FEDERAL COURT OF AUSTRALIA

May v Military Rehabilitation and Compensation Commission [2014] FCA 406

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BUCHANAN J:

1    The appellant is a relatively young man who was unable to continue in a career with the Royal Australian Air Force (“the RAAF”) because he developed disabling symptoms, including vertigo, which have remained with him. He attributes those symptoms to vaccinations he received during his RAAF service. He made a claim for compensation as a result, relying on the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).

2    In the decision from which the present appeal has been brought, the Administrative Appeals Tribunal (“the AAT”) stated its final conclusion as follows:

CONCLUSION

66.    The Tribunal is not unsympathetic to Mr May’s situation and we acknowledge what appears to be his frustration that the medical profession has been unable to attribute a diagnosis to his condition and that the legal system has failed to provide him with compensation for what he believes to have been an injury suffered in the course of his employment with the RAAF. The symptoms Mr May suffered cut short what might have been a very promising career as a pilot in the RAAF given the evidence of his being a high achiever and his impressing the Tribunal as a highly intelligent person.

67.    It is therefore with considerable reluctance that the Tribunal concludes that Mr May did not suffer an injury as defined in s 4(1) of the SRC Act in the course of his service in the RAAF and the MRCC is not therefore liable to pay him compensation pursuant to s 14.

3    It was, therefore, not through any lack of sympathy with his position, or finding against his credit, that the AAT felt obliged to reject the appellant’s claim that he had suffered a compensable injury arising from his service with the RAAF.

The nature of the present proceeding

4    Mr May’s challenge to the decision of the AAT is a proceeding in the original jurisdiction of the Court. The right to maintain it is given by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). Section 44(1) provides:

44    Appeals to Federal Court of Australia from decisions of the Tribunal

Appeal on question of law

(1)    A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

5    The existence (and appropriate identification) of a question of law has been held to be essential to the jurisdiction of the Court to entertain an appeal under s 44 of the AAT Act (see TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; Comcare v Etheridge (2006) 149 FCR 522; Purvis v Dairy Adjustment Authority (No 2) (2006) 150 FCR 48; Brown v Repatriation Commission [2006] FCA 914; Colby Corporation Pty Ltd v Federal Commissioner of Taxation (2008) 165 FCR 133; Rana v Repatriation Commission [2011] FCAFC 124; Peters v Comcare [2013] FCA 1361; National Australia Bank v Georgoulas [2013] FCA 1412; Soames v Secretary, Department of Social Services [2014] FCA 295; and Mori v Secretary, Department of Social Services [2014] FCA 333).

6    In the present case, the respondent’s first argument was that no “pure” question of law had been identified and as the appeal was not “confined” to questions of law it was not competent.

7    I propose to defer any consideration of that issue for the moment.

8    It is, however, important to retain an appropriate focus on legal, rather than factual, issues. The present appeal does not provide an opportunity to canvass the factual findings made by the AAT, or the merits of its decision. It remains necessary to identify a legal defect in its approach or analysis, if the appeal is to have practical prospects of success.

Symptoms and suggested injury

9    The AAT gave the following brief summary as background to its determinations:

BACKGROUND

2.    Mr May was born in 1975 and is aged 36. He enlisted in the Royal Australian Air Force (RAAF) on 6 November 1998 and was discharged on 30 July 2004 at the rank of Officer Cadet. On 29 November 2002, Mr May lodged a claim for rehabilitation and compensation dated 20 November 2002 in respect of “low immunity, fatigue, illnesses, dizziness” which he claimed was caused by vaccinations received in the course of his employment in the RAAF. On 11 March 2003, a MRCC delegate denied Mr May’s claim noting that specialists who had examined Mr May had been unable to diagnose any specific condition or determine a cause for his symptoms, and the delegate was therefore unable to connect the claimed condition with his RAAF service.

10    The AAT correctly identified that the principal issue before it was whether Mr May had suffered an “injury” within the meaning of s 14 of the SRC Act which provides:

14    Compensation for injuries

(1)    Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

(2)    Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3)    Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

11    At the relevant time “injury”, “disease” and “ailment” were defined by s 4 of the SRC Act as follows:

injury means:

(a)    a disease suffered by an employee; or

(b)    an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)    an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.

disease means:

(a)    any ailment suffered by an employee; or

(b)    the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

12    As a result of those provisions, the AAT recorded:

5.    Thus, where a person has suffered an injury other than a disease (often referred to as an injury simpliciter), the causal connection of which the Tribunal must be satisfied is that the injury arose out of or in the course of their employment. Where a person has suffered from a disease, the Tribunal must be satisfied that the disease, or any aggravation of the disease, was contributed to in a material degree by the person’s employment.

