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

1. Under the Fifth Schedule to the Australian Soldiers' Repatriation Act 1920-1922 provision is made for the payment of amounts and allowances opposite the first three items, i.e. double amputation cases.
2. The question arises as to whether in view of proviso (d) of that Schedule these amounts and allowances are confined strictly to such actual double amputation cases; or whether proviso (d) would permit of cases being treated as equivalent to double amputation as specified in the first three items of the Fifth Schedule and eligible for attendants' allowances notwithstanding that no actual double amputation has been made, and if so, whether a leg 'permanently and wholly useless' should be deemed 'amputated at the hip'. Proviso (d) to the Schedule reads as follows:
   
   For the purposes of this Schedule a leg, foot, hand, arm or eye shall be deemed to be lost if it is rendered permanently and wholly useless.
3. The case in point is that in which a Repatriation Board made available the benefit of the amounts and allowances opposite item 3 of the Fifth Schedule to a soldier who suffered: (1) Left leg : High thigh amputation; (2) Right leg : Compound fracture of thigh, much necrosis and shortening, limb permanently useless with chronic sinus.
   
   The Board acting on the advice of the Departmental Medical Officer, that the injury to the right leg was worse than 'amputation at hip', gave approval for the case to be treated as equivalent to double amputation (including one 'at the hip') and eligible for the amounts and allowances opposite the third item,
4. The Commission has some doubt in its mind as to whether proviso (d) can operate in regard to cases which are not actual double amputation cases coming under the first three items in the Fifth Schedule.
5. Another point upon which your advice is desired has arisen in a case in which the pensioner has an amputation above the knee, three inches below the hip (i.e. in the 'upper third'); his other leg was also amputated in the 'upper third', being about six inches below the hip. The Commission has been asked to decide whether the pensioner could be considered eligible for the attendant's allowance under the Fifth Schedule for the 'loss of two legs amputated above the knee' on the ground that the amputation leaving only a three-inch stump is equivalent to an 'amputation at the hip'.
6. The Acting Principal Departmental Medical Officer advises the Commission that 'Amputation at the hip is the term used to denote disarticulation of the leg bone from the pelvis at the hip joint, and only where this has been done can such cases be considered as "amputated at the hip"'.
7. Proviso (d) to the Fifth Schedule is similar to that contained in the Fourth Schedule, and in the latter Schedule it will be seen that 'loss of leg' carries with it a lower percentage of pension rate (75%) than an 'amputation of leg at hip' (80%). Cases coming under the proviso to the Fourth Schedule where the leg is 'rendered permanently and wholly useless' would be granted the rate for 'loss of leg' only. In this connection it will be noted that under the Fourth Schedule the rates do not differentiate between amputation above or below the knee, whilst the Fifth Schedule rates do.
8. The Commission would be glad of your advice as to whether the words 'shall be deemed to be lost' contained in the proviso (d) to the Fifth Schedule apply to the loss of a leg above or below the knee and not an 'amputation at hip' and whether in your opinion the Commission would be correctly interpreting the Act in declining the attendants' allowances except in cases of double amputation above the knee which strictly comply with the condition as defined opposite the third item in the Fifth Schedule.

Paragraph (d) of the proviso to the Fifth Schedule to the Australian Soldiers' Repatriation Act 1920-1922 is not clearly expressed to give persons, whose limbs have been rendered permanently and wholly useless, the benefit of the provisions of the Schedule relating to amputations. In view, however, of the fact that the object of the Schedule is to give assistance to persons who have lost the use of their limbs, I think that a limb which is rendered permanently and wholly useless may be regarded as amputated for the purposes of the Schedule.

In my opinion, therefore, the first question asked in paragraph (2) of the Chairman's memorandum should be answered in the affirmative. As regards the second question in that paragraph, if the whole leg is permanently and wholly useless it should, I think, be deemed to be amputated.

As regards the question raised in paragraph (5) of the Chairman's memorandum, I am of opinion that amputation of a leg which is not amputation at the hip, even though equivalent to it, cannot be regarded as amputation at the hip.

As regards the questions raised in paragraph (8), I am of opinion that paragraph (d) of the proviso is wide enough to enable a leg rendered permanently and wholly useless to be regarded as amputated at the hip, if the incapacity is equivalent to such amputation. The answer to the second question in that paragraph should, therefore, be in the negative.

[Vol. 19, p. 292]