Farrow-Smith and Comcare (Compensation) - [2025] ARTA 1059

Farrow-Smith and Comcare (Compensation) [2025] ARTA 1059 (22 July 2025)

ADMINISTRATIVE REVIEW TRIBUNAL )

) No: 2021/0312

)
Re: Elloise Farrow-Smith
Applicant

And: Comcare
Respondent
CORRIGENDUM
TRIBUNAL:              Deputy President O’Donovan
DATE:   22 July 2025
PLACE:                    Brisbane
Pursuant to s 114(1) of the Administrative Review Tribunal Act 2024, the Tribunal alters the text of the decision published to the parties in this application on 7 July 2025 as follows:

at page 1, delete ‘7 July 2024’ and substitute ‘7 July 2025’.

Applicant/s:  Elloise Farrow-Smith
Respondent:  Comcare
Tribunal Number:                2021/0312

Tribunal:Deputy President O'Donovan
Place:Brisbane
Date: 7 July 2024

Decision:The Tribunal affirms the decision under review.

Statement made on 07 July 2025 at 4:53pm
Catchwords
COMPENSATION – Ross River Fever – infection by mosquito bite – whether ailment was contributed to, to a significant degree, by applicant’s employment – whether infection occurred during the applicant’s employment - evidence of expert witnesses – self-reported symptoms – credibility of witnesses – no liability to pay compensation – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14.
Statement of Reasons

The applicant contracted Ross River Fever in early 2020. Ross River Fever is a mosquito borne disease.[1] The virus is endemic to the Northern Rivers region of NSW,[2] where the applicant lived and worked.[3]
[1] To contract the virus, a person must be bitten by a mosquito carrying the virus.
[2] Report of Dr Gregory Cover dated 7 July 2020; Report of Prof. Jon Iredell dated 30 October 2024, 2.
[3] Statement of Elloise Farrow-Smith dated 14 April 2021 (‘applicant’s statement’), [5]-[18].
The applicant contends that I can be reasonably satisfied that she contracted the disease as a result of being bitten by a mosquito on 14 February 2020 while she was working as a journalist for the Australian Broadcasting Corporation (‘ABC’) on location at Coraki in Northern NSW.[4]
[4] Applicant’s statement of facts, issues and contentions dated 28 February 2022, [3.7]-[3.9].
If I am satisfied that a mosquito bite on that day, or a couple of days prior, was the cause of her Ross River Fever, then the parties agree that the applicant suffered an ailment contributed to, by her employment, to a significant degree and therefore her Ross River Fever meets the threshold requirements for the payment of compensation under the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’).
The respondent however contends that I cannot be reasonably satisfied that the Ross River Fever which the applicant suffers from was contracted on or around 14 February 2020 while the applicant was reporting for the ABC. The respondent contends that the available evidence supports the conclusion that it is more likely the applicant contracted the virus at a later point in time, when she was on long service leave, in circumstances where there was no connection with her employment.[5] If that is the case, then no compensation is payable.
[5] Respondent’s statement of facts, issues and contentions dated 30 March 2022, [29]-[30].
In order…

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) [2025] ARTA 1059
Case: [2025] ARTA 1059
Decision Date: 22 July 2025

CaseChat Overview and Summary

Farrow-Smith and Comcare involved a claim for compensation for a Ross River Fever infection that the applicant alleged was contracted during her employment. The case was heard by the Administrative Appeals Tribunal (AAT) and subsequently appealed to the Federal Court, which remitted the matter back to the AAT for re-hearing. The applicant, a journalist for the ABC, claimed she contracted the virus from a mosquito bite while reporting on floods in Northern NSW in February 2020. The legal issues before the court were whether the applicant's ailment was contributed to, to a significant degree, by her employment and whether the infection occurred during her employment.

The court considered the evidence of expert witnesses, the applicant's self-reported symptoms, and the credibility of the witnesses. The applicant provided detailed evidence of her employment activities and claimed she was bitten by mosquitoes during her work. However, the court found that the applicant's condition was more likely contracted in March 2020 while she was on long service leave. The court concluded that the applicant was not affirmatively satisfied that the infection occurred during her employment. Given this finding, the court determined that the applicant's employment did not contribute to her ailment to a significant degree. The AAT's decision not to award compensation was affirmed.

