Hayes v Secretary (Department of Education)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hayes v Secretary (Department of Education) & Ors [2025] NSWPIC 131
APPLICANT:	Benjamin Hayes
FIRST RESPONDENT:	Secretary (Department of Education)
SECOND RESPONDENT:	Harrison Benjamin Hayes
THIRD RESPONDENT:	Matilda Louise Hayes
MEMBER:	John Turner
DATE OF DECISION:	8 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 4 and 19B; whether Michelle Hayes contracted COVID-19 in the course of her employment and whether her employment was the main contributing factor to the contraction of the disease; rebuttable presumption in section 19B that Michelle Hayes contracted COVID-19 in the course of her employment and that her employment was the main contributing factor to the contraction of the disease; section 19B presumption not displaced; Nguyen v Cosmopolitan Homes, Briginshaw v Briginshaw, Curtis v Harden Shire Council, Geyer v Redeland Pty Ltd, Singh v FTW Products Pty Ltd, Jones v Dunkel, Manly Council v Byrne, State Bank of NSW v Brown, Seltsam Pty Limited v McGuiness, and James Hardie & Coy Pty Limited v McGuiness cited; Held – Michelle Hayes contracted COVID-19 in the course of her employment with the first respondent and that her employment was the main contributing factor to the contraction of the disease; Michelle Hayes died as a result of the COVID-19 infection that she contracted in the course of her employment with the first respondent.
DETERMINATIONS MADE:	The Commission determines: 1. That Michelle Hayes contracted COVID-19 in the course of her employment with the first respondent and that her employment was the main contributing factor to the contraction of the disease. 2. That Michelle Hayes died as a result of the COVID-19 infection that she contracted in the course of her employment with the first respondent. 3. The matter is be listed before me for preliminary conference in respect to the remaining issues in respect to the compensation payable and apportionment. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Benjamin Hayes, the applicant, has brought proceedings in the Personal Injury Commission (Commission), in which he alleges that his spouse, Michelle Hayes, contracted COVID-19 in the course of her employment as a kindergarten schoolteacher with the Secretary (Department of Education), the first respondent, and tragically died on 16 February 2022.
The two children of the applicant and Michelle Hayes have joined the proceedings; Harrison Hayes as the second respondent and Matilda Hayes as the third respondent.
The applicant claims:
(a) lump sum compensation pursuant to s 25(1)(a) of the Workers Compensation Act 1987 (1987 Act),
(b) funeral expenses pursuant to s 26 of the 1987 Act, and
(c) interest.
Both Harrison and Matilda claim a portion of any lump sum compensation awarded pursuant to s 25(1)(a) of the 1987 Act. Matilda also claims payments of weekly compensation pursuant to s 25(1)(b) of the 1987 Act.
At all relevant times Michelle Hayes worked as a kindergarten teacher at Bowral Public School. The applicant worked as a teacher at the same school. Michelle Hayes, the applicant, Harrison and Matilda all lived in the same household with the applicant’s mother and father. Harrison and Matilda lived in one part of the main house whilst the applicant’s mother and father lived in a separate part of the house. The applicant and Michelle Hayes lived in a separate dwelling on the same property. All members of the household including the applicant’s mother and father came together for meals at the same table and whilst the applicant performed the cooking the cleaning up was performed by the applicant’s father and Michelle Hayes.
Term one of the 2022 school year commenced on 31 January 2022. On 12 February 2022 the applicant’s father tested positive to COVID-19 and commenced isolation. The applicant’s mother was away at the time. On the morning of 14 February 2022 Michelle Hayes awoke feeling unwell and immediately tested herself with a rapid antigen test (RAT) which returned a positive result for COVID-19 which was subsequently confirmed by a polymerase chain reaction (PCR) test. Following the positive test for COVID-19 Michelle Hayes isolated. On 16 February 2022 the applicant found Michelle Hayes unresponsive and administered cardiopulmonary resuscitation (CPR) including mouth to mouth for approximately 20 minutes and an ambulance was called. Tragically Michelle Hayes died on 16 February 2022. It is not disputed that Michelle Hayes died as a result of being infected with COVID-19.
The applicant tested positive to COVID-19 early on the morning of Monday 21 February 2022. Matilda and Harrison who were regularly tested for COVID-19 did not test positive for the infection at any relevant time.

ISSUES FOR DETERMINATION

The parties agree that the only issue to be determined at this time is liability. That is whether:
(a) pursuant to s 4 of the 1987 Act the COVID-19 infection was contracted by Michelle Hayes in the course of her employment with the first respondent and if the employment was the main contributing factor to the contraction of the COVID-19 infection.
If it is determined that the COVID-19 infection was contracted by Michelle Hayes in the course of her employment with the first respondent and if the employment was the main contributing factor to the contraction of the COVID-19 infection then the matter is to be re-listed for a pre-liminary conference in respect the compensation payable and the apportionment of the compensation payable pursuant to s 24(1)(a) of the 1987 Act.

PROCEDURE BEFORE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 18 March 2025. Mr John Gaitanis, counsel, instructed by Ms Peta Kava, solicitor, appeared for the applicant who was present. Mr Paul Stockley, counsel, instructed by Mr Rhett Slocombe, solicitor, appeared for the first respondent. Mr Matthew Robinson, counsel, instructed by Mr Timothy Driscoll, solicitor, appeared for the second respondent who was present. Mr Dewashish Adhikary, counsel, instructed by Mr George Staninovski, solicitor, appeared for the third respondent who was present. The proceedings were conducted via MS TEAMS. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Replies filed on behalf of all three respondents and attached documents;
(c)    documents attached to Application to Admit Late Documents lodged on behalf of the applicant dated 5 November 2024;
(d)    documents attached to Applications to Lodge Additional Documents (ALAD) lodged on behalf of the applicant dated 27 November 2024, 3 December 2024, 11 December 2024 and 13 March 2025, and
(e)    documents attached to ALAD lodged on behalf of the first respondent dated 6 March 2025.

