Fenner and Repatriation Commission
[2006] AATA 766
•8 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 766
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2005/7
VETERANS' APPEALS DIVISION ) Re JUERGEN KLAUS FENNER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC
Ms M J Carstairs, MemberDate8 September 2006
PlaceBrisbane (heard in Darwin)
Decision The decision under review is affirmed.
................Signed..............
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – disability pension – claim that post traumatic stress disorder and alcohol abuse were war-caused – satisfied to reasonable satisfaction that applicant does not suffer post traumatic stress disorder – consideration of Statement of Principles – scare charges – full steam ahead incident – satisfied beyond reasonable doubt that events relied upon were not severe stressors – satisfied beyond reasonable doubt that alcohol abuse was not war-caused - Tribunal affirms the decision under review
Veterans’ Entitlement Act 1986 ss 120(4), 196B(2)
Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622
Mines v Repatriation Commission [2004] FCA 1331; (2004) 86 ALD 62
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Constable [2006] FCAFC 102
Fox v Percy (2003) 214 CLR 118
REASONS FOR DECISION
8 September 2006 Deputy President P E Hack SC
Ms M J Carstairs, MemberIntroduction
1.Mr Juergen (Joe) Fenner enlisted in the Royal Australian Navy on 13 October 1965 at the age of 15½ years. He was discharged on 11 November 1969.
2.Between April 1967 and June 1968 Mr Fenner made seven trips to South Vietnam as a stoker on HMAS Sydney. Mr Fenner says that as a consequence of this service he developed post traumatic stress disorder and alcohol abuse.
3.The issues that we must decide are whether Mr Fenner suffers from post traumatic stress disorder and/or alcohol abuse and, if he does suffer from either or both of these conditions, whether they are war-caused.
4.Mr Fenner first made his claim for a disability pension under the Veterans’ Entitlement Act 1986 in April 2001. The claim was refused by the Repatriation Commission in August 2001. That decision was affirmed by the Veterans’ Review Board in September 2002 and by this Tribunal (differently constituted) in April 2004.[1] Mr Fenner succeeded in an appeal from that decision to the Federal Court[2] and, on 2 February 2005, that Court set aside the Tribunal’s decision and remitted the matter for rehearing.
[1] See [2004] AATA 368
[2] See [2005] FCA 27; (2005) 218 ALR 122
The Proper Diagnosis
5.The first issue is that of the proper diagnosis. In considering this issue we are to apply the standard of proof prescribed by s 120(4) of the Act, that is, to our reasonable satisfaction.[3] There is controversy, to which we shall return, regarding the diagnosis of post traumatic stress disorder and alcohol abuse/dependence. But each of the psychiatrists that have seen Mr Fenner – Dr Parker, Dr Kenny and Professor Goldney – are agreed that Mr Fenner suffers from the condition known as antisocial personality disorder. The relevance of that diagnosis appears in a passage from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, published by the American Psychiatric Association. At paragraph 301.7 of that work, in the description of the diagnostic features of antisocial personality disorder, the following appears:
Because deceit and manipulation are central features of Antisocial Personality Disorder, it may be especially helpful to integrate information acquired from systematic clinical assessment with information collected from collateral sources.
[3] See Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 at paragraphs [54]-[55]
6.There is in force in relation to each of post traumatic stress disorder and alcohol abuse/dependence a Statement of Principles made by the Repatriation Commission Medical Authority under s 196B(2) of the Act –
Instrument No 3 of 1999 (as amended by No 54 of 1999) in relation to the former and No 76 of 1998 in relation to the latter.
7.Unusually for psychiatric disorders, post traumatic stress disorder requires that there be an event of a particular character that gives rise to particular symptoms. Using words taken from DSM-IV at paragraph 309.81, what is required is that:
The person has been exposed to a traumatic event in which both of the following were present:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others
(ii) the person’s response involved intense fear, helplessness, or horror…
8.In the present case there is a real controversy as to whether Mr Fenner was exposed to a traumatic event that answered that description and as to whether he had that response. That controversy is heightened because Mr Fenner suffers from a condition that has deceit and manipulation as central features. And because there is that controversy we must be reasonably satisfied that the traumatic events that Mr Fenner claims caused his post traumatic stress disorder did, in fact, occur before we can reach a conclusion that Mr Fenner suffers from post traumatic stress disorder.[4]
[4] See Mines v Repatriation Commission [2004] FCA 1331; (2004) 86 ALD 62, at para. [48].
9.In considering the issue of diagnosis we have the benefit of having reports, and oral evidence, from the three psychiatrists who have seen Mr Fenner over recent years.
10.Mr Fenner first saw a psychiatrist in relation to the matters presently in issue in July 2001. He was seen on that occasion by Dr Parker. Dr Parker has seen Mr Fenner on a number of occasions since then for the purposes of treatment. We have Dr Parker’s reports of 30 July 2001 and 13 September 2005 although the latter does not touch upon matters of diagnosis. Dr Parker originally diagnosed post traumatic stress disorder and remains of the view that that is the correct diagnosis.
