Farrow-Smith and Comcare (Compensation) - [2022] AATA 3157

Farrow-Smith and Comcare (Compensation) [2022] AATA 3157 (26 September 2022)
Division:GENERAL DIVISION
File Number: 2021/0312
Re:Elloise Farrow-Smith
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Deputy President J Sosso and Member L Benjamin
Date:26 September 2022
Place:Brisbane

The decision under review is affirmed.
.....................[SGD].................................
Deputy President J Sosso
Catchwords
COMPENSATION – Ross River Virus – self-reporting of symptoms – conflicting medical opinion – credibility of witnesses – ailment was not contributed to, to a significant degree, by her employment – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538
Amaca Pty Ltd v Ellis (2010) 240 CLR 111
D’Amico and Comcare [2018] AATA 54
Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
E.M.I (Australia) v Bes (1970) 44 WCR 114
Lees v Comcare [1999] FCA 753
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare (2017) FCR 65
Tully and Comcare [1996] AAT 349
White and Military Rehabilitation and Compensation Commission [2017] AATA 1555
Secondary Materials
Farmer, JF, Suhrbier A, ‘Interpreting paired serology for Ross River virus and Barmah Forest virus’, AJGP Vol 48, September 2019.
Flexman, JP, et al, ‘A comparison of the diseases caused by Ross River virus and Barmah Forest virus’ (1998) 169 MJA 159.
Harley et al, ‘Ross River Virus Transmission: Infection and Disease: a Cross-Disciplinary Review’, Clinical Microbiology Reviews, Oct 2001
Lucas, RE, Qiao, M, ‘A case of encephalitis in central Australia due to Ross River virus?’ Aust NZ J Med 1999, Vol 29, 25 March 2008.
New South Wales Government, ‘NSW Arbovirus Surveillance & Mosquito Monitoring 2019 – 2020’, Weekly Update: 14 February 2020 (Report Number 8).
REASONS FOR DECISION
Deputy President J Sosso and Member L Benjamin
26 September 2022
INTRODUCTION

Ms Elloise Farrow-Smith (the Applicant) seeks review of a decision dated 11 December 2020 by a Review Officer of Comcare which affirmed a determination of 9 September 2020 declining liability to pay compensation for the contraction of Ross River Virus, pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) – Exhibit 1 T19 pp. 167 – 172.
The Applicant was born in 1969 and moved to the Northern Rivers District of New South Wales in 1974. Apart from periods during which she undertook study or work duties, the Applicant has been a resident of this region since 1974 – Exhibit 4 para 5.
The Applicant has resided at Suffolk Park, which is in the Byron Bay locality, since 2002 – Exhibit 4 para 21.
The Applicant commenced working with the Australian Broadcasting Corporation (ABC) as a journalist in June 1999. At all relevant times, the Applicant was employed as a journalist with the ABC – Exhibit 1 T7 p. 30, Exhibit 2 para 2.5.
On 12, 13 and 14 February 2020, the Applicant was assigned to cover floods which were affecting the Tweed,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Farrow-Smith and Comcare (Compensation)

Details

AGLC: Farrow-Smith and Comcare (Compensation) [2022] AATA 3157
Case: [2022] AATA 3157
Decision Date: 26 September 2022

CaseChat Overview and Summary

This matter concerned an appeal by Farrow-Smith against a decision by Comcare regarding a claim for compensation. The dispute centred on whether the applicant's condition, Ross River Virus, was contributed to, to a significant degree, by her employment. The appeal was heard by Deputy President Sosso P.

The court was required to determine whether the applicant had suffered an ailment and, if so, whether that ailment was contributed to, to a significant degree, by her employment. This involved assessing the credibility of the applicant's testimony regarding the severity and duration of her symptoms, particularly in light of conflicting medical opinions and contemporaneous medical records.