Oral evidence

No oral evidence was adduced.

Summary of the evidence

The following is a brief summary of the documentary evidence.

Statement of Benjamin Hayes dated 21 December 2023

It is the applicant’s evidence that at the time of his wife’s death their two children were living with them as were his mother and father. The house in which they were living was “quite a large L shaped dwelling.” The two children lived down one end of the house whilst the applicant’s parents lived at the other end of the house.
The applicant’s father tested positive for COVID-19 on 12 February 2022. In the days prior to testing positive for COVID-19 the applicant’s father had joined the family for meals where they all sat at the same table. The applicant’s mother was away at the time. Other than at mealtimes the applicant’s father and mother had their own living space.
It is the applicant’s evidence that his father worked as a builder and in the days prior to testing positive for COVID-19 he visited an outdoor building site as a project manager but was otherwise doing office work from home.
The kitchen was the central hub of the house where they all got together for meals. The usual routine was for the applicant to do the cooking whilst the applicant’s father assisted Michelle Hayes with cleaning up after dinner.
In February 2022, they “pretty much” kept to themselves as they had only recently relocated from Norfolk Island, and we were “just settling in.” They did not go out much and wore masks when out. They were “very conscious” of the risk of COVID-19. Michelle Hayes, in particular, was “very hypervigilant” about COVID-19 as she had suffered adverse reactions to being vaccinated.
It is the applicant’s evidence that at the beginning of Term One 2022, Michelle Hayes was involved in the kindergarten transition program “meeting countless new students and their parents.” They were informed of students who had attended school with them and who had COVID-19.
The applicant, who taught at the same school, is not aware of any teachers who had COVID-19 at the school prior to Michelle Hayes testing positive.
On 8 February 2022, the school held a swimming carnival. Early in the morning on 9 February 2022 the applicant was told by Natalie, another teacher, that one of the children at the carnival had tested positive after the carnival. The applicant sent a text message to Michelle Hayes at 8.44am on 9 February advising her of what Natalie had told him. A copy of the text message is not in evidence.
The applicant did not notice Michelle Hayes to have any COVID-19 symptoms on 12 or 13 February. Michelle Hayes did say that she was tired but that did not, at the time, strike the applicant as unusual as the first few weeks of the school term were always a “bit exhausting”.
On Monday 14 February Michelle Hayes woke and told the applicant that she was feeling slightly unwell. She immediately tested herself for COVID-19 with a RAT test which showed a positive result which was confirmed by a PCR test.

Further statement of Benjamin Hayes dated 13 March 2025

It is the applicant’s evidence that he, Matilda and Harrison (and presumably Michelle Hayes whom the applicant does not mention directly) were all in the household in the week or two prior to Michelle Hayes contracting COVID-19. They were all in close proximity the whole time. This included sharing meals together, shopping together, watching movies, playing video games and driving in the same car, in addition to the usual displays of affection such as hugging and kisses goodnight.
After Michelle died, the applicant was with both of his children “almost all hours of the day”, given their distress. This included sleeping in the same double bed with Matilda right up until he tested positive to COVID-19.
On Monday 21 February 2022 the applicant took a RAT test at 5.45am which returned a positive result for COVID-19.
The applicant had given Michelle Hayes CPR and mouth to mouth for some 20 minutes before paramedics arrived on 16 February 2022, the day on which Michelle Hayes died.
Neither Harrison nor Matilda tested positive in the weeks before or after Michelle Hayes death.

Statement of Harrison Hayes dated 19 December 2024

It is the evidence of Harrison Hayes that his grandparents lived in one side of the “L” shaped home whilst he and Matilda were on the other side. His father and mother lived in a granny flat at the back of the property and they would only have contact with them at around dinner and the occasional breakfast.
The applicant’s father tested positive for COVID-19 on 12 February 2022. In the days prior to his testing positive the family only had contact with the applicant’s father for a brief period for dinner.
Both Michelle Hayes and the applicant started working back at school on 31 January 2022. Michelle Hayes role involved teaching and managing new kindergarten students and their parents which required a lot of interactions with a lot of children and their parents. Michelle Hayes would come home looking tired and explained that she was very busy at work with a transition program with the kindergarten students and parents which involved many meetings. Harrisson remembers talking about some students and parents being diagnosed with COVID-19 which seemed to concern Michelle Hayes.
On 8 February 2022 the school at which both the applicant and Michelle Hayes worked held a swimming carnival. There was a lot of children in a small area at the carnival which concerned Michelle Hayes. Harrison Hayes vaguely recalls that there were other close calls with children at the school who later tested positive for COVID-19.
The day following the swimming carnival Michelle Hayes spoke at the dinner table about the fact that she had heard that one of the children at the carnival had tested positive for COVID-19.
On about 14 February 2022 Michelle Hayes tested positive for COVID-19.

Statement of Matilda Hayes dated 14 January 2025

It is the evidence of Matilda Hayes that a few days prior to contracting COVID-19 Michelle Hayes went to the school swimming carnival where she had contact with “lots” of students and teachers. That Michelle Hayes began showing COVID-19 symptoms on 14 February 2022 and took a test which was positive. Michelle Hayes was “alright” on the first day after testing positive.

Statement of Scott Cayzer

A statement was taken from Mr Cayzer on 10 August 2022. The statement has not been signed by Mr Cayzer. Mr Cayzer was an Assistant Principal at the school at which Michelle Hayes and the applicant worked at the time that Michelle Hayes was infected with COVID-19.
It is the evidence of Mr Cayzer that Michelle Hayes and the applicant were involved in a motor vehicle accident on 10 February 2022 and did not attend the school that day or on the following day.
It is the evidence of Mr Cayzer that he does not remember there being any other staff from the school going off with COVID-19 at about the same time. He does not remember if there were any kids at that time who had COVID-19 as they were operating under privacy where they did not know which kids had COVID-19 because when families rang through it wasn’t to be made public at that point however they knew that around that time a kindergarten girl in one of the classes that Michelle Hayes had been on did test positive. However, Mr Cayzer thought that it was after Michelle Hayes tested positive, but he couldn’t be sure. “There could well have been others at the time. I don’t recall any other staff being positive at that time or around that time, but I might be wrong.”
Mr Cayzer noted that the house in which Michelle Hayes was living at the time was “extremely large”.

