Farrow-Smith and Comcare (Compensation)
[2024] ARTA 869
•7 July 2024
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 blood tests are consistent with the virus having been contracted relatively close to 7 April 2020. If the blood tests alone were used to assess when the mosquito bite occurred, it is most probable that the mosquito bite happened in mid- or late- March 2020.[7] However, the blood tests do not rule out the possibility that the bite could have occurred as early as mid-February 2020. Such a case would, however, be unusual.[8]
[6] T-Documents, T22, 219, 222.
[7] Report of Professor Tony Korman dated 24 June 2021 (‘Exhibit R1’), 3; Report of Professor Tony Korman dated 13 May 2022 (‘Exhibit R2’), 2.
[8] Report of Professor Jon Iredell dated 19 February 2025, 1. Report of Professor Tony Korman dated 23 December 2024 (‘Exhibit R3’), 3. Report of Professor Dominic Dwyer dated 12 May 2025 (‘Exhibit A2’), [3], [7].
Consequently, two competing hypotheses are viable. One hypothesis is that the applicant was in fact bitten in mid-March 2020 and exhibited a normal response to the introduction of the virus. An alternative hypothesis is that the applicant was bitten in mid-February and is an outlier in terms of the length of delay in her body’s immune response showing up in the blood tests. Whether one should be accepted over the other depends on a proper understanding of the symptoms suffered by the applicant during March 2020. The symptoms the applicant experienced in this period are hotly contested. The applicant did not attend her doctor at all during March 2020. The applicant contends that this is not because she wasn’t sick, but because COVID-19 lockdowns prevented her from attending.[9] The respondent contends that the applicant did not attend her general practitioner (‘GP’) because she was not suffering symptoms until late-March at the earliest, and this is consistent with a bite in March rather than in February.[10]
[9] Applicant’s Statement, [79].
[10] Respondent’s outline of submissions, undated, [19]-[21], [43].
It has been assumed by the experts giving evidence on behalf of the applicant that because the applicant had some symptoms in February 2020, soon after the mosquito bite, that those symptoms persisted continuously until the blood tests tested positive. That assumption is contested by the respondent.
If the applicant’s account is accepted in full - that she was bitten in mid-February, symptoms consistent with Ross River Fever commenced in late-February and were serious and persistent from the first week of March and beyond the confirmatory blood tests – then there is no reason to treat the blood tests as ruling out Ross River Fiver acquired while the applicant was at work.
If, however, a different clinical picture is preferred, or there is significant doubt about some or all of these elements, then the blood test results suggest it is unlikely that the applicant suffered the critical mosquito bite as far back as 14 February 2020.
For the reasons that follow, I am not satisfied that the applicant is accurately describing her symptoms during March 2020. In those circumstances, I am not satisfied that the applicant contracted Ross River Fever as a result of a mosquito bite in February 2020. As a consequence, she does not meet the threshold for the payment of compensation under the SRC Act.
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].
I am doubtful about the reliability of this evidence for two reasons.
First, this account of a single sustained attack by a swarm of mosquitos differs from the version of events given by her co-worker about that day. In a statement prepared a couple of months after the incident, the applicant’s colleague Donna Harper gave an account that is not consistent with a specific incident of a single attack at a specific place by a swarm of mosquitos.[16]
[16] T-Documents, T7, 33.
In her statement, Ms Harper describes the pair’s movements throughout the day and notes that the applicant was required to be out of the car much more than she was. In her statement she says:
Elloise was covering the television side of the story and had to regularly film the swollen rivers and flooded riverbanks to constantly send vision to Sydney for ABC TV news channels. This job required her to be out of the car more than myself as I would stay in the car to write up stories. I estimate she was out of the car about 80 per cent more of the time than me
...Despite our ongoing attempts to protect ourselves, including regularly spraying the insect repellent on us, the mosquitos would bite through our clothing. There were swarms of mosquitos at these locations [Coraki and Woodburn] and they were ferocious.[17]
[17] Ibid.
Nothing in this statement suggests a single notable attack.