11.Dr Kenny saw Mr Fenner in August 2005 at the request of Mr Fenner’s solicitors. He prepared a report dated 31 August 2005 in which he diagnosed severe post traumatic stress disorder.
12.Finally we have reports dated 23 January 2006, 16 March 2006 and 27 March 2006 from Professor Goldney. Professor Goldney examined Mr Fenner on 12 January 2006 at the behest of the respondent. He examined, as well, an enormous amount of material of a historical nature concerning Mr Fenner and his background. Professor Goldney did not consider that Mr Fenner was suffering from post traumatic stress disorder.
13.In our view the evidence of Professor Goldney is to be preferred on the question of diagnosis. We reach that view for three reasons.
14.First, in our view, the material provided to Professor Goldney put him in a position of marked advantage over the other psychiatrists. He had access to, (and Dr Parker and Dr Kenny did not), Mr Fenner’s disciplinary history in the Navy and probation and parole reports on him from the early 1970’s. That material gave Professor Goldney an insight into the contemporaneous views of professionals. Professor Goldney placed particular reliance upon the report of a psychiatrist, Dr Ellison, who assessed Mr Fenner in November 1970 for the apparent purpose of a pre-sentence report to the District Court of Western Australia. Dr Ellison said of Mr Fenner that:
…he was quite co-operative and discussed his various problems with ease and without any undue embarrassment. I could not find any gross psychiatric abnormality with him …
15.Professor Goldney says of that report:
It is important to note that Mr Fenner was assessed by a psychiatrist, Dr Ellison (19/11/70) in 1970, and no symptoms of what we would now diagnose as a post-traumatic stress disorder were documented at that time. If one was postulating that a specific war-related syndrome could have led to the markedly disrupted life history that Mr Fenner presents, I consider that there would have been at least some indication of that psychiatric disorder at that assessment.
In our view that comment is apt. On the account of events given by Mr Fenner he experienced events during his service on HMAS Sydney that were sufficiently traumatic to bring about post traumatic stress disorder. Were that to be so we would have thought that the matters that Mr Fenner complains of would have been mentioned to, or remarked upon by, one or more of the psychologists, the psychiatrist, the social work student or the parole officer who saw him and prepared reports in 1970 and 1971. Yet their reports make no mention of any of the traumatic experiences that Mr Fenner later recounted to Dr Parker, Dr Kenny and Professor Goldney.
16.The second reason for our preference for Professor Goldney’s opinion is that he was able, because of the greater material available to him, to subject Mr Fenner’s account to more critical analysis than was possible by Dr Parker and Dr Kenny. Both Dr Parker and Dr Kenny agreed that, in light of the diagnosis of anti-social personality disorder, it would have been helpful to have objective corroboration of what Mr Fenner said in relation to his claimed condition of post traumatic stress disorder.
17.Each of the three psychiatrists acknowledged that an accurate diagnosis, particularly of post traumatic stress disorder, is very much reliant upon the accuracy and reliability of the history provided by the patient. And where, as here, deceit and manipulation are central features of the condition suffered by the patient there is a heightened need to consider the history given by reference, where possible, to collateral sources. We should say immediately, that neither Dr Parker nor Dr Kenny were given access to the vast array of material available to Professor Goldney.
18.One example, distinct from the issues said to amount to the traumatic events, will suffice to illustrate the point. Mr Fenner’s first trip to South Vietnam was in April 1967. When he saw Dr Kenny in August 2005 he told Dr Kenny that he had applied for a discharge from the Navy immediately after his first trip to South Vietnam. He did so, he told Dr Kenny, because he was frightened in the environment of the engine room of HMAS Sydney and did not want to go back to Vietnam. However there is a document that dates back to March 1969 when Mr Fenner was in the process of applying for a discharge that suggests that he had not, in fact, earlier applied for a discharge.
19.Despite the submissions of Mr Piper, the solicitor for Mr Fenner, it is our view that the only sensible way to read this document is that the author, who appears to have been a psychologist named Bramich, was recording what Mr Fenner had said when the notation “Hasn’t previously applied for discharge …” was made.
20.We conclude that, contrary to his evidence and to the history given by Mr Fenner to Dr Kenny, Mr Fenner did not request a discharge from HMAS Sydney after his first trip.
21.This particular matter was raised with Dr Kenny in cross-examination by Ms Maharaj QC who appeared for the Commission. Dr Kenny said of it that:
It raises the question as to whether his time in Vietnam was as significant and distressing to him as he claimed.
He also said that it had “potential significance” for his diagnosis of post traumatic stress disorder. The matter was not raised with Dr Parker directly as he appears not to have been given a history that included a request for discharge after Mr Fenner’s first trip to Vietnam. We infer however from Dr Parker’s evidence of the need for reliance on an accurate history, that his response to a demonstrated untruth would have been similar to that of Dr Kenny.
22.The third reason that we prefer Professor Goldney’s opinion is because we share his concern with the issue of the events that were said to be traumatic. As we have observed, a diagnosis of post traumatic stress disorder requires, in the circumstances of this case, exposure to a traumatic event that involves (a) experiencing an event that involved a threat of death or serious injury, and, (b) a response that involved intense fear, helplessness or horror.
