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Thursday, 21 September 1972
Page: 1824


Mr Lionel Bowen (KINGSFORD-SMITH, NEW SOUTH WALES) - I endorse the remarks made by my colleague the honourable member for Wills (Mr Bryant). Some of the problems I am experiencing in my electorate specifically relate to the application of section 47 of the Act, which deals with the onus of proof, to cases arising from specific diseases, such as cancer, and death from causes such as heart failure. In ;very instance it appears almost impossible to convince any tribunal that causes such as the 2 I have just mentioned could be attributable to war service. I do not think the section is being interpreted to the fullest in the way it was intended to be interpreted, which was evidenced in the debate when section 47, as we now know it, was amended in 1943. It will be seen in the Hansard report of the debates of that time that the expressed intentions were to give the maximum benefit to the returned servicemen, to give fullest sympathy for the difficulties of the soldiers and to guarantee that all discretion would be in their favour. Yet these things are virtually denied exservicemen in cases involving the 2 diseases about which we are talking - cancer and heart failure. In every case appeals involving these diseases are rejected on the basis that the disease could have been due to other circumstances and not to war service. Looking at section 47, it would appear to me - I think this was the intention of the legislature at the time - that if any medical evidence at all is produced in favour of the appellant he should win because sub-section (2.) of section 47, leaving out any reference to onus of proof because that is removed from him, states:

It shall not be necessary for the claimant . . to furnish proof to support his claim-

In other words, he could win just on the fact that he has appealed- but the . . . tribunal . . . shall draw, from all the circumstances of the case, from the evidence furnished and from medical opinions -

There is a mandatory injunction there in the words 'shall draw'-

.   . all reasonable inferences in favour of the claimant . . . and in all cases whatsoever the onus of proof shall lie on the person or authority who contends that the claim . . . should not be granted . . .

So the appellant only has to produce medical evidence and he should win. This is the simple situation, but it never happens. We must ask: Who on these tribunals would have the experience to say that the evidence submitted should be rejected? As a result of some of my constituents talking to me some time ago, I have been encouraged to look at a decision, reported in the All England Law Reports of 9th August 1947, in the case of Miller v. Minister of Pensions. It contains a discussion by Mr Justice Denning on the question of what might cause cancer. There was medical conflict as to what might cause cancer of the oesophagus. In this case the soldier concerned had served in the Middle East and it was deemed, on medical evidence submitted, that the dust and the conditions of the Middle East could well have caused this cancerous condition of the throat. The soldier's case was rejected on the weight of medical evidence. Nevertheless, there was medical evidence to say that it was not beyond all possibility that the dust and dirt of the Middle East could have caused this cancer, because there was ample medical evidence to show that those associated with dust and dirty conditions suffer from lung cancer and other cancers of the body.

It could have been that in this case justice was denied. If the case had been brought in Australia justice would have been denied. The English legislation does not have the same provision as we have in section 47. In other words, the weight of medical evidence in the English case established that the probabilities may not have been in favour of the soldier, but there was medical evidence to suggest that cancer could have been caused in these circumstances. Mr Justice Denning said that where there was a probability or even a possibility, or as long as it was not beyond a shadow of a doubt, that the disease was war-caused there was an opportunity for the tribunal to find that the cancer was due to war service. Applying that principle to the Australian conditions, if a soldier can say that he served in conditions of dust or dirt, as he readily could say, and there is medical evidence to say that he has cancer, the tribunal cannot exclude the fact that the medical evidence could be in his favour to such an extent that he should win the appeal. But that reasoning is never acceptable.

Another factor which causes the same problems, as mentioned by my colleagues, is heart disease. I notice from Hansard years ago that as a result of 300 autopsies being performed on United States battle casualties in the Korean war there had been complete evidence of heart disease, even though those unfortunate casualties were very young. The average age was 22 years. A preliminary report by Major William Enos on coronary disease among United States soldiers in 1953 established the fact that the stress and strain of battle and the excessive circulation of the blood flowing into the heart chambers and back out again cause a plaque or blockage of the arteries. This is medical evidence which cannot be denied, because it is factual. The report stated that in several of the cases there was over 90 per cent luminal narrowing. The plaques completely filled the lumin but displayed a free surface. It showed that in 3 per cent of the battle casualties there was a complete occlusion. We could say that that was medical evidence that a soldier might well be able to submit.

I have before me now the case of a fellow who served on HMAS 'Australia' for 6 years from 1939 to 1945. He enlisted at the age of 17 years and was engaged in every action in which that ship took part. He was engaged in the stress and strain of battle and in carrying shells to the guns. He has had 2 major coronaries now, at the age of 52 years, and his claims for a repatriation pension have been rejected on the basis that his condition could not possibly be due to war service. He could get a doctor to say that there is evidence to show that through the stress and strain of battle a person gets a narrowing of the arteries and he should win, but his case has been rejected completely.

The report on coronary disease among United States soldiers states that it was maintained that eddying in the arteries occuring during the recoil and the other functions of the heart caused an occlusion. That is what the man to whom I have referred is suffering from now, and this evidence could well have helped him secure a ruling that his condition was war-caused, but his case was rejected on the tribunal's interpretation of section 47. So section 47 is not achieving the justice it was meant to achieve. It would be far better for this Parliament to say that in cases where there is cancer or heart disease the Commonwealth will admit liability, because we can not exclude the possibility that these diseases are war-caused.

What happens in these tribunals? I will close on this note because I know that one of my colleagues wants to make some remarks. It has become a lucky dip in New South Wales whether a person appears before War Pensions Entitlement

It is completely irreconcilable that one tribunal can 'be granting, say, 40 per cent of applications and the other granting 10 per cent. It would be a question of chance







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