Text messages

On 13 February 2022 the applicant sent text messages to Mr Cayzer informing him that his father had tested positive for COVID-19 on 12 February 2022 and that both he and Michelle Hayes had taken RAT tests (which must have been performed on either 12 February or on the morning of 13 February) and had both tested negative for COVID-19.

Email 18 February 2022

On Friday 18 February 2022 an email was issued by the school advising that a kindergarten student at the school had tested positive for COVID-19.

Professor Denis Wakefield AO

Professor Wakefield, clinical immunologist and pathologist, provided a forensic report to the first respondent dated 2 June 2023. Professor Wakefield noted that Michelle Hayes was involved in the kindergarten orientation/transition to school program, meaning that she was also exposed to all the parents of the new students during that time, as well as the students.
Professor Wakefield noted the statement evidence of Mr Cayzer that he believed a kindergarten child tested positive for COVID-19 after Michelle Hayes had tested positive, that Mr Cayzer was not aware of any other child or parent with whom Michelle Hayes had been in contact testing positive prior to Michelle Hayes testing positive and that Mr Cayzer was not aware of any staff having tested positive prior to Michelle Hayes testing positive.
Professor Wakefield observed that the incubation period (interval between infection and the onset of symptoms) for COVID-19 ranges from 1-14 days. The incubation period may vary between individuals because of certain determinants, including host factors and different clinical testing regimens. The most common symptoms of COVID-19 infection are fever, cough, fatigue, myalgia and shortness of breath.
Professor Wakefield noted that recent laboratory studies indicated that infected people appear to be most infectious just before they develop symptoms (usually two days before they develop symptoms and early in their illness). People who do not develop symptoms (asymptomatic people) can transmit the virus to others; however it was not clear how frequently this occurs with more research being required.
In the opinion of Professor Wakefield, it was most likely that Michelle Hayes became infected 2-17 days prior to the onset of her symptoms.
Professor Wakefield explained that COVID-19 most commonly spreads between subjects who are in close contact, for example at a “conversational distance”. The virus spreads from an infected person’s mouth or nose in droplets when they exhale, cough, sneeze, speak, or sing. The infectious particles pass through the air and are inhaled at short range or if infectious particles come into direct contact with the eyes, nose, or mouth (i.e. droplet transmission). It can also spread in poorly ventilated and/or crowded indoor settings, where people spend longer periods of time in close contact. This is because aerosols can remain suspended in the air or travel farther than conversational distance. Household contacts are thus at increased risk of infection. People may also become infected when touching their eyes, nose or mouth after touching surfaces or objects that have been contaminated by the virus.
In the opinion of Professor Wakefield, Michelle Hayes was in a work/school environment where possible transmission of COVID-19 could occur if there was a primary source of the infection. However, no such source of infection had been documented and the only close contact who was found infected was the applicant’s father. In the opinion of Professor Wakefield, the applicant was unlikely to be the source of the infection as he did not test positive until after the death of Michelle Hayes and was reportedly testing himself for COVID-19 on a regular basis before her death and was reportedly negative.
In the opinion of Professor Wakefield, it is more likely than not that Michelle Hayes was infected by the applicant’s father. The reasons for this opinion is that the contact with the applicant’s father was over a relatively long period of time, in a relatively confined space (the shared home), social distancing and mask wearing was unlikely to have occurred prior to the onset of symptomatic infection, repeated close contact in a confined environment was more likely and contact was within the incubation period of COVID-19 infection. According to Mr Cayzer there were no reported cases of COVID-19 in the school at which Michelle Hayes taught prior to her contracting COVID-19. There is no evidence that any of Michelle Hayes contacts outside of her home or work environment were sources of the infection.
Professor Wakefield noted that transmission of COVID-19 from infected asymptomatic individuals, including those who later developed symptoms and thus were considered pre-symptomatic, has been well documented.

