard of proof is that of reasonable hypothesis in accordance with s 120 of the Veterans’ Entitlements Act 1986 (the Act), which, as far as is relevant for the purposes of this review, provides:
“120Standard of Proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) …
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
5. Section 120A of the Act provides:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
…”
6. The hypothesis propounded by the applicant is that the aggravation of his condition relates to his operational service, in that the traumatic events which he experienced during his relevant service connect the aggravation of his condition with his relevant service. His condition became materially worse, and has remained materially worse, as a result of the severe stressors he experienced during his operational service. In my view, the material before the Tribunal would, if correct, point to a hypothesis that the condition was war-caused. There are Statements of Principles in force, and in accordance with those Statements of Principles at least one of the factors set out in clause 5 of the respective Statement of Principles, must as a minimum exist, before it can be said that a reasonable hypothesis has been raised, connecting the aggravation of the condition with the circumstances of the applicant’s relevant service.
7. The appropriate Statement of Principles for the condition of PTSD is Instrument No 3 of 1999, as amended by Instrument No 54 of 1999 (the PTSD SoP). The applicant contends that Factor 5(b) of the PTSD SoP is satisfied:
"(b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder;"
“Experiencing a severe stressor” is defined as:
“… the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
8. Mr Burnett submitted in his opening address that the applicant experienced three severe stressors during his operational service, which can be described as:
(a)The Scare Charge Incident
The scare charge incident on board the Sydney in Vung Tau Harbour when the applicant was in the engine room, and a scare charge exploded. The percussion went through his body. He panicked, fearing for his life.
(b)The Duchess Incident
The incident where the Duchess collided with a junk in the Malacca Straits, and the crew had to pick up the survivors and their livestock and tow the damaged junk to Singapore.
(c)The Hawk Incident
An incident during the Indonesian confrontation on board the Hawk whilst it was docked at Singapore. Three bodies on stretchers were taken from a British minesweeper, and carried across the deck of the Hawk. This caused him anxiety and distress.
9. In the course of his final address, Mr Burnett said that as the applicant had not mentioned the Duchess incident to Dr Rowe, and both Dr Rowe and Dr Ewer said in evidence that this incident did not fulfil the definition of a severe stressor for the purposes of the legislation, the applicant was not pressing this aspect of his claim.
10. The Commission contends that at no time during his operational service, did the applicant experience a severe stressor, as defined in the PTSD SoP. He has tailored his evidence in line with the benefit he is seeking; he is not a witness of truth, and his evidence should not be relied on. Factor 5(b) therefore, is not met in this case, as a result of the applicant’s operational service. In addition, there is no evidence that any other factor in paragraph 5 of the PTSD SoP applies in this case, as a result of the applicant’s operational service.
11. The applicant gave lengthy oral evidence. He was an unimpressive witness. The inconsistencies in his oral evidence were legion, as were the inconsistencies in the histories he provided to medical practitioners. I formed the impression that he provided various conflicting versions of the circumstances surrounding the alleged stressors, depending upon the effect and benefit he wished to achieve by the history given. I do not accept that his “memory lapses” were a result of his PTSD, and that contradictory versions were due to his allegedly firmly held belief that at the time he made the statements, they reflected his recollection and understanding of the events at that time. I consider that the applicant has woven such a web that he was obliged to undertake such “mental gymnastics” in the course of his oral evidence, and that little of his evidence could be relied upon for its veracity. This does not mean that I reject the totality of his evidence, but that I choose to rely upon more acceptable evidence or testimony, in areas of dispute in the evidence.
12. The applicant’s former ship mate, Mr Kobylas, did his best to assist the applicant, but his oral evidence was vague and imprecise, when compared with his typewritten statement of 25 June 2004 [Exhibit A2]. He impressed me as having little independent recollection of the events to which he had deposed only some four months earlier. He was not an impressive witness, and his evidence was of little assistance.
