Rawlings v ANZ Bank

IN THE MAGISTRATES COURT OF VICTORIA

C12452009

AT MELBOURNE

KELLIE RAWLINGS	Plaintiff
v
AUSTRALIAN AND NEW ZEALAND BANKING GROUP LTD	Defendant
MAGISTRATE:	Magistrate B R Wright
WHERE HELD:	Melbourne
DATE OF HEARING:	12 – 16 February 2018
DATE OF DECISION:	2 May 2018
CASE MAY BE CITED AS: MEDIUM NEUTRAL CITATION:	Rawlings v ANZ Bank [2018] VMC005

REASONS FOR DECISION

Workers Compensation – Rejection of Claim – Myalgic Encephalomyelitis/Chronic Fatigue Syndrome – Diagnosis/Causation - Two Influenza Vaccinations at Work – Whether Employment a Significant Contributing Factor to a Disease Contracted in the Course of Employment or to the Recurrence, Aggravation, Acceleration, Exacerbation or Deterioration of a Pre-Existing Injury or Disease – Accident Compensation Act ss.5, 82(2C)

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S McCredie	Mazzeo Lawyers
For the Defendant	Mr C Winneke QC with Mr M Richards	Thomson Geer

HIS HONOUR:

1 In these proceedings Ms Rawlings is seeking benefits pursuant to the Accident Compensation Act 1985 ("the said Act") for chronic fatigue syndrome/myalgic encephalomyelitis ("CFS"). Both terms refer to the same condition. She has submitted two separate claims for her alleged CFS upon the Defendant (“ANZ”).

2 In his opening her Counsel stated that she had two separate influenza immunisation vaccinations on 23 May 2007 ("the first vaccination") and 11 April 2008 ("the second vaccination"). At the time of both vaccinations she was employed by the ANZ as a branch manager. The ANZ arranged and paid for both vaccinations which were given to her on bank premises and during her normal working work hours.

3 In between the vaccinations, in about August 2007, she had a severe viral or upper respiratory tract infection.

4 In opening, her Counsel put that her CFS is a physical injury. He said that there was “really only the one issue” that is, “whether there has been a work-related injury arising from the second flu vaccination as a result of it aggravating the pre-existing chronic fatigue syndrome”. He said the first vaccination was a “red herring” in relation to the CFS.

5 However, after completion of the evidence the basis of her claim altered in his written final submissions, as I will discuss later.

6 He submitted that any psychiatric component in this case was the result of, and consequential upon, her physical injury.

7 Ms Rawlings last worked for the ANZ on about 2 December 2008 and claims continuing weekly payments from that date and continuing together with continuing reasonable medical and like expenses. He conceded that she did in fact return to some form of alternative duties in 2009 and even in early 2010 but otherwise has been unable to perform any employment and has had "no current work capacity" effectively for most periods since 2 December 2008.

8 In opening, Senior Counsel for the ANZ submitted that his client did not accept that Ms Rawlings has sustained any work-related organic or physical injury arising out of or in the course of her employment. Although she may have widespread pain and fatigue, she has sustained no physical injury. If it was determined that she does in fact have CFS, he submitted that this condition bore no relationship to her employment and in particular the first and/or second vaccinations. Any psychiatric injury was only relevant if in fact she had a work-related physical condition which was denied. The ANZ did not concede that she has had any incapacity for work at any time. It did not dispute that if the issues of diagnosis and causation were found in favour of Ms Rawlings then she would be entitled to benefits pursuant to the Act.

9 Both Counsel agreed that the real issue in this case is whether or not Ms Rawlings has sustained a work-related injury, namely CFS, arising out of or in the course of her employment with the ANZ Bank. Although there were some differences on the question of any incapacity for work, this was peripheral to the main issue of work relationship to any CFS.

10 Apart from Ms Rawlings giving viva voce evidence, her Counsel called her treating psychiatrist Dr Hyland, as well as an independent medical expert, Professor Andrew Lloyd.

11 Counsel for the ANZ called two independent medical experts, a consultant physician, Dr Peter Stevenson and Associate Professor Spelman. Otherwise, both parties tendered a number of medical reports and other documents which I will detail in due course.

The Plaintiff’s case

12 Ms Rawlings gave evidence she is currently 63 years old and is living with her third husband. She has had a total of four children with her youngest child, a 16 year old daughter, currently living with her.

13 Her major prior employment was with Myer and an associated children's goods business, World 4 Kids, from about 1987 until the birth of her final child in July 2012. She had been working just prior to that as a 2iC and then a store manager.

14 She had at least two bouts of post-natal depression for which she was hospitalised. When her second marriage ended in about October 2004 she took an accidental overdose and was hospitalised again. She did in fact have some electro-convulsive therapy (“ECT”) during at least one of those hospitalisations at the Albert Road Clinic.

15 She commenced employment at the ANZ in about March 2007 as a trainee branch manager. She underwent medical testing prior to that employment. She said her health then was very good, save for the fact that she had a left wrist injury in about May 2007.

16 On 23 May 2007 she had her first ever flu vaccination at work during work hours. She asked for the injection into her right arm because of her left wrist condition. She said that after the injection there was a red swelling and a raised lump at the site of the injection. Shortly after she was "hot and sweating" and was "aching" next day and following. There was aching and tiredness throughout May 2007 and indeed for most of that year on and off. She had a steroid injection into her left wrist on about 29 June 2007.

17 She said that on 6 August 2007 she attended a GP, Dr Carmen, at the Carnegie Medical Centre complaining of difficulty in breathing and a sore throat after the first vaccination. She was placed on antibiotics which were varied on 8 August 2007. On the following day she attended the same clinic with a diagnosed upper respiratory tract infection with cough and throat issues. It was believed this may have been viral.

18 On 13 August 2007 she said that she attended Dr Carmen and had improved after the second course of antibiotics. Despite this, on 17 August her treating psychiatrist, Dr Hyland, sent her off for blood tests. She attended a Dr Dawson at the Carnegie Medical Centre on 27 August 2007 complaining of "pain in the left ear, facial pain, feels exhausted". On 29 August 2007 she attended for headaches and sinus issues. On 30 August 2007 there was some mucosal thickness to the nose. On 10 September 2007 there was a three day history of cough and wheezing and she was put on to asthma medication, although she had had no previous diagnosis of asthma.

19 On 11 September 2007 she reported to her GP that she had been unwell the previous night, an ambulance had been called and she was put onto oxygen. She was then placed on stronger antibiotics.

20 On 13 September 2007 she agreed she attended a Dr Robertson, a respiratory physician, and gave him an eight week history of a chesty cough, being quite sick and being off work for ten days or so.

21 She was then taken through her leave records at the ANZ. These indicated that she took one day off on 15 June 2007 on sick leave which was the first time she had been off work after the first vaccination.

22 She said that she worked in the time up to 15 June 2007 and was able to do so. However, in the period up to the second vaccination she was "not 100 per cent" and had aches and pains "all over" with some headaches. She said she "pushed through at work".

23
She took one day's annual leave on 29 June 2007. She agreed that she had single days off work with medical certificates on 3 August 2007,

14 August 2007, from 16 to 17 August 2007 and from 27 to 31 August 2007.

24 Over those dates she said she was "struggling with standing up, etc." because of her chest and struggling to breathe. She was off work again from 11 September to 14 September 2007 on a medical certificate and took annual leave from 24 September to 5 October 2007, which she believed was over the period of school holidays.

25 In October 2007 her employment as a branch manager was changed from Carnegie to Cheltenham where she managed six to eight staff. She was the actual branch manager at that time. When she started at Cheltenham she was still getting over her respiratory condition. She said she was not 100%, but was able to perform her work. She said she was very tired at the end of the day and would have a nap when she got home. She then put into place some assistance, including having a nanny at home. This was around late November 2007.

26 She was formally appointed a branch manager on 3 March 2008. In her time at Cheltenham between October 2007 and March 2008 she still had fatigue and aching of the body. She would get home and not remember the actual route that she had taken driving home. She was unable to cook tea at night and would go to bed, basically fall asleep and get up the next morning to go to work. Business at the bank increased over the Christmas period of 2007 and she had to "work through". She believed she coped with work all right as she was paid a bonus in that time.

27 On 12 May 2008 she was given a “March 2008 - Performance Review”” bonus for exceeding sales performance, that is sales over her budget for the six month period up to about February 2008. At that stage her basic salary was about $76,000 per annum.

28 She was again taken through the leave records and agreed that she had sick leave without medical certificates on 19 November 2007, 20 November 2007 and 5 February 2008. She took no annual leave over Christmas 2007. There were a further three days off work without medical certificate from 12 March to 14 March 2008. She was unable to remember the reason for that.

29 As noted, the second vaccination took place on 11 April 2008. She was asked about her health over the period about March and April 2008 and said that she was tired all the time. She would go home, go to bed straight away and would sleep over the weekend. The nanny kept on working at the house. Her husband did things around the house and was supportive. Her physician was also supportive and she was trying to get as much rest as possible.

30 She remembered setting up the room for flu vaccinations on 11 April 2008. On this date she had the flu vaccination to her left arm. On this occasion there was a larger reaction around the site of the injection than there had been at the time of the first vaccination.

31 I note that 11 April 2008 was a Friday. She said she continued to work on the day of the second vaccination but spent the weekend in bed. She had hot and cold sweats and headaches, a sore throat and was aching all over. She said it felt like she had the flu.

32 She took no time off work immediately as she was due to take three weeks annual leave in about a week's time. She did not want to abandon work. She had to prepare the store, or at least the branch and team, for the time that she would be away.

33 She agreed that the leave records showed that from 21 April to 2 May 2008, and then from 12 to 16 May 2008 she was on annual leave. She did not know why there was a period of return to work between 2 and 12 May. She believed it was unlikely she went away during the period of annual leave.

34 She said that on her return from annual leave her symptoms went downhill. She was having trouble standing at work and was "giddy". She would forget things and found that her aches were getting worse to the extent that she was taking Panadol and Panadeine each day. She had facial pain across the nasal area.

35 There was a sore throat with a husky voice. She said there was "just a general feeling of feeling unwell". Her symptoms were similar to those before the second vaccination but were to a "worse degree". She said the symptoms were knocking her about a lot more. She was feeling unable to actually keep going as she was requiring longer periods to recover. She did not find that sleeping over the weekend was enough.

