The Chairman of the Repatriation Commission has forwarded me the following memorandum for advice:

The abovenamed ex-soldier served with the A.I.F. in France and according to his oWn statement was carried out of the trenches at Hill 60 in March 1918 suffering from prostate enlargement.

He was returned to Australia in August 1918 as a cot case and provided with medical treatment at a Military Hospital, and was subsequently granted the full rate of war pension by the late pensions authorities under War Pensions Act 1914-1916.

A.'s case came up for review in connection with his war pension in October 1920 and this Department's medical officer, after careful consideration of A.'s medical papers decided that his disability, enlargement of the prostate, was not in any way attributable to or aggravated by war service but was due to senile changes which occur irrespective of war service.

Against this decision A. appealed, and his case was again most carefully considered by four other Departmental medical officers who, however, agreed with the finding of the medical officer referred to above. A. then asked that he be examined by an outside medical man and in order that there might be no possible doubt concerning the causation of his disability, the Repatriation Commission arranged for A. to be medically examined by Sir Alexander McCormick, a leading surgeon in Sydney. Sir Alexander McCormick was asked to advise if A. 's condition was the result of his military service, and to this question he replied that 'enlargement of the prostate which keeps up cystitis, which the patient (A.) is suffering from now, is not a war disability'.

A. will not accept the position as determined by the Departmental medical officers and Sir Alexander McCormick and contends that as his disability 'came on in the trenches' he is entitled to a war pension.

As stated above the definite medical opinion is that this ex-soldier's disability would inevitably have occurred had he not served in the A.I.F.

Section 23 (a) (i) of the Australian Soldiers' Repatriation Act 1920 reads (inter alia): 'results or has resulted from any occurrence happening during the period he was a member of the Forces'.

There is no evidence to show that A. suffered from his disability prior to enlistment in the A.I.F. and although there appears to be no doubt at all that his disability is not due to or aggravated by war service and would have occurred in the ordinary course as a civilian it will be observed that A. states that his present illness first came upon him or happened 'whilst in the trenches'.

In view of the position as set out above, the Minister has asked the Commission to obtain your advice as to-

1. what limit (if any) should be placed upon the interpretation of the words in the section of the Act mentioned 'any occurrence happening';
2. whether a war pension should be payable in the case of a disability where medical opinion is to the effect that the disability is constitutional, or may or may not have arisen during the ordinary course; i.e. whether a man was a member of the Forces, or a civilian.

I shall be glad of your early advice on the above points as applying to the above-mentioned case, and generally. The answers to the questions submitted in the above memorandum involve the interpretation of the phrase 'incapacity' which 'results or has resulted from any occurrence happening during the period he was a member of the Forces'.

This phrase is subject to the following constructions: 'incapacity' may mean either disablement or disabling disease; 'occurrence' may refer to either the first cause of the disease or to the onset of the symptoms.

I think the real meaning is that if the first cause of the disease was pre-war and incapacity came on as an inevitable result and was not hastened or aggravated by anything happening during service, no right to pension accrues under section 23 (a) (i) of the Act notwithstanding that actual disablement occurred (or symptoms became manifest) during service.

[Vol. 18, p. 309]