Vaccination and alleged injury

Military Rehabilitation and Compensation Commission v May [2016] HCA 19 concerned a claim in which Mr May was vaccinated in course of employment and shortly afterwards felt unwell, with symptoms described as vertigo.

The medical evidence did not establish the nature and mechanism of any physiological or psychiatric change.

In considering the meaning of injury under the relevant legislation, the Court (French CJ, Kiefel, Nettle & Gordon JJ) said at [62]:

The “nature and incidents of the physiological [or psychiatric] change” will determine whether there was an “injury (other than a disease)”.  The evidence to be adduced, of course, will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events.  To take an extreme example, the dismemberment of a limb involves a physiological change as a matter of common sense.  But there must be more than an assertion by an employee that he or she feels unwell.

The Court held at [68] that that the evidence did not demonstrate that Mr May suffered an “injury (other than a disease)”. As he suffered neither from a “disease” nor from an “injury (other than a disease)”, neither of the two separate bases of liability for which the Act provided was made out.

In a separate but concurring judgment, Gageler J said at [82]:

The Tribunal, in my opinion, displayed no legal error in answering that question when (on the one hand) it accepted that Mr May experienced debilitating dizziness, which could “loosely” be described as “vertigo”, and yet (on the other hand) it found itself unable to be satisfied that the dizziness was enough to show that Mr May had suffered an injury “in the absence of any physiological evidence, pathology or a known diagnosis to explain the symptoms”…

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