36 She was on carer's leave on 20 June 2008 which she thought was due to problems with her child. She did not remember why she took sick leave with a medical certificate on 26 June and 27 June 2008.

37
From that date until taking annual leave on 20 November 2008 she had a number of single or couple of days off work shown as sick leave without pay, annual leave and leave without pay (totalling approximately 14 to

25 days). She said in that time the sick leave was related to her symptoms after the second vaccination. She had been "feeling ill". If there was no sick leave she would have been using her annual leave. Despite the fact that some of the records refer to annual leave, she believed that she was really on sick leave. Alternatively, she and her regional manager agreed that she could take leave without pay.

38
On 15 July 2008 her manager told her that she was concerned that

Ms Rawlings was not fulfilling her duties as a manager. She was placed on an informal performance improvement plan. The manager told her that she was not "meeting the pillars that she was required to achieve for that path".

39 Ms Rawlings said she disagreed with her manager at the time. With hindsight she thinks that maybe there was some truth to it and the manager was not understanding how ill she was at the time. She was then placed on a formal performance improvement plan on about 29 September 2008.

40 Eventually, she resigned because she said that she realised she was getting more ill and needed to put her health first. She was having difficulty remembering what each day contained and was forgetting conversations. Each day was getting more difficult and because of the performance review she was having more work placed on top of her on a daily basis. She was ill so that she was not able to do her daily duties, let alone the extra work that was being placed upon her. She submitted a letter of resignation dated 19 November 2008 to her manager to finish on 19 December 2008. In the letter she stated that "I must put my health first and foremost, I have decided to resign my position with ANZ".

41 In fact, she finished up on 2 December 2008. In addition to the bonus in about May 2008, she did win a State award for health and safety in about April 2008.

42 She was beginning to see a number of different specialists between April and November 2008. Her treating psychiatrist, Dr Hyland, was conscious of her health and they discussed her illness in the context of whether she was suffering from depression. She had blood tests and was referred to an endocrinologist, a Dr Lang.

43 She had various treatments including ECT. In fact, she had eight sessions of ECT treatment at the Albert Road Clinic between 23 March and 4 April 2009. In the second half of 2009 she had a number of other tests such as a CT scan to the neck, a pelvic ultrasound and spinal X-rays. On 5 March 2010 she changed GPs to the Wynlorel General Practice in Malvern and came under treatment substantially by a Dr Jenny Mather.

44 She worked for a business known as "Roost" which was a homewares store in Glenferrie Road, Malvern. She knew the two owners from when she was working in Myer. They allowed her to work out the back of the shop or business. She was performing jobs such as checking and marking stock, checking invoices and working through soiled and damaged goods. She was able to work her own hours. She worked there in the period over about October to December 2009 working about 9 to 15 hours per week in October 2009 and up to about 25 hours per week near Christmas. She said she would try to "push as far as she could" and they accepted that. She did not return to work there after Christmas 2009.

45 In January 2010 she went to France for three weeks and attended a homeware show where she was looking to source product for a potential self-employed business. The homeware show was in very large premises and she became confused and teary wandering around the premises. She had difficulty in driving to the premises and found that she slept until about 2 pm each day. After four days at the home show in France, she then had two weeks’ vacation. On her return to Australia she said she basically broke down on arriving at the airport and did not stop crying until she got home.

46 She said her body was in pain. She could hardly walk from that week onwards. She spent most of the time housebound and in bed, unless she had an appointment or had to do something with the children.

47 Any activity led to her becoming more housebound. Twice she was unable to move her legs. At times her children had to lift her off the toilet, off the floor and out of bed. These limitations continued until she learned to prioritise her activities so that she now has her legs working and she is able to go to the toilet by herself. She walks limited distances. On one occasion while returning from the offices of a law firm, she found that walking uphill led to her feeling that her legs would go from under her. If she goes shopping at Chadstone she simply buys something and cannot stay there for more than an hour.

48 She was referred to Mark Stephens, a gastroenterologist, in about September 2010. She said that after other possibilities had been ruled out by the doctors that "chronic fatigue was looking like the main instigator". She said that Dr Hyland "also felt that it was most likely that".

49 Upon submitting her workers compensation claim form to the ANZ, she was assessed by one of their doctors, a Dr Spelman, whom she saw initially on or about 21 October 2010. She said that Dr Spelman "told me that's what I had (i.e. chronic fatigue syndrome)".

50 She then said that she went to a Dr Michael Oldmeadow, a specialist, who treated her CFS. She was treated by him for about 12 to 18 months and he placed her on a standard regime. This involved medications such as a pain killer, MS Contin, which was prescribed at a high dosage.

51 She was not able to return to work and was still unable to clean the house. She said she had a "high sensitivity to different medications". She stopped seeing Dr Oldmeadow as he was very hard to get in touch with, for example, to renew her prescriptions. She also said that some of his methods were “being questioned” and that the science he used such as cognitive behavioural therapy (CBT) and exercise therapy were now "proven through studies in the UK and America that they were actually quite damaging to severe ME patients". She stopped her treatment with Dr Oldmeadow for this reason as a result of her "own research” and believed this was not going to help.

52 She later went to a Dr Clayton Thomas for pain and he has given her four Ketamine infusions which last for about a year each. She only sees him yearly. She said that, in relation to her CFS, if she returned to work she believes that she would find difficulty in expressing words, to remember why she walked into a room, as well as having such symptoms as tiredness. If she was to play with her dog then she believes that she would need extra resting time. She finds that sitting upright all day is quite taxing as well.

53 As stated, she has had further CT scan tests to the neck and low back as well as physiotherapy. Physiotherapy formed part of Dr Oldmeadow's suggested graded exercise therapy. The physiotherapist asked her to fill out a folder with details of her activity but she had no activity to put in. She said that the physiotherapist was a first year graduate and she did not think that she was really listening to her.

54 She attended a Dr Houseman, a plastic surgeon, for removal of "granuloma injections". This related to a large lump on her arm after the second vaccination. She wanted to have the lump tested for another particular disease just in case it was not ME. This was excised on about 27 July 2011.

55
She also saw a Dr David Bird on two occasions in July and

August 2012 and said that he diagnosed "fibromyalgia and chronic fatigue syndrome". She said that if she continued there she would have been having treatments like saline drips, but she was unable to afford to continue to see him.

56 She came under the treatment of a cardiologist, Dr Sue Corcoran, after the second vaccination in about 2015. She said that after the flu vaccinations that she had "postural orthotic tachycardia syndrome" which is to do with her blood pressure, heart rate and volume of blood. Ms Rawlings said it is "quite common with ME/CFS patients". She said that Dr Corcoran is trying to bring the heart rate down and bring the blood pressure up. There has been some difficulty with the “complexities” and her “sensitivity to different medications”. She is now on Panadol and Florinef. She continues to see Dr Corcoran, but has not seen her for some six months. She had been referred by a GP at the Albert Road Clinic.

57 She says that with her low blood pressure she can faint quite easily if it drops too low. The high heart rate causes sweating. It means the “blood is not getting to the brain correctly which increases the cognitive issues”. She now also sees a Dr Ann Foley, a gastroenterologist, for her coeliac disease. She last saw her about six or seven months ago.

58 Ms Rawlings gave evidence that she has not been able to do any work since she stopped at the ANZ. She said that she would be "happy to be able to cook a meal for my family or do some housework".

59 She said that she is currently on a large amount of medication both in respect of her CFS and other health conditions. This medication includes Cymbalta, “Orovart”, Topamax, Melatonin, Circadin, Propranolol, Floramal, Pariet, Vitamin D3 and Tramadol.

60 In cross-examination she said that she had cognitive impairment and said that affected her ability to make decisions and do things. She often wonders what she was doing in a room at a time. She also has difficulties such as reading a novel and has to reread a page or paragraph over and over again. She did not remember the content of TV programs she had watched. She was unable to remember the answers to questions she might have seen in a quiz on previous occasions.

61 She was asked when it was determined she had CFS. She said she was referred to Dr Michael Oldmeadow. She said that "we looked up to find out who there was to treat the condition". The "we" included Ms Rawlings, her husband, Dr Hyland and a GP, Dr Urie.

62 She knew that Dr Oldmeadow was one of the few physicians who dealt with CFS in Melbourne. She gave him a history and he prescribed medications. She said a lot of the interaction with Dr Oldmeadow was by phone. He gave her medications such as MS Contin and Gabapentin. She denied he referred her for CBT. He sent her to an exercise physiologist. This was for graded exercise therapy.

63 She said that Dr Oldmeadow’s suggested treatments such as graded exercise therapy and CBT were “being questioned” at that time. She and her husband were doing some research on the internet. She said that she and Dr Oldmeadow were not communicating very well. For example, she would ring up for a prescription and he would send it much later.

64 The exercise physiologist was a Florence Kelly who had a practice near Kew Junction. She went there about two to three times over about two to three weeks. She stopped seeing her because there was "science behind this theory of graded exercise which was being doubted”. She believed that the graded exercise meant that people with severe ME/CFS were in danger of getting worse and it was actually detrimental to their health to be doing the graded exercise. She said there were “studies in the UK and the States” which proved that theory.

65 She said that Ms Kelly had suggested that she start to increase her exercise and activity. She was not even able to do the first series of exercises in getting herself up and down on a seat twenty times and that she could only do that five times. She told Dr Oldmeadow she was not comfortable in going to that exercise physiologist. She then stopped seeing Dr Oldmeadow because she was tired of not getting the prescriptions when she had asked for them by telephone. He had too many patients anyway.

66 She had started to see Dr Szego, a psychiatrist, in about 1992 and continued to see her on and off with a long history of depression, initially post-natal depression, and later difficulties with an unsupportive husband. She had further post-natal depression associated with later children and their learning difficulties. She agreed that she was self-medicating with alcohol at that time but said that she has not drunk alcohol for years.

67 She agreed with the stated symptoms with the psychiatrist in 2004 as being "low mood, loss of enjoyment, loss of motivation, high levels of irritability, impaired sleep, vague suicidal ideas but no plans, and had been quite tearful". She said that 2004 was a bad year and that she was admitted to the Albert Road Clinic in about May 2004. This was about four years after the birth of her last child. She was there for about six weeks. She was further admitted on 13 December 2004 and was then referred to Dr Hyland who is her current treating psychiatrist.

