Fenner and Repatriation Commission
[2004] AATA 368
•8 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 368
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2002/40
VETERANS' APPEALS DIVISION )
Re JUERGEN KLAUS FENNER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date8 April 2004
PlaceBrisbane
Decision The Tribunal affirms the decision to reject a claim by Juergen Klaus Fennner for a disability pension in respect of alcohol abuse and post traumatic stress disorder, pursuant to the provisions of the Veterans' Entitlements Act 1986.
..............SIGNED................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS- disability pension – post traumatic stress disorder – alcohol abuse – claimed stressors either did not occur or were not of the severity claimed - decision affirmed
Veterans’ Entitlements Act 1986: s196B(2)
REASONS FOR DECISION
Deputy President Don Muller 1. This is an application by Juergen Klaus Fenner, the applicant, for review of a decision to reject a claim pursuant to section 13 of the Veterans’ Entitlements Act 1986 (the Act) for pension for alcohol abuse (AA) and post traumatic stress disorder (PTSD) as war-caused disabilities, within the meaning of those terms in section 9 of the Act.
2. The applicant was represented by Mr Piper, Solicitor, and the respondent was represented by Mr Doube.
3. It was agreed between the parties that Mr Fenner suffers from AA and from PTSD.
4. Mr Fenner claims that while serving in the Royal Australian Navy (RAN), he experienced three severe stressors which led to his AA and PTSD. The claimed severe stressors were:
(a)Whilst working in the engine room, the crew received a telex which read “full steam ahead”. They remained at full steam ahead for a very lengthy period. They were told that an escort ship had detected a “ping” which indicated a submarine;
(b)The ship that he was serving on, entered Vung Tau Harbour during the TET offensive. He observed extensive war activity on the shore and in the air and he feared for his life; and
(c)On his first trip to Vietnam, and upon anchoring in Vung Tau Harbour he was frightened by the unexpected explosions of “scare” charges. On his third trip to Vung Tau Harbour he was exceptionally startled by a particularly loud scare charge.
5. Mr Fenner was born on 13 March 1950. He joined the Navy in Western Australia on 13 October 1965 (when he was 15½ years old).
6. Mr Fenner did his basic training at HMAS Leeuwin. He was transferred to the aircraft carrier, HMAS Sydney, in November 1966. He became a stoker in the engine/boiler room. His duties were to tend to the boilers and evaporators.
7. The boiler room was situated two decks below sea level, in the middle of the ship. On either side of the boiler room, between the walls of the boiler room and the sides of the ship, there were large tanks which held either fuel or water.
8. Mr Fenner did seven trips to Vietnam in the SYDNEY. His first trip was in April 1967, when he was 17 years of age, and his last trip was in May/June 1968. He spent the following periods anchored in Vung Tau harbour, aboard the SYDNEY:
(i)20 April 1967, 0700 to 2332;
(ii)30 April 1967, 0700 to 1500;
(iii)30 May 1967, 0658 to 1431;
(iv)27 December 1967, 0720 to 1450;
(v)3 February 1968 , 0703 to 1200;
at 1200 sailed to Cap St Jacques
at 1254 anchored off Cap St Jacques
at 1430 sailed Cap St Jacques
(vi)9 April 1968 , 0700 to 1400; and
(vii)1 June 1968, 0647 to 1305.
9. Mr Fenner filed his claim for disability pension for “psychiatric condition” on 30 April 2001. He claimed that his condition was service caused because of “stress while in service”.
10. Following upon his claim, Mr. Fenner was seen by Dr Parker, psychiatrist, in July 2001. During the course of the consultation, Dr Parker asked Mr Fenner to recall incidents during the course of his life which he believed contributed to his psychiatric condition. Dr Parker recorded the following observations in his report dated 30 July 2001:
“ He said that during his childhood in Perth, a friend of his father’s called Hans used to come and visit the family. Mr Fenner said that Hans had been on the German battle ship Bismark when it was sunk during the Second World War. Hans had been in the engine –room of the destroyer at the time of the battle and gave vivid accounts of the explosions and fire in the enclosed space at the time of the sinking.