23.Professor Goldney expressed doubts, which we share, about the veracity of Mr Fenner’s account of the events that satisfy element in paragraph (a). But more importantly he was concerned, as a diagnostician, with the reaction of Mr Fenner, that is, the element in paragraph (b). He took the view that Mr Fenner’s description of his reaction did not satisfy the necessary test. He said:
…it was partly the way in which he described [the scare charge incident] in the interview situation. There did not appear to be any specific emotion associated with it.
24.On the view that we take of the claimed traumatic events Professor Goldney’s reservations about Mr Fenner’s account of those events are entirely warranted. For reasons that we will set out more fully we do not accept the evidence that Mr Fenner has given on this aspect of the matter. We are not satisfied, on the balance of probabilities, that the traumatic events claimed by Mr Fenner involved a threat of death or serious injury nor are we satisfied that Mr Fenner had a response that involved intense fear, helplessness or horror. Our reasons for reaching that conclusion are set out below when we discuss the fourth Deledio step in the context of alcohol abuse.
25.We consider that Professor Goldney was correct, as a matter of diagnosis, in doubting the history given by Mr Fenner and his claimed reaction to the events in it.
26.We should not want it thought that we intend, by preferring Professor Goldney’s evidence to that of Dr Parker and Dr Kenny, any criticism of those doctors. As we have sought to emphasize those doctors did not have the very considerable benefit of the enormous amount of historical material that was provided to Professor Goldney and which allowed him to seek to independently verify the matters claimed by Mr Fenner. We rather think that if Dr Parker and Dr Kenny had had the same opportunity they may have reached a similar conclusion.
27.But the result is that we are satisfied by the evidence before us that Mr Fenner does not suffer from post traumatic stress disorder.
28.We mention, for the sake of completeness, that Mr Piper abandoned any reliance upon the condition of antisocial personality disorder as one that was war-caused. It is not then necessary for us to pursue that aspect of the matter further, beyond perhaps observing that the concession that a connection with war service was not open on the evidence was rightly made.
29.Finally we note that it is accepted by all the psychiatrists that Mr Fenner suffers from alcohol abuse or dependence. There is thus no dispute that diagnosis of alcohol abuse or alcohol dependence is appropriate. The issue is whether it is war-caused.
War-Caused Condition
The Deledio steps
30.In the circumstances of this case where Mr Fenner has rendered operational service the issue of whether his alcohol abuse or alcohol dependence was war-caused is to be decided by reference to the four step process identified in Repatriation Commission v Deledio (1998) 83 FCR 82 at pp 97-98.
31.The first step requires us to consider all the material and to determine whether that material points to an hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Fenner. The hypothesis advanced in final submissions by Mr Piper was that Mr Fenner was exposed to a number of severe stressors[5] – which we will describe in short hand terms as the scare charges and the full steam ahead incident – in the two years immediately before the clinical onset of alcohol abuse. Alternatively, it is said that Mr Fenner was suffering a psychiatric condition (post traumatic stress disorder) at the time of clinical onset of alcohol abuse.
[5]In the case as originally formulated in the applicant’s statement of facts, issues and contentions the applicant relied upon the fact of being moored in Vung Tau Harbour as being a stressor; subsequently this was varied to reliance to the events of the Tet Offensive whilst in Vung Tau Harbour. In any event Mr Piper, in the course of final submissions, abandoned reliance upon this event as being a stressor.
32.The alternative hypothesis may be shortly disposed of. As we are satisfied that Mr Fenner does not, and did not, suffer from post traumatic stress disorder, the material before us does not point to such an hypothesis.
33.The material does however point to the hypothesis related to severe stressors.
34.As we have noted there is a Statement of Principles for alcohol abuse.
35.The third step requires us to form an opinion whether the hypothesis raised is a reasonable one, that is to say, whether the hypothesis fits, or is consistent with, the template to be found under the Statement of Principles.
36.Paragraph 5 of the Statement of Principles for alcohol abuse or alcohol dependence sets out the factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting alcohol abuse with the circumstances of a person’s relevant service. The factor relied upon here is that in paragraph 5(b):
experiencing a severe stressor within the two years immediately before the clinical onset of alcohol … abuse …
37.The expression “experiencing a severe stressor” is defined in the first subparagraph of paragraph 8 of the Statement of Principles as meaning that:
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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
The second subparagraph of paragraph 8 goes on to nominate, in a non- exhaustive way, events that may qualify as severe stressors in the setting of service in the defence forces. They include, relevantly, (i) threat of serious injury or death and (ii) engagement with the enemy.
38.In Repatriation Commission v Constable [2006] FCAFC 102 the Full Federal Court (Spender, Weinberg and Edmonds JJ) described this definition as “ambiguous”. Their Honours went on, at para. [47], to say:
… the better view is to regard the second subpar as defining events which, if experienced, qualify as “experiencing a severe stressor”.