13. I accept Captain Stevenson as a witness of truth, and prefer his evidence to that of the applicant in any area of dispute in the evidence. I found Drs Ewer and Rowe both suitably qualified and objective witnesses, who, of necessity, relied upon the veracity of the applicant’s statements in coming to their diagnoses and conclusions. I have taken this into account when deciding upon the weight to be given to their evidence and opinions.
14. The applicant gave evidence that he was serving on HMAS Voyager (the Voyager) when it was involved in a collision with HMAS Melbourne (the Melbourne) in 1964. He was also aboard the Melbourne when it collided with the USS Frank E Evans (the Evans) in Subic Bay in 1969. In about 1990 he attended a reunion of survivors of the Voyager, and subsequently attended also, a Voyager Reunion, at Jervois Bay. This, he said, was his first contact with the Navy since his discharge in July 1972. He said that when talking to former ship mates, he realised that his psychological problems were similar to those they were experiencing. A solicitor, Mr James Taylor, was taking a class action against the Navy for workers’ compensation, pursuant to the Safety Rehabilitation and Compensation Act 1988 (the 1988 Act), and he suggested that the applicant be assessed by Professor Raphael, the then Head of the Department of Psychiatry, University of Queensland, in Brisbane. Depending on her opinion, it could be appropriate for him to make a claim for compensation under the 1988 Act. The applicant says an appointment was arranged, and he purchased the return flight to Brisbane.
15. Professor Raphael provided a 12 page report on 14 March 1994 [T20/110-121], which reads, in part, as follows:
“…
Mr. Benyk said it was easy for him to talk about what had happened in relation to the “Voyager” since he saw his local doctor and was treated for anxiety. This treatment commenced about one year ago when he was on Buspar for six weeks after what was nearly a nervous breakdown. Mr. Benyk did not however, see a Psychiatrist. He said that things in his life have been better since then, although he did not attribute any of that experience to the “Voyager”. He said that particularly since talking with friends at the recent Reunion of “Voyager” survivors, he realises that the feelings he had and experiences over the years were very similar to theirs and that led him to acknowledge that there had been problems he had shut his mind to.
…
Mr. Benyk said that on the night of the collision, he had just come off duty. … He said he sat down on a mate’s bunk which was the bottom bunk, after having had a shower and started to look through a friends photo album. He said he didn’t hear the pipe but he felt an almighty crash and the ship healed over violently to starboard. Mr. Benyk said a bunk hit him in the back and junk and bodies crushed against him. He tried to get up but it was difficult because of the angle of the ship. The ship righted itself and people came down from above calling everyone to come to the upper deck. He got up to the Quarterdeck and looked to the starboard side and saw the “Melbourne” all lit up. Mr. Benyk said he then saw a ship sinking and thought it was a ship that they had hit. He said to another man, Frank Wilson, that it was “no wonder they’d stopped”. He then ran to the Chief’s base and couldn’t get forward as he was told to do and he couldn’t believe what he saw – there was twisted wreck and bodies everywhere. Mr. Benyk was requested by E.R.A. Rocher to lift part of the walkway off “Tug” Wilson the Sick Bay Attendant. Mr. Benyk went and got bandages etc., and was told to help people get out from under. He said there was one person near the edge as the ship floated up and down and Mr. Benyk pulled him up because he was afraid the man would drown – this man had no face left. This image comes back to Mr. Benyk’s mind repeatedly and is one of the things that is acutely distressing for him. Mr. Benyk was distressed and crying as he described this aspect of the incident.
Mr. Benyk said he pulled himself together and he helped get everyone away from the ship. He and some other men then went to the upper deck. The ship suddenly lurched a bit and it was then that Mr. Benyk got really frightened and thought the ship was going [to] sink. The Officers were trying to read how to get the life-boats open and they dropped one into the water and it went straight under the water. They were told to abandon ship and Mr. Benyk went over the side of the ship and got into a life-raft. Frank Wilson couldn’t swim and Mr Benyk told him to jump and he helped Wilson into the life-raft. They were then trying hard to push it away from the ship, afraid they would be sucked down with it. They couldn’t get away because the raft was tethered or caught up on the ship and eventually they got it free. Mr. Benyk said he had no thoughts in his mind at that time, he just acted automatically.