68 The contents of a referral letter by Dr Szego to Dr Hyland were put to her. In particular, there was a reference to increasing difficulties in her marital relationship and fluctuating symptoms of depression. She agreed that her depression was due to her marriage. She said that she took a mistaken overdose of Serepax at about that time. She was on Effexor which was increased to 375 mgs, which she agreed was a high dose.

69 She agreed that she had been seeing her current psychiatrist Dr Hyland from about 2004 on a very regular weekly basis for about half an hour. She agreed that in about February 2005 she was suffering from problems associated with financial difficulties and a relationship breakdown. This was about the time that she separated from her husband and was not receiving financial support from him. Her dosage of Effexor was increased then. She met her current husband at about that time.

70 She agreed that she was having issues with finances involving Rod, her former husband, throughout 2005 and that her dose of Effexor went up again to 450 mgs. There were problems in September 2005 associated with difficulties with her son, Nathan, as well as financial difficulties. She remarried in May 2006 and travelled overseas. She was seeing Dr Carmen at the Carnegie Medical Centre at that time.

71 She went on a holiday to Queensland in about January 2005 and later saw a doctor at Carnegie with a cough, green phlegm and hoarse voice. She also saw a Dr Julia Sher in July 2006 with a four week history of intermittent tiredness and four days of myalgia and headaches, nausea in the morning and occasional arthralgia. She had blood tests at that time.

72 In about August 2006 she and Dr Hyland had discussed whether she could or should go back to work. She was having difficulties with her son but was happy with her present relationship though having continuing difficulties with her ex-husband. She wanted to go back to work for her self-esteem and for financial reasons to assist her children.

73 She was feeling burnt out in about September 2006 as her ex-husband was constantly involved in conflict with her. Towards the end of 2006 she agreed that she told Dr Hyland she was feeling flat and burnt out but was trying to obtain full time work. Her medication changed from Effexor to Fluoxetine. She also told him that she had put in for a job at the ANZ as a bank manager.

74 Towards the end of 2006 Mrs Rawlings had a number of health issues including a possible toxic reaction to a tampon, injuries to the knees in a fall and gastroenterological issues. She was referred to an orthopaedic specialist and a gastroenterologist and was prescribed appropriate medications. Her antidepressants resumed in early 2007.

75 As stated, she commenced her job with the ANZ on about 5 March 2007. She agreed that she complained to Dr Hyland on 22 March stating that she was tired due to work. There was also an issue as to a sick employee. On 17 May 2007 she told him her mood was slightly lower due to work and family stresses. She had the first vaccination on 23 May 2007.

76 On the following day she agreed she told him her mood was improved on Fluoxetine, she was now euthymic and coping at home and work. There were no real issues apart from lack of sleep when she saw him on 6 and 12 July 2007.

77 On 16 August 2007 she complained of severe flu and her Fluoxetine was increased to 60 mgs, noting it was to deal with the stressors of work and family life. As at 23 August 2007 she was complaining of frustration at work with no promotion and was still on the same dosage of Fluoxetine.

78 She agreed that she saw her GP on 6 August 2007 concerning flu symptoms and had not seen the GP since April 2007. She complained of upper respiratory symptoms such as cough and sinus issues for three or four days. She agreed that she did not tell the GP then as to ongoing malaise, sore throat and tiredness at that stage. She did not bring up every single symptom. She was given a backdated medical certificate for three days because of a respiratory infection.

79 She agreed that as at 13 August 2007 she had stated her chest was improved but there was still phlegm with X-ray showing no abnormality. She was given antibiotics to deal with the infection.

80 On 27 August 2007 she complained of being exhausted with left ear and facial pain and less cough with a chronic sore left nose for about 12 months. She had had left nose sinus symptoms for quite some time.

81 As stated, in about 11 September 2007 she told the GP that she had called an ambulance because she was unable to breathe and was light headed. She was referred then to Dr Robertson, a respiratory physician.

82 She agreed that Dr Robertson said her symptoms were due to a combination of sinusitis, laryngitis and bronchitis. She agreed she did not tell him of any issues with relation to sore throats or malaise going back to about May 2007. She further agreed that she went back to Dr Robertson on 17 September 2007 and told him she was feeling better but still had problems with sinusitis.

83
At that stage she was using Nasonex, steam inhalations, antibiotics and cortisone. She agreed that she did not see her GP again until about

20 June 2008 as she was busy working. She agreed that she did not go back to Dr Robertson as the respiratory condition resolved itself.

84 On 20 June 2008 she said that she saw her GP, Dr Lipzker, and agreed that she wanted a carer's medical certificate because her son had had a broken arm. On 18 July 2008 she agreed that she complained of a sore right elbow to Dr Lipzker.

85 She was cross-examined on the fact that since the second vaccination on 11 April 2008 she had previously said that she had been suffering from significantly worse symptoms. She agreed that she had considerable symptoms but the doctors had told her that it would "just be a virus". She agreed that she had not seen a GP up to 20 June 2008 but stated "whenever I did see a doctor if I mentioned them (the symptoms), they were dismissed".

86 She agreed that she saw a GP, Dr Dawson, on 4 September 2008 telling her about low pelvic pain to the left for three months. She agreed she made no complaint at that stage that she had been suffering from worsening symptoms since April 2008.

87 Cross-examination then returned to her employment at ANZ. When she commenced at the Cheltenham branch she said that she took over from a manager who had been absent for 12 months and there was an acting manager in place. She said that the staff were not being co-operative with her. She was also not happy with the fact that she thought she should have been paid more as she had been promised in the initial interview.

88 The ANZ was late in getting her paperwork together as a permanent manager. She had weekly or fortnightly meetings with her immediate supervisor, Marnie. She agreed that Marnie told her that she had to speak severely or sternly with the employees who were not cooperating.

89 In mid-February 2008 there was an issue with her second-in-charge, Anton. She did not think that he was supporting her as branch manager. At her suggestion another 2iC, Nicky Lafazanas, came in. Anton was sent to another branch.

90 With the assistance of Nicky the Cheltenham branch had its best results seen in February and March 2008. This was partly an indication of the fact that there was no permanent manager up to Ms Rawlings commencing at the branch for some 12 months. She and Nicky agreed that Ms Rawlings should be involved more with the staff on day to day operations and interact with them.

91 She agreed that after March 2008 when Nicky left, the performance of the branch started to drop back to the previous levels. She had further discussions with her immediate manager, Marnie.

92 Anton then came back to the Cheltenham branch and Ms Rawlings believed that she and Anton did not get together because he had run the branch for 12 months on his own and believed that he should have been promoted. They did not gel together. She agreed that in about March 2008 she discussed with Marnie what other roles at the bank she was interested in as Ms Rawlings did not intend to stay in a bank manager role permanently.

93 She agreed there were fortnightly or weekly meetings concerning the running of the Cheltenham branch and how the management could be conducted differently. In those discussions there was a discussion that there was a need for Ms Rawlings to get more respect or cooperation from the team. This had continued since the previous October.

94 She agreed that she was having difficulty with doing mortgages because they were based on a DOS system. She was trying to get Anton moved out and another person moved into the branch because Anton was not supporting her. Their styles did not match and they did not have cohesion.

95 She agreed that there was a formal meeting on about 25 June 2008 in which Ms Rawlings indicated she enjoyed the bank manager role but was unhappy with the team in that she did not get respect from them. They were not doing things she told them to do. At that meeting she went into a separate private discussion with Marnie and indicated that she felt undermined, needed support and was informed that she needed to address these issues because she was the manager. She was quite upset and Marnie sent her home.

96 She agreed that she was off work the following day and telephoned from her doctor’s rooms. He had told her not to return to work until the Monday. She was unable to remember what clinic she was at that time. She agreed that Marnie suggested that maybe later she could be given a roving bank manager role, which did not appeal to Ms Rawlings.

97 She agreed that her husband telephoned the bank on 30 June 2008 to say that she was not well, would not be in all week, she had a flare up of her coeliac condition and that she was staying at home that week. She was uncertain whether she did in fact have a certificate to be off work that week but it may have been Dr Hyland who suggested the week off.

98 Ms Rawlings stated she was having difficulty with the amount of pressure that her supervisor, Marnie, was placing upon her. She felt depressed at the time. Looking back now she did not believe she was suffering from depression or the business workload. She did say that she had never come across a team so unwilling to help. She had always been able to handle extremely difficult team members. However, she now believed that there was "more to it".

99 It was put to her that Dr Hyland in fact wrote a certificate on 26 June 2008 certifying her being off work for two days and saying that she was unable to work from 30 June to 4 July 2008. When she returned to work on 12 July she did not believe that she had raised the issue of her depression with Marnie on that date, despite this being noted by Marnie. She agreed that when she started at ANZ she was allowed to start late on Thursdays as she was seeing a psychiatrist and could work all her hours by working through lunchtime.

100 She disagreed with the suggestion she simply did not want to continue working at ANZ because the job did not challenge her. She said rather her health was getting the better of her and she could not really continue. She had informal meetings concerning performance improvement in August and on or about 19 September 2008.

101 She agreed that she received a letter on about 24 September 2008 constituting a first warning and setting out the concerns that had been raised by management. She agreed that the letter said that her work performance would "continue to be monitored for a period of six weeks and be reviewed on Friday 31 October".

102 It set out that lack of improvement in line with the performance improvement plan may lead to a further warning which would result in termination. She agreed that she had coaching sessions with the 2iC of the region, Ron Ruse, in about October 2008. Other branches were having similar problems and needed coaching as well.

103 She again agreed that after the first vaccination she was tired and aching and that continued but she pushed through. This was her “nature”.

104 After the second vaccination those symptoms worsened and she had other symptoms contemporaneous with that second vaccination. Those symptoms included forgetting things, cognitive waning, giddiness, facial pain and having to hold onto things. She said she mainly discussed those symptoms with Dr Hyland.

105 It was put to her that there was no suggestion to Dr Hyland of any achiness, tiredness or fatigue in the period subsequent to the first vaccination. She said his notes were very brief so he would put in what he needed to. She accepted that there were references to stresses and successes at work and that she was tired with the demands of full time work and a young family on 3 December 2007. Her Fluoxetine was increased to 80 mgs in about January 2008.