In the opinion of Professor Wakefield there were several potential sources of Michelle Hayes COVID-19 infection including the home environment, her work environment, and other activities outside the school, including entertainment venues, shopping and public transport.
Professor Wakefield observed that the applicant’s father would have been secreting viral particles during his incubation period, and this could have transmitted the infection via droplet particles during their household contact. It could be argued that this could have resulted in a more severe infection and a shorter incubation period before the onset of her symptoms for example than the onset of the applicant’s infection after Michelle Hayes death. Most secondary infections have been described among household contacts.
Professor Wakefield reached his opinion that it is more likely than not that Michell Hayes contracted the COVID-19 infection from the applicant’s father and outside of her work environment based on the applicant’s father being a close household contact during the usual incubation period of the virus. No other household contacts or known contact having been identified as possible sources of infection. There being no conclusive evidence that Michelle Hayes came in close contact with other staff or students at the school who had tested positive to COVID-19.
Professor Wakefield provided a supplementary forensic report to the respondent dated 16 September 2024 in which he noted Professor Grainge’s opinion that the absence of symptomatic children at the time of Michelle Hayes infection did not exclude the possibility of asymptomatically infected (and hence infective) children being present at the school. Professor Wakefield commented that lack of evidence is not proof of causality. Professor Wakefield however agreed with Professor Grainge with respect to the fact that many children may be asymptomatic or only have mild symptoms of COVID-19 infection.
Professor Wakefield expressed the opinion that it was not possible to be confident about the source of Michelle Hayes’ infection without information about the applicant’s father’s infection risk and possible other sources of infection. Professor Wakefield listed some of the strategies used to attempt to identify the source of an infection which included contact tracing which was not used in this case, epidemiological data in respect to which Professor Wakefield noted that there was no evidence available to him about the school environment and contacts of Michelle Hayes who had COVID-19 infection prior to her contracting the disease.
In the opinion of Professor Wakefield, it could not be assumed that Michelle Hayes contracted COVID-19 in the school environment just because there is more information available about that environment than about the applicant’s father’s possible sources of infection.
Whilst agreeing with Professor Grainge that there was a short period of time between the applicant’s father and Michelle Hayes testing positive for COVID-19 and agreeing with Professor Grainge that “it was impossible to tell who infected who.” Professor Wakefield observed that it is a fact that Michelle Hayes tested positive to COVID-19 after the applicant’s father. In the opinion of Professor Wakefield, the timeline of symptom onset can help establish a chain of transmission, especially if one individual develops symptoms shortly after contact with another infected person. This, Professor Wakefield observed was the case with Michelle Hayes and the contact she had with the applicant’s father.
In the opinion of Professor Wakefield there is no absolute evidence of the source of Michelle Hayes COVID-19 infection. Professor Wakefield observed that this matter could be significantly informed if further information could be obtained with regard to the applicant’s father and his possible sources of infection in respect to which he had no information.
Professor Wakefield confirmed his opinion that it is more likely than not that Michelle Hayes contracted COVID-19 outside the school environment and based on the chronology of events and close contact with the applicant’s father contracted COVID-19 from the applicant’s father.
Professor Wakefield provided a further forensic report to the first respondent dated 18 February 2025 in which he agrees that asymptomatic COVID-19 infection may occur in school populations although he observed that there is no proof that was the case in the school at which Michelle Hayes taught.
In the opinion of Professor Wakefield there is a lack of evidence as to how the applicant’s father contracted COVID-19. In the opinion of Professor Wakefield, the opinion expressed by the other experts, that it is more likely that the school environment was a source of infection rather than the applicant’s father is speculation not supported by scientific evidence.
It is the evidence of Professor Wakefield that the question of whether a schoolteacher is more likely to contract COVID-19 from a close household relative (such as the applicant’s father) versus an asymptomatic student, parent, or staff member at school depends on several key factors, including transmission dynamics, exposure duration, viral load, and mitigation measures in each environment. According to Professor Wakefield multiple studies have found that household transmission is one of the most common sources of COVID-19 infection, often higher than workplace or school exposure. Close, prolonged contact with an infected household member, especially in shared indoor spaces, significantly increases the risk of transmission compared to casual or brief interactions in school settings. Professor Wakefield observed that school based COVID-19 transmission had been lower than initially feared and studies found that COVID-19 transmission in schools has generally been lower than community or household transmission, especially when mitigation measures such as the wearing of masks, ventilation and testing were in place.
Professor Wakefield observed that asymptomatic individuals can spread COVID-19, but studies suggest they may be less contagious than symptomatic cases because they may have a lower viral load and expel fewer respiratory droplets. However, if an asymptomatic student, parent, or staff member had frequent close contact (e.g. long in-person meetings, shared lunch spaces, or poor ventilation in classrooms), transmission risk could increase.
Professor Wakefield again observed that information in respect to the applicant’s fathers activities and possible contacts would be of value particularly if it were known or has been previously reported that the applicant’s father was in contact with other individuals who had been diagnosed with or been in the asymptomatic phase of COVID-19 infection.
Professor Wakefield observed that transmission was less likely to occur in an open air space such as a swimming carnival.
Professor Wakefield confirmed his opinion that it is more likely than not that Michelle Hayes contracted infection from the applicant’s father despite their being a short period of conversion between the two cases, it is within the period of infection transmission. However, Professor Wakefield confirmed his previous agreement with Professor Grainge that it is not possible to ascertain who infected who with regard to Michelle Hayes and the applicant’s father.
In the opinion of Professor Wakefield, it is difficult to know the exact time course of Michelle Hayes infection although given the facts that are known it is more likely that she had a short period of infection prior to her developing a complication of COVID-19.

Professor Christopher Grainge

Professor Grainge, thoracic physician, provided a forensic report to the applicant dated 11 July 2024. Professor Grainge noted that the applicant was involved in a kindergarten orientation program which meant that she was not only exposed to children at school, but also to parents of new students. Professor Grainge understood that both Michelle Hayes and the applicant did not attend work on Thursday 10 and Friday 11 February 2022 due to a minor motor vehicle accident.
Professor Grainge agrees with Professor Wakefield that the incubation period for COVID-19 ranges from 1-14 days, with variable incubation of mostly unknown cause perhaps including initial viral inoculum, underlying host health and underlying host antiviral innate immunity. He observed that the mean incubation period of COVID-19 is just over six days. Professor Grainge also agreed with Professor Wakefield that this data is subject to a degree of uncertainty depending on the methodology used to determine the exact time of infection and hence the time at which symptoms develop, or testing becomes positive. Professor Grainge also noted that Professor Wakefield noted that COVID-19 infection appears most likely to be spread in the 1-2 days prior to individuals developing symptoms when the viral load is highest in the upper respiratory tract.
Professor Grainge also agreed with Professor Wakefield that the likelihood of a COVID-19 infection increases with time and close contact between the person who is infectious and the person who develops the infection and that activities where more particles are expelled from the mouth such as singing or exercising increases the risk of viral infection and that situations in which people are close to one another for long periods of time significantly increases the risk of viral transmission.
Professor Grainge observed that a study examining the severity and clinical spectrum of childhood COVID-19 infections in New South Wales during 2021 found that the majority of infections were asymptomatic or at most mildly symptomatic. Therefore, in the opinion of Professor Grainge, the absence of symptomatic children at the time of Michelle Hayes infection does not exclude the possibility of asymptomatically infected children and hence infective children being present at the school.
In the opinion of Professor Grainge as the applicant’s father and Michelle Hayes developed the disease at the same time, given the variability in the incubation period between individuals, it is impossible to tell whether the applicant’s father infected Michelle Hayes or whether Michelle Hayes infected the applicant’s father.
In the opinion of Professor Grainge the only way to understand the relative risk of the applicant’s father or Michell Hayes contracting the COVID-19 virus outside of the home would be to assess the risk for each of them and then compare those risks. Professor Grainge observed that he had no information regarding the social or work activities of the applicant’s father and therefore the risk for the applicant’s father was unknown to him.
In the opinion of Professor Grainge, Michelle Hayes was in an environment where she was exposed to both multiple children (who are known to have asymptomatic infection with COVID-19) and multiple adults. In the opinion of Professor Grainge, taking into consideration the age of the applicant’s father, he was less likely exposed to such a large number of potential contacts over a prolonged period of time in confined spaces, and therefore it would make it more likely that Michelle Hayes brought the infection into the house. In the opinion of Professor Grainge both Michelle Hayes and the applicant’s father tested positive effectively simultaneously, and hence the order of infection cannot be determined with absolute certainty and must be looked at on the balance of probabilities.
In the absence of evidence that the applicant’s father contracted COVID-19 outside of the household, Professor Grainge considered on the balance of probabilities, it more likely than not that Michelle Hayes was infected with COVID-19 at work by a child or parent who either did not know that they were infected or did not report that infection to the school. That Michelle Hayes, whilst asymptomatic, then infected the applicant’s father who had a fractionally shorter incubation period. Professor Grainge observed that during her work hours Michelle Hayes would have been exposed to a large number of parents and children, and it is well recognised that children especially can be asymptomatic but infective.
In the opinion of Professor Grainge, Professor Wakefield gave “undue weight to what is a minimal time between their testing positive, especially given the known variability in incubation periods.”