6.    In Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286, the High Court said that a long line of decisions in Australia had recognised that for there to be ‘an injury’ requires that it be established that there has been “a sudden or identifiable physiological change”: Gleeson CJ and Kirby J at [35]. If an injury, in what was described as the “primary sense of that word”, happens in the course of the person’s employment, “it is ordinarily compensable without proof of a specific causal connection with the worker’s employment”: at [39].

7.    Mr May contends that he suffered an injury simpliciter and not a disease and that there is sufficient evidence to establish a causal link between his condition and the vaccinations he received while in the RAAF. The MRCC contends that whether Mr May’s condition is treated as an injury simpliciter or a disease, there is an insufficient causal link, there being no clear diagnosis for his condition and it having not been established that his symptoms are connected with the vaccinations he received. It therefore denies liability to pay compensation to Mr May under s 14(1) of the SRC Act.

13    The observations in paragraph 6 correctly record that an injury will ordinarily be compensable under the SRC Act when it happens “in the course of the person’s employment” or if it “arises out of the employment”. The connection required in the first case is temporal; that in the second case is causal.

14    The case Mr May presented to the AAT appears to me to have engaged both types of connection with his employment, if accepted. Mr May attributed his current symptoms to vaccinations he received while on duty with the RAAF. That is to say, if this contention is accepted, his symptoms may be attributed to something which happened in the course of his employment and they arose out of his employment. In the second case, as I have said, a causal connection is necessary, but it need not exist in the first case.

15    However, an alleged connection of the first kind must be examined by reference also to some other considerations. First, something that occurs or has its explanation in events within an overall period of employment does not necessarily occur in the course of employment (see Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; Comcare v PVYW [2013] HCA 41). For example, an injury does not occur in the course of employment if it happens during an “interval” in an overall period of employment – e.g. at home, on holidays etc. An employer is not a guarantor of good health or an insurer with respect to injuries and accidents outside work. Secondly, the necessity for an injury (in the defined sense) to be established must be understood.

16    In that connection, the reference made by the AAT in paragraph 6 to the joint judgment of Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (“Kennedy Cleaning”) at [35] and [39] should be examined in a little more depth. Kennedy Cleaning concerned the circumstances of a worker with a pre-existing heart condition who suffered a stroke at work. The argument was that the injury she had suffered was the result of her existing “disease”, to which her employment had not contributed in the relevant sense. The analysis was rejected upon the footing that (per McHugh, Gummow and Hayne JJ, with whom Gaudron J agreed) (at [68]):

68    The circumstance that a sudden physiological change has been caused or provoked by disease does not prevent it from constituting a “physical injury” for the purposes of s 7(1 ). …

17    The sudden physiological change (McHugh, Gummow and Hayne JJ at [68]; Gleeson CJ and Kirby J at [35], [36]) referred to in Kennedy Cleaning was a stroke. In Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 (“Zickar”), which was at the centre of the discussion in Kennedy Cleaning, it was the rupture of a cerebral aneurism. In Accident Compensation Commission v McIntosh [1991] 2 VR 253, which was referred to by the majority in Zickar (at 335, 344) and by Gleeson CJ and Kirby J in Kennedy Cleaning (at [36], [37]), it was a sudden rupture of blood vessels and a consequent cerebral haemorrhage. The injuries thus identified occurred at work or during a “protected period”.

18    Kennedy Cleaning and Zickar, in particular, instruct that a new and identifiable injury is not subsumed in previously identified or existing conditions. However, as the AAT correctly pointed out, the need to identify an injury (in the sense defined in s 4 of the SRC Act) was fundamental. It may also be necessary, depending on the circumstances of a particular case, to identify when and where the injury occurred – e.g. was it at work or at home.

Mr May’s case before the AAT

19    Mr May asserted that he suffered an injury as a result of vaccinations given to him during his RAAF service. That contention incorporated notions of causation. It also located the source of the injury and placed it in a working environment. However, Mr May was a self-represented litigant and although he appeared to have put a comprehensive case to the AAT it is clear, in my view, that the AAT spent some time exploring his contentions from other perspectives to see if he was entitled to compensation for reasons he did not argue. In particular, the AAT examined whether Mr May suffered from a disease, rather than suffering an injury simpliciter.