106 She had been having some interpersonal difficulties at work in January 2008 and in February 2008 conflict with her ex-husband. She accepted that in April 2008 the history to Dr Hyland was "more depression in recent weeks, stressed by ex-husband, defiant rude son and home renovations". She was prescribed Reboxetine, a further anti-depressant. She agreed that there was discussion with Dr Hyland at about this time about CBT.

107
In April and May 2008 she agreed that she was still complaining to

Dr Hyland about being stressed with work, renovation and her ex-husband and said some of her symptoms may have been related to the flu vaccine. It was put to her that on 26 June 2008 she told him she was ill and had an upper respiratory tract infection, to which she agreed. She also agreed that she told Dr Hyland at that stage about her performance review.

108 She agreed that on or about 26 June 2008 she told Dr Hyland she had a cold and had also had a negative performance review which led to her being off work. On 30 June she agreed that Dr Hyland suggested she needed to be off work and that she had told him she was worried and angry at work and believed she was being undermined as a bank manager. It was put to her that Dr Hyland's notes on a number of occasions were that her "cognition was intact". She said that "he would be writing that as, if he found me articulate, or I suppose".

109 She neither accepted nor disagreed with the fact that there was no discussion as to any physical illness in his notes at about that time, apart from the mention on 26 June 2008 about the upper respiratory tract infection. She agreed that on 30 June she was placed on Cymbalta which is another antidepressant. She was asked about being prescribed Zyprexa (an antipsychotic, antidepressant) drug at about that time, but was unable to remember that.

110
She agreed that on about 17 August her mood was much improved according to Dr Hyland while she was on Cymbalta. She also had a slight ankle swelling. She made no comment to the notation in

Dr Hyland's records on 31 July 2008 that she was alert and oriented, her cognition was intact, there were no side effects to the medication and he started to wean her off Zyprexa.

111 It was put to her that the first time she had told him about tiredness was on 9 October 2008 when she was stressed about the demands of work and performance review, feeling tired all the time and sleeping on weekends. She replied that it may have been the first time he noted the tiredness. She agreed with that actual history at the time.

112 It was put to her that a week later she told him she was dissatisfied with management and felt the job was tedious and boring. She said she did not know whether she used the word “boring”. She also agreed that she indicated to him that she would like to move to France but was conflicted about the children.

113 She agreed that in November 2008 she was stressed at work in the context of being performance managed and may have told Dr Hyland that at the time. She agreed that being given extra work made her job more difficult and stressful and that she had decided to resign because of the stress and being too tired. She felt relieved about going to resign.

114 On 3 December 2008 she was off all medications and had resigned from the ANZ. It was put to her that having resigned and being off medication it became apparent that her mood had worsened as he then put her back onto psychiatric medication. She said she was having difficulty sleeping because she was having nightmares. She was placed on Temazepam for sleep.

115 She agreed that it was correct on 15 January 2009 that her sleep and concentration were okay but she was very anxious and teary and did not have much energy. She was non-committal when it was put to her that he put her back onto the antidepressant Cymbalta at that stage.

116 Senior Counsel for the ANZ then went back to her GP's records and cross-examined Ms Rawlings on those records. She was taken to the history of left pelvic pain from 4 September 2008. She agreed that about then she may have told a gynaecologist Dr Matthews (whom she had seen before) that her only symptom at that stage was left-sided persistent dull ache. It was put to her that she did not tell him about her other health issues. She said that they only talked about her pelvic area and "lady's parts", despite his comment in his records that he found her to be generally well.

117 She was then cross-examined about the lack of history to her GP of any long lasting aches, pains, cognitive issues and sore throats. Ms Rawlings replied that she only talked to her GP about what was troubling her most at that time.

118 She also agreed that she did not see any general practitioner between 12 September 2008 and 24 July 2009. She said that in between times she had had a number of ECT sessions at the Albert Road Clinic. As stated, this involved about eight sessions of ECT in about 12 days between late March and early April 2009.

119 She accepted the note in Dr Hyland's records that on 23 April 2009 she told him she was starting to feel better, was less depressed and not tearful. There was discussion about a management plan and moving forward. She accepted if that was written in his notes that would be correct.

120 She agreed that on 30 April 2009 she was placed on more and different medication such as Effexor, Epilim and Seroquel as they were trying different medications to try and deal with her lack of energy. Ms Rawlings agreed that there seemed to be a general improvement in her mood, energy levels, sleeping, and cognition over the period from 7 to 28 May 2009 after the ECT therapy. She was non-committal when the note was put to her of Dr Hyland's attendance on 25 June 2009 that "mood has improved now, euthymic, some loss of confidence and weight gain" and that she was being interviewed for a new job on the following day.

121 She remembered seeing a GP, Dr Galatis, at Carnegie Medical Centre on about 24 June 2009. It was put to her that the complaint to Dr Galatis involved lots of weight gain, headaches, low back pain, some tingling down the legs, her periods had ceased two months previously and she had left sided headaches. Again she was non-committal on those symptoms. She said that she was finding her health and general living difficult.

122 She agreed that on 9 July 2009 she told Dr Hyland her mood had improved now but there had been a slight dip after alcohol use in the previous week. There were money difficulties and she was struggling to find a new job. She said that she actually applied for a job at Myer about Christmas 2009 and was due to start in early 2010 after she returned from France. She said the job never eventuated and that she would not have been able to take it anyway. She agreed that there was stress about financial issues and her health.

123 She agreed that she told Dr Hyland on 23 July 2009, which was the day before she saw Dr Galatis, that she was stressed about finances, looking for a new job and not having any success yet. She was considering taking her children out of private school. She was non-committal that at that stage her health issues were to do with pain such as headaches, low back pain, tingling down the legs, cessation of periods and right sided headaches with neck spasm and temporo-mandibular tenderness.

124 She saw a musculo-skeletal specialist at Metropolitan Spinal, Dr Gassin, for her intermittent low back pains which had become constant and more severe since January 2009. The pain was so bad she could hardly get out of bed and recently had an eight week physiotherapy course without benefit.

125 She saw a physiotherapist Jane Banting in about 2009 and said that at this time she was working at “Roost”. She had musculo-skeletal tenderness. There was lots of unpacking there and she had a young boy to assist her in her job.

126 She said that her symptoms of malaise, achiness and tiredness had increased in 2008 and got worse in 2009. She said she was, "pushing through doing things" and being active at the kid’s schools. Her problems peaked after she returned from France in 2010.

127 She said her symptoms were definitely getting worse while she was in France in January 2010. After that she "no longer tried to push through or put on a brave face". She "just let it happen". She disagreed with a note in Dr Hyland's records at that time that “there were some difficulties but she coped overseas. Mood mildly low". She said she did not believe that entry was correct and that she simply did not cope overseas. She agreed that her Effexor was increased from 375 to 450 mgs. about then.

128 She agreed that in March 2010 there was worry about her ex-husband David and she was stressed about finances and parenting. She agreed that in about April 2010 she was still on Effexor 450 mgs. and was seeking financial assistance from her parents because her ex-husband had stopped paying child support. She accepted that her Effexor was increased to 600 mgs. on about 6 May 2010.

129 She agreed with the history from Dr Hyland on 27 May 2010 "feeling upset and worried, financial problems. Conflict with ex-husband. Not feeling well enough to work. Frustrated with Myer who had offered a job but has not come through". At that stage she was spending most of her days in bed.

130 She agreed that she changed general practitioners and went to a new GP, Dr Jenny Mather. She agreed with the initial history on 5 March 2010 that, "she complained of poor health in the preceding months since returning from a holiday in France. She felt she had been well prior to the trip”.

131 Her history that day was she had been "feeling achy, tired, poor concentration, distorted vision. More recently has had headaches, right greater than left. Some left sided chest/shoulder pain intermittently. Feels achy, worse with deep breathing but not exertion. No breathlessness or cough. Has had a sore throat, aching jaw. Low in France. Loss of weight in France due to increased walking. Appetite normal. Some regurgitation. No vomiting. Low stools since trip".

132 She agreed that most of that history was accurate. She had been generally well prior to that month because she wanted to start from scratch with a new GP. She did not want any past history “being pre-conceived as anything else”.

133 She agreed that on 16 April 2010 when she saw her again she had got worse, was feeling more tired, heavier and slept a lot. It was put that she said to the GP she rejected the thought her symptoms could be depression related and wondered to the GP whether it might be CFS. She said that she believed that she had discussed issues concerning depression, etc. with Dr Hyland and "we'd started to think that it was a physical illness". She mentioned this to Dr Mather.

134 She agreed that on 27 April 2010 she told her GP she was concerned about her ability to get to see Dr Oldmeadow in Eltham and that she would contact the CFS support group for suggestions closer to home. She agreed that she and her husband had been doing research on the internet and that she told Dr Mather that she would bring printouts about what she had been reading. She said Dr Mather and the doctors at that clinic did not believe in CFS.

135 Then Dr Hyland referred her to Dr Lang. It was put to her that in the referral letter on 1 June 2010 to Dr Lang that Dr Hyland had stated "believes that she may have had glandular fever in the past, past medical history of endometriosis and ovarian cyst and had been particularly stressed with family and financial issues". She was non-committal to that history in her evidence. She said that she and her husband went to the appointment with Dr Lang.

136 Again, she repeated that she was quite well physically and mentally until the first vaccination and there was aching and tiredness from the next day after the first vaccination onwards. She also repeated that until the second vaccination the symptoms ”ratcheted up” and they became significantly worse on that day until she returned from France in 2010 when they became the "worst possible".

137 She said that when she went to see Dr Lang “we” were not connecting her symptoms with the vaccine and “we” were just thinking she may have had chronic fatigue. She said that it was clear in her mind that after those vaccinations she got the symptoms.

138 Dr Lang's recorded history to him by her was then put in cross-examination. It was put that she had presented to him with “a long history of ‘fatigue’. The fatigue had been present for a couple of years but more so in the last four months when she reported she’s been in bed and her limbs feel like lead. She feels faint when she gets up, has had recurring rashes, headaches and difficulty with speech. She believes it all began with a rash that occurred on her return from Queensland”. She agreed with that history.

139 She said that she thought then that she had a rash when she returned from Queensland in 2005 and thought that had some sort of connection to it. She didn’t actually think about the vaccinations at all at that point. The rash was “quite significant”. As to the history of ailments going back to 2005, she said that 2006 was extremely stressful because of her divorce and that affected her health.