The court's reasoning was based on a comprehensive analysis of the evidence, including medical reports, witness statements, and the applicant's own testimony. The court found that the applicant's account of the events leading to her infection was not sufficiently supported by the evidence. The court's decision was grounded in the independently verifiable facts and the mutually reinforcing nature of the medical and third-party evidence. The final orders affirmed the decision of the AAT not to award compensation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

My detailed reasons are set out below.Evidence This application was originally heard by the Administrative Appeals Tribunal (‘AAT’) on 16 and 17 May 2022. The AAT’s decision was the subject of an appeal and was set aside by the Federal Court and the matter remitted to this Tribunal for re-hearing.[11] [11] Farrow-Smith v Comcare (2024) 183 ALD 469. The evidence before me includes:(a)the T-Documents, (b)the transcript of the earlier hearing, (c)witness statements and reports taken into evidence in the earlier hearing, (d)additional statements prepared for the purposes of this Tribunal’s hearing,(e)oral evidence from lay witnesses given at this Tribunal’s hearing, and (f)additional reports and oral evidence from experts. A full list of the evidence is set out in annexure A. Findings of Fact The following represent my findings of fact. Where a finding is controversial, I have identified the relevant evidence and set out my reasons for preferring one finding over others that were contended for by a party. The applicant lives in Byron Bay with her husband and teenage son. She has lived in the Northern Rivers region most of her life. She commenced work with the ABC in 1998 in a technical role but has worked as a journalist for the ABC in Lismore since 2002. The applicant has lived in the same house since 2002. It is a well-constructed and well-maintained house with appropriate screens to keep out insects. The applicant has no recollection of ever being bitten by a mosquito in the house.[12] [12] Applicant’s statement, [21]-[32]. On 12, 13 and 14 February 2020, the applicant was assigned to cover floods in Northern NSW. She was sent out as part of a crew of two on each of those days. There is no suggestion in the applicant’s statement, prepared for this application and signed on 14 April 2021, that she was bitten on either 12 or 13 February 2020. However, the applicant says that she did notice mosquitos were present on both of those days.[13] [13] Ibid, [43]. The applicant claims that on 14 February 2020 when she was filming in Coraki, a swarm of mosquitos descended on her and her colleague. She could not move fast because she had to pack up the camera, tripod and backpack. The applicant’s evidence is:…I felt mosquitos around my face and my hands, I felt mosquitos biting through my jacket on my shoulder blades and on the skin at the back of my neck as well as biting my neck through clothing. My hair was drawn back in a pony tail and part of my neck was exposed.That is the only occasion in the 3 days that I recall being bitten by mosquitos…the mosquito attack went on for about 5 minutes…I felt very itchy as I drove back to the office. I was itchy in the areas of my shoulder blades, my hands and around my neck.[14][14] Ibid, [47]-[55]. The applicant’s evidence is that this incident is the only time she can remember being bitten by a mosquito in the period from mid-February 2020 to when she was diagnosed with Ross River Fever in late April 2020.[15][15] Applicant’s Statement, [78], [82].

Decision

Reasons for decision

The mutually reinforcing nature of the content of the GP’s notes, the progressive blood test results and the third-party observations satisfy me that this is the correct understanding of the applicant’s condition. Conclusion In these circumstances, I am not satisfied that the applicant contracted the Ross River Fever from which she suffers in mid-February 2020 as a result of a mosquito bite suffered while reporting for the ABC. It is possible that that is what occurred, but I am not affirmatively satisfied that that is what occurred. It is more likely, and more consistent with the independently verifiable facts, that the applicant suffered a mosquito bite in March 2020 while on long service leave and developed Ross River Fever symptoms in early April following which, her condition gradually worsened. I am not satisfied that the applicant’s Ross River Fever infection was suffered during her employment and consequently her employment did not contribute to her ailment to a significant degree. Her claim for compensation is unsuccessful. The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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