Associate Professor Hudson

A/Prof Hudson, a specialist in infectious diseases and clinical microbiology, who provided a forensic report to the second respondent dated 5 February 2025 agrees with an incubation period of between 1-14 days, that persons are likely most infectious 1-2 days before becoming symptomatic, that infection increases with time and close contact with the infected and that activities where more particles are expelled from the mouth increases the risk of infection and that situations where people are close to one another for long periods significantly increases the risk of viral transmission.
A/Prof Hudson agrees with Professor Grainge concerning the risk of transmission of COVID-19 at school from asymptomatic infected children. A/Prof Hudson also agreed with Professor Grainge in respect to the difficulty in determining whether Michelle Hayes infected the applicant’s father or that the applicant’s father infected Michelle Hayes because of the variation in the length of the incubation period in any particular individual within the quoted range of 1-14 days.
A/Prof Hudson agreed with Professor Grainge that Michelle Hayes risk of exposure was greater being a teacher attending a primary school for work than in an older person such as the applicant’s father, however A/Prof Hudson agreed that this was difficult to determine accurately based on the applicant’s father’s activities contained in the documents which were supplied to A/Prof Hudson.
In the opinion of A/Prof Hudson, given the known range of the incubation period, that it was possible that Michelle Hayes became infected with COVID-19 at the school and infected the applicant’s father. A/Prof Hudson also concedes that it is also possible that the applicant’s father infected Michelle Hayes. It was also possible that that they were infected from two different sources and neither infected the other.

FINDINGS AND REASONS

Section 19B of the 1987 Act creates a rebuttable presumption that Michelle Hayes, being a schoolteacher, contracted COVID-19 in the course of her employment with the first respondent and that her employment was the main contributing factor to the contraction of the disease. The first respondent bears the onus of proof in displacing the presumption. Section 19B states:
“19B Presumptions relating to certain employment in relation to COVID-19
(1)     If a worker, during a time when the worker is engaged in prescribed employment, contracts the disease COVID-19 (also known as Novel Coronavirus 2019), then for the purposes of this Act, it is presumed (unless the contrary is established)—
(a)that the disease was contracted by the worker in the course of the employment, and
(b) the employment—
(i)in the case of a person to whom clause 25 of Part 19H of Schedule 6 applies—was a substantial contributing factor to contracting the disease, or
(ii)in any other case—was the main contributing factor to contracting the disease.
(2)     A worker is taken to have contracted COVID-19 for the purposes of this Act if the result of a medical test—
(a)that complies with requirements prescribed by the regulations in relation to the disease, and
(b)that was carried out for the purpose of determining if the worker has contracted the disease,
is a result prescribed by the regulations in respect of the disease.
(3)     A worker is taken to have contracted COVID-19 for the purposes of this Act if the worker is classified by a medical practitioner as having COVID-19, having satisfied the epidemiological or clinical criteria (or both) prescribed by the regulations for the purpose of making that classification.
(4)     For the purposes of this Act, the date of the injury in relation to COVID-19 is the date of whichever of the following occurs first—
(a)the worker is diagnosed by a medical practitioner as having COVID-19 following a prescribed test result, as referred to in subsection (2),
(b)the worker is classified by a medical practitioner as having COVID-19, as referred to in subsection (3),
(c)the worker dies as a result of COVID-19.
(5)     For the purposes of this Act, it is presumed (unless the contrary is established) that a worker the subject of a presumption under subsection (1) is incapable of work as a result of COVID-19 for the period starting on the date of the injury and ending (unless sooner ended by the death of the worker)—
(a)on a date established in accordance with the regulations, or
(b)if no regulations are made under paragraph (a)—on a date that is 7 days after the date on which a medical practitioner certifies that the worker no longer has the disease.
(6)     This section applies to a casual worker in prescribed employment only if the worker has performed casual work in the employment on 1 or more of the 21 days preceding the date of the injury.
(7)     The regulations may make provision for or with respect to any matter relating to the application of this Act to or in respect of workers who have or are suspected of having COVID-19.
(8)     In particular, the regulations may make provision for or with respect to the following matters—
(a)the modification of the provisions of this Act in their application to or in respect of workers who have COVID-19,
(b)(without limitation) the application of the Act to workers who suffer permanent impairment as a result of COVID-19,
(c)the use of employers’ claims histories relating to COVID-19-related claims in calculating premiums payable under the Act,
(d)the sharing of the financial risk arising out of COVID-19 between all insurers under the Act, including through the imposition and enforcement of risk equalisation arrangements for that purpose,
(e)(without limiting clause 1 of Part 20 of Schedule 6) transitional provisions for or with respect to claims relating to confirmed or cases of COVID-19 arising before the commencement of this section.
(9)     In this section—
prescribed employment means employment in any of the following—
(a)the retail industry (other than businesses providing only on-line retail),
(b)the health care sector, including ambulance officers and public health employees,
(c)disability and aged care facilities,
(d)educational institutions, including pre-schools, schools and tertiary institutions (other than establishments providing only on-line teaching services),
(e)police and emergency services (including fire brigades and rural fire services),
(f)refuges, halfway houses and homeless shelters,
(g)passenger transport services,
(h)libraries,
(i)courts and tribunals,
(j)correctional centres and detention centres,
(k)restaurants, clubs and hotels,
(l)the construction industry,
(m)places of public entertainment or instruction (including cinemas, museums, galleries, cultural institutions and casinos),
(n)the cleaning industry,
(o)any other type of employment prescribed by the regulations for the purposes of this definition.”
It is not disputed that the presumption created by s 19B applies to Michelle Hayes.
There are three possible sources of the COVID-19 infection which Michelle Hayes acquired being:
(a)    her work environment;
(b)    the applicant’s father, and
(c)    a third source neither present in the applicant’s work environment or the applicant’s father.
None of the other members of the household at the time are considered likely sources of infection as neither Matilda nor Harrison who were repeatedly tested contracted the disease at the relevant time. The applicant did not test positive until 21 February 2022 after having performed CPR with mouth to mouth on Michelle Hayes for some 20 minutes on 16 February 2022 and is not considered by the medical experts as a potential source of the infection.