20    If Mr May’s condition lacked the sudden onset necessary to qualify for consideration as an injury simpliciter, so that it could only be compensable (if at all) as a disease, then a further condition had to be met before compensation was payable. It would, in those circumstances, be necessary to show that Mr May’s employment had made a material contribution to his condition.

21    Mr May appeared to be conscious of those matters before the AAT. He did not rely on any suggestion that his condition was a disease. However, his thesis about the vaccinations, if accepted, would have satisfied the additional requirement of material contribution.

22    Before the AAT, there was some lack of precision about the injury claimed by Mr May. In his application for compensation he referred to “low immunity, fatigue, illnesses, dizziness”. In his evidence, Mr May referred to fatigue, vertigo, dizziness and an adverse effect on his fitness. He attributed all those matters to vaccinations received during his RAAF service. The AAT recorded (at [41]):

41.    Mr May said that he had no pre-existing medical condition prior to receiving vaccinations during the course of his RAAF service. He “went from healthy to handicapped, from pilot to disabled” after being vaccinated. The probable cause, he contends, is an unintended Adverse Drug Reaction (ADR) to medical treatment he received while in the RAAF. He claims that his health deteriorated after each occasion on which he was vaccinated. Mr May said his initial reactions were temporarily [sic: temporally] close to the vaccines being administered. He noted that nobody has come up with a rational alternative explanation.

23    The logical premise upon which Mr May’s case depended was the contention that, as no alternative explanation had been given for his disabled condition, it should be accepted in the light of his own evidence that it had been caused by the vaccinations.

The respondent’s case in the AAT

24    The argument which the respondent advanced before the AAT relied on the absence of a causal link between Mr May’s condition and his vaccinations during RAAF service, but it did so in two stages. First, the respondent contended that Mr May could not identify a specific injury, so that his condition should be regarded as an “ailment” and therefore as a “disease”. That is, there was no compensable “injury simpliciter” established at all. Secondly, the respondent argued that there was no apparent material contribution to any disease from Mr May’s RAAF service. The AAT recorded the argument as follows:

36.    The MRCC does not concede that the symptoms complained of by Mr May were consequent upon him receiving vaccinations during his RAAF service. Despite Mr May having been assessed by a significant number of specialists, there is no clear diagnosis for his illness and no sufficient causal link with his RAAF service. Nevertheless, the MRCC accepts that Mr May suffers from a chronic condition which it says can probably be best described as a ‘functional somatic disorder’ as suggested by Dr Loblay.

37.    The MRCC contends that in the absence of any objective evidence to establish a sudden and ascertainable or dramatic disturbance of Mr May’s normal physiological state, his condition cannot be characterised as an injury in the ordinary sense. Rather, it should be characterised as an ‘ailment’ as defined in s 4(1) of the SRC Act. Thus, liability for Mr May’s condition must be considered by reference to the definition of ‘disease’, thereby requiring a material contribution by Mr May’s RAAF service to his condition.

38.    The MRCC contends that none of the medical specialists who have examined Mr May have identified a relevant causal connection between Mr May’s symptoms and the vaccinations he received during service. Most recently, Dr Loblay considered it “very unlikely that Mr May has suffered from an immunologically mediated adverse reaction to the vaccinations he was given”. Thus, in the absence of evidence supporting a finding of a material contribution by Mr May’s service to his condition, he has not suffered a ‘disease’ as defined in s 4(1) of the Act and nor, thereby, an ‘injury’ establishing liability for the payment of compensation under s 14 of the SRC Act.

25    It was thus of fundamental importance for the AAT to decide whether Mr May had suffered an “injury simpliciter”. If he had not, then if his symptoms could be classified as a disease it was necessary to decide whether his employment had made a material contribution.

26    Determination of those issues required consideration of an amount of medical evidence, as well as Mr May’s own evidence.

The medical evidence

27    The AAT conducted a survey of the medical evidence which it regarded as material to the issues before it. The vaccinations during Mr May’s RAAF service occurred between 10 November 1998 and 30 March 2000, although he also had earlier vaccinations against Hepatitis A and B. The survey discloses a history of medical difficulties and issues for Mr May. Some occurred in the same period as various vaccinations were given to him, although no relationship between those matters was established, as the AAT assessed the matter.