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. Mr Fenner said that on a further occasion, that there were a large number of Vietnamese boats surrounding the ship in Vung Tau Harbour. Because of concerns about the destruction of the ship by Viet Cong, “scare charges” were dropped from the ship to scare off the enemy saboteurs. Mr Fenner said that when he initially heard these scare charges he was performing duties in the engine room and the charges took him by surprise. He said he was significantly alarmed because he did not know what the charges represented, feeling that this may be an attack on the ship. He said that his anxiety about the potential danger he faced was intensified by memories of the stories told by Hans during his childhood. He also remembered that the Captain of HMAS Sydney Captain Clarke was walking around the flight deck at the time carrying a Thompson sub machine gun, stating “they are not going to take my ship.” Mr Fenner said the behaviour of the Captain reinforced his anxiety about his possible fate in the engine room.
On a further occasion, Mr Fenner said that he was on HMAS Sydney at the time of the Tet offensive in 1968. He could see the battles going on shore from the flight deck of HMAS Sydney. He also said that there was significant anxiety on the ship because there were a number of helicopters circling which may have contained Viet Cong, having the potential for the battle to be taken to the deck of the Sydney. Mr Fenner said his concern was he did not know who was friend or foe. At this time, he had also been hearing stories about the HMAS Hobart which had been significantly damaged during action in the Vietnam war and said this intensified his anxiety. He said that he had also been talking to troops during the return voyage from Vietnam to Australia. He said that, as a result, he heard numerous stories of Australian troops being killed in action and said this added to his feelings of apprehension about his own safety during his time in the war zone.”
11. On 11 September 2002, Mr. Fenner gave evidence to the Veterans’ Review Board about the events in Vietnam, which he claims were traumatic. The transcript of the VRB proceedings contains the following:
MR FENNER: well, I was told when I was down in the engine room, the officer of the watch down there, that there was a message that there was a submarine in the area. They got a definite ping, and all we know down there was that there was a submarine. We didn’t know it was Russian down there at the time because…When we got upstairs and the watch had finished, that is when they said it was a Russian.
MR LEWIS: All right.
MR FENNER: So as far as we knew down there, it was a Russian – it was a normal submarine. There was a submarine down there because, I don’t know, I think it was the steward. She has got a definite ping and all of a sudden , down comes full steam ahead and a little after that, they told us it was a definite ping. There was a submarine in the area.
MR LEWIS: How long did you stay at full steam ahead?
MR FENNER: Shit, I can’t remember now.
Mr LEWIS: Well, all the Way to Vung Tau or not?
MR FENNER: It would be a long way, yes. It would be a fair way.
MR LEWIS: While you were on watch, did you stay at the full steam or did you reduce back?
MR FENNER: No, I’m pretty sure we were still full steam on the full watch.
MR LEWIS: Right, but you can’t remember when you went- when you changed from full steam to normal steam?
MR FENNER: No.
…
Mr PARK: Sure. Now, Mr Fenner, how far do you say the Sydney was away from what you could see of the Tet offensive?
MR FENNER: I think about 1000 or 1200 yards.
MR PARK: So you are saying it was within a kilometre or so?
Mr FENNER: Well---
MR PARK: Can I suggest to you from previous experience that it would have been a great deal further away than that?
MR FENNER: In ’68, the last…of Tet, I know we came in close to shore to get out. We had to. They didn’t want us going the normal way. We had to go a different way.
MR PARK: This is on the Sydney?
MR FENNER: Yes. I think that is also mentioned in that book too.
MR LEWIS: No, it is not.
MR PARK: How long do you say you were in the harbour on that occasion that the Tet offensive-----
MR FENNER: As quick as possible that particular time, probably 1 day.
MR PARK: Yes, so when you pulled out, did you actually put out to sea or where did you go?
Mr FENNER: I don’t know, to tell you the truth, because most of may – well, you are onwatch all the time---
MR PARK: Yes.