Deputy President Sosso P acknowledged that disease and injury are not mutually exclusive concepts, referencing established High Court authority. The court found that the evidence presented supported the conclusion that the applicant had suffered an ailment as a result of mosquito bites. However, after considering the testimony of the applicant, her partner, and medical professionals, and critically examining the applicant's account against the available medical records, the court concluded that the applicant's ailment was not contributed to, to a significant degree, by her employment.

Consequently, the decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It was recognised by the High Court in May, and in subsequent Court and Tribunal cases, that disease and injury other than a disease are not necessarily mutual exclusive concepts – see Prain v Comcare (2017) FCR 65 at [72]. However, the High Court made it explicitly clear in May that if the evidence before a decision-maker allows that person to reach a conclusion that an applicant has suffered an ailment, then the disease provisions of the Act must be applied. We are satisfied, on the evidence presented, that the Applicant suffered an ailment as a result of experiencing mosquito bites, and apply s 5B to the evidence presented.THE EVIDENCEIntroduction As outlined above, the Tribunal received into evidence testimony from the Applicant and her partner, Mr D’errey, as well as from three medical professionals: Dr Gover, Dr Navin and Professor Korman. Before proceeding with the details of the evidence presented, it is relevant to deal with one submission of Ms Fraser. She submitted that Comcare did not challenge the Applicant’s account of her debilitating symptoms – SRA para 1. This submission was challenged by Mr Clark who, in turn, submitted that the Applicant’s account of disabling symptoms in late February 2020, and being bedridden for a number of weeks thereafter, was not reflected in contemporaneous medical records – RSR para 1. Although we will deal, at length, with the Applicant’s testimony below, it is the case that Mr Clark cross-examined the Applicant, at length, about her health in the period between February to April 2020. Indeed, his cross-examination of the Applicant was challenged by Ms Fraser. The following exchange occurred – Tr. 16.5.2022 pp. 20 – 21:“MR CLARK: All right. My question was this: ‘She is worried about EBV. Has had a sore throat one month ago?’---Yes, when I was at Yamba I had a sore throat; I was really unwell, and so I told the doctor that and I said maybe I had glandular fever, and we were just talking.Once again though, what’s recorded there is not reflective of, you know, a four, five, perhaps nearly six week history of debilitating symptoms, is it?---They’re really short consults – they’re really busy – 15 minute consults.MS FRASER: Can I object to this? There’s a limit to which this witness can be asked about notes taken by her medical practitioner in the course of the consultation. And the other proposition that my friend put is that this doesn’t reflect a lengthy period of illness, when in fact it’s talking about things that happened a month previously.DEPUTY PRESIDENT: Yes, Mr Clark.MR CLARK: Are you happy for me to proceed, or do you want me to respond to the objection?DEPUTY PRESIDENT: I was waiting for you to respond.MR CLARK: Look, I appreciate there’s a limit as to how much the cross examination can persist for. It hasn’t reached that level yet. Our position is simply this, that the applicant’s statement has already established – sets out a lengthy period of quite debilitating symptoms where she was bedridden, and, as I’m about to put to her, and I’ll be asking you to consider, that you might have expected, you know, a symptom description, or symptoms description of that magnitude, or of that sort, to be put, rather than what’s contained there.DEPUTY PRESIDENT: Just proceed, Mr Clark.MR CLARK: Thank you. You’ve heard which way I’m going with this argument. You agreed with me that that’s what you told Dr Hannah, okay, and you’ve also agreed that the fairly pervasive history, which you have told the tribunal about, about, you know, these lengthy symptoms for, by this stage, four to five weeks, is not mentioned there, is it?MS FRASER: Can I ask my friend what it is he says was agreed to, because I’m not sure I do agree with any proposition he put in respect to this matter?MR CLARK: Well, I distinctly heard her say that she agreed that she’d told the doctor that she was worried about EBV, has had a sore throat one month ago.”

Decision

Reasons for decision

We, therefore, conclude that the Applicant’s ailment, Ross River Virus, was not contributed to, to a significant degree, by her employment with the ABC.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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