Second, the ‘single attack’ version is not consistent with the initial account given by the applicant in her claim form submitted on 3 June 2020. In response to the question ‘what happened and how were you injured?’ the applicant responded:
Over the course of three (consecutive) days in mid February, I was required to work in the field, reporting from flood-affected areas. At all locations there were bad mosquito swarms. These locations were Tweed, Chinderah, Tumbulgum, Coraki and Woodburn. Despite wearing protective clothing (my camera jacket which I always wear when filming) and using insect repellent, I was bitten through my clothing on a number of occasions. My colleague returned to the car but I was required to film/operate the camera and was bitten whilst filming and on the return trip as I carried the camera and other equipment to the car. I had to be out of the car a lot more due to the filming commitment of my job. [18] [emphasis added]
[18] T-Documents, T3, 13-14.
In her claim form the applicant identifies ‘Tweed Heads’ as the place where she was at the time of her injury.[19] Similarly, in the incident notification report provided to the ABC on 19 May 2020, the applicant identifies Tweed Heads, Chinderah, Tumbulgum, Coraki and Woodburn as the site where the incident happened. The applicant does not identify a specific day or a specific place where the incident happened.[20]
[19] Ibid, 12.
[20] T-Documents, T6, 22.
This evidence indicates that, contrary to what the applicant now vividly recalls as a single incident in a specific place, it would be more accurate to conclude that the applicant was bitten on a few occasions over a number of days while working in the field. It doesn’t alter the legal analysis in any way if that is what occurred, but it does suggest that the evidence the applicant gives of specific details that she clearly recalls, should be approached with caution. Not because she is not reporting accurately what she remembers, but because what she remembers no longer corresponds with what actually occurred.
After the assignment reporting on the floods, the applicant continued to work for a further two weeks. She began to feel unwell on 26 February 2020, and on 28 February she commenced long service leave. She then went on holidays to Yamba in early March for five days with her mother, her husband and her son.
The applicant says that when she felt sick on 28 February 2020, she visited a pharmacy and stocked up on a range of pharmaceuticals, bandages and other health related items. She then went to bed with body aches and pains and took Panadol and Nurofen to relieve symptoms. Despite her symptoms she went to Yamba at her mother’s insistence.
There is corroborating evidence that the applicant had symptoms of some kind in late February early March. Her mother, who holidayed with her in Yamba in the first week in March gave evidence that her daughter told her that she did not feel up to the trip when it was proposed. She also reported that 'on the first day we arrived Elloise looked very tired and exhausted'.[21] The applicant's GP’s notes also record her first reaction to a possible Ross River Fever diagnosis as being 'she is worried about EBV [Epstein Barr Virus] had a sore throat 1 month ago’.[22]
[21] Affidavit of Sharelle Craft made 12 May 2025, [7].
[22] T-Documents, T22, 199.
The applicant did visit the pharmacy on 28 February 2020, and other members of the applicant's family report very limited participation in activities during the holiday. Accordingly, there is ample evidence that the applicant had an illness of some kind at the start of March and those symptoms included tiredness and a sore throat. It is worth noting that a sore throat is not indicative of Ross River Fever, although tiredness might be.
I am satisfied that the applicant was bitten by mosquitos while in Yamba. The applicant denies it, but there is other evidence that I prefer on this issue. This evidence is contained in notes taken by her GP, Dr Hannah. The notes were taken on 9 April 2020, when he was giving the applicant news about her Ross River Fever blood test results. The news Dr Hannah gave was that the blood tests he ordered suggested that she might have Ross River Fever, but it might be a false positive.[23] Dr Hannah records in his notes:
she is worried about EBV [Epstein-Barr Virus] as had sore throat 1 month ago
was down in Yamba and got snmashed (sic) by mosquitoes.[24]
[23] Ibid.