28    Before his RAAF service, Mr May had suffered from glandular fever and experienced chronic fatigue which appeared to resolve. After the first set of vaccinations which occurred during his RAAF service he was diagnosed with a viral illness. The following year (1999), he was again diagnosed with a viral illness. In 2000 Mr May was found to need gammaglobulin treatment for persistent lymphopenia (low lymphocytes count). It was suggested then that the treatment would be lifelong but in 2001 the treatment was found to be no longer necessary. In the succeeding years Mr May underwent a series of investigatory procedures which produced no clear identification of the cause of his symptoms. I shall refer to some of them in more detail later.

29    One feature of Mr May’s condition, the complaints which he made and his recorded perceptions is that no clinical evidence or psychiatric explanation could be found to support his reported symptoms, although it has not been suggested that he is malingering or has given an account lacking in honesty.

30    One example of the difficulty that has presented for his case concerns his report, over some years, that he feels as though his tongue is swollen, a circumstance which he attributes to a reaction to the vaccinations he was given during his RAAF service.

31    The most recent authoritative medical reports before the AAT were from Dr Robert Loblay, the Director of the Allergy Unit in the Department of Clinical Immunology at the Royal Prince Alfred Hospital in Sydney, who also gave oral evidence to the AAT which it is apparent the AAT accepted. In a report dated 26 October 2010 Dr Loblay said:

12.    …

•    Despite the lack of obvious swelling on examination, Mr May is convinced that his tongue is pathologically swollen. …

32    In a later, more comprehensive, report dated 1 September 2011 Dr Loblay recorded Mr May’s symptoms (in part) as follows:

Mr May’s symptoms

Mr May described a sensation of swelling of his tongue and soft palate coming on within 30-60 minutes (possibly less) of his first injection of ADT and Twinrix vaccine in November 1998. There was no associated itch, tingling, burning, gagging, or difficulty with breathing, swallowing or speaking, and there were no systemic symptoms (urticarial, angioedema, bronchospasm, syncope) to suggest a generalized allergic reaction. The sensation of palate swelling subsided over about 2 days, but his tongue has subjectively felt “large and uncomfortable” ever since, despite the lack of any objective swelling. …

33    Later, he referred to criticisms which Mr May had made of the first report, saying:

Tongue examination

On page 12, point #88, Mr May disputes my statement that “there was no obvious swelling on examination”. I can assure him that if he had angioedema of the tongue (allergic swelling seen in Type I hypersensitivity reactions) it would indeed have been obvious on inspection “from more than one metre away” and it would have noticeably interfered with his ability to enunciate his words during our various consultations. More importantly, angioedema lasts for minutes, hours or days (at most), not for months or years. I am confident that, whatever the cause of his persistent sensation of tongue swelling, it is not the consequence of an allergic (Type I, ‘immediate’ hypersensitivity) reaction.

34    This is just one example of a more general picture. No reliable physiological verification has been found for a number of Mr May’s reported symptoms.

35    More generally, Dr Loblay accepted Mr May as genuine, as he did also in his oral evidence.

36    Dr Loblay also effectively rejected Mr May’s own explanation for his symptoms. In his report dated 26 October 2010 Dr Loblay said:

8.    I consider it very unlikely that Mr May has suffered from an immunologically mediated adverse reaction to the vaccinations he was given.

37    In his second report Dr Loblay again expressed the view that it is:

very unlikely that Mr May’s condition is a result of the vaccinations he received during his military service.

38    There are findings by other medical practitioners also recorded by the AAT. In March 2001 Dr David Sutherland, Clinical Immunologist, found Mr May to be in “rude good health” and his general physical examination was “entirely normal”. In December 2002 in response to complaints of “imbalance” Dr Peter Barrie, an Ear, Nose and Throat (ENT) Surgeon, said: “physical examination reveals normal tests of balance with no gaze nystagmus”. On 12 March 2003 Dr Michael Halmagyi, a Neurophysiologist, could find “no vestibular abnormalities”. In a letter dated 9 September 2003 Dr John Tonkin, an ENT Specialist, reported negative results for tests he had ordered and that the balance test result was normal. On 13 January 2004 Professor Paul Fagan, an ENT Surgeon, said he could find no evidence “of any vestibular or central nervous system abnormality”. In May 2008 tests organised by Dr Thomas Kertesz, ENT Surgeon, were within normal limits. In 2008 Dr David Pohl, ENT Surgeon, arranged an MRA scan, which proved normal. In 2011 Dr Anthony Lowy, Occupational Physician, noted a normal physical examination with “no validation of vestibular disease”. In a report dated 11 June 2011, Dr Andrew Dowe, ENT Surgeon, agreed with Dr Lowy.