140 She was then taken to the history given to Associate Professor Spelman who saw her for the ANZ on about 20 October 2010 after she submitted her initial claim form. It was put that she told him she developed flu-like symptoms in about June 2007. She disagreed and said she was not too sure of the date but believed it was about mid-year.

141 She agreed with the history that she saw a general practitioner on 6 August 2007, had a few days off work and subsequently improved. She believed that she had a recurrence of the aches with fever in the following month and took a further ten days off work. She said that was her recollection at the time. She said that she had a flare up of symptoms subsequently and went back to see a doctor in about September 2007. She agreed that these were the respiratory conditions.

142 It was put to her that she told Associate Professor Spelman that she had received an influenza vaccine in about March 2007. She disagreed with this and said she “actually told” him that she had the injection around May to June. It was put that she told Associate Professor Spelman she had no immediate adverse reaction to the vaccination. She disagreed with that history and she said she did talk about the fact that she had a mark on her arm as well as swelling and aches and pains. She said that Associate Professor Spelman had made a mistake in reporting that she said there were no immediate effects from the vaccination.

143 It was put to her that she told Associate Professor Spelman she had a gradual progression of significant symptoms making it increasingly difficult to cope with normal activities during the day during 2008. She disagreed with the word “gradual” and said she used the word “increasing”.

144 She agreed that she did not tell Associate Professor Spelman there were increasing symptoms in about April or May 2007 because she “couldn't back that up with anything". She agreed she told him that there was a total collapse in 2009 but did not tell him that she went back to work in 2009. She said that he was asking specific questions and she did not think or even consider about discussing that (that is, returning to work).

145 She said that she believed she spoke about CFS with Dr Lang but agreed that there is no reference to any CFS in Dr Hyland's referral or in Dr Lang's report. She agreed that she spoke to Dr Hyland about getting a referral to consider the question whether she was suffering from a physical illness. She also agreed that Dr Lang suggested there might be sleep apnoea involved and that in the consultation her husband told Dr Lang that he was the only one with a history of snoring. She said that although she did not agree that she had any sleep disorder, Dr Lang actually went into some detail in asking her about sleep issues.

146 She said that Associate Professor Spelman was the one who “actually basically confirmed” the diagnosis of CFS to her. Despite the fact that she and her husband had been carrying out research on the internet, she said that the “suggestion” of CFS came from Dr Hyland.

147 She saw a Dr Strauss, psychiatrist, for the ANZ as well. It was put to her that she told him that in mid-2007 she had the flu vaccination paid by her employer and that sometime later she began to develop flu-like symptoms which affected her on and off. She was only prepared to say that she "would have" told him that it was after the vaccination. She said her “cognitive recollection” at that stage was wildly inaccurate. She agreed that at the time of Dr Strauss' examination she was aware that there was a dramatic increase in symptoms in April or May 2008 but could not recall whether she spoke to Dr Strauss about that.

148 She agreed that she told Dr Mather that she and her husband had researched literature which suggested the upper limb lesion could be viewed by electron microscopy for aluminium particles in the macrophagia. She agreed that there was no abnormality detected. She also agreed that she continued to see doctors at that clinic for POTS syndrome, which is a blood disorder.

149 She agreed that she was having financial difficulties at about the time she went to see Dr Oldmeadow. She did not remember who referred her to Dr Oldmeadow. She was referred to Dr Hyde by an "advocate" associated with the Chronic Fatigue Society. Ms Rawlings said that Dr Hyde and Dr Oldmeadow are "not part of this case". This is despite the evidence before me that they diagnosed her to have CFS.

150 In re-examination she said that when she returned from overseas in about July 2006 her ex-husband was making it difficult for her in relation to the children. She said that at about 21 September 2006 she was “burnt out” in dealing with her ex-husband but was still dealing with her children's Parents and Friends Association at school. She said that she was involved in a good marriage at that stage.

151 She said that in relation to a note in Dr Hyland's history on 25 September 2008 she felt that it was best that she should resign as she was not feeling as though she was herself. As at 9 October 2008 she said she had been feeling tired for "quite a while" till then. She had been sleeping at weekends for a few months at that point.

152 She said she did not feel comfortable in talking about non-work issues with her superiors at work. She said that between October 2007 and February/March 2008 she was tired but she had a “people skills” speciality and had done some exceptional work at the Carnegie branch before. She was coping quite well with what she had to do in that period to February/March 2008. After March 2008 she said she was becoming more tired, more confused and couldn’t remember how she had driven home. She could not follow or remember conversations or the “meanings” of conversations, including those at work.

153 That competes my summary of Ms Rawling’s evidence in this case.

154 The only viva voce evidence in this case apart from that of Ms Rawlings was from her treating psychiatrist Dr Hyland and three independent medical experts, Associate Professor Spelman, Professor Lloyd and a Dr Stevenson. In addition, various other documents and reports were tendered which I will discuss in due course.

155 Dr Brendan Hyland, psychiatrist, has treated Ms Rawlings since December 2004 to date on a regular, even weekly basis. He has prepared three brief medical reports in this case.

156 In his first report dated 14 October 2010 he stated that:-

"Mrs Rawlings' history of events is clouded by the fact that she has some cognitive impairment which we believe is as a result of post vaccination adverse drug reaction. Mrs Rawlings believes that an influenza vaccination was given to her at work when she was working as a bank manager at the ANZ Bank in 2007 prior to winter." (emphasis added).

157 He referred to a number of her attendances between 2006 and 2010 and stated in summary :-

"She is a 46 year old woman with a psychiatric history of unipolar depression which has been in remission and asymptomatic for the vast majority of the time, with supportive psychotherapy and standard biological treatment. In 2007 there was a significant change in her general health in that she began reporting fatigue. Prior to her work at the ANZ Bank and what we believe an adverse reaction to a flu vaccination she had not reported tiredness or lethargy as a symptom to my knowledge or that I have noted on file review." (emphasis added).

158 His second report dated 4 February 2015 basically referred to her health symptoms following his first report. He noted :-

"She attributed her deteriorated work performance to physical symptoms, which at the time she attributes to coeliac disease and/or stress. She was later diagnosed with chronic fatigue/myalgic encephalitis".

159 He referred to consultations with, or reports from, two other doctors. Dr Clayton Thomas noted that Mrs Rawlings "relates the onset of diffuse and widespread pain and chronic fatigue syndrome to having a flu injection at work in 2007 and a second flu injection in 2008." He also referred to a report from Dr Michael Oldmeadow who has a special interest in CFS and he confirmed the diagnosis. His overall impressions were that she had chronic fatigue syndrome and widespread pain syndrome consistent with fibromyalgia and some depressive symptoms.

160 Dr Hyland went on to note that it became apparent that away from the stress of work her fatigue did not improve.

161 He prepared a short final report of 9 June 2017 which does not take matters any further. However, he did note that :-

"Regarding her depression prior to her employment at the ANZ Bank it had minimal impairment on her personal and professional life with discrete episodes and full resolution of symptoms. Since her physical health deteriorated during the course of her employment her primary disability has been due to her physical health not psychiatric."

162 In his evidence he said that in between the period of first treating her until when she started at the ANZ her condition was one of recurrent unipolar depression which varied from having bouts to full recovery. The majority of the time her mood was euthymic and she was not depressed. He said that she wanted to take up the job at the ANZ as she was wanting to support her children going to private schools. She was well and happy at that time. He said there were times she was stressed by her new job with no major functional impairment.

163 He was taken to the time of her performance reviews in about June and September 2008. He stated that when she started the job she was competent and achieving her KPIs and given a bonus and an award. He could not understand why her performance would be actually worse over time unless there was something going on. He thought that the demands of the job may have been different or there was something going on.

164 He did not feel there was a recurrence of depression. What kept coming up was a symptom of fatigue. The fatigue was constant and she was sleeping over the weekend. He referred her to Dr Lang a physician, to consider whether there was any physical problem.

165 At about the time she ceased working in December 2008 she was very fatigued and was flat in her mood. She was feeling frustrated and not able to fulfil the inherent requirements of her job. He admitted her for treatment at the Albert Road Clinic for ECT treatment in about March 2009 because he wanted to aggressively treat her depression to see if she was presenting with a recurrence of the depression or something else. He said that they tried various forms of medication including Effexor to 450 mgs., which was a standard dose. He noted ECT has a 78 per cent success rate in treating major depression but it did not seem to make any difference with her.

166 He was taken back to his notes for December 2006 and noted he took her off anti-depressants. He thought there was something physical happening then rather than depression. However, he prescribed Fluoxetine for depression on 24 January 2007.

167 As at about March 2009 he thought that her "constellation of symptoms" was likely to be not due to a recurrence of depression. That was why he referred her initially to Dr Lang. She was also undergoing assessment by a cardiologist, a pain specialist as well as having other natural treatments such as acupuncture and chiropractic.

168 Importantly, he said that he did not make a diagnosis of Myalgic Encephalomyelitis (“ME”) or CFS. He said the pain specialist admitted her for treatment for Ketamine infusions for treatment of pain. No physician advised Dr Hyland that there was nothing wrong with her physically. He thought that the number of different symptoms in different areas of her body did fit with the illness of ME or CFS.

169 He went on to say that all her symptoms appeared to fit with a diagnosis of CFS or ME but emphasised that he was not an expert in that condition. Such a diagnosis “becomes apparent over time, not immediately”.

170 He was asked about her employment at "Roost" after she ceased work at the ANZ Bank. She said that it became apparent because of her fatigue she was given restricted duties in that low level retail job. She had to stop that anyway because of her physical health. She was not able to set up an importing business. She went to France, didn’t feel well and got a bit fatigued and overwhelmed. She has been unable to carry out employment because of the fatigue.

171 He noted that at over the last year or two, she has had some fluctuations in mood which often relates to a flare up of her symptoms of chronic fatigue. Generally, she is able to do things but "really pays for it in the days after".

172 In cross-examination he agreed that it was important he took a note of anything striking, important and/or relevant either by way of history or by way of observation. He has treated her since 2004 with medication and supportive psychotherapy. Being tired, fatigued, unwell or depressed was relevant to any assessment.

173 Again, he was at pains to state that he did not diagnose CFS but "agreed with the diagnosis". He stated he believed that Dr Corcoran, the cardiologist, had diagnosed ME, but he did not know when. It was noted that Dr Corcoran did not see her until about 2016.