[24] I note that even in a court these notes would be admissible and could form the basis of a conclusion that the applicant was bitten by mosquitoes while in Yamba. The record is admissible as a business record and subject to an exception to the hearsay rule - see section 69 of the Evidence Act 1995 (Cth) and Jackson v Lithgow City Council [2010] NSWCA 136
It is significant that Dr Hannah’s records do not include even a hint that the applicant was the subject of a significant and sustained mosquito attack while at Coraki on 14 February 2020. When considered with other evidence these notes are consistent with the conclusion that an early March 2020 bite could also be responsible for the Ross River Fever infection.
The applicant claims in her statement that she did not say the words ‘was down in Yamba and got smashed by mosquitos’.[25] In the hearing before me, she went further and gave evidence that she specifically recalled the conversation with her doctor, and it did not include that statement. Her evidence of the conversation was as follows:
He called me to give me the results of the Ross River test that I’d done, and he asked me some questions about whether I’d been bitten by a mosquito, do I have any recollection of being bitten by a mosquito. So, I told him about Coraki and he said: ‘When was that?’ And I told him when it was. And he said: ‘where else have you been?’ That was a while ago, you must have been somewhere else, where else have you been?’ And I said – sorry, I think he just said it once – ‘Where else have you been?’ And I said: ‘I went to Yamba’, but I was already sick then ‘cause I just told him that I had a sore throat that time and was sick at that time. And he said it must have been at Yamba.
[25] Applicant’s Statement, [78].
I do not accept that the applicant can reliably recall a short conversation with her doctor that happened more than five years ago. It would be an astonishing memory feat to be able to do so. Dr Hannah gave evidence about his notes and quite appropriately conceded that he had no recollection at all of the conversation. He also gave evidence to the effect that ‘At the time, I did not think that the exact location in which she got bitten by the mosquitoes would be so important to her’.
This evidence makes it is unlikely that he cross-examined the applicant about where she was when she got bitten when he was giving her equivocal blood test results over the phone. For these reasons, I do not accept the evidence of the applicant about the content of the conversation as reliable.
In his evidence, Dr Hannah confirmed his view that the statement recorded in his notes - ‘was down in Yamba and smashed (sic) by mosquitoes’ - reflected what he was told by the applicant.
I am conscious of the fact that in the absence of specific recollection that the note is accurate it is dangerous to rely upon the accuracy of doctors’ notes, which can on occasion confuse details given to them by a patient. However, in circumstances where we know from other evidence that the applicant did take a holiday to Yamba in early March, and I formed a favourable view of Dr Hannah’s professional competence and his ability to hear and understand things that were asked of him, I am satisfied that the note reflects everything relevant that he was told.
Consequently, I am satisfied that the applicant was bitten on multiple occasions in the period from February 2020 to April 2020. Bites occurred over three days in February 2020 while the applicant was on assignment with the ABC, and in Yamba in early March 2020. The applicant may have been bitten on other occasions later into March and does not recall it.
Turning then to the next issue of importance, which concerns the onset of symptoms in late February and their persistence following the applicant’s trip to Yamba.
As noted previously, I am satisfied that the applicant began to feel unwell on the evening of 26 February 2020, two days prior to going on long service leave and had observable symptoms by 28 February 2020 and these symptoms persisted while she was in Yamba. It is however controversial whether these were symptoms of Ross River Fever that persisted throughout March 2020.
The evidence that supports the conclusion that the applicant was ill throughout March is less diverse than the evidence of an illness while in Yamba. The contemporaneous evidence for the March 2020 period is not consistent with the applicant having persistent symptoms. The only sources of evidence which suggests that she was, comes from the applicant and her husband. Both gave evidence that the applicant suffered serious symptoms throughout March.[26]
[26] Applicant’s statement, [82]; Statement of John D’errey dated 16 December 2025, [24]-[27].
Based on the other available evidence I am satisfied that this was not the case.
The first and most obvious point is that the applicant did not attend her doctor at all during March 2020. Her employer, in its response provided to Comcare back in June 2020 regarded this as significant:
The ABC is concerned that Ms Farrow-Smith's delay in seeking medical treatment (on 6 April 2020) suggests that she may have in fact developed her symptoms later than 28 February 2020, as at that time any person with 'flu-like' symptoms were being actively encouraged since early March 2020 due to the COVID-19 pandemic, to seek immediate medical attention, and in addition telehealth/e-health facilities have been routinely available for all Australians since that time.[27]
[27] T-Documents, T7, 22 [3.2].