MR FENNER: ------- and you know what a stoker is. We are down the hold all the time.
MR PARK: Yes, so when you saw the Tet offensive, are you talking- did you see it during the day or at night?
MR FENNER: No, we seen it during the day.
MR PARK: Right and this would have been during a period of something like what? Correct me if I’m wrong but 15, 16, 17 hours during – in Vung Tau?
MR FENNER: I couldn’t disagree with you there because I- I’m not 100 per cent sure on that one.
MR PARK: You weren’t there for a matter of days though, were you?
MR FENNER: Not days, no.
MR PARK: It was hours rather than days?
MR FENNER: No, I would say it would be a day at the max.
MR PARK: Yes, and what do you say you saw of the Tet offensive ? I mean, we’ve heard other people speak of ---
MR FENNER: All I seen is just the fires going, and you could see the planes and choppers and that just- and then you seen napalm getting dropped and----
MR PARK: Well, just speaking about the napalm, what do you say that you saw from the Sydney of the napalm during the Tet offensive?
MR FENNER: The big fires.
MR FENNER: you could actually hear the shells.
MR PARK: How far away do you think this was from your ship?
MR FENNER: I’m pretty sure – I would say about 1100 or 1200 yards – maybe 1300. That is how far we was from the shore.
Mr PARK: So between half a mile and a mile?
MR FENNER: Or whatever length 100 yards is, I suppose.
MR PARK: I’m just trying to think. A yard is 1760 yards, so you are talking about not much more than half a mile. I mean, are you suggesting that there was action in the Tet offensive that was, in effect, going on in Vung Tau?
MR FENNER: Yes, it was just- just not far from it at all.
MR PARK: Well, what I’m asking you is how far?
MR FENNER: Well, I would say about 1100 or 1200 yards from the shore, only it was a bit further inland. I don’t think it was too far at all. I’m pretty sure the mortars would have been able to reach us and that is all …told. The mortars could reach us.
MR PARK: How long do you say this went on for while you were there?
MR FENNER: It was going on all the time we were there because they wanted us out as quick as possible.
MR PARK: Mm.
MR FENNER: No bullshit on this one. Just unload, get out.
MR PARK: So you are saying that mortars and napalm and so forth were landing within about half a mile – maybe a little bit more than half a mile but about half a mile from the ship?
MR FENNER: Yes, well, it was not on the ship. It was only on the land.
MR PARK: Yes, but you are saying that where it was landing, it was about---
MR FENNER: Half a mile, three quarters of a mile away from the land.
MR PARK: Yes
MR FENNER: 1100 yards, I would say 1200.
MR PARK: Right, okay and what was you reaction to that?
MR FENNER: Shit scared. I was not to know that they were going to come- not land on us. “
12. Mr. Fenner produced a written statement dated 12 February 2003 (exhibit 2) in which he provided the following further information:
“(a) 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.
(b) I recall an occasion when I was in the engine room behind the boilers on a platform, cleaning the smoke mirrors, when a scare charge went off. It was so loud and terrifying (I could feel the hull shudder) that I thought we had been hit. I nearly fell off 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.”
13. Mr. Fenner gave oral evidence at the hearing. He confirmed his written statement. He went on to say further:
· He had been in the Navy about 18 months before his first trip to Vietnam
· He had never heard about scare charges before he actually heard the first one on the first trip to Vietnam. He probably said something like “What the hell was that?”. He believes that the Petty Officer explained the noise was from scare charges to deter enemy divers – or it could have been explained by the man operating the evaporators.
· Scare charges were used on all of the trips to Vietnam.
· The particularly loud scare charge which frightened him when he was cleaning the smoke mirrors, occurred on his third trip to Vietnam.
· He believes that when the ship was on “full steam ahead” it stayed that way for about 20 minutes to half an hour.