174 He was presented with his initial medical certificate dated 13 September 2004 describing the injury as "post vaccination adverse drug reaction". He said he did not make that diagnosis himself and was unsure who did. He did not find out whether she had had a sleep study as advised by Dr Lang.

175 He noted that Ms Rawlings and her husband had done a fair bit of research at that time. He said it was correct that he was prepared to accept what they had told him about the research that the vaccination may well have been a relevant matter. He agreed that such a diagnosis by him "was a comment that I should not have made".

176 He noted the changing of her medication in the period between 2004 and 2006 and there was a period in which she was off antidepressants. She had been on Effexor prior to that period and Fluoxetine after it.

177 She had been admitted as an inpatient in 2004 to the Albert Road Clinic after having taken an overdose at about that time. He did vary the type and dosage of antidepressants as their effect work off after a period of time. Thus, it is necessary to change the antidepressant or dosages. He would not have increased her dosage if she was not depressed.

178 He was taken to his report dated October 2010 and asked about his belief that she had a cognitive impairment resulting from an adverse reaction to a vaccination in late 2007. He said that he was not aware of any other cause of the cognitive impairment. He did not think he made a note of any such cognitive impairment. He agreed that to the contrary he noted on a regular basis that her cognition was intact but believed that "the absence of evidence isn't evidence of absence" when referring to cognitive impairment.

179 He agreed that nowhere in his records in 2007, 2008 and 2009 did he note any concern that her cognition was not intact. However, he thought that she might have stated at times, "I can't remember" or "I've had some brain fog" but did not note it.

180 He was asked why in a report he referred to the fact she had cognitive impairment but there was no note of such in his reports. He said he assumed clients are truthful to him and if they say they have “brain fog” or cognitive impairment then that was relevant. He gave evidence that she stated to him she had a “brain fog”.

181 He was taken to various entries in his reports of 26 August 2010, 27 July 2010 and two entries of March 2010 in which he had noted either cognition intact or mood oriented. He was then asked about her "impaired cognitive state". He stated she described it to him but he did not observe it in interview.

182 He was also cross-examined about his report her referring to fatigue in about 2007 which was a significant change to her condition. On 22 March 2007 he had noted "feeling tired secondary to work". He had thought that this was understandable for a woman who had just returned to work after a period of being out of work.

183 He agreed that there was no report of a suggestion of fatigue or tiredness until December 2007 when she said she was tired with the demands of full time work and a young family. He agreed that despite his reports stating there was a significant change in her general health in that she began reporting fatigue in 2007, there were only two such instances in March and December 2007 which was in the context of being tired with the demands of full time work and a young family.

184 Dr Hyland then stated that he thought that there was “more of a change” in her general health in 2008. He agreed that he should not have said that her fatigue had anything to do with vaccines.

185 He agreed that there were a number of significant entries in his notes which did not end up in his report. In particular, on 16 August 2007 he noted "recent severe flu upper respiratory tract infection and increase in her Fluoxetine". He also noted it did not include a note of 4 October 2007 stating that she had just recovered from an upper respiratory tract infection. He said he might not have thought that those notes were relevant. He was again asked about her references to cognitive impairment and agreed that if she had made such a comment he would have noted it in his records.

186 She was having recurrent depression in April 2008, reporting to him on 10 April 2008 of being more depressed and stressed by ex-husband, defiant and rude son and home renovations. He was changing the dosage and type of her various antidepressants during 2008. She was reporting to him about negative work performances, difficulties with her ex-husband and being undermined in her role as a branch manager.

187 During 2008 he said he was treating her for depression and not making any note of physical illness. On 9 October 2008 he made a note of "Feeling tired all the time, sleeping on weekends, not psychotic or suicidal, stressed". As to those records he stated that his focus was on the psychiatric issues rather than any physical illness which he deferred to her general practitioner. In September and November 2008 he agreed he took a history of work-related stress and that her cognition was intact.

188 In December 2008 he took her off antidepressants after she resigned from work. She had a recurrence in February 2009 “ruminating over past losses”. In March 2009 there was a discussion of further ECT, which then proceeded.

189 Over April 2009 her mood improved after she was put onto Mirtazapine, an anti-depressant. After that her anti-depressants varied in terms of dosage and type. In mid-2009 she was stressed about finances at times and other times she was euthymic and cognition intact. On 19 November 2009 she was enjoying her job at “Roost” but had some continuing back pain. When she returned from overseas in February 2010 she told him that she was having some difficulties but coped. Her mood was mildly low. He thought that she was fatigued while she was working at “Roost” but agreed that there was no note of such.

190 He agreed that by 11 March 2010 she was complaining of feeling physically unwell. There was a reference to Listeria from cheese as a possible diagnosis. He agreed that in his referral letter to Dr Lang in early 2010 he referred to Ms Rawlings "who is coming to see you for assessment of three to four months of extreme fatigue" (emphasis added). The tendered referral letter also referred to her being “particularly stressed with family and financial issues recently”. He agreed that if there was other history relevant to Dr Lang’s assessment he would have included it in the letter of referral.

191 He agreed that Ms Rawlings was an "informed health consumer who can advocate for herself". At times she brought in papers for him to consider. He believed that it was her husband doing the research. He agreed that she made suggestions to him and other doctors about what medications might be appropriate and what doctors she might see.

192 He agreed that Dr Clayton Thomas had written to him that she had a functional pain condition. He did not know what that indicated. He stated that if Dr Thomas prescribed her strong analgesic medication and admitted her to hospital for Ketamine he thought that he must have believed there was something physical going on.

193 He was asked about a report from a Dr Gregory White, psychiatrist, who examined her for superannuation purposes in October 2010. That report was in his notes. He neither agreed or disagreed with Dr White’s opinion that her returning to a high pressure career in 2007 was a significant contributing factor to her then current situation. He said he did not agree that CFS was a psychological condition or that it was the result of depression.

194 In re-examination he said that he thought that in Ms Rawlings' case there were things happening physically to her and also things happening with her mood. He did not believe it made much difference to her physical symptoms what her mood was doing. As to the lack of cognitive impairment references in his notes, he noted that in the interviews she did not seem to be cognitively impaired. However, he was not undertaking a neuropsychological assessment. She was reporting more so in recent times of “brain fog” and cognitive impairment, but it was based on what she was saying rather than what was happening in the interview.

195 In 2007 and 2008 he did not recall her telling him that there were significant problems in her cognition causing functional impairment. If she had told him that her work was affected by cognitive function impairment he probably would have noted that in his records.

196 As to the lack of records of any fatigue or tiredness in 2007 and 2008 he said that there are some conditions he does not make note of every time, even if they are ongoing. There was nothing to indicate that when she returned from France in early 2010 that her complaint of being physically unwell might have been due to Listeria. He stood by his opinions in the report but thought that the only thing he would modify was to exclude any comments as to how her condition related to a vaccine. He said there was no doubt that there were psychiatric issues present and that was part of it all.

197 That completes my summary of Dr Hyland's evidence. Before going through the considerable amount of other medical evidence in this case, I will refer to a number of published studies which were referred to in evidence by the doctors in this case.

198 The first published article (dated 2000) is by K.M. Sleigh and others from Canada entitled "Double-blind, randomized study of the effect of influenza vaccination on the specific antibody response and clinical course on patients with chronic fatigue syndrome". The conclusion of that study was that in patients with CFS, influenza immunization is safe, not associated with any excess early reactions, and stimulates an immunizing response comparable with that of healthy volunteers. (the "Sleigh article")

199 The second article is from Israel (dated 2015) by J.N. Ablin and others entitled "Influenza vaccination is safe and effective in patients suffering from fibromyalgia syndrome". It concluded that influenza vaccination was safe and effective in fibromyalgia syndrome patients. (the "Ablin article")

200 There was an Italian article (dated 2011) by G. Cassisi and others entitled "Chronic widespread pain and fibromyalgia: could there be some relationship with infections and vaccinations?" The study concluded that there is no evidence that either fibromyalgia or chronic widespread pain is caused by infections and vaccinations, but there does seem to be a significant relationship between them and infections. It stated that there is some unconfirmed evidence and case reports suggesting that vaccinations may trigger fibromyalgia or chronic pain, but the specific roles of antigens and adjuvants, or environmental and personal context was still unclear. (the "Cassisi article")

201 There were two separate studies from Norway by Per Magnus and others. The first article published in 2008 was entitled, "Vaccination as teenagers against meningococcal disease and the risk of chronic fatigue syndrome". It found that there was no statistically significant association between vaccination against meningococcal disease in teenagers and the occurrence of CFS/ME could be observed. (the "Per Magnus first article")

202 The second article by Per Magnus and others was published in 2015 and is entitled "Chronic fatigue syndrome/myalgic encephalomyelitis (CFS/ME) is associated with pandemic flu infection, but not with an adjuvanted pandemic influenza vaccine". The study concluded that the authors found no indication of increased risk of CFS/ME after vaccination. Their findings were consistent with a model whereby symptomatic infection, rather than antigenic stimulation may trigger CFS/ME. (the "Per Magnus second article")

203 Finally, there is a Dutch article by Mark Vink published in 2016 entitled "The PACE trial invalidates the use of cognitive behavioural and graded exercise therapy in myalgic encephalomyelitis/chronic fatigue syndrome: A review". The study stated that the biopsychosocial model and use of CBT and GET for ME/CFS was invalidated. It said that "The discovery that an increase in exercise tolerance did not lead to an increase in fitness means that an underlying physical problem prevented this". It concluded that this validates that ME/CFS is a physical disease and that none of the treatments studied (that is cognitive behavioural therapy and pacing or graded exercise therapy) addressed this issue. (the "Vink article")

204 Counsel for Ms Rawlings substantially relied on opinions expressed by Professor Andrew Lloyd who is a Professor of Medicine at the Prince of Wales Hospital in New South Wales. Professor Lloyd stated that he has expertise and clinically practises in the spectrum of infectious diseases with an emphasis on HIV and hepatitis C infections as well as patients with prolonged illness following acute infection - notably post-infective fatigue syndrome. He previously led a research program studying the pathogenesis of infectious diseases, including post-infective fatigue syndrome and chronic fatigue syndrome.

205 I think it is important to note that both he and Dr Stevenson who expressed an opinion on behalf of the ANZ have both expressed their opinions based on material to hand and have not had the benefit of taking a history from Ms Rawlings or even meeting her.