Accordingly, a failure to attend a doctor in that period without explanation could be regarded as indicating an absence of symptoms.
In this case, the applicant explains that her delay in seeking treatment was due to COVID-19 lockdowns. This was asserted in her initial claim and has been maintained by the applicant ever since.
The evidence now available indicates that this claim is false. The applicant's GP Dr Hannah confirmed in his evidence that he and other doctors in the practice were taking appointments during March 2020. Accordingly, if the applicant was experiencing symptoms consistent with Ross River Fever, or COVID-19 or any other serious fever, she had the opportunity to attend her GP.
This leads to the conclusion that the applicant chose not to attend her GP in March 2020 rather than being unable to. That being the case, it is difficult to accept that a person bed-ridden with a flu-like illness for weeks (as the applicant claims in her evidence) during a pandemic, would choose not to contact or get treatment from her local doctors. The more likely explanation for the applicant’s failure to attend her GP in March 2020 is that she was not experiencing symptoms that justified such a visit.
I am fortified in this conclusion by the fact that there is no record of the applicant ever reporting that she had very significant symptoms throughout March 2020 to any doctor who saw her in April, May or June 2020.
There is no dispute that the applicant’s first attendance on her GP in the period from February 2020 to April 2020 period was on 6 April 2020. The applicant did not attend for the purpose of receiving treatment in relation to the serious symptoms she claims to have been experiencing for the previous month. Her purpose in attending her doctor was to obtain a flu-shot for herself and her son.[28] Dr Hannah's notes record that when the applicant attended for the flu shot, he did not administer it because of the applicant's complaints of polyarthralgia – ie pain in multiple joints.[29]
[28] Affidavit of Java D’errey dated 4 November 2024, [4].
[29] T-Documents, T22, 199.
Dr Hannah does not record any history of an acute illness persisting for many weeks prior. In his evidence, he indicated that he considered that the possible causes of the applicant's presenting symptoms at the time included menopause, arthritis or the Ross River Virus. Both the notes and the hypothesised conditions suggest that at the point in time when the applicant was examined, she was not reporting significant or debilitating symptoms beyond pain in her hands, ankles and right shoulder. None of the contemporaneous evidence is suggestive of Dr Hannah receiving a history of serious symptoms running throughout the month of March. When the matter was heard previously, the applicant effectively conceded that she did not give Dr Hannah a history of debilitating illness that had continued for an extended period on 6 April 2020.[30]
[30] Transcript, 19-20.
Nor is there a recorded history of significant ongoing symptoms when the applicant talks with her doctor about the results of her blood tests on 9 April 2020. The record of the applicant's reaction to the news that she may have Ross River Fever is not consistent with a history of extensive symptoms having been suffered by the applicant throughout March. Dr Hannah records - 'she is worried about EBV [Epstein Barr Virus] as had a sore throat 1 month ago [emphasis added]'.
This comment is consistent with prior symptoms but not continuing debilitating symptoms throughout March. When asked about Dr Hannah’s entry on 9 April 2025 during the first hearing in the AAT, the applicant responded in cross-examination 'Yes [early March] was when I was unwell…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'. The applicant effectively conceded that on that occasion the history given was not one of debilitating symptoms of a five-to-six week duration.[31] After what can be described as a helpful objection from counsel, the applicant subsequently changed her evidence, and said she had told the doctor that she had been bedridden and afflicted by a quite debilitating illness.[32] This is not reflected in Dr Hannah’s notes.
[31] Transcript, 19-20.
[32] Transcript, 22.
This supports the conclusion that the applicant did not have debilitating symptoms during March 2020.