14. Mr. Fenner gave evidence about his life after he returned from Vietnam and the effects that he believes his Vietnam experience had on it. He said:
“I started drinking alcohol whilst I was in the Navy, and was drinking heavily by the time I was discharged in November 1969. By this time, I was drinking 10 to 11 cans of beer per day. These were heavy beers, as there were no light beers in those days.
By 1971, I had attempted to commit suicide, and I was attending Alcoholics Anonymous.
I have had many different employers in many different states since I left the Navy. I currently feel constantly stressed and unable to work.
I believe that drinking alcohol has adversely affected my life in many ways. I have in my younger years after discharge committed criminal offences, whilst under the influence of alcohol. I have continued to rely on alcohol, in that I am dependant on alcohol such that it affects my life. I drink 10 to 15 cans per day, however, I no longer drink heavy beer. I drink Carlton light, which enables me to start drinking earlier in the day and still function reasonably, later in the day.
I have numerous convictions for drink driving. My most recent offence was driving under the influence 4 years ago, my reading being .277.
I believe the trauma that I was exposed to when I was involved in the war has greatly and adversely affected my life since my discharge from service.”
15. The hypothesis raised by the material placed before the Tribunal on behalf of Mr. Fenner is that Mr. Fenner’s AA and PTSD are connected to the circumstances of his service in the RAN because he experienced three different stressors during that service and that those stressors precipitated his psychiatric conditions. The stressors were:
(a)Being ordered to proceed “full steam ahead” for 20 minutes to half an hour, during which time he believed that his ship was about to be attacked by a Russian submarine;
(b)Being exposed to scare charges while in Vung Tau Harbour, including a particularly loud scare charge on his third trip to Vietnam; and
(c)Observing the Tet Offensive from the deck of his ship, coupled with:
(i)The erratic behaviour of the Captain, who was carrying a machine gun and saying “they are not going to take my ship”, and
(ii)Having heard about the HMAS Hobart which he believed had been significantly damaged during the Vietnam war.
16. The Repatriation Medical Authority has determined, under subsection 196B(2) of the Veterans’ Entitlements Act 1986, a Statement of Principles (SoP) concerning Post Traumatic Stress Disorder (Instrument No. 3 of 1999 as amended by No. 54 of 1999), and an SoP concerning Alcohol Abuse/Dependence (No. 76 of 1998). The relevant paragraphs are:
PTSD: No. 3 of 1999 as amended by No. 54 of 1999
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder;
8.”experiencing a severe stressor” means 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;”
Alcohol Abuse/Dependence: No. 76 of 1998
“5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a) …
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
8.“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, ane vent 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.
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;”
17. The above SoP’s give guidance as to what events qualify as severe stressors for the purposes of determining whether or not an event experienced by a veteran during service was sufficiently traumatic to precipitate a psychiatric illness. The examples given include threat of death or serious injury, engagement with the enemy, witnessing casualties, atrocities or abusive violence. The level of stress required to satisfy the SoP and hence to qualify as a stressor sufficiently traumatic to precipitate a psychiatric illness must be more than a momentary fright, a merely unpleasant experience or some general feeling of apprehension. In Mr. Fenner’s case he claims that the three events he experienced were sufficiently traumatic to cause an ongoing psychiatric illness which has lasted over thirty years.
18. The Tribunal has had the advantage of hearing evidence from Dr. Parker, psychiatrist, to assist in assessing whether the events claimed to have been experienced by Mr. Fenner could amount to severe stressors for the purposes of the SoP. Dr. Parker saw Mr. Fenner on six occasions between 15 January 2003 and 16 September 2003. (Mr. Fenner had never sought psychiatric treatment before 2003). Dr. Parker made the following points about the stressors which he believed were associated with Mr. Fenner’s illness.
(a)The scare charges were significant, exacerbated by the pre-conditioning of the stories told by his father’s friend about the Bismark and by the sense of pervasive danger in Vung Tau Harbour. It was not specifically the first scare charge. The fact that Mr. Fenner was 17 years of age when he experienced the first one was not necessarily important. It was more the accumulative effect, causing an increasing sensitivity during the seven trips to Vung Tau.