39. We turn then to consider the particular events relied upon by Mr Fenner.
40.What we have described as the scare charges relates to Mr Fenner’s service as a stoker in the boiler room on HMAS Sydney. That service involved duties below the waterline. Mr Fenner described occasions when HMAS Sydney was in port when scare charges – small explosive devices – were detonated in the water adjacent to the vessel to deter potential underwater saboteurs. These charges, he says, were extremely loud and caused vibrations in the hull. They caused in him intense fear and helplessness because, he says, he did not know whether the ship was about to be sunk. An incident that occurred whilst HMAS Sydney was berthed in Vung Tau Harbour during the Tet Offensive is particularly relied upon.
41.The full steam ahead incident was one where, in about February 1968, the order was given to proceed full steam ahead. Mr Fenner was below the waterline. He says that he believed that the order for full steam ahead had been given because a submarine had been detected. He says that he experienced intense fear and helplessness because he believed that the ship might be subject to a torpedo attack.
42.In our view the scare charges incident and the full steam ahead incident are events that, in the circumstances of Mr Fenner, are each capable of fitting within the definition of experiencing a severe stressor. They are both events that, on Mr Fenner’s case, involved an apparent threat of death or serious injury to him and which, on that case, evoked fear and helplessness in him. Accordingly, in our view, step three is satisfied so far as these incidents are concerned.
43.It is now necessary to consider the fourth step in Deledio and to determine whether we are satisfied beyond reasonable doubt that Mr Fenner did not experience a severe stressor within the two years immediately before the clinical onset of alcohol abuse.
44.We should start by saying that, whilst the evidence is not entirely clear, we proceed on the footing that the clinical onset of alcohol abuse followed within two years of Mr Fenner’s service in Vietnam. There is some material that suggests that his drinking to excess coincided with his joining the Navy and thus preceded his operational service however we think it more likely that Mr Fenner commenced abusing alcohol after the commencement of his operational service.
The credibility of Mr Fenner
45.It is also appropriate that we record at the outset that we regard Mr Fenner as a most unsatisfactory witness. We reach this conclusion, not on a basis of any particular perception of his demeanour, but rather on the basis of “contemporary materials, objectively established facts and the apparent logic of events”.[6]
[6] See Fox v Percy (2003) 214 CLR 118 at para. [37].
46.In the present case the factors that compel us to the conclusion that Mr Fenner is not to be believed are numerous. We list those that we particularly rely upon.
47.First, it is the fact that he has been diagnosed with antisocial personality disorder, a condition that has deceit and manipulation as central features of it.
48.Next, we observe, as did Professor Goldney, that the events and incidents of which Mr Fenner complains are not referred to in any of the material from 1970 and 1971. We would have thought that if Mr Fenner had experienced the events of which he now complains, reference would have been made to those events in one or other of the reports prepared by the psychiatrists, the psychologists, the social work student or the parole officers. No mention is made of any of these events. Similarly the papers in connection with Mr Fenner’s discharge from the Navy are devoid of reference to these events.
49.If, as Mr Fenner says, the events of his service were stressful and traumatic we would have expected there to be some reference to these matters in the contemporaneous material; perhaps by way of explanation for the request for discharge from the Navy, perhaps by way of explanation in mitigation of the criminal offences in issue in the pre-sentence report and the other reports of the time. But they are entirely silent on these matters.
50.We have already made reference to our conclusion that Mr Fenner’s claim to have requested to discharge from the Navy on return from his first visit to South Vietnam is false.
51.Finally, we are influenced in our views of Mr Fenner’s credibility by the numerous variations and inconsistencies in the accounts given by him and by the sheer illogicality of much of what he says. It seems convenient to examine those matters by reference to the events said to constitute the traumatic events.
Scare Charges
52.It is not in issue that scare charges were used when HMAS Sydney was berthed in South Vietnam. And it is not in issue that, on occasions, they may have been detonated closer to HMAS Sydney than they ought to have been, causing more noise and shock than expected. What is in issue is Mr Fenner’s claimed response to them. His case is that they caused him intense fear and helplessness because he did not know whether the ship was about to be sunk.
53.Mr Fenner made seven trips to South Vietnam on board HMAS Sydney. His first account of the nature and effect of scare charges appears to have been given to Dr Parker in about July 2001. Dr Parker recorded this account:
Because of concerns about the destruction of the ship by the Viet Cong, “scare charges” were dropped from the ship to scare off the enemy saboteurs. Mr Furness [sic] said that when he initially heard these charges he was performing duties in the engine room and the charges took him by surprise. He said that he was significantly alarmed because he did not know what the charges represented, feeling that this may be an attack on the ship.
54.In the hearing before the Veterans’ Review Board Mr Fenner was asked about this experience and said:
Well, there was a few but the one I remember was the beginning of ’68. That is when the Tet started, and I can remember sitting on a … and watching the fire going – all the shooting going over the land, and then my watch come and I had to go down and, well, you can hear – they don’t tell you what they are going to drop or something.
All this bang, bang, bang going around while you are downstairs in the hold.
Mr Fenner said that he had been aware from previous trips of scare charges but, on those occasions:
… I didn’t see the shooting and all that. The Tet offensive wasn’t on then, was it? There were three other [trips] before that. How was I not to know that they were going – they were shooting at us.