39    In June 2011 Mr May was assessed by a psychiatrist. Dr Marilyn Moore said that there was no psychiatric disturbance which could better account for his symptoms.

40    The result is that Mr May’s reported symptoms required assessment by the AAT against a background of extensive medical investigations which provided no explanation for his perceptions or any real support for his assertions that he had suffered an injury as a result of the vaccinations he was given.

41    The fact that there was no observed or measured confirmation of Mr May’s present complaints was a matter of significance in the findings of the AAT, and its conclusions about whether there had been a “sudden physiological change” which might represent a compensable injury. Another question of significance was whether any relevant connection could be made with the vaccinations Mr May received during his service with the RAAF.

42    I shall return, in due course, to a suggestion made in submissions in the present appeal, that Mr May’s reported symptoms were compensable as an injury regardless of, and independently from, any suggested association with the vaccinations.

The AAT’s reasoning

43    The AAT accepted that Mr May was “disabled by his condition” but it expressed difficulty identifying with any precision what that condition was, although there appeared no doubt about the symptoms. The AAT said (at [48]):

48.    There appears to be no dispute that Mr May is significantly disabled by his condition. This was confirmed by Dr Loblay in giving evidence at the hearing, and the Tribunal notes a Centrelink ‘Job Capacity Assessment Report’ dated 28 October 2011 provided by Mr May which indicates that he is qualified for a disability support pension. That report states that the medical condition from which Mr May suffers is vertigo. The evidence before us indicates that it is this condition that Mr May currently finds most disabling. Yet, in the Tribunal’s view, there is no medical evidence to establish a connection between Mr May’s vertigo and the vaccinations he received while in the RAAF.

44    The AAT identified the questions that appeared to it to arise for its consideration, and the answers, as follows (at [52]):

DID MR MAY SUFFER AN INJURY SIMPLICITER ARISING OUT OF OR IN THE COURSE OF HIS EMPLOYMENT WITH THE RAAF?

52.    We have found the issue of what constitutes an injury simpliciter to be a difficult one to determine in this case. In our view, it is worth stating the questions that we consider Mr May’s case poses. First, in order to establish an injury simpliciter, is it sufficient to find that a person suffers symptoms in the course of his or her employment and that the person is not a malingerer, in the absence of any physiological evidence, pathology or a known diagnosis to explain the symptoms, or a psychiatric disorder to account for them? Second, in this situation, is subjective evidence of symptoms – in this case Mr May’s personal evidence – sufficient to establish a non-disease injury? The Tribunal’s understanding of the current state of the law, discussed above, is that the answers to both questions is ‘No’.

45    The AAT then examined that issue in more detail. Later it examined whether Mr May suffered from a disease.

46    The AAT’s findings about the medical evidence appear sufficiently from the following passages in its decision:

58.    Having reviewed the medical evidence, the Tribunal is satisfied that there is a temporal relationship between the vaccinations and the symptoms described by Mr May, some of which were recorded in the clinical notes during the periods after the vaccinations. Despite Mr May having been assessed by a significant number of specialists, there is, however, no medical explanation for Mr May’s ‘illness’ in the period following the vaccinations, the ‘illness’ being what Dr Loblay described as a subjective description of a collection of symptoms. The question is whether that illness amounts to a sudden or identifiable physiological change in the normal functioning of the body or its organs such that the illness can be said to be an injury simpliciter for the purposes of the SRC Act.

59.    The Tribunal accepts that objective evidence of a swollen tongue or dizziness would be evidence of physiological change. Similarly, objective evidence of diarrhoea and upper respiratory infections would be evidence of physiological change, albeit that these conditions would ordinarily be considered ‘ailments’ in the context of the SRC Act. However, there is no objective evidence of Mr May’s swollen tongue or dizziness, or pathology to support his account of his symptoms. The only contemporary evidence is his description of a swollen tongue and dizziness to the doctors who subsequently examined him and recorded his description in their clinical notes. The Tribunal accepts that there is objective evidence of Mr May suffering from diarrhoea and upper respiratory infections. Diagnoses were made in respect of these ailments which were treated and subsequently resolved. Nevertheless, even if we were to accept, which we do not, that these ailments should be treated as the product of an injury simpliciter, there appears to be no objective evidence connecting these conditions with the vaccinations. More particularly, as is discussed below, there is insufficient evidence to establish that the ailments were contributed to in a material way by Mr May’s employment.