Mr. Benyk said his foot hit someone behind him in the water and he saw it was an Officer in his white uniform. He said he thought of sharks and this startled him and he got into the life-raft then and wouldn’t go back into the water. He said they were taken to the “Melbourne”, climbing up the grappling rope. As they got onboard he heard the announcement that the aft section of the “Voyager” was sinking and could be seen from the Portside. He went to see it.
Mr. Benyk was given some clothes and he then went to the hangar where there were some made-up stretcher beds. He said he had no thoughts in his mind until then and that it really didn’t hit him until the next day when an Admiral was walking amongst the men and stopped to talk to him. Mr. Benyk said he pulled a sheet over his head and cried and that after time he shut it all out of his mind.
Mr. Benyk was sent on Survivor’s Leave and went by train to Adelaide. He said he remembers having reservations during that time, about going back to sea. His father had been in the Polish Army during the war and told his son that he had a commitment and should fulfil it. Mr. Benyk said that on the way home to Adelaide he was drinking heavily but after that, didn’t continue to drink. He said he became a moderate drinker, however, he said he does have drinking binges when he vomits and has had times when he has had acute alcoholic poisoning, maybe three or four sessions on a regular basis.
… Mr. Benyk had his first trip to Vietnam on the “Sydney” and just prior to his second trip as an escort, he was transferred to the “Duchess” in mid-1965. This ship was the replacement ship for the “Voyager” and he was very nervous about this. They escorted the “Sydney” to Vietnam and left her at Singapore. Mr. Benyk went on the “Duchess” to [the] Borneo confrontation. It reminded him of the “Voyager” a lot. He ended up getting a special bed he could use to sleep on the upper deck and slept on it as much as he could. He never got along well with the other sailors and had a lot of rebellion as he didn’t want to go into the Engine or Boiler Rooms. When he did go down, he went into “B” Engine Room which was the farthest space from the centre of the ship and also allowed him to go up on deck. Mr. Benyk was on the “Duchess” until 1966 and received the Borneo Campaign Medal but saw no combat or dead bodies during this time.
…
In 1969 Mr. Benyk was posted to the “Melbourne”. He said he was a little nervous at first and even talked about not going but he saw his Divisional Officer and Chief, telling them about his problems with the Engine Room and they gave him the task of being Chief of the Watch. This involved going up and down checking water tanks. On one occasion he was about to go on duty when the “Melbourne” collided with the “Frank E. Evans” in Subic Bay. Mr. Benyk said he had just woken up and was semi-conscious when he heard the “hands to collision stations” pipe and then again “this is not an exercise, hands to collision stations”. Mr. Benyk said he jumped out of bed and there was a slight lurch like a little bump and then he raced to the locker to get his overalls and ran to his action stations. He said he could see the ship going past and he said he “cracked up” at this stage and didn’t want to go on the Watch anymore. Most of the time he spent on the upper deck. He was taken out of the hull and put on the Flight Deck and the Flight Deck Mess was just below and he felt better about this. He stayed on the “Melbourne” until 1970. He said some people envied him and thought he had a “cushy” job but he couldn’t help it, he had to do this to cope. He managed to get the bed closest to the door on the Mess Deck and this meant there was no other bunk above him.
…” [T20/110-113]
16. Professor Raphael was of the opinion that the applicant was suffering from PTSD, currently just meeting diagnostic criteria for this disorder, with clear evidence of traumatisation, in ongoing persisting post traumatic phenomena, which clearly related specifically to the Voyager incident. She concluded that there was no evidence of underlying psychiatric vulnerability, nor of any other stressor life experiences, which might have caused the applicant’s condition, and its phenomena and avoidance related specifically to the Voyager incident.
17. The applicant said in evidence that soon after receipt of Professor Raphael’s report he lodged a claim for compensation under the 1988 Act, for an emotional/behavioural condition attributable to the collision between the Melbourne and the Voyager. The Department of Veterans’ Affairs accepted the claim, and he received a lump sum payment of compensation.