The applicant has attempted to corroborate her account of symptoms in March 2020 but without much success. The evidence of her son on this issue in particular is worth noting. He gave evidence that after he attended for the flu shot on 6 April 2020 'I recall my mum being bed-ridden quite often but I cannot recall the exact days'.[33] His recollection is consistent with the course of the illness that the GPs notes and the blood tests suggest - namely:
(a)Some non-Ross River Fever symptoms in Yamba;
(b)No significant symptoms during March;
(c)mild symptoms beginning to emerge in early April prompting a blood test;
(d)blood test results consistent with recent infection with Ross River Fever;
(e)more serious symptoms develop during April 2020,
(f)a blood test later in April confirms that Ross River Fever is the cause of the symptoms;
(g)Ongoing symptoms follow after that.
[33] Affidavit of Java D’errey dated 4 November 2024, [8].
As should be clear from the foregoing, the evidence of the applicant having symptoms throughout March of any significance is weak. Absent the oral evidence of the applicant and her husband, there is no evidence of a significant illness persisting throughout March 2020 and there is evidence that suggests significant symptoms of Ross River Fever did not emerge until April 2020. Excluding the applicant’s and her husband’s accounts, all the other evidence is consistent with the sequence outlined above.
This sequence also dovetails nicely with other evidence. In particular, despite regular trapping of mosquitoes, no insect carrying Ross River Fever was trapped anywhere from Port Macquarie to Tweed Heads until 2 March 2020 as part of the NSW Arborvirus Surveillance and Mosquito Monitoring Program.[34] The blood tests are also consistent with the infecting mosquito bite most likely happening after 2 March 2020, even though on their own the blood tests can’t rule out an earlier bite being responsible.
[34] Exhibit A3.
However, the applicant and her husband in their evidence describe continuous symptoms of a flu-like illness from the end of February 2020 and ongoing. If I were satisfied that that was the history, I would be prepared to accept that the applicant was an outlier in her immune system’s response to the virus and that she contracted the illness as a result of mosquito bites suffered in the field in mid-February. When the statements of the applicant and her husband concerning her symptoms in March 2020 are viewed in the context of all of the other evidence, I am not satisfied that the evidence should be accepted.
The relevant evidence of the applicant's husband in his statement is as follows.
After we returned [home] I had to close the doors of my gallery because of COVID lock down which started in early March 2020. I was spending a lot of time at home.
Elloise was still unwell. I had to look after Java [their son]. I had to tutor him and take him to cricket and other sport. I had to do the shopping.
Elloise's illness was getting worse. She went to the Doctor and had a blood test. This proved to be positive for Ross River virus.
At first Elloise had complained of fever, headaches and not feeling well. Then her symptoms became more intense and she seemed to go into a long decline. Elloise was spending most of her time in bed and was taking a lot of medications.[35]
[35] Statement of John D’errey dated 16 December 2025, [24]-[27].
In cross examination at the first hearing, he was asked about the applicant's illness and said she was confined to bed most of the time after they returned home from Yamba.
In relation to this evidence, I do not give much weight to it as corroborating the most controversial aspects of the applicant's version of her history – that symptoms persisted after the return from Yamba and were serious throughout the month of March 2020. The witness did not give a statement on the topic until 16 December 2021, more than 18 months after the events in question. There is no doubt that the applicant had been very unwell for a very long time at that stage and pinpointing when her symptoms became significant would have been difficult.
There are also matters within the statement, that provide reasons to doubt the precision of his recollection, which needs to be sharp on the question of symptoms in March 2020. He suggests that the reason the applicant attended the doctor in early April was because she was deteriorating. There is no evidence to support such a proposition. Her reason for attending the doctor was to get a flu shot. No other evidence (apart from the applicant’s) suggests it was linked to deteriorating symptoms.
For these reasons, I do not accept the applicant’s husband as providing reliable corroboration.
For the reasons already explained, I do not accept the applicant’s evidence on this topic either. All of the contemporaneous evidence points away from significant symptoms being present in March and the applicant’s son’s evidence is consistent with a later development of serious symptoms than the applicant’s evidence.