Mr Fenner subsequently gave more detail of the events of the Tet Offensive that involved him observing “planes and choppers … and then you seen napalm getting dropped”. He described mortars and napalm landing about 1100 or 1200 yards from the shore.
55.The thrust of his evidence before the Board seemed to be that his observations of the events of the Tet Offensive meant that when he heard scare charges he thought that HMAS Sydney was under attack as an extension of the conflict that he said he observed ashore.
56.Subsequently, Mr Fenner provided a statement of his evidence for the purposes of the first hearing in the Tribunal. He referred generally to scare charges and then said of one particular occasion:
It was so loud and terrifying (I could feel the hull shudder) that I thought we had been hit. I nearly fell of [sic] the platform. I believed that the hull was hit and we were all going to drown and I just wanted to get out of the boiler room but couldn’t.
But he did not, in the statement, suggest that this particular incident had occurred during the Tet Offensive. In his evidence to the Tribunal on that occasion Mr Fenner spoke of this incident but did not associate it with the Tet
Offensive.
57.When the matter came on for hearing before us Mr Fenner said that this incident occurred on the trip that coincided with the Tet Offensive. In cross examination Mr Fenner confirmed that this incident “was the scariest” and he had thought that on that occasion “we were getting shelled from the shore”. Mr Fenner then gave this evidence:
Did you ask anybody as to what the incident was?---No, I didn’t, not - I can’t remember, but I don’t think so. I don’t know.
But you’re telling this Tribunal that it frightened you?---Yes.
Quite a lot?---It scared the hell out of me.
Well, did you go and ask anybody as to what - - -?---I don’t remember.
You don’t remember asking anybody what that was all about?---No, I don’t. I thought it was - we were getting shelled.
So even though you thought you were getting shelled, the hull of the vessel was vibrating and you were frightened, you didn’t check what that was all about; or are you saying to the Tribunal that you can’t remember as to whether you checked what that was all about?---Well, I don’t know.
58.We find it inconceivable that Mr Fenner would experience an incident of this gravity and be unable to recall whether he had ascertained the cause of the noise. It is inconceivable to us that he would not have found out urgently what had happened if, in truth, he had believed that the ship had come under attack. We conclude that his professed lack of recall is feigned and that he claimed the lack of recall because, had he enquired, he would undoubtedly had been told that the noise was from a scare charge. Moreover while we are able to accept that the first occasion or even the first few occasions of hearing explosives may be surprising, even frightening, it cannot be that the explosions would continue to produce fear after being experienced over and over on Mr Fenner’s seven trips.
59.Mr Fenner’s evidence waxed and waned on the question of whether this incident occurred on the February 1968 trip, that which coincided with the Tet Offensive. That, of itself, suggests to us that he is fabricating the details of his evidence. But the visit that coincided with the Tet Offensive was Mr Fenner’s fifth trip. He must, by then, have become quite accustomed to scare charges.
60.Moreover Mr Fenner’s evidence of his reaction to the noise is quite unconvincing. His reaction went from one of being “significantly alarmed” when he spoke to Dr Parker to being in fear of his life when he provided the written statement for the first hearing in the Tribunal. Before us he described the experience as one that “scared the hell” out of him.
The Full Steam Ahead Incident
61.Mr Fenner’s account of this event tended to vary according to the evidence put forward by the Commission to rebut it. We make it plain that we do not criticise Mr Fenner for an inability to nominate precisely the trip when this incident was said to have happened. Nor do we criticise him for being unable to say, with any degree of certainty, whether the incident happened on the way to, or from, South Vietnam. It is, we think, understandable that Mr Fenner cannot distinguish one trip from any other of the seven trips and that trips tended to be viewed as a whole. But we do have difficulty when he nominates particular dates and then changes them. And we have difficulty with his recounting of the detail of the event.
62.The first account recorded was that provided to Dr Parker. His report of 30 July 2001 gives this history:
Mr Fenner said that on one of the tours of duty, one day out from Vietnam, there was a rumour that a Russian submarine was in the area and about to attack the ship. As a result the order was given for full steam ahead. Mr Fenner said that this caused significant alarm as he was down in the engine room and didn’t know what was going on. He said he had significant apprehension about the possible attack from the Russian submarine with the implications for his safety.
63.Next, Mr Fenner gave evidence to the Veterans’ Review Board regarding this incident he said that he was working on the boilers and:
… all of a sudden, down came the signal, full steam ahead … so we all started to shit ourselves. What is going on?
…
One of the destroyers … got a message that they’ve got a ping and all that, and they think it is a submarine.
64.At the end of his watch he heard, so he told the Veterans’ Review Board, the rumour that it was thought to be a Russian submarine. When asked how long HMAS Sydney stayed at full steam ahead Mr Fenner said:
It would be a long way… It would be a fair way … I’m pretty sure we were still full steam on the full watch.