18. The applicant said in evidence that he suffered a heart attack in 1991, and whilst working for the Crippled Children’s Association as the Human Resources Manager, he suffered a second heart attack in late 2001. His treating cardiologist, and his treating general practitioner, recommended that he cease work. He consulted his financial adviser, and with his private superannuation scheme he was financially able to retire in January 2002. He said that he decided then, to do some volunteer work with the Vietnam Veterans’ Association.
19. On 12 February 2002 the applicant lodged a claim for payment of Disability Pension for the conditions of hearing loss, attributable to exposure to severe acoustic trauma whilst in the Navy; hypertension, attributable to his drinking habit; ischaemic heart disease, attributable to drinking alcohol on joining the Navy, which also caused his hypertension.
20. On 3 April 2002 the delegate, Mr Fox, wrote to Dr Ewer regarding the applicant’s claim in respect of his hypertension due to excessive alcohol consumption. Mr Fox requested a diagnosis and assessment of the applicant’s psychiatric condition, the nature of the claimed condition and its relationship to service. He stated that he expected that any other factors impacting on the present or past mental status of the applicant would be identified, whether related to service or otherwise. He provided Dr Ewer with details of the applicant’s eligible service between 27 May 1965 and 14 September 1966, and stated the applicant had no accepted disabilities, but that his other known disabilities were “Deafness, IHD, Depression” [T11/77].
21. Dr Ewer reported on 18 June 2002, in part, as follows:
“…
HISTORY OF WAR SERVICE
Mr. Benyk joined the Royal Australian Navy in 1963 and he was discharged in 1972. In 1964 he went to Malaya and Borneo. In 1965 and 1966 he went to Vietnam and he once again went to Malaya and Borneo in 1966. He served on a range of vessels including the HMAS Sydney, the HMAS Duchess and the HMAS Hawk.
Mr. Benyk told me that he was exposed to a range of stressful experiences during his operational service. These experiences affected him both at the time and subsequently. The experiences Mr. Benyk spoke to me about were:
1.Mr. Benyk told me of an incident which took place in 1965. This incident took place on the HMAS Sydney. It occurred during the Sydney’s first trip to Vietnam. The HMAS Sydney was in Vung Tau Harbour. Mr. Benyk was below deck next to the bulkhead when he heard a very loud noise and felt a vibration. He was in the boiler room at the time and all the lights went out. Mr. Benyk immediately thought that the ship had been hit by a torpedo. Mr. Benyk was intensely frightened and he thought he was going to be trapped below deck. Consequently he ran to the deck and spoke to the Chief Regulator. He was reassured and told that a scare charge had been exploded. Mr. Benyk was still tremulous and anxious and he refused to go back below deck. Consequently he was taken to the sick bay where he was given an injection and he spent the rest of the day laying down.
2.Mr. Benyk told me of an incident which occurred in 1966 whilst he was on the HMAS Duchess. This occurred just near Malaya. There was a call “all hands to collision stations”. Mr. Benyk was in the engine room at the time. He once again felt frightened and anxious and wondered how big a collision was about to occur. Mr. Benyk felt only a slight bump as the Duchess collided with a junk.
PSYCHOLOGICAL EFFECTS OF SERVICE
Mr. Benyk experienced intense fear and feelings of helplessness during the events I have just described. He continued to feel anxiety after some of the events.
Mr. Benyk noticed a number of changes in himself after the events I have described. He felt anxious and he said “I had a short fuse”. Mrs. Benyk said that her husband was prone to temper tantrums and excessive worry. She also commented that he had a tendency to blame others. These were evident to her soon after she first met her husband.
Mr. Benyk continued to experience psychiatric difficulties. He experienced anxiety and depression. He was placed on antidepressants some time in the 1980s.
In 1992 Mr. Benyk had a myocardial infarction. He became more depressed and anxious after this. He was troubled by disturbing nightmares in which he saw himself drowning in the engine room below deck. In the late 1980s Mr. Benyk became suicidal and he was placed on various antidepressants. He was troubled by disturbing nightmares. Two months ago Mr. Benyk was placed on Luvox for depression and anxiety.