(b)The witnessing of the Tet Offensive was significant, especially when it was accompanied by the bizarre behaviour of the Captain, the steaming out of Vung Tau Harbour at full steam ahead to escape from the Viet Cong (Dr. Parker may have misunderstood Mr. Fenner’s description of the full steam ahead episode) and the knowledge by Mr. Fenner that another Navy ship, the Hobart, had been damaged by the enemy.
(c)Other stressors in Mr. Fenner’s civilian life, including prison, a work accident which was not properly dealt with by an employer, and other work problems were also significant.
19. I regard it as a borderline case. I do not accept that the experience of scare charges on one trip to Vung Tau would meet the qualification of severe stressor. However, I accept what Dr. Parker said about the accumulative effect that the scare charges may have had over seven trips, especially if they were shaking the hull of the ship. I accept that being in fear for half of an hour, of being torpedoed could be a severe stressor. I also accept that being only about 1100 yards from a full scale battle could amount to experiencing a severe stressor. I am prepared to find that the three claimed stressors qualify as “severe stressors” within the meaning of that term in the relevant SoPs. The hypothesis raised is reasonable provided that the events occurred in the manner claimed by Mr. Fenner.
20. The Tribunal heard evidence from Commodore (Rtd) Philip Mulcare, who has researched the official naval and military records relating to the events associated with Mr. Fenner’s claim. Commodore Mulcare furnished an extensive written report and he also gave oral evidence. His report contains a signed statement by Commodore D.H. Thomson who was Navigating Officer/Operations Officer on the SYDNEY between 8 April 1967 and 26 April 1968, that is, for the first six of Mr. Fenner’s trips to Vietnam. Commodore Mulcare’s research revealed the following:
The submarine incident
· In February 1968, the destroyer escort HMAS STUART escorted SYDNEY to Vung Tau. On 2 February 1968 STUART was stationed ahead of SYDNEY patrolling a sector and operating her sonar. The ship’s log includes the following entries:
1205 Possible Sub Contact
1211 Classified Non Sub
2310 Possible Sub Contact
2315 Classified Non-Sub
· Non-sub contacts occurred frequently in the South China Sea. STUART would have reported these contacts to SYDNEY, and followed up with advice that they were classified non-sub. Neither ship is likely to have perceived a threat of a submarine attack – North Vietnam did not possess any submarines and the likelihood that a submarine of another nation, including Russian submarines, would attack an Australian warship, in the international waters of the South China sea, was extremely remote. Neither of these non-sub contacts is mentioned in STUART’s Report of Proceedings (ROP), nor in SYDNEY’s log or ROP. Furthermore, SYDNEY’s log does not record any variation in either course or speed at the time of either of these non-sub contacts.
· A situation of “full ahead” for 20 minutes would be in the ship’s log.
· If a situation of “full ahead” occurred, the engine room would probably have been given an explanation.
· Commodore Thomson recalls a situation when he was in the vicinity of the bridge, when an inexperienced Officer of the Watch (OOW) ordered a course change, and possibly full ahead, following a possible contact. He immediately ordered the OOW to resume course and speed. He does not recall on which trip the incident occurred. The incident was not entered in the log.
Battles going on ashore at Vung Tau 3 February 1968
· On 3 February 1968, SYDNEY anchored off Vung Tau at 0703 to disembark troops and equipment and to embark empty sea containers and unserviceable vehicles. The ship’s Captain recorded the following entry for 3 February 1968.
“5. At 0703(-8) the following day SYDNEY anchored in A12 berth Baie de Gahn Rai. STUART, having been detached to proceed independently at 0530(-8), anchored close northeast of SYDNEY. The disembarkation of troops and the unloading of cargo progressed throughout the forenoon. Due to the CHINOOK helicopters not being available all troops were disembarked to Vung Tau by ship’s LCM’s. The services of a CH –54A ‘Skycrane’ helicopter were once again available to transport vehicles from the ship to shore and also to return empty sea containers and unserviceable vehicles to the ship. On completion of the task the ‘Skycrane’ crew were claiming a world record for the tonnage lifted by one helicopter in one day.