60.    We note, in particular, Dr Loblay’s oral evidence that, in Mr May’s case, there is no biological mechanism consistent with a vaccine generating an immune response. The doctors who examined Mr May from late November 1998 onwards diagnosed him at various times as suffering from gastroenteritis, and viral and bacterial infections including pneumonia, and there is no objective evidence to connect these conditions with the vaccinations Mr May received. Moreover, it is not these ‘ailments’ that appear to be the current cause of his incapacity.

61.    With regard to what we have loosely described as Mr May’s vertigo, which is the condition which is the principal cause of Mr May’s current disability, once again there is no objective evidence of him suffering from this condition in the period following his vaccinations and there is no substantial pathology to explain the symptoms which he now experiences, as discussed above.

62.    The Tribunal does not accept, as Mr May contended, that the fact that there is no plausible alternative explanation is sufficient to establish, on the balance of probabilities, that he suffered a physical injury as a result of the vaccinations. The medical evidence, for example of Dr Halmagyi and Dr Loblay, discounts the possibility of such a connection. Moreover, while the Tribunal accepts that Mr May is significantly disabled by vertigo, we note the medical evidence, for example of Dr Kertesz and Dr Pohl in 2008 and Dr Lowy and Dr Dowe in 2011, indicating a lack of any pathology consistent with Mr May’s symptoms, resulting in their inability to make a diagnosis.

63.    In conclusion, we are not satisfied on the balance of probabilities that Mr May suffered a physical injury – an injury simpliciter – amounting to a sudden or identifiable physiological change in the normal functioning of the body or its organs that can be attributed to the vaccinations he received while serving in the RAAF. There is insufficient evidence to establish that he suffered such an injury in the course of his employment.

47    The AAT’s reasoning had two elements, either of which was fatal to Mr May’s case.

48    First, the AAT was unable to find, to its own satisfaction, that Mr May in fact suffered from an injury within the meaning of s 14 of the SRC Act. His reported symptoms did not establish that fact to the satisfaction of the AAT.

49    The second element was that, in any event, nothing Mr May reported could be attributed, on the medical evidence, to the vaccinations he had received in the course of his RAAF service.

50    The finding made by the AAT that it was not satisfied that Mr May had suffered an “injury simpliciter” meant that no occasion arose to consider whether any such injury occurred during the course of his employment or arose from it. However, it is clear from later findings that, based on the medical evidence, the AAT did not accept that Mr May’s symptoms (whether an injury simpliciter or not) could be attributed to vaccinations as he claimed.

51    Having regard to its findings, the AAT clearly would not have accepted that the symptoms Mr May suffers arose out of his employment – i.e. were caused by it. Similarly, because it found no established connection between those symptoms and the vaccinations there would be no foundation for any conclusion that the symptoms might be attributable to anything which happened at work – i.e. in the course of employment.

52    The AAT then went on to consider whether Mr May suffered from a disease, but concluded that there was no basis to find that Mr May’s service with the RAAF made a material contribution to any disease. The essential reason again was the lack of any satisfactory basis upon which to attribute a disease (if it be that) to the vaccinations, in light of the medical evidence.

53    The conclusions to which I have referred were factual conclusions. Conclusions of fact are not matters for which this Court may substitute any view of its own. In order to disturb the outcome in the AAT, and remit the matter for further consideration, it would be necessary to find a legal error which, when corrected, might lead to a different outcome.

54    That practical circumstance reinforces the need, to which I earlier referred, to retain an appropriate focus on legal, rather than factual, issues in order to properly engage the jurisdiction of the Court under s 44 of the AAT Act. In particular, assessment of the medical evidence, upon which its conclusions were based, was a matter for the AAT, not this Court. That assessment concerns factual, not legal, issues.

The issues on the appeal

55    The written submissions for Mr May addressed each of six grounds of appeal set out in a supplementary notice of appeal as follows:

(1)    The Tribunal misconstrued the definition of ‘injury’ in section 4 SRCA in that it wrongly held that the constellation of symptoms suffered by the Applicant was not capable of constituting an ‘injury’ without a definitive diagnosis of the underlying condition.

(2)    The Tribunal misconstrued the definition of ‘injury’ in section 4 SRCA in that it wrongly required ‘objective’ evidence by way of corroboration of any reported symptoms as a necessary prerequisite to finding an injury.