…
PAST PSYCHIATRIC HISTORY
Mr. Benyk smoked fifteen to twenty cigarettes a day prior to the subject stressors. He smoked twenty to twenty-five cigarettes a day after the subject stressors.
Mr. Benyk started abusing alcohol after the 1965 incident. Over the years he has had a binge pattern of drinking and this has been complicated by alcoholic poisoning.
Mr. Benyk first saw a Psychiatrist in the late 1980s. He is having ongoing therapy at the Vietnam Veterans’ Counselling Service and he has been seeing a Psychiatrist for the last couple of months. He has been prescribed a number of psychotropic medications over the years.
…
DIAGNOSIS
Mr. Benyk fulfils the DSM-IV criteria for the axis-1, psychiatric diagnosis of a Chronic Post-Traumatic Stress Disorder. He was exposed to a highly traumatic event in Vietnamese waters. These traumas evoked intense feelings of fear and helplessness. He has continued to re-experience the traumatic events in the form of nightmares and intrusive recollections. He has demonstrated persistent avoidant behaviour over many years. He experiences emotional numbing and he feels detached from others. He has persistent symptoms of increased arousal indicated by insomnia, poor concentration, hypervigilance and an exaggerated startle reaction.
Mr. Benyk’s Alcohol Dependence is in remission. This has been the case for some months.
THE RELATIONSHIP OF HIS PSYCHIATRIC CONDITIONS TO HIS WAR SERVICE
Mr. Benyk’s Post-Traumatic Stress Disorder is clearly and directly related to the traumatic experiences he was exposed to during his time in Vietnamese waters. There is a temporal relationship between the traumas described and the development of his Post-Traumatic Stress Disorder in the sense that the latter came on directly after the former. I also believe there is a causal link between the traumas and him developing a Post-Traumatic Stress Disorder because the latter condition focuses exclusively upon the traumas I have described.
I also believe Mr. Benyk’s Alcohol Dependence was due to his eligible service. Firstly, Mr. Benyk denied abusing alcohol prior to going to Vietnam. Secondly, there is a temporal relationship between the subject stressors and Mr. Benyk starting to abuse alcohol in the sense that the latter occurred directly after the former. Mr. Benyk also gives a clear history of using alcohol to cope with the distress he was experiencing after the incident in 1965. I note there is a high incidence of substance abuse in Veterans suffering from Post-Traumatic Stress Disorder.
…” [T14/85-88]
22. When the applicant saw Dr Ewer on 17 June 2002, he made no mention that he was a survivor of the Voyager collision, nor that he was on the Melbourne when it collided with the Evans, resulting in the death of 74 American sailors. He did mention the third alleged stressor, the “Hawk incident”, upon which he relies now, only in passing, and Dr Ewer regarded it as a minor event. He made no mention of the diagnosis of PTSD made by Professor Raphael some eight years earlier, nor of the lump sum compensation he had received. Dr Ewer said in evidence that the first he heard of the applicant’s time on the Voyager, was as he waited to give his oral evidence at the Hearing. The first he heard of the Melbourne/Evans event was when Mr Doube raised the matter in the course of his cross-examination.
23. The applicant said in evidence that at his interview with Dr Ewer, Dr Ewer asked him what stressors he had encountered during his operational service, and the applicant says he outlined those to Dr Ewer. He was not claiming PTSD, and Dr Ewer did not ask him about any other incidents that were not connected with his operational service. It did not occur to him, he says, that it was warranted to talk about the Voyager incident. When he put in his original claim, it was because he had stopped work on the advice of both his local general practitioner and his cardiologist, as a result of a heart attack, due to ischaemic heart disease, and not PTSD.