65.By the time of the first hearing in this Tribunal in December 2003 Mr Fenner had added further details to this account. In his written statement dated 12 February 2003 Mr Fenner said:
I recall on one occasion we were on route to Vung Tau, when we were ordered to proceed “full steam ahead”. This occurred in about February 1968. At the time I was in the boiler room, and believed that the ship was in danger, as this was such a rare order. Going full steam ahead caused the ship to vibrate, and I remember the “PO” saying “oh shit we are in trouble” and ordering all the “sprayers” to be turned on. I was very fearful that we were about to be torpedoed at that time. We heard through the telegraphic system that there was a possible submarine in the area.
66.In his oral evidence at that hearing Mr Fenner added even more detail and described the incident in his evidence in chief in this way;
Well to start with you never get full steam ahead unless you’re in an emergency, something’s wrong, and all of a sudden down came – it was a telex and it came from up near the bridge, it tells us to go full steam ahead so we knew straight away that there was something wrong, and then we found out that there was a ping, they got a definite ping from an escort ship that there was a submarine in the area.
…
I think that PO or leading seaman who was on the controls, I think that he was the one that got the message, what it was and he’s the one that sort of let us know that there was a submarine in the area. And I’m pretty sure that that guy was named Jack Pegg. He was in control of the steam at the time.
67.As it happened Mr Robert (Jack) Pegg provided a statement that was relied upon by Mr Fenner in the first hearing in which Mr Pegg describes receiving an order to go full steam ahead whilst he was on the throttle. But the evidence of Mr Pegg before us was that he had two trips to Vung Tau on HMAS Sydney, one in 1966 and another in 1972. Mr Pegg’s record of service card shows that he served on HMAS Sydney from 23 May 1966 to 7 April 1967 and was on board for one trip to Vung Tau between 25 May 1966 and 11 June 1966. He certainly was not aboard on the February 1968 trip when Mr Fenner asserts that he was. Mr Fenner’s trips were 8 to 22 April 1967, 28 April to 28 May 1967, 19 May to 14 June 1967, 20 December 1967 to 3 January 1968, 17 January to 16 February 1968, 27 March to 26 April 1968 and 21 May to 13 June 1968. Mr Pegg did not serve aboard HMAS Sydney on any trip that Mr Fenner served on.
68.It seems to us that Mr Fenner’s claim that Mr Pegg was in control was opportunistic fabrication.
69.The next account given by Mr Fenner was given on 28 March 2006 on the first day of the current hearing. On this occasion Mr Fenner nominated 28 January 1968 as being the day on which the incident occurred. He said this:
On the way to Vietnam - … last trip, and I think it was about the 28 January - I can’t remember what time it was. We were down in the engine room, we were just steaming along, just at normal knots, about 14 knots, and all of a sudden down came a telex and it just went straight full steam ahead. We were troubled, because you don’t get that order at all - the only time you get that order is when the ship is in danger, and it turned out that Stuart – that was our escort ship at the time – she got a ping … submarine in the area. So ---
When you say “it turned out” when did you find that out?---Well, there was a guy, … at the time, through that … telecommunications, and after I got off watch, they said the Stuart definitely got a ping from a submarine, that’s why we went full steam ahead, because I found out through the ships log, and we did go to full steam ahead for seven minutes at that time.
70.It transpired that Mr Fenner’s reference to 28 January and to the 7 minutes was explicable on the basis of enquiries that he had made in the way of obtaining a copy of what he regarded as being the log of HMAS Sydney for 28 January 1968. That document, he considered, showed that she went full steam ahead for a period of about 8 minutes. In fact the page obtained by Mr Fenner was the left hand page of the log for 29 January 1968.[7] But the result of the giving of this evidence was that the matter was adjourned to enable the respondent to investigate the matter more fully.
[7]Through a quirk of recording all the log entries for January 1968 are incorrectly dated January 1967. The log in use at the time was an A3 sized hard cover book which, when opened, had hourly records for the 24 hours from midnight to midnight of distances run, engine revolutions, course, wind direction and the like on the left hand page and narrative remarks for the same periods on the right hand page.
71.Mr Mulcare, a retired Navy Commodore, investigated the logs of HMAS Sydney and her escort HMAS Stuart for the whole of the period of Mr Fenner’s service on HMAS Sydney. That revealed two incidents of possible relevance. Neither occurred on 28 January 1968.
72.On 29 January 1968 the log for HMAS Sydney shows that between 1660 and 1751 she “Investigated possible submarine contact”. Between 1656 and 1744 HMAS Sydney made frequent course changes. In addition, at 1656 she went from 16 knots to 20 knots and appears to have maintained that speed for some considerable time, perhaps as long as one hour or thereabouts. We infer that on this occasion HMAS Stuart reported a possible submarine contact to HMAS Sydney and that while HMAS Stuart investigated the contact HMAS Sydney steamed at an increased speed and altered course frequently in doing so. That seems to us to be consistent in some respects with Mr Fenner’s account of events of a possible submarine contact.
73.We note however that the recorded speed of 20 knots is not consistent with an order for full steam ahead. Such an order would produce a speed in the order of 24 knots according to Mr Mulcare whose evidence we accept.