(3)    The Tribunal misconstrued the definition of ‘injury’ in section 4 SRCA in that it wrongly held that a medical history given by the Applicant to doctors was not of itself capable of establishing an injury without the presence of ‘objective’ corroboration.

(4)    The Tribunal misconstrued the definition of ‘injury’ in section 4 SRCA in that it wrongly held that an adverse reaction to a vaccination could not amount to ‘injury’ as opposed to a ‘disease’. More specifically, the Tribunal wrongly applied the test for an ‘injury simpliciter’ and wrongly held that the adverse reaction could not amount to an injury simpliciter.

(5)    The Tribunal did not consider the argument seriously advanced by the Applicant that there was an ‘injury’ pursuant to section 6A(1)(b) [sic: 6A(2)(b)] of the Act arising from the unintended consequences of the medical treatment paid for by the Commonwealth in the course of the Applicant’s employment with the Commonwealth.

(6)    The Tribunal applied an incorrect standard of proof in determining whether the effects of the vaccination constituted an injury for the purposes of the Act. In particular the Tribunal erred in finding that it was necessary for the medical witness to opine ‘definitively’ whether the Applicant had suffered that adverse reaction.

56    Those grounds addressed the following four asserted questions of law:

1.    Whether the Administrative Appeals Tribunal erred in law in its construction of the definition of ‘injury’ and ‘disease’ in section 4 Safety Rehabilitation and Compensation Act 1988 (the Act) as it stood at the relevant time.

2.    Whether the Administrative Appeals Tribunal erred in law in failing to address and determine an argument seriously advanced by the Applicant that the injury arose from the unintended consequences of medical treatment paid for by the Commonwealth in accordance with section 6A(1)(b) [sic: 6A(2)(b)] of the Act.

3.    Whether the Administrative Appeals Tribunal erred in law in failing to consider and determine whether on the facts found by the Tribunal, the Applicant’s injury satisfied the temporal limb of the test for an ‘injury’ in section 4, namely whether the injury arose ‘in the course of the employment’ with the Commonwealth.

4.    Whether the Administrative Appeals Tribunal erred in law in applying a wrong standard of proof in coming to its conclusion that the Applicant did not suffer an injury within the meaning of the Act.

57    There is, with respect, a good deal of force in the challenge made by the respondent that these asserted questions do not state any question of law which arises for consideration in the present case. However, it is not necessary to determine the present appeal by reference to arguments of that character. I will therefore deal more directly with the issues raised by the grounds of appeal.

Written submissions about the grounds of appeal

58    Mr May was legally represented on the appeal. Written submissions were filed which addressed each of the grounds set out above.

Ground 1

59    The essence of Ground 1 appears to me to be captured by the following written submissions:

20.    … The Tribunal erred in law by adding to the statutory test for “injury” the requirement for a definitive diagnosis. …

and:

27.    … the Tribunal found that no injury had occurred because there was no definitive diagnosis. That approach constitutes an error of law.

60    In its discussion of that issue the AAT was not distracted or diverted by any mistaken view that it needed to identify a “definitive diagnosis”. The fact that there was no definitive diagnosis was undoubtedly relevant. But so too was the fact that there was no verification of relevant physiological change, or the development of a psychiatric condition, which responded to the vaccinations. Indeed, the suggested cause was, on the evidence, very unlikely to produce a physiological change which might correspond to Mr May’s reported symptoms. I am satisfied that the AAT was not distracted or diverted from the statutory test.

61    The AAT did not add an additional test; it found as a fact that Mr May had not established that he had suffered an injury.

Grounds 2 and 3

62    The submissions about Grounds 2 and 3 (which were addressed together) argued that the AAT wrongly required objective evidence to support a definitive diagnosis and wrongly disregarded Mr May’s own evidence of his symptoms.

63    This argument, in my view, wrongly states the effect of the AAT’s analysis of the facts. The AAT searched for evidence which would establish that an injury had occurred. It took account of Mr May’s own belief and assertion that the injury which he claimed had occurred was the result of the vaccinations. That was the reason why he recounted the symptoms he suffered shortly after the vaccinations were given. The AAT ultimately found that it was not satisfied that the symptoms corresponded to an injury in the relevant sense. It found that the symptoms had been given various medical explanations, none of which identified an injury of the kind asserted by Mr May. There was no error of law involved. The findings were all findings of fact.