6. The Chief of the Naval Staff, Vice Admiral Sir Allan McNicoll C.B., C.B.E., G.M. and Major General A.L. MacDonald O.B.E., The Commander, Australian Forces Vietnam, visited the ship during unloading operations.
7. Having completed the backloading of unserviceable vehicles SYDNEY weighed anchor at 1200(-8) and shifted berth to a less hostile position south of Cap St Jacques light to complete securing for sea. I entertained my two distinguished visitors to luncheon while anchored in this alternative position.
8. At 1415(-8) my guests left the ship and twelve minutes later the ship weighed anchor and proceeded for the Singapore area, HMAS STUART remaining in company.”
· Commodore Thomson does not recall Captain Clark ever totting a machine gun around the flight deck. He was not aware of any overt threat to the ship such as would have given him reason to exclaim, “They are not going to get my ship”. It would have been most unlikely that Captain Clarke would have acted in such a strange way on a day when he was entertaining the Vice Admiral and the Army Commander for lunch.
· The following passage appears in a book called “The Vung Tau Ferry HMAS Sydney) and Escort Ships (Vietnam 1965-1972)” by Rodney Nott and Noel Payne.
“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.
A decision to sail from Vung Tau as soon as possible was made and increased pressure was applied to complete loading troops and equipment as quickly as possible. Adding another dimension to the frenetic departure activity was the report that a merchant ship had anchored in the main shipping channel believing there was a mine attached to its hull.
This news required that the normal departure sailing plan from Vung Tau, via the main shipping channel, had to be hurriedly changed so both ships could sail via the alternate western channel. As the Blind Pilotage Officer I vividly remember the calculated haste in which this alternative departure plan was put into effect. Command approval of the departure plan saw both SYDNEY and STUART leave harbour and the Tet Offensive, with considerable alacrity.”
· There is also a passage in the book about an occasion when there was an order for “full ahead both engines”.
· Commodore Thomson described the above passages from the book as “hysterical and imaginative nonsense” and “pure rubbish”.
· Contemporary accounts of the visit are contained in SYDNEY’s and STUART’s Reports of Proceedings for February 1968. Neither of these Reports of Proceedings mention any military activity in the vicinity of the ships, yet “endless bomb, rocket, cannon and napalm strikes taking place in close proximity” would have caused a great deal of concern for the safety of troops being unloaded by LCMs, and possibly for the safety of the ships. It is inconceivable that such activity would be ignored and that both ships would instead describe, as they have, a fast yet routine turnaround.
· Research reveals that there was no naval or military activity around Vung Tau on 3 February 1968. Vung Tau was a big city, which was highly occupied by Australian and U.S. service personnel. It had a RAAF base and hospitals. None of them have reported any incidents of bombing or napalm in the vicinity of Vung Tau on the day in question.
· During one of the visits to Vung Tau, Commodore Thomson observed explosions ashore and observed helicopters well to the north east of SYDNEY’s anchorage position (about 7 kms). He was later advised that friendly helicopters were practising armament drops in that general area, which was a long way from Vung Tau and in a different direction.
Sydney surrounded by Vietnamese boats
· Commodore Thomson does not recall SYDNEY being surrounded by a large number of Vietnamese boats on either trips 9 or 10 (i.e. 3 February and 9 April 1968), when he was in the ship with Captain Clarke. There were often fishing boats in the harbour, but they did not usually come close to the ship and there is no record of fishing boats having been a problem.