24. The applicant said in evidence that it was only because Dr Ewer associated his operational service with his PTSD, that Mr Fox, the Departmental delegate, and Mr Coxon, President of the Vietnam Veterans’ Association, suggested that the applicant lodge a claim for Disability Pension for the condition of PTSD. He would never have made the claim if it had not been for Dr Ewer’s report. The applicant lodged the formal claim on 15 July 2002, and says that Mr Fox told him how to fill in the application, which stated that the disability was PTSD, the signs and symptoms were “depression, flash backs/sleep disturbance, hyper-vigilance, suicidal thoughts”; that he believed his service caused, contributed to, or aggravated the disability, ie his “Vietnam – Malay/Borneo operational service”. He stated that he first became aware of the symptoms in 1965/66; and in relation to the question regarding diagnosis, the applicant stated “as per Marty Ewer’s report 18/6/2002” [T7/51]. In answer to question 27, as to how the disability affected his employment, he stated “unable to handle the day to day expectations/pressure of the job” [T7/54].
25. On 19 July 2002 the delegate, Mr Fox, rejected the claim for ischaemic heart disease, and also the claim relating to the condition of hypertension. Mr Fox was satisfied that none of the factors in the Statement of Principles applied in the applicant’s case. He stated:
“…
Dr Ewer has confirmed the presence of this condition and has outlined stressors which the veteran experienced during his service. None of the stressors listed meet the definition outlined in the appropriate Statement of Principles for “severe stressor”. I note however that Mr Benyk was on board HMAS Voyager at the time of her collision with HMAS Melbourne. This collision occurred outside Mr Benyk’s eligible periods of service.
…” [T18/103]
26. Dr Ewer said in evidence that as the applicant had not disclosed any prior severe stressors, nor previous psychiatric symptoms, despite Dr Ewer’s specific questions, he considered that the Sydney scare charge incident, as described to him by the applicant, was a severe stressor for the purposes of the Statement of Principles. It was an event which the applicant claimed caused more than worry or concern, apprehension or foreboding. It was a life changing event, one which had a profound effect on the applicant. Dr Ewer said that he was surprised that the applicant had not told Dr Raphael of the severe stressors he suffered during operational service, but only outlined those on the Voyager. He did not consider however, that such omissions in the history provided by the applicant were due to his PTSD. There could be other explanations.
27. The applicant provided Dr Rowe with a fuller description of events. He did not see Dr Rowe for assessment, but was referred by his treating general practitioner for treatment. Dr Rowe said in evidence that he has seen the applicant on 30 occasions since the first interview on 4 April 2002; and that it took him some six sessions, before he obtained the full story. It was at the interview on 4 June 2002, that the applicant provided Dr Rowe with Professor Raphael’s report. This interview took place 13 days before the applicant saw Dr Ewer, but as noted earlier in these Reasons for Decision, the applicant did not provide Dr Ewer with the report.
28. Dr Rowe said in evidence that he agreed with Professor Raphael’s opinion that the Voyager incident was the cause of the applicant’s PTSD. Dr Rowe had been told by the applicant that he had coped quite well until the scare charge incident on the Sydney, when he feared for his life for the first time. There was a sudden loud noise and vibration of the detonation; the force of the percussion shunted him against the evaporator. The applicant told Dr Rowe that he had not been forewarned that scare charges would be used, and he thought that the Sydney had been hit. He ran onto the deck and said “We’ve been hit”. He said that “the Chief” said “No, it was just a thunderflash going off” [T41/186]. He was so distressed that he was taken to the sick bay, and given an injection. He told Dr Rowe that he had not had difficulties working below decks at that time, but after the scare charge incident, he had a number of distressing dreams about the Voyager collision and related issues.
29. Dr Rowe said in evidence that the symptoms of the applicant’s PTSD developed after the scare charge incident aboard the Sydney, but they all relate back to the Voyager. The scare charge incident was an aggravation of a pre-existing predisposition, created by the exposure to the Voyager. He said that another explanation could be that the clinical onset of the PTSD caused by the Voyager, occurred many years later, after the scare charge incident, the Melbourne/Evans incident, and after the completion of Naval service.
