Farrow-Smith and Comcare (Compensation) - [2024] ARTA 869

Farrow-Smith and Comcare (Compensation) [2024] ARTA 869 (7 July 2024)
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 to decide between the cases advanced, it is necessary to consider two strands of the evidence - the expert medical evidence about the applicant’s blood test results, and the evidence about the history of her symptoms.
The expert evidence focusses on the significance of blood test results obtained on 7 and 24 April 2020.[6] There is no real dispute between the experts about the meaning and significance of the results. The…

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) [2024] ARTA 869
Case: [2024] ARTA 869
Decision Date: 7 July 2024

CaseChat Overview and Summary

Farrow-Smith lodged a claim for compensation against Comcare, asserting that her employment with the ABC had contributed to her Ross River Fever infection, which she believed occurred during her employment in February 2020. The matter was initially heard by the Administrative Appeals Tribunal (AAT) but was subsequently appealed to the Federal Court, which set aside the AAT's decision and remitted the matter back to the Tribunal for re-hearing. The Tribunal was tasked with determining whether the applicant's Ross River Fever was contracted during her employment and if her employment significantly contributed to her ailment.

The key legal issues before the Tribunal were whether the applicant contracted the infection during her employment in February 2020 and whether her employment contributed to her ailment to a significant degree. The applicant provided evidence of a mosquito bite she experienced on 14 February 2020 while reporting on floods in Northern NSW, but the Tribunal had to assess the credibility and weight of this evidence alongside other factors, including the timeline of the infection and the applicant's activities both during and outside of her employment.

The Tribunal carefully reviewed the evidence, including witness statements, medical records, and expert reports. It found that while the applicant recalled being bitten by mosquitoes on 14 February 2020, the timeline of her infection did not align with this event. The evidence suggested that the applicant was more likely bitten in March 2020 while on leave and began experiencing symptoms in early April 2020, well after her employment-related activities had ceased. The Tribunal concluded that the applicant had not definitively proven that her infection occurred during her employment or that her employment contributed to her ailment to a significant degree.

In light of these findings, the Tribunal affirmed the decision under review, dismissing the applicant's claim for compensation. The Tribunal found that the applicant had not met the burden of proof necessary to establish a causal link between her employment and her Ross River Fever infection.

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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