That the infection was contracted outside of the work or home environment appears highly unlikely. There is no known source of infection outside of Michelle Hayes work and home environments and it is the applicant’s evidence that in February 2022, they “pretty much” kept to themselves as they had only recently relocated from Norfolk Island, and were “just settling in”, that they did not go out much and wore masks when they did, that they were “very conscious” of the risk of COVID-19 and that in particular Michelle Hayes was “very hypervigilant” about COVID-19 as she had suffered adverse reactions to being vaccinated.
The medical experts who have provided opinions in this matter also do not consider, on the information before them, that it is more likely that the infection was contracted outside of the work or home environments.
Whilst the medical experts consider at great length, and there was also detailed submissions from counsel, the relative likelihood of a person contracting COVID-19 in the home environment as against the school environment, this to my mind is largely irrelevant. I agree with Mr Stockley’s submission that the experts accept that there was a transmission of the COVID-19 infection within the household in which Michelle Hayes and the applicant’s father lived however the question is which out of Michelle Hayes and the applicant’s father brought the infection into the household. No serious consideration has been given by the experts to Michelle Hayes and the applicant’s father becoming infected from different sources outside of the home at approximately the same time. It also appears highly unlikely that both were infected by the same source, the evidence being that Michelle Hayes and the applicant’s father only came together at mealtimes
The issue in this matter comes down to one pivotal question. Out of Michelle Hayes and the applicant’s father, who contracted COVID-19 first? From the answer to this question, it can be determined who introduced the infection to the household and who infected who.
As Mr Stockley observed in his submissions made on behalf of the first respondent there is no microbiological evidence or pathological test to give any clue as to the source of the infections. The medical experts all agree, that on the information available to them, it is not possible to determine for certain who contracted the infection first and who infected who out of Michelle Hayes and the applicant’s father.
The onus of proof which rests on the employer, the first respondent, is to prove its case on the balance of probabilities.
As the fact finder I must feel an actual persuasion of the existence of a fact. The Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) summarised the approach at [55] as follows:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
In Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (Briginshaw) Dixon J explained the standard of proof of on the balance of probabilities as one of “reasonable satisfaction”. Bathurst CJ in Curtis v Harden Shire Council [2014] NSWCA 314 (Curtis) at [20] observed that this can be based on “a preponderance of probability”. Beazley P (Ward and Emmett JJA agreeing) in Geyer v Redeland Pty Ltd [2013] NSWCA 338 (Geyer) at [54] said that:
“[a] finding on the balance of probabilities involves a finding of a probability greater than 50 per cent. Whether or not a court is so satisfied will depend upon the whole of the evidence….The evidence may give rise to more than one possibility, but in that circumstance, the principle is the same. For the plaintiff to succeed, the tribunal of fact must be satisfied on the balance of probabilities of facts that will establish liability in the defendant”.
Snell ADP in Singh v FTW Products Pty Ltd [2007] NSWWCCPD 230 (Singh) observed at [65]:
“The resolution of disputes between medical experts requires a rational examination and analysis of the evidence and the issues (per Ipp JA in Sourlos v Luv A Coffee Lismore Pty Ltd & anor [2007] NSWCA 203 at [25] citing Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127). In Hume v Walton [2005] NSWCA 148, McColl JA said at [69]:
‘The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case, where there is disputed expert evidence, the “parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other”: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed)’.”
There are conflicting opinions from the medical experts as to who became infected first with COVID-19, Michelle Hayes or the applicant’s father.
The first respondent relies on the opinion of Professor Wakefield.
In the opinion of Professor Wakefield, it is more likely than not that Michelle Hayes was infected by the applicant’s father. The reasons for his opinion are that the contact with the applicant’s father was over a relatively long period of time, in a relatively confined space in the home in which they lived, social distancing and mask wearing was unlikely to have occurred prior to the onset of symptomatic infection and repeated close contact in a confined environment was more likely and contact was within the incubation period of COVID-19 infection. Situations in which people are close to one another for long periods of time significantly increases the risk of viral transmission. Indoor locations, especially settings where there is poor ventilation, are riskier than outdoor locations. Activities where more particles are expelled from the mouth, such as singing or exercising, also increases the risk of viral transmission. According to Mr Cayzer there were no reported cases of COVID-19 in the school at which Michelle Hayes taught prior to her contracting COVID. There is no evidence that any of Michelle Hayes contacts outside of her home or work environment were sources of Covid infection.
Professor Wakefield concedes that the school environment in which Michelle Hayes worked was an environment in which transmission of the viral infection could occur if there was a primary source of the infection. However, Professor Wakefield observed that no such source of infection had been documented, and the only known close contact of Michelle Hayes infected with COVID-19 was the applicant’s father. As there was no conclusive evidence that Michelle Hayes came into close contact with other staff, students or parents who had tested positive to COVID-19 he was of the opinion that other sources of infection in the school environment were unlikely.
As previously observed the relative likelihood of the transmission of the virus in the school environment in which the applicant worked and the home environment in which she lived is not to my mind the issue in question. Professor Wakefield concedes that the school environment in which Michelle Hayes worked was an environment in which the transmission of the viral infection could occur however Professor Wakefield relies on the lack of any documented cases of COVID-19 as indicating that the Michelle Hayes did not come into contact with the infection and become infected outside of the home environment making the applicant’s father the only known source of infection.
The applicant’s father tested positive to COVID-19 on 12 February 2022. It is the applicant’s evidence that Michelle Hayes woke on the morning of Monday 14 February 2022 feeling slightly unwell and immediately tested herself with a RAT for COVID-19 which returned a positive result. The result was subsequently confirmed by PCR testing.
The first respondent complains that there is no evidence which gives insight as to what testing was performed by Michelle Hayes during January and February 2022 and that it would have been a simple matter for that evidence to have been adduced. However, on 13 February 2022 the applicant texted Mr Cayzer informing him that his father had tested positive for COVID-19 on 12 February 2022. In that series of text messages, the applicant also advised Mr Cayzer that both he and Michelle Hayes had taken RAT tests (which must have been performed on either 12 February or on the morning of 13 February) and had both tested negative for COVID-19. We do therefore know that the applicant was tested prior to 14 February and that she tested negative for the virus at that time. However, we also know given the incubation period that the Michelle Hayes would have almost certainly been infected with the virus at this time whether she was infected at school or by the applicant’s father as the applicant’s father isolated after having tested positive.
The medical experts unanimously agree that the incubation period for COVID-19 ranges from 1-14 days and varies between individuals. I am of the view that given the range of the incubation period and the relative closeness in time between Michelle Hayes and the applicant’s father testing positive it is not possible to come to any conclusion based on the applicant’s father testing positive first in time as to which of the two became infected first.
In respect to the timing of symptoms Professor Wakefield observed that documenting the onset of symptoms in different individuals is often helpful noting that Michelle Hayes tested positive after the applicant’s father. however, Professor Wakefield agreed with Professor Grainge’s opinion that “it was impossible to tell who infected who.” Professor Wakefield went onto state:
“The timeline of symptom onset can help establish a chain of transmission, especially if one individual developed symptom shortly after contact with another infected person. This was the case with Mrs Hayes and the contact she had with her father-in-law.”[1]
[1] First respondent’s Reply p 54.
In my view Professor Wakefield erred in his reasoning as the issue which is being considered is which out of Michelle Hayes and the applicant’s father contracted the virus first. In this case given the accepted range of the incubation period and the short period of time which elapsed between the applicant’s father testing positive and Michelle Hayes testing positive it cannot be assumed that the applicant’s father became infected first.
In the opinion of Professor Grainge, with whom A/Prof Hudson agreed, as the applicant’s father and Michelle Hayes developed the disease at effectively the same time, given the variability in the incubation period between individuals, it is impossible to tell whether the applicant’s father infected Michelle Hayes or whether Michelle Hayes infected the applicant’s father. On this issue I prefer the opinions of Professor Grainge and A/Prof Hudson.
It is the evidence of the applicant that he and his two children, and presumably Michelle Hayes (though she is not mentioned), were all in the house in the week or two prior to Michelle Hayes contracting COVID-19. That they were all in close proximity the whole time which included sharing meals together, shopping together, watching movies, playing video games and driving in the same car, in addition to the usual displays of affection such as hugging and kisses goodnight.
This evidence may be viewed as weighing in favour of the applicant’s father being the source of the infection as the family members who had the closest physical contact with Michelle Hayes did not become infected. However, I am of the view that no such inference can be drawn as it is uncontested that Michelle Hayes had COVID-19. It is also the shared opinion of the medical experts that a person infected with COVID-19 is most infectious in the two days prior to becoming symptomatic and early in the illness. We therefore know that Michelle Hayes was both infected and infectious whilst in the house but neither of the children contracted the infection at that time and the applicant did not test positive for COVID-19 until 21 February 2022 after having performed CPR with mouth to mouth for 20 minutes on 16 February 2022. The children also did not contract the virus from the applicant even though he was with them constantly, including sleeping in the same bed as Matilda, following the death of Michelle Hayes up until he himself tested positive.
It is the applicant’s evidence that they were informed of students who had attended the school who had COVID-19. The applicant who taught at the same school is unaware of any teachers testing positive prior to Michelle Hayes. It is Harrison Hayes evidence that he remembers talking about some students and parents being diagnosed with COVID-19 which seemed to concern Michelle Hayes. I prefer the applicant’s evidence as he, as a teacher at the school, was told of any reported he cases and presumably would have also discussed any rumours or reports of infection with his wife, Michelle Hayes, particularly given her concerns and as he did (via text messages) in respect to the conversation he had with Natalie.
It is also the evidence of Assistant Principle, Scott Cayzer, in an unsigned statement that he does not remember there being any other members of staff going off work with COVID-19 at about the same time. However at [29] of his statement it is his evidence that he does not remember if any children at that time had COVID-19:
“…as we were operating under privacy where we did necessarily know which kids had Covid because when families rang through it wasn’t to be made public at that point so we knew that around that time a kindergarten girl in one of the classes that Michelle had been on did test positive. I think it was after Michelle tested positive but I can’t be sure on that. There could well have been others at the time. I don’t recall any other staff being positive at that time or around that time but I might be wrong.”
Whilst the statement of Mr Cayzer has not been signed his evidence is consistent with the other factual evidence including the applicant’s evidence.
Whilst Mr Cayzer can’t recall whether any children had tested positive to COVID-19 at the time I am of the view that the evidence supports that there were no reported positive cases. The evidence of the applicant is that they were advised of any cases reported and does not refer to any reported cases at that time. There is however included in the evidence filed by the applicant a “COVID-19 Case Notification” which was disseminated by the school by email on 18 February 2022 which gave notice that the school had been advised that a kindergarten student at the school had tested positive to COVID-19.
The notification from the school postdates Michelle Hayes testing positive on Monday, 14 February 2022. Prior to testing positive Michelle Hayes had not attended work for four days having not attended work on Thursday 10 and Friday, 11 February 2022 due to a minor motor vehicle accident and then the weekend. This would still place the child at school with Michelle Hayes during the potential incubation period of up to 14 days. We do not know when the infection was notified to the school, or how long after testing positive it was reported to the school. Presumably this occurred relatively rapidly. We also do not know what prompted the testing of the infected child. In particular we do not know if the child was tested because they were exhibiting symptoms and if so, we do not know for how long or whether the child was tested for other reasons such as that the child was asymptomatic but another member of the household in which the child lived, or a close contact, had tested positive. In any event the medical experts place little emphasis on what would appear to be a possible but improbable source of the infection.
On 8 February 2022 the school held a swimming carnival, and it is the applicant’s evidence that early on the morning of 9 February 2022 he was told by another teacher, Natalie, that one of the children at the carnival had tested positive after the carnival. I give little weight to this evidence as we have no direct evidence from Natalie. We do not know how Natalie came by this information and whether it was a mere rumour that she had heard. There is no evidence that any such positive test was reported to the school.
It is the applicant’s evidence that at the beginning of the school term, Michelle Hayes was involved in the kindergarten transition program “meeting countless new students and their parents.” Harrison Hayes corroborates the applicant’s evidence, and the evidence is unchallenged by the first respondent.
There is no evidence as to whether there was any requirement for parents who had met with Michelle Hayes to report if they had become infected with COVID-19 and whether the school would have advised the members of staff if such a report had been made. There is also no evidence as to what children may have been taken out of school, due to a member of the child’s household (not the child) testing positive to COVID-19 and the household having to isolate, following the commencement of the school term and prior to or shortly after Michelle Hayes testing positive to COVID-19 and what the reporting requirements were if the child subsequently tested positive whilst already in isolation having been potentially infected and infective whilst at school prior to isolating.
There is also no evidence, and there may be no such data available, as to what the reporting rates of positive COVID-19 tests were at the time and therefore the likelihood that the school was advised of all COVID-19 positive tests. We also do not know, and probably could not know, how often the children at the school were tested or how rigorously they were tested when they displayed mild symptoms as many of the symptoms as identified by Professor Wakefield, such as fever, cough, fatigue, muscle pain and shortness of breath could also have been caused by other conditions that children commonly get such as the common cold.
Professor Wakefield concedes that people who do not develop symptoms can transmit the virus to others noting that transmission of COVID-19 from infected asymptomatic individuals has been well documented, though it was not clear how often this occurs with more research being required.
Professor Wakefield agreed with Professor Grainge that many children may be asymptomatic or only have mild symptoms of COVID-19.
Professor Wakefield also agreed with the concept that asymptomatic COVID-19 infection may occur in school populations although there was no proof that this was the case in the school at which Michelle Hayes taught.
In my view the fact that there were no documented cases of COVID-19 at the relevant time at the school at which Michelle Hayes taught is not evidence that the applicant did not come into contact with either students or parents in particular who had contracted COVID-19.