74.The other incident occurred on 3 February 1968 after HMAS Sydney had completed its unloading/loading in Vung Tau Harbour and was heading to Singapore. According to Mr Jones, who was then a Sub Lieutenant aboard HMAS Sydney, HMAS Stuart reported a high confidence sonar contact which she classified as a possible submarine. As Officer of the Watch, Mr Jones immediately altered course away from the direction of the reported sonar contact and ordered “full ahead both engines”. The log records that order as having been given at 1513 local time. Mr Jones continues:
Almost immediately after reporting her sonar contact, it was reclassified as a non-submarine contact by HMAS Stuart. At 1515 I ordered the ship to revert to the base course of 160 degrees and the ordered speed of 18 knots.
After resuming the base course I would have instructed the Midshipman of the Watch or another member of the bridge staff to inform the Engine Room the reason for the Full Ahead order and that the contact was a non-submarine contact.
75.On Mr Fenner’s evidence the particular incident that he referred to seems likely to have been that which occurred on 29 January 1968 on the way to South Vietnam. It is not possible to say whether, on this occasion, the order was given for full steam ahead however we proceed on the footing that for a period of about one hour HMAS Sydney steamed at a higher speed than her normal speed and made frequent course changes. In the circumstances it seems proper to assume, favourably to Mr Fenner, that an order for full steam ahead both engines was given on this occasion. We discuss below the question of whether there was communication to the engine room about the cause of the order.
76.As we have attempted to explain Mr Fenner’s account of this event has altered significantly over time. That may be illustrated by reference to the notion that the submarine was a Russian boat and the process of how this information was said to have been conveyed to people like Mr Fenner in the engine room.
77.Before doing that we ought refer to the evidence of Mr Jones who was, as we have said, a Sub Lieutenant on HMAS Sydney on this voyage. We make it plain that we accept this evidence. When asked how the order was given Mr Jones said:
The order from helm to watch is relayed to the wheelhouse, which is several decks below in a less exposed position than the bridge by a microphone or, if there’s no microphone, by a voice pipe. But on this day it was done by a microphone and the order goes to the wheelhouse where the quartermaster has control of the engine room telegraph and the revolution indicator, and when the full ahead order was given the quartermaster would have rung both engine telegraphs, put them to full ahead, and that would have gone – repeated to – mechanically down to the engine room.
But, Mr Jones explained, the engine room was not told of the cause of the order, the task of those in the engine room was simply to respond to the order and it was no part of that function to be told of the cause. After the order was cancelled, that is after the situation had defused itself, the engine room would have been advised by telephone what had caused the order to have been given.
78.It seems that in speaking to Dr Parker about this incident Mr Fenner must have said that he was aware of the possibility of there being a Russian submarine at the time of, or shortly after, the giving of the full steam ahead order. That would follow from the comment made by Dr Parker about his “significant apprehension about the possible attack from the Russian submarine”. But before the Veterans’ Review Board he said that he was aware only of the fact of a submarine (because one of the destroyers had “got a ping”) and it was at the end of his watch that he had heard the rumour about the submarine being Russian. The notion of the submarine being a Russian submarine was not mentioned in Mr Fenner’s statement provided to the first Tribunal hearing. He said, in cross-examination, at that hearing:
I’m pretty sure that I heard it from the guy who was operating the vent holes. He would have got a message as to what it was, why we went to full steam ahead and there was a submarine there. And I’ve gone up, upstairs and that’s when it was confirmed again, that ASDIC got a submarine ping and the only submarine when you really start to think about it, there are no friendlies around so we all thought it has to be Russian because they were the ones sitting beside Vietnam. They were helping them.
79.In his evidence in chief before us Mr Fenner seemed initially to suggest that it was only when he got off watch that he found out about HMAS Stuart getting a “ping” from a submarine. But then he changed that and said that within a couple of seconds of the order being given a Petty Officer of Leading Seaman “gets on the mike … about telling why we’ve gone full steam ahead”.. But then in cross-examination Mr Fenner seemed to change his account again saying “After we settled down a bit, that’s when we were told there was a submarine in the area.”
80.These variations in Mr Fenner’s account on what was, on his case, a significant and traumatic event add to our concerns about the reliability of Mr Fenner.
The Tet Offensive
81.Originally Mr Fenner relied upon an occasion when HMAS Sydney was berthed in Vung Tau Harbour during the Tet Offensive as amounting to experiencing a severe stressor. He says that war like activities could be heard and seen from HMAS Sydney. He believed that HMAS Sydney was within range of Viet Cong rockets and mortar and could well be the targets of enemy attack because they were berthed less than two kilometres from the shore. He no longer presses that claim. But despite that it seems to us that it provides another example where Mr Fenner has deliberately exaggerated his evidence.
82.In his evidence in chief in the statement dated 12 February 2003 Mr Fenner describes this stressor in this way:
Aboard the deck of HMAS Sydney, whilst docked in Vung Tau Harbour, we could see the TET offensive taking place on the shore. There were loud explosions, and we could also see the flashes of gun and missile fire. I was aboard a vessel which was of strategic significance, in bringing troops and equipment to and from the war zone, and I sincerely believed that we were a legitimate target for the Viet Cong, who were the enemy. It was further understood from discussions with all troops and sailors, that we were within range of Viet Cong rockets and mortars. Contrary to representations made by the Veteran’s [sic] Review Board that we were moored a safe distance from the battle zone, I contend that we were less than 2 kilometres from the shore, and that everyone on board were concerned because we were within striking distance of the Viet Cong. Our concerns about being so close to the war zone were made worse by the instruction on every occasion to unload and load up and leave Vung Tau Harbour as fast as we could, whenever we approached Vung Tau Harbour.