Ground 4

64    The argument in support of Ground 4 focussed on paragraph 58 of the AAT decision which I set out earlier. The argument was that the finding of adverse effects shortly after vaccinations was sufficient in its own right to satisfy the injury requirement. Identification of a transient response would not further Mr May’s case. The real question was whether his disabled condition was due to an injury. The only injury suggested was the asserted consequence of the vaccinations. The AAT did ask itself if that injury had been established and found it had not.

Ground 5

65    Section 6A(2)(b) of the SRC Act, at the relevant time, provided:

6A    Injury arising out of or in the course of employment—extended operation

…

(2)    If, at any time, whether before, on, or after, 1 December 1988:

(a)    an employee to whom this section applies received or receives medical treatment paid for by the Commonwealth; and

(b)    as an unintended consequence of that treatment the person suffered or suffers an injury;

the injury to the employee is taken to have arisen out of, or in the course of, the person’s employment, whether or not the person has remained an employee to whom this section applies.

66    Section 6A of the SRC Act applied to Mr May, but it did not give him any greater, or different, claim to compensation on the facts of his case. The AAT decision accepted, as a fundamental premise in Mr May’s case, that the claim he made was based on the proposition that the vaccinations he received caused him a compensable injury. The findings of fact made by the AAT apply as equally to any reliance on s 6A(2)(b) as they do to reliance on s 14.

Ground 6

67    The written submissions argued that an inference arose of a probable connection between the vaccinations and an injury because of a temporal proximity with symptoms described by Mr May and that the AAT could, and should, have accepted that as sufficient to find the claim for compensation established. The AAT took into account Mr May’s argument that an inference arose from the temporal proximity of the symptoms he described with the vaccinations he received. However, as earlier discussed, the AAT did not accept that an injury had occurred, despite the asserted temporal connection. That involved a weighing of the evidence and findings of fact. There was no misunderstanding by the AAT of any relevant legal principle including the appropriate standard of proof.

Oral arguments in support of the appeal

68    Before the AAT, Mr May’s case was that it should be accepted, in the absence of another plausible explanation, that his condition was the result of the vaccinations. The difficulty for that case was that the AAT did not, in the end, accept that the vaccinations provided an explanation for his condition which it should accept. The AAT accepted Dr Loblay’s evidence that this suggested explanation, while not impossible, was very unlikely.

69    On the present appeal, Mr May’s case was put more broadly, particularly in oral argument. It was submitted on his behalf that the AAT should have gone beyond the parameters of the case advanced by Mr May and examined for itself the proposition that his reported symptoms were sufficient evidence of an injury regardless of any suggested connection with vaccinations.

70    As I understood the argument , it was that Mr May’s own evidence should have been accepted by the AAT as sufficient evidence of an injury (a sudden or identifiable physiological change) of a physical or mental nature occurring during his employment, regardless of its cause.

71    The argument faces some practical difficulties. Mr May’s case has always been that he suffered an injury as a result of vaccinations. The symptoms which persist are attributed by Mr May to the vaccinations. Those symptoms have not been found to correspond with observable physiological indications consistent with his reports. The vaccinations have been found to be unlikely to result in such symptoms.

72    In my view, no criticism of the AAT is reasonably available because it dealt with the case presented to it, rather than one which was not. No error of law has been identified in that respect.

73    In any event, in my view, in substance the AAT did examine the matter on the broader basis proposed. That is, in substance, the question the AAT posed for itself at paragraph 52 (set out earlier). The AAT posed a further question about the “illness” represented by Mr May’s collection of symptoms which it identified at paragraph 58. In paragraph 59 it is apparent that the AAT felt unable to accept that the reported symptoms represented an injury simpliciter in their own right. When the AAT returned to finally reject any suggestion of connection with vaccines (paragraphs 60-63) it had not overlooked the possibility of a broader case; it had effectively rejected it.

74    All the findings which supported those conclusions were findings of fact. The findings of fact did not incorporate or involve legal error.

Conclusion

75    There is no doubt that Mr May has a thesis which provides him with an explanation for his ongoing difficulties. The AAT gave careful consideration to that thesis but found it had very little support in the medical evidence and, indeed, was contradicted by its own evaluation of the medical evidence. The findings it made in that respect were findings of fact.

76    There was no legal error, arising from any wrongly decided questions of law or otherwise, which vitiates those findings of fact.

77    It is not necessary to give separate, or further, consideration in the present case to whether the appeal is flawed or liable to dismissal because it fails to state a relevant question of law in the notice of appeal.

78    The present appeal must be dismissed. On ordinary principles the appeal should be dismissed with costs.

Associate:

Dated:    30 April 2014