206 In his first report dated 1 April 2013 Professor Lloyd stated that he had documents including medical records of Drs Hyland, White, Oldmeadow, Lang, Houseman, Bird and Spelman as well as some GP medical records.

207 He stated that in relation to post-infective fatigue syndrome, his research and that of others has shown that some acute infections can act as a trigger for post-infective fatigue syndrome, the best documented ones including Epstein-Barr virus (glandular fever), Ross River virus and Q fever. He thought it was reasonable to suggest that it is possible (his emphasis) that an immunisation could act as a trigger for CFS. He then referred to the Sleigh article which examined the side effects of influenza immunisation in patients with CFS and healthy comparison subjects. That study showed no increase in the adverse events reported in the CFS group.

396 Counsel for the defendant submits that Dr Hyland did not record any significant decline in cognitive capacity, contrary to her saying that she had such a loss. The only relevant notes to cognition were actually positive. It was notable he did not record any complaint of declining cognitive capacity or complaint consistent with a concern about declining mental abilities. To the contrary, the defendant emphasises that the fact he regularly made a specific note of intact cognition suggests that he turned his mind to that factor. As Associate Professor Spelman noted, a regular treater like Dr Hyland would be more likely to note a decline in cognition.

397 As for Professor Lloyd, the defendant notes that he had not met or examined Ms Rawlings. He was only prepared to concede the feasibility that her symptoms could be exacerbated by a flu vaccination. Importantly, he said that the understanding of the pathogenesis of CFS was relatively poor, although it was recognised that a subset of infections could trigger fatigue that was still present some months later and lead to a diagnosis of CFS. Significantly, the onset of the symptoms that persist are "moment one of day one of the acute infection".

398 Of relevance in this case the defendant notes that Professor Lloyd did recognise that a booster vaccination may generate a sufficiently robust immune response that might trigger an infection. However, good quality scientific evidence to support that biological premise was lacking. In fact, he thought that there was evidence against it, referring to the Sleigh article. He said that his clinical experience told him that it is a common thing for patients with CFS to report exacerbations of symptoms following immunisations of many sorts. He said that there are some individuals who have had various vaccines that do not only have a sore arm but also have apparent exacerbation of all the fatigue syndrome symptom set. However, his expectation was that such a patient may have a flare of symptoms that might last weeks to months, but then should subside.

399 The defendant submits that putting his evidence at its highest the plausibility of such an exacerbation can only become a probability if there was acceptable evidence that the onset of symptoms associated with the claimed aggravation occurred immediately (in other words within hours) after the second vaccination.

400 It would be expected in those cases that she would have suffered an immediate (within 24 hours) significant and noticeable increase in fatigue, cognitive dysfunction, sleep dysfunction and the like. It was to be expected that if a patient was suffering to such an extent in those circumstances that this would result in a medical attendance at least to a general practitioner. Professor Lloyd also said that any aggravation would likely resolve within two to three months, although he had seen it last as long as 12 months. He said that in the case of a person with underlying depression, external stressors (such as family difficulties or stressors of work) do not exacerbate the CFS, but rather exacerbate the underlying depression. The defendant submits that if CFS can be exacerbated by exertion, work and travel then it is important to note that if there were significant increase in symptoms following travel in early 2010, then the exacerbation was probably due to the travel.

401 Overall, the defendant submitted that Ms Rawlings' evidence should be treated with caution. Despite her claims to the contrary, she had been unwell with general malaise for a significant time before she started work, and during the period, with the ANZ. The objective evidence was to the effect that she did not suffer any adverse symptoms following the first vaccination or indeed the second vaccination. She was not diagnosed with CFS separately but rather self-diagnosed that condition after she and her husband had researched it.

402 She then tried to attribute her symptoms to the first vaccination leading to the first claim, then later with the second vaccination despite the fact that occurred before the first claim was lodged.

403 The defendant submits that the court should be wary of “recall bias” where there has been such a self-diagnosis. It is important to look at the objective evidence of any alleged deterioration in her health or immediate and dramatic increase in symptoms following either flu vaccination. Her evidence as to deterioration of health after both vaccinations did not accord with the objective evidence.

404 The overall evidence was that after 11 April 2008 she was not suffering from ongoing physical disabilities but rather issues concerning her mental state, particularly consequential upon the problems at work. In particular, there were the performance management meetings in June 2008 and September 2008. Dr Hyland did not record complaints such as fatigue, malaise illness or cognitive impairment after the second flu vaccination. Certainly, Dr Hyland recorded evidence of difficulties at work.

405 There were no complaints of fatigue or physical illness to GPs after 11 April 2008. Indeed she did not see any GP at all for some time later. The evidence was that issues concerning her after 11 April 2008 were not ongoing physical disabilities, but rather issues concerning her mental state.

406 Even in 2010 she told Dr Lang that she had recurring rashes, headache and difficulty with speech that she believed had begun with a rash after her return from Queensland in 2005. At that stage she made no attribution to the start of symptoms in 2007 or an increase in 2008.

407 The defendant submits that any suggestion that her CFS was exacerbated or aggravated by the second flu vaccination is based on her impaired recollection and recasting of the evidence which was not supported by the medical records at the time. In any event she continued working until December 2008 and was working for up to 25 hours per week in late 2009. She was sufficiently well to travel overseas to France.

408 There was evidence that her health had significantly deteriorated in France. She told her GP on 5 March 2010 that she was not feeling well for a month since returning from France, but was well prior to going. She had been recently feeling achy, tired and had poor concentration and distorted vision. Later in April 2010 Dr Mather recorded she was feeling worse, more tired, heavier and sleeping a lot. It was only then that a question was raised about CFS when she rejected the notion her complaints could be depression related.

409
Since that time she had been treated by a number of specialists.

Dr Thomas had treated her for a "functional pain condition". Dr Wodak, a neurologist, believed that her symptoms could be explained on the basis of a neurological disturbance. She has also been treated by two cardiologists for significant postural hypotension and tachycardia.

410 The defendant refers to Ms Rawlings giving evidence and being cross-examined over three days with only the occasional breaks in her evidence. Her behaviour including being seemingly lucid, able to take notes and converse with Counsel was inconsistent with suggestions of cognitive impairment.

411 Finally, in accordance with the principles in Jones v Dunkel (1959) 101 CLR 298, Counsel refers to the absence of evidence from Dr Oldmeadow who treated her in 2011/2012 and was said to be an expert in CFS. There was also no evidence called, or report tendered, from Dr Hyde, the Canadian doctor. Counsel submits that the court can draw an inference that neither doctors' evidence would have assisted Ms Rawlings.

412 That completes my summary of the defendant's submissions.

Conclusions

413 Before going to my findings in this case, I would like to make some observations about the nature of Ms Rawlings claim against the ANZ in this case. Certainly, the basis of her claim for CFS as a work-related injury has altered considerably since her first workers compensation claim was submitted in 2010. It dated the injury to mid-2007 claiming a “post vaccination adverse drug reaction”. She stated in the claim form that she had had a flu vaccine, the flu followed next week, and chronic fatigue had worsened since. She first noticed the injury/condition “week following vacc.” The original Complaint contained a Statement of Claim stating that was when she sustained the CFS.

414 She submitted the further claim form in June 2014 again referring to the CFS stating the cause was the second flu vaccination given according to ANZ records on 11 April 2008 and referred to the earlier claim and “this claim + acceleration and aggravation of existing injury”.

415 At that stage, it appears that Ms Rawlings was unrepresented and she amended the Statement of Claim herself to claim that she suffered a further injury or an acceleration or aggravation of her condition as a result of the second vaccination administered to her on 11 April 2008.

416
I have already referred to her Counsel's opening of this case to the effect that the one issue was whether there had been a work-related injury arising from the second vaccination as a result of it aggravating the

pre-existing CFS. Even in opening her Counsel referred to the first vaccination as being a relevant cause of the CFS as being a “red herring”. He said the relevant events as far as the plaintiff's case were the first vaccination, the August 2007 viral infection and the April 2008 second vaccination.

417 However, after the completion of evidence and the filing of the defendant’s submissions, Counsel submitted that the possibility the CFS was triggered by the first vaccination on a close look at the complete history was "essentially untenable". Further, any conclusion that the CFS was triggered by the respiratory infection in August 2007 was a "most unlikely" conclusion.

418 The main thrust of Ms Rawlings' case at the end of the evidence in submissions was now that the CFS was “triggered”, not simply exacerbated by the second vaccination. He did make an alternative submission that the CFS was “triggered” by reasons of unknown aetiology and that if I accepted the close temporal connection between the second vaccination and the onset of relevant symptoms, then the existence of a known hypothesised cause as a matter of common sense and logic should be preferred over what must inevitably be indefinite and incapable of casual determination. However, there is very little, if any, reference to this fourth possibility in his submissions.

419 In answer to a criticism by the defendant's Counsel as to the changing of his client’s case, he conceded her case had been recast since the opening. He referred to the High Court judgment in Whisprun (supra) at [119] to the effect that a decision maker may be required within the pleadings to consider and decide the case different from - or even contrary to - that advanced by the party because such is the legal entitlement of the person concerned.

420 The defendant did not seek to reopen the case despite the plaintiff changing the nature of the argument as I have set out above. However, changing the basis of her claim against the ANZ does not assist her case. The nature of CFS is that it is an exclusionary diagnosis which is heavily dependent on full and accurate histories. There is no simple blood test to determine CFS. Both Counsel point to the need for there to be a close association between the symptoms of CFS and its alleged cause whether this be by way of an infection or otherwise. To that extent in changing the basis of her case does not assist her case. The initial claim form was to the effect that the chronic fatigue started "week following vacc." in mid-2007. The second claim form is to the effect that the second vaccination had led to "acceleration and aggravation of existing injury".

421 I appreciate that Ms Rawlings is not a qualified medical expert in this case. She and her husband have obviously conducted significant researches into CFS on the internet and otherwise over some time. Her Counsel now submits that the CFS was “triggered” by the second vaccination.

422 Counsel for Ms Rawlings has referred to the High Court decision in Whisprun on a number of instances. In Whisprun at [62] the High Court stated a judge is not required to mention every fact or argument relied upon by a losing party as being relevant to an issue. In this case, I will not be addressing every single argument or fact relied upon by both parties in setting out my decision. I have gone through the evidence and submissions of both Counsel in considerable detail and have considered all those arguments. I now proceed to make my findings.