It is also significant that the first time, a version of the history consistent with a Ross River Fever infection in mid-February and continuous symptoms from 28 February 2020 emerged was on the claim form she submitted on 3 June 2020. The history described differs markedly from what is revealed in the doctor’s notes and the evidence given by Dr Hannah.
In particular, we now know that it was not true that the applicant was 'unable to get to a doctor' in March 2020 as she suggests in her claim form. Dr Hannah, during his evidence at the hearing checked his appointment book and confirmed that he was available to take appointments, as were other doctors, during March 2020.
In these circumstances, I am not satisfied that the applicant’s history was one of continuous symptoms consistent with Ross River Fever, from 28 February 2020 until the diagnosis was confirmed on 27 April 2020. I need to be satisfied of that history before I could be reasonably satisfied that the applicant is a statistical outlier with a clear case of Ross River Fever acquired in mid-February 2020.
It is worth noting that by 23 April 2020, the medical notes comprehensively record symptoms consistent with Ross River Fever. The notes of that attendance record state as follows:
Results given
Very bad fatigue wrist shoulder and knee pains
Sleeping lots
Swelling posterior R Calf and feels tender
Upset stomach on ibuprofen[36]
[36] T-Documents, T22, 202.
This is the first GP record that lays out serious and debilitating symptoms despite a number of previous visits and calls.
I am satisfied that the applicant had some symptoms of illness in late-February and early March 2020, but I am not satisfied that she developed symptoms like joint pain until shortly before she attended her GP on 6 April 2020. Symptoms deteriorated from that point. It is against this clinical history that the blood tests need to be considered.
Blood tests and expert evidence
With this understanding of the medical history, it is now appropriate to turn to the blood test results and the expert evidence that explains what they mean. Professor Korman gave evidence on behalf of the respondent. Professor Iredell and Professor Dwyer gave evidence on behalf of the applicant. As noted previously, each expert’s views were broadly consistent with the others’. Where the experts differed was in their willingness to accept a history of symptoms commencing prior to April 2020. The results of the blood tests do however assist when considering which history given is more probable.
The applicant had two relevant blood tests. One taken on 7 April 2020, and one taken on 24 April 2020. The blood test does not detect the virus itself but looks for the anti-bodies that are produced by the body in response to the virus. Two kinds of anti-bodies are relevant: IgG antibodies and IgM antibodies. Both need to be present to confirm that a person has contracted Ross River Fever.
The presence of IgM antibodies can indicate a recent or acute Ross River virus infection, but the diagnosis is not confirmed until IgG antibodies are also detected.
The respondent’s expert, Professor Korman, an infectious diseases expert and medical microbiologist presented the results of the blood tests in the following table in his report of 24 June 2021:
7 April 2020 24 April 2020 RRV IgG Negative POSITIVE RRV IgM POSITIVE POSITIVE Comment Early acute infection Recent infection
Professor Korman notes that the incubation period[37] for Ross River Virus disease is normally 7 to 14 days but varies from 3 to 21 days.[38]
[37] the time between a person being bitten by a mosquito infected with Ross River Virus and developing symptoms.
[38] Exhibit R1, 3.
Professor Korman also noted:
Serology testing on 7 April 2020 is consistent with early acute infection (IgM detected, IgG not detected), and on 24 April 2020 confirmed recent RRV infection (IgG seroconversion from IgG not detected to IgG detected). RRV IgG nearly always appears within 10 days of illness onset, and therefore the serology test results in his case are more suggestive of acquisition of infection in late March rather than mid February.[39]
[39] Ibid.
In his oral evidence, Professor Korman conceded that he couldn’t rule out the possibility that the applicant had very delayed seroconversion after a bite in mid-February 2020, but considered such a result unusual.
In response to Professor Korman’s report, the applicant obtained a report from Professor Jon Iredell.
Professor Iredell’s report proceeded on the basis of a number of assumptions which I am not satisfied are appropriate. Namely, that following exposure to mosquitos on 12 to 14 February 2020, ‘after a usual incubation period, an illness typical of RRV ensued’.[40] As should be clear from my factual findings above, I am not satisfied that an illness typical of Ross River Fever developed in late February or early March. An illness typical of Ross River Fever did not develop until early April 2020.