Scare Charges
· The scare charge used was either a one and a quarter pound or a one pound charge usually fitted with a percussion fuse. The instructions for use were that they should be thrown at least 20 feet clear of the ship or boat and they exploded at a depth of 6-7 metres. Scare charges were and are a major deterrent as the explosion underwater causes death or serious injury to divers in the near vicinity and disorientation at much greater ranges. The sound of a scare charge explosion varies with, amongst other things, distance from the ship, depth of water, depth of explosion and the characteristics of the seabed. The sound of a distant explosion, i.e. from a scare charge thrown from a boat 70 to 100 metres upstream of the ship, was muffled and was generally heard as a loud thud in compartments below the waterline. Explosions near the ship were much louder and sharper in these compartments and could be frighteningly loud if they exploded close alongside.
· During most of SYDNEY’s visits, scare charges were only thrown from ship’s boats on patrol around the ship, not from the ship itself. One of the reasons was that there were frequently craft alongside, loading or unloading cargo or troops, while another reason was that it was easier to control the uses of scare charges from boats. It is not possible to categorically say none were thrown from the ship, in which case they would probably have exploded closer alongside than those thrown from boats.
· It would be most unlikely that a scare charge of one pound of explosive would cause the hull of an aircraft carrier to shudder and vibrate.
· Having had personal experience of scare charges, Commodore Mulcare said that the effect would not have been as significant as claimed by Mr. Fenner.
The HOBART Incident
· The HOBART was hit by a U.S. missile on the morning of 17 June 1968.
21. I have no doubt that if the SYDNEY had been on “full ahead” for 20 minutes to a half hour, trying to avoid a submarine, the matter would have been recorded in the ship’s log. There was no such report. There may have been a momentary “full ahead” followed almost immediately by a counter-mand, as described by Commodore Thomson, but there clearly was no extended period of “full ahead”. I am satisfied that the incident as described by Mr. Fenner, involving “full ahead” for at least 20 minutes in order to avoid a submarine, did not happen.
22. As for the claim that he was terrified because of his close proximity to the Tet Offensive, Mr. Fenner was obviously following the lines from the book “The Vung Tau Ferry etc”, quoted above. I do not accept that the Captain of the SYDNEY would have invited two distinguished guests aboard for lunch on a day when a dangerous battle was raging on shore a mere 1100 yards away. At any event, Commodore Thomson did not notice the battle, nor did anyone in Vung Tau.
23. It is also impossible to accept that Mr. Fenner’s anxiety during the claimed battle on 3 February 1968, was intensified because he had heard about what happened to the HOBART. The unfortunate HOBART incident occurred five months later, indeed it occurred two weeks after Mr. Fenner made his last trip to Vietnam.
24. I am satisfied that Mr. Fenner did not observe a major battle within close proximity to the SYDNEY.
25. I do not accept that on a regular basis scare charges caused the hull of the aircraft carrier to “shudder” or “shake” . I note that Mr. Fenner’s place of work was in a room situated in the middle of the ship. It was surrounded by ballast below, hangars fore and aft which presumably were used as cargo holds, and fuel or water tanks on either side between the boiler room and the hull. He would have been well insulated from external sounds while he was in the boiler room of the SYDNEY. I also note that during the whole of the period that the SYDNEY was in Vung Tau Harbour, on each occasion, there was frenetic activity on, above and around the ship involving the unloading of containers and Army vehicles into barges, or by using the giant helicopter “Skycrane” to take the larger vehicles directly to shore. There was also the disembarkation of troops into landing barges, or by helicopters, followed by the embarkation of troops returning to Australia, plus the loading of damaged vehicles to be returned to Australia. There must have been a significant amount of noise associated with all of those activities. I find that Mr. Fenner’s claim about the intensity of the force of the scare charges on the ship and the corresponding effect on him was grossly exaggerated. I am satisfied that the scare charges did not create events which were sufficiently traumatic to cause Mr. Fenner’s psychiatric illnesses.
26. I am satisfied beyond reasonable doubt that there is no sufficient ground for making the determination that Mr. Fenner’s AA and PTSD is war-caused.
27. The decision to reject the claim is affirmed.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
C. O’Donovan, AssociateDate/s of Hearing 4 December 2003
Date of Decision 8 April 2004
Solicitor for the Applicant Mr. B. Piper
Respondent Mr. G. Doube, departmental advocate
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