30. In relation to the “scare charge incident”, Captain Stevenson reported on 15 September 2004 that he considered that the crew of the Sydney were aware of the ship’s destination, because Captain Crabb noted in the Sydney’s Record of Proceedings for May 1965:
“By this time, security breaches, newspaper speculation, and general activity in and around the ship resulted in rumour being rife amongst the Ship’s Company and on 7th MAY, I cleared lower deck and informed the ship’s Company that an operation was envisaged in the terms of A.C.N.B.’s message DTF (should be DTG) 070109Z …”. [Exhibit R1]
Captain Stevenson understood that this message contained the orders to take the ship to Vietnam with a military cargo.
31. Captain Stevenson said in evidence that the evaporators were located in the main machinery spaces and the auxiliary machinery space in the Sydney, as were the boilers and the main engines. It was a very noisy area with fans, fuel and water pumps in constant use. The fuel and water storage tanks would be full, and in use. As the ship was in an action situation, all these fluids would have to be topped up. They would have absorbed most of the force of a scare charge. If the applicant was attempting to lock the sea cock at the time of the explosion, the vibration from the scare charge would be very slight. Captain Stevenson said in evidence also, that during the Sydney’s time in Vung Tau Harbour there were lighters alongside, working cargo, and thus, in his view, scare charges would have been dropped some distance from the ship. It was highly improbable they would be thrown from the deck of the Sydney.
32. In relation to the Hawk incident, Dr Rowe, in his report of 18 September 2003, outlined the applicant’s version of events as follows:
“…
Mr Benyk said that he later served on HMAS Hawk, which he said was a minesweeper that was involved in the Malaysian – Indonesian confrontation. Mr Benyk said that the Hawk was often in “a high state of readiness”. Mr Benyk said that the crew of HMAS Duchess were often required to do “stop and search” duties. Mr Benyk said that this involved them inspecting papers and searching persons travelling in what appeared to be civilian vessels. Mr Benyk said that the British vessel, HMS Huntington, was on duty doing similar work in the same area. Mr Benyk said that at one stage an explosion occurred on the upper deck of the Huntington, injuring five persons and killing three. Mr Benyk said that the wounded and dead were then brought across the deck of HMAS Hawk. Mr Benyk said this “brought home that it was real … it sunk home that it wasn’t a picnic … you realized that you could get killed at any time … it could happen to us”. Mr Benyk said “I generally felt scared … I felt that my life was in danger … seeing the dead bodies was something that really set me off … especially the image of the guy with no face (whom he had seen the night of the Voyager collision)”. Mr Benyk said that the bodies were covered by sheets when they were taken past him.
…” [T41/186-187]
33. Dr Rowe said in evidence that the applicant’s description of the event was vivid. He told Dr Rowe in late July/early August 2002 that he actually knew the five injured and three dead British sailors, and that the wounded and the dead were brought across the deck of the Hawk. He told Dr Rowe that his symptoms got “really bad” while he was on board the Duchess, but that what pushed him “over the edge”, was the incident on the Hawk.
34. An examination of the documentary evidence discloses that at T22/127, being the applicant’s application to the VRB for review of the Commission’s decision, he stated:
“I believe my P.T.S.D. was clinically worsened by my trips to Vietnam especially the trip on the sister ship to HMAS Voyager, namely HMAS Duchess. Before these trips I had no symptoms what so ever.”
He said in evidence that the incident on the Duchess “was the one that tipped me over the edge”. He has now, through his counsel, abandoned the Duchess incident as a “severe stressor”, for the purposes of this application.
35. Captain Stevenson reported on 14 October 2004, in part, as follows:
“…
25. No record of the incident aboard HMAS HAWK has been found. Reference was found to HMS DARTINGTON. This could be the ship the claimant recalls taking the place of HMAS HAWK on patrol. There was an incident in NOVEMBER 1964 when three occupants of a sampan, called alongside the minesweeper HMS FISKERTON, tossed hand grenades into the minesweeper and opened fire with a Sten gun. The occupants of the boat were killed by return fire: there were no casualties in the minesweeper.
In the Report of Proceedings of HMAS HAWK, for AUGUST 1966 it is stated at
Para 3 “---On the return passage the Port Main Engine had to be shut down rapidly with suspected piston failure. This was subsequently confirmed by base staff who informed me that the cause was metal fatigue, and arrangements were made for a replacement engine.