83.HMAS Sydney was berthed in Vung Tau Harbour on 3 February 1968. The material establishes that she anchored at 0703 to disembark troops and equipment and to embark empty containers and unserved vehicles. Those tasks were completed by 1200 when she weighed anchor and moved to a position south of Cap St Jacques were she remained for a further period of about two hours.
84.Mr Fenner said of this occasion that:
We could see the TET offensive taking place on the shore. There were loud explosions, and we could also see the flashes of gun and missile fire… I sincerely believed that we were a legitimate target for the Vietcong, who were the enemy.
85.There is a published account of this visit of HMAS Sydney on this occasion which includes the following:
HMAS Sydney and HMAS Stuart were in Vung Tau on 03 February 1968 and the amount of air and ground military activity was immense with seemingly endless bomb, rocket, cannon and napalm strikes taking place in close proximity to Sydney’s anchorage.
This account is attributed to Mr Jones. He gave evidence about this passage and made it plain that he not only did not write it but that it was quite wrong. His evidence, which we accept, was that the only war like activities took place on Long Son Island, more than 4 miles from HMAS Sydney and involved fixed wing and helicopter attacks.
86.We have a statement from Commodore Thompson, the navigating office on HMAS Sydney on this voyage, which refers to some activity 5 to 6 miles northeast of HMAS Sydney near Nui Nua hill. That activity was not a threat to Sydney’s position and unloading and loading took place as normal.
87.Mr John Tilbrook, then a Sergeant with 1 ALSG base at Vung Tau, was involved in the loading and unloading operations on HMAS Sydney on 3 February 1968. He saw no war like activities taking place in the vicinity of the harbour or Vung Tau peninsular.
88.We have, as well, the ships logs from HMAS Sydney and her escort HMAS Stuart. There is no mention in either of incidents even remotely resembling the incidents described by Mr Fenner. The same is true of the research undertaken into official Army and RAAF records to determine what war like activities may have occurred in the vicinity of HMAS Sydney on 3 February 1968. Those documents record no such activities and certainly nothing of the type described by Mr Fenner.
89.We mention, as well, that Mr Kemp, who served on HMAS Sydney from October 1967 to December 1968, gave evidence of having observed mortar fire close by HMAS Sydney and napalm being dropped on the other side of the harbour. He do not know when he made these observations but we cannot accept that Mr Kemp made those observations during the Tet Offensive visit. Whether Mr Kemp has read the account of events attributed to Mr Jones but disclaimed by him and has confused some other events in his mind we cannot say. But we do not regard his evidence as being an accurate account of the events on 3 February 1968.
90.Having regard to the evidence of Mr Jones and Mr Tilbrook and the documentary evidence we accept that it may have been possible that there were air strikes on Long Son Island on 3 February 1968 that may have been visible from HMAS Sydney. But we are quite satisfied, that is satisfied beyond reasonable doubt, that any activity may have been taking place did not represent a threat to HMAS Sydney and could not reasonably have been perceived as a threat by those on board. We consider Mr Fenner’s evidence regarding the Tet Offensive to have been exaggerated and concocted.
91.We should also observe that, to the contrary of what he said in his statement, Mr Fenner’s oral evidence in cross examination seemed to suggest that he, and other sailors off watch, were up on the flight deck “watching the show”. His evidence was quite the opposite to experiencing, witnessing or being confronted with an event that involved actual or threat of death or serious injury.
Did Mr Fenner experience a severe stressor
92.While we are satisfied that Mr Fenner was exposed to scare charges during the course of his service we expressly disbelieve him when he says that he was in fear of his life. The same is true of the “Russian submarine” incident. We consider it more probable than not that the order was given for full ahead both engines and that HMAS Sydney manoeuvred thereafter for a period of about an hour. But we are satisfied that the crew in the engine room were not told of the reason for the order. We are satisfied beyond reasonable doubt that Mr Fenner has fabricated his account of being aware of the possibility of a torpedo attack by a submarine and having experienced intense fear and helplessness.
93.In short, we are satisfied, beyond reasonable doubt, that none of the matters relied upon by Mr Fenner were severe stressors, and in consequence we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that his alcohol abuse/dependence is war-caused.
Conclusion
94.It follows that in our view the decision of the Repatriation Commission of 14 August 2001 to refuse Mr Fenner’s claim for disability pension was correct and ought be affirmed.
I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Ms M J Carstairs, Member
Signed: .....................Signed................................................
Leisa Pendle, AssociateDates of hearing 28 March, 20, 21, 22 & 23 June 2006
Date of decision 8 September 2006
Solicitor for the applicant Mr W Piper, Piper & Associates
Counsel for the respondent Ms S Maharaj QCSolicitor for the respondent Australian Government Solicitor
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