423 Firstly, I accept that CFS may well be a physical illness in certain cases. A number of doctors in this case have referred to the fact that CFS can be post-infection after such illnesses as glandular fever, Ross River virus and Q fever. There is also evidence from a number of doctors that CFS can be seen as a psychiatric illness as well.

424 However, I do not accept in this case on the balance of probabilities that Ms Rawlings does have CFS/ME whether as a physical illness or a psychiatric illness. There is no hard and fast evidence before me that she does in fact have CFS/ME at all. As pointed out by her Counsel, Professor Lloyd set out a three stage process for diagnosing CFS/ME being identification of a characteristic set of symptoms, excluding other alternative medical and psychiatric possibilities and full diagnostic testing to exclude other possible causes.

425 On the evidence before me no single doctor has taken a history from her, examined her and undertaken such a three stage process, except possibly Dr Oldmeadow. What her Counsel seeks to do is cobble together such a three stage process by looking at the various doctors records who have treated her within their areas of speciality and then submits that there is a final diagnosis of CFS/ME on the basis that she continued to have the relevant symptoms. Also, Dr Hyland considering that there must have been something physical happening does not infer that she does have CFS.

426 In his second report, Professor Lloyd answered specific questions sent to him by Ms Rawlings personally. He was asked a number of hypothetical questions by Ms Rawlings. He stated primarily that he did not believe on the balance of probabilities that the influenza immunisations (that is plural) can be considered causative of the CFS. He said that he would anticipate “onset of symptoms with(in) hours-days and no symptom-free interval thereafter – this criterion has not been met”.

427 In a specific question he was told that it "had been admitted by the ANZ (being employer) that I have chronic fatigue syndrome”. He was also asked to assume that she did have undiagnosed chronic fatigue syndrome unrelated to her employment at the time of vaccination in 2008. He was also asked that "on the balance of probabilities, did she suffer ‘a recurrence, aggravation, acceleration, etc. being an undiagnosed CFS condition, caused by the vaccination”. He replied that “on balance of probabilities it is most likely you suffered an exacerbation of a pre-existing chronic fatigue syndrome caused by the vaccination”.

428 However, I do not accept the premises for that opinion that there was a "proximate deterioration in symptoms following the vaccination", the ANZ admitted she had CFS or that she had undiagnosed CFS at April 2008. I will go into that detail later. Thus, I also find against Ms Rawlings as to the fourth alternative submission for finding in her favour as set out in paras. 311 and 418 of this decision.

429 Associate Professor Spelman in his report stated that she has had symptoms “consistent with CFS” and that there was the “tenuous at best” possibility of vaccination immunisation being the cause of CFS. However, at best both doctors have merely expressed tentative medical opinions possibly favourable to Ms Rawlings which do not lead me to find in her favour on the balance of probabilities.

430 In his submissions her Counsel agrees, quite reasonably in my view that "some criticism of her reliability as a historian are sound and the court should be cautious in accepting everything the plaintiff (has said)". He agrees that the remembered events occurred a decade ago.

431 Therefore, it seems to me the best guide in this case to her then symptoms is not that what she remembers now but rather her reported symptoms at the time. If there is conflict between her evidence to me and to her reported symptoms at the time in the contemporaneous and multitudinous medical records, I prefer the written records. In doing so I take into account the limitations of medical records as pointed out in Warfe, as cited by Counsel. In this case I am not looking at one or a limited number of medical attendances. Rather, there has been a very large number of regular attendances with many doctors of various specialities over the relevant years

432 Importantly, she did see Dr Hyland on a regular basis who recorded her symptoms as apparently reported to him. Over the relevant periods to 2007, between 2007 and 2008 and thereafter I am unable to see how CFS could be diagnosed from the symptoms recorded then. Those symptoms are far from those given in evidence to me by Ms Rawlings. For example, there is very little reference to fatigue-like symptoms at least until she left the ANZ.

433 I do not accept her evidence that she "fought through" her symptoms to continue working at the ANZ and during 2009 when she was working elsewhere part time and up to 25 hours per week towards the end of that year.

434 There is no doubt whatsoever that she has had a lengthy and detailed history of ill health including prior major depression, coeliac disease, irritable bowel syndrome, cardiac and circulatory issues, gynaecological issues and musculoskeletal problems. Although Dr Hyland states now, with the benefit of hindsight, that something else of a physical nature must have been happening at the time apart from her depression in 2007 and 2008, I do not believe that this leads to a diagnosis of CFS on the balance of probabilities.

435 Her multitudinous medications, including the nature, dosage and combination of such medications varied considerably from time to time. Having regard to those multitudinous medical conditions and medications, it is almost impossible to filter out any possibly relevant CFS symptoms.

436 I do not believe that she has deliberately misled this court in her evidence. However, I believe that there has been at least some unconscious exaggeration or “recall bias” in her evidence of her symptoms as they were approximately ten years ago. According to Dr Hyland’s notes, her mood varied at times but by and large was “improving” and her cognition was intact when recorded on a vast number of occasions.

437 Also, despite her complaints of continuing cognitive defects she stated that Associate Professor Spelman was mistaken when he recorded that she told him in 2010 that she had no immediate effects to the first vaccination and that she did not use the word “gradual” but used the word “increasing” in describing the progression of symptoms thereafter to him. These are only a couple of examples of what I believe to be at least an unconscious exaggeration of her evidence.

438 As to the question as to whether she has CFS I will not refer to the other doctors such as the psychiatrists who do not have expertise in this area. As I pointed out, I do not believe that Dr Stevenson gave satisfactory evidence either in this case for the reasons I have set out.

439 It seems to me that the only possible doctors to have diagnosed CFS are those doctors who have not been called. I have referred to the Canadian doctor, Dr Hyde, who appears to have diagnosed CFS. His reports have been subject of comment in a number of the doctors' reports in this case. As Ms Rawlings’ Counsel submitted, such criticisms might provide a more obvious explanation for his absence.

440 Also, I have not heard from her treating specialist Dr Oldmeadow. His clinical notes, which are indecipherable, were tendered as part of the Plaintiff’s court book. Ms Rawlings gave evidence that she went to him because she believed he was an expert in CFS. On a number of occasions it was stated he had diagnosed she had CFS. However, this case involves other issues rather than just diagnosis. She said she ceased attending Dr Oldmeadow because she did not believe in his modality of treatment by way of cognitive behavioural therapy and graded exercise.

441 I note her Counsel's submission that both those doctors' records and/or reports were available to be tendered by the defendant. I apply the Jones v Dunkel principle that such evidence was not likely to help the plaintiff's case whether by way of diagnosis and/or causation which are the relevant issues in this case. However, I do regard the absence of their reports/records as being a very minor factor in in reaching my decision.

442 Even if she does have some form of pain/fatigue syndrome, which I do not accept, I do not accept on the balance of probabilities that either or both vaccinations in this case played any part whatsoever in any such condition, whether by way of “triggering”, causation or aggravation/acceleration, etc..

443 Although Professors Lloyd and Spelman refer to the possibility/plausibility of a flu vaccination playing a temporary role in a flare-up of CFS symptoms I do not accept that on the balance of probabilities that this occurred in Ms Rawlings case. Firstly, the cited medical studies, in particular the Sleigh and second Per Magnus articles, are against such a probability. Secondly, any flare-up would be limited to days or months and then revert its pre-vaccination state. On Ms Rawlings evidence there has been no such temporary flare-up but rather an overall increase in symptomology reaching its zenith in 2010 almost two years after the second vaccination, as set out below.

444 I find on the balance of probabilities there was not any "close temporal connection between the second vaccination and the onset of relevant symptoms" as submitted by her Counsel. I accept that she told Dr Lang in 2010 that her symptoms “all began with a rash that had occurred on her return from Queensland (in 2005)”.

445 Despite her Counsel’s opening and closing submissions as to the now irrelevance of the first vaccination to her CFS, she was still adamant in her evidence that she was “hot and sweating” shortly after that vaccination and was “aching” next day and following. She said there was aching and tiredness throughout May 2007 and indeed for most of that year on and off.

446 In the course of her evidence she also stated that she was quite well physically and mentally well until the first vaccination, there was aching and tiredness from the next day after the first vaccination onwards. She also stated that until the second vaccination the symptoms “ratcheted up” until they became significantly worse on that day and thereafter until she returned from France in early 2010 when they became the “worst possible”.

447 That history and the various doctor’s records bear little relation to her Counsel’s submissions as to “triggering”, causation or aggravation/acceleration, etc. by the second vaccination as outlined in his final submissions especially having regard to Professor Lloyd’s opinion that in order to link CFS with the vaccination he would anticipate the onset of symptoms within hours/days and no symptom free period thereafter.

448 I do not accept her above evidence as being correct and is another example of her “recall bias”. It is significantly contradicted by the actual contemporaneous records at the relevant times. Further, even if I accept her evidence to be correct, it is more likely that she developed any pain/fatigue syndrome in early 2010 more than a year after ceasing work at the ANZ and obviously being unrelated to any aspect of that employment on the basis of the expert evidence in this case.

449 I accept the defendant's submission that any deterioration in her health whether by way of psychiatric illness or otherwise was more closely related to the difficulties she was having at work commencing before and as at the time of the second vaccination and thereafter, together with the other factors in her private life. She had had major issues with the staff at the Cheltenham branch since the start there. Also, she and the branch coped well when Nicky was her 2iC until Nicky left in March 2008. Such a link with the deterioration and her depression as well as other symptoms are expressly referred to in Dr Hyland's notes. Even on her own evidence, the most significant deterioration in her symptoms occurred in early 2010 in France and upon her return to Australia.

450 As to incapacity for work, it is very difficult to see how she could possibly work at all. She appears to have very little insight into her symptoms and is adamant in relating her health issues to her employment at the ANZ. As noted in her letter to Professor Lloyd, she also tried to implicate alleged bullying and harassment (including discrimination) of her co-workers as an aggravating, accelerating, etc. factor in her “undiagnosed CFS, caused by the bullying”. She has a number of clearly unrelated physical injuries and illnesses for which she is being treated by various doctors.

451 I do not accept that her incapacity at work is in any way related whatsoever to her employment, or any work-related injury at the ANZ or any post-vaccination syndrome, which I do not believe to exist in any event.

452 These proceedings are dismissed.

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[2018] VMC 5

2 May 2018