Para 4. “HAWK remained alongside at Singapore Naval Base for a base Maintenance Period from 11th – 15th AUGUST.”
26. The incident has been discussed with the officer who was in command of HMAS HAWK up until 8th SEPTEMBER 1966 and, though he has written a book about his time in this posting, he has no recollection of the incident. It is for consideration that if the event had occurred with-in a week of his relief, he would have been aware of it.
…” [Exhibit R1]
Captain Stevenson’s oral evidence was to the same effect.
36. I do not intend to outline in any further detail the contradictions in the applicant’s various versions of this event, given in his oral evidence, and in his evidence at the VRB Hearing. Suffice it to say, I am satisfied on the evidence, beyond reasonable doubt, that the alleged “Hawk incident” did not occur in the manner alleged by the applicant.
37. In relation to the “scare charge incident”, I accept Captain Stevenson’s evidence that it was most unlikely that scare charges would have been dropped from the deck of the Sydney, but that in any event the noisy equipment in the machinery space, and the fuel and water storage tanks would have absorbed most of the force of a scare charge. The applicant described the aftermath of the event, at the VRB Hearing, in part, as follows:
“…
MR PARK: Now, how long do you say it took you to find out that they were scare charges, in other words, how long did it take you to go and speak to the chief?
MR BENYK: Well, as soon as I go[t] up it would have been, as soon as I got to the upper deck because I went straight from the upper deck straight up top and I went straight to the regulating chief and I said: what’s going on?, and he turned around and said: they’re just – but I said: I’m not going. He said: go back there and finish it off, and I said: no, I’m not going down there, and I was shaking. So they ended up escorting me to the sick bay where they gave me an injection and I laid down for something like, I don’t know, 8 or 10 hours, all right, on my own bunk.
MR PARK: An injection of what”
MR BENYK: I don’t know what it was, just to calm me down.
MR PARK: So how long did it take you to speak to the chief?
MR BENYK: Just a couple of minutes after I got out the top. I was basically standing up there and the first thing I was doing was having a cigarette and someone came up – no, that is right, someone came up to me and said: what are you doing up here? And I said: we’ve been hit, haven’t we? And he said: no, no, no, no.
MR PARK: So you were standing there having a cigarette by yourself - - -
MR BEYK: Yes.
MR PARK: - - - when someone came up and said: what are you doing? And you said: we’ve been hit.
MR BENYK: Yes, that is right.
…” [Exhibit R2/13]
38. In his statement of 22 April 2004 [Exhibit A1] the applicant said that the Chief ERA followed him on to the boat deck, and grabbed him by the shoulder. The applicant screamed that they had been hit. The Chief ERA said that they were safe, that it was only a scare charge, and offered the applicant a cigarette. He recalled smoking many cigarettes in succession before being taken to the sick bay. The applicant said in evidence that in the days that followed the incident he discussed scare charges with others on board, that they thought he was odd, but that they did not know about his background on the Voyager. He said that once you know what scare charges are, you do not worry – “they are no threat”.
39. On my view of the applicant, and on an examination of the whole of the evidence, I am satisfied on the evidence, beyond reasonable doubt, that the alleged “scare charge incident” did not occur in the manner in which it was described by the applicant. It could not be regarded as an event involving “actual or threat of death or serious injury …” in accordance with the definition of a “severe stressor” in the PTSD SoP.
40. I am satisfied on the evidence, and find as a fact, that the applicant did not suffer a “severe stressor” during his operational service, and that factor 5(b) of the Post-Traumatic Stress Disorder Statement of Principles is not satisfied.
41. In my opinion, the material before the Tribunal does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. I am satisfied on the evidence, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant’s condition of post-traumatic stress disorder was war-caused.
42. For these reasons the Tribunal affirms the decision under review.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDates of Hearing 26/27 October 2004
Date of Decision 29 March 2005
Counsel for the Applicant Mr A Burnett
Solicitor for the Applicant Lempriere Abbott McLeod
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
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