[40] Report of Professor Jon Iredell dated 30 October 2024, 1.
The question addressed by Professor Iredell is whether the late seroconversion of the IgG antibody[41] rules out Ross River Fever acquisition between 12 and 14 February 2020.
[41] The change in a serological test from a negative (no detection of the antibody) to positive (detection of the antibody).
He accepts that the usual IgG seroconversion period is less than three weeks and typically less than two weeks, but he notes that it is not possible to exclude the possibility that in this case there was a much longer period before IgG seroconversion occurred. He did however accept that a delay between exposure in mid-February and a positive IgG not emerging until mid-April was ’definitely on the tail’ of the bell curve in terms of probability’.
Similarly, Professor Dwyer in his report dated 12 May 2025 notes that delayed appearance of IgG antibodies beyond the usual ranges of less than three weeks ‘would be uncommon after clinically apparent infection, but not impossible’.[42]
[42] Report of Professor Dominic Dwyer dated 12 May 2025, 2.
Professor Dwyer also suggested that there might be an issue with the quality of the first IgG test. His doubts on that front depended upon the clinical picture of exposure in mid-February with symptoms of Ross River Fever developing and persisting from 28 February 2020.
Accordingly, all three experts agree that the blood tests, viewed on their own, are suggestive of an infection acquired in March 2020 and probably late March 2020. That would be consistent with the expected period in which seroconversion of IgG usually takes place. What causes the applicant’s experts to doubt that timing, is the applicant’s and her husband’s description of exposure in mid-February and the onset of symptoms on and from the beginning of March. For the reasons explained earlier, I am not satisfied that that evidence accurately captures the clinical picture.
If one considers only the records purporting to record the contemporaneous reported symptoms from the applicant’s GP’s notes, the results of the blood testing and the evidence of the witnesses apart from the applicant herself and her husband, all of it is consistent with the following sequence. The applicant was bitten by mosquitos in mid-February. She became mildly unwell just prior to and during a holiday in Yamba in early March. She recovered from the minor illness that was not Ross River Fever in early March and was well until symptoms of Ross River Fever began to develop in early April as a result of a mosquito bite sometime in March 2020. The applicant identified some mild-symptoms suggestive of Ross River Fever when she attended her GP for a flu shot in early April. Initial testing for Ross River virus was inconclusive because the virus had only recently been acquired. Eighteen days later the applicant had severe symptoms of Ross River fever and further blood tests confirmed the presence of the illness. From that point on the applicant reported to her GP symptoms consistent with the diagnosis and her son observed her behaving in a manner consistent with someone suffering from Ross River Fever.
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.
Date(s) of hearing:
20, 21, 22 May 2025
Counsel for the Applicant:
Ms Michele Fraser
Solicitors for the Applicant: Castagnet Lawyers Counsel for the Respondent Mr Charles Clark Solicitors for the Respondent: HBA Legal Annexure A: Exhibit Register
Tr1
Joint Tender Bundle, filed 15 May 2025, paginated 1 to 805, excluding pages 336 to 447 and pages 485 to 627.
A1
Briefing Letter to Dr Hannah dated 18 October 2024 and annexured notes of Dr Hannah and Dr Gover, and response of Dr Hannah dated 21 October 2024, along with a further document dated 9 April 2020.
A2
Report of Professor Dominic Dwyer and attachment, and email chain dated 12 May 2025.
A3
91. New South Wales Arbovirus Surveillance and Mosquito Monitoring Program 2019-2020 Annual Report
A4
Journal Article: Fraser J.R.E, 'Incubation time of Epidemic Polyarthritis' Med. J. Aust. 1980, 1: 550-551.
R1
Report of Professor Korman dated 24 June 2021 consisting of the pages in the tender bundle 316-330
R2
Report of Professor Korman dated 13 May 2022 consisting of the pages in the tender bundle 331-333
R3
Report of Professor Korman 23 December 2024 along with briefing letter consisting of the pages in the tender bundle 790-801
0