In my view, and with the greatest of respect, Professor Wakefield has placed too much emphasis on the fact that there were no documented cases of COVID-19 at the school at which Michelle Hayes worked at the relevant time. This does not take into account the likelihood of undocumented cases simply because no testing was performed due to either failure to recognise the symptoms and the need to test or because they were asymptomatic, the potential failure to report positive tests and also that Michelle Hayes had contact with “many” parents in respect to which there is no evidence that they were required to report if they subsequently tested positive.
Having considered both the factual and expert medical evidence I am of the view that it cannot be assumed that simply because there were no reported cases of COVID-19 among students or staff at the relevant time that Michelle Hayes did not come into contact with persons infected with the COVID-19 virus during the course of her employment.
Professor Wakefield concedes that it is not possible to be confident about the source of Michelle Hayes infection without information about the applicant’s father’s infection risk and possible other sources of infection. In the opinion of Professor Wakefield there is a lack of evidence as to how the applicant’s father contracted COVID-19. Professor Wakefield observed that information in respect to the applicant’s father would be of value particularly if it were known or had been previously reported that the applicant’s father was in contact with other individuals who had been diagnosed with or been in the asymptomatic phase of COVID-19 infection.
In the opinion of Professor Grainge, with whom A/Prof Hudson agreed, the only way to understand the relative risk of the applicant’s father or Michelle Hayes contracting the COVID-19 virus outside of the home would be to assess the risk of each of them and compare those risks. However, Professor Grainge observed that he had no information regarding the social or work activities of the applicant’s father and therefore the risk for the applicant’s father was unknown to him.
In the opinion of Professor Grainge it was less likely that the applicant’s father was exposed to a large number of potential contacts over a prolonged period of time in confined spaces and therefore it was more likely that Michelle Hayes brought the infection into the house. In my view this is pure speculation on the part of Professor Grainge.
It is the applicant’s evidence that his father worked as a builder and that in the day’s prior to testing positive for COVID-19 on 12 February 2022 he visited an outdoor building site as a project manager but was otherwise doing office work at home. There is no direct evidence from the applicant’s father as to his activities and potential exposure to the infection outside of the home. In my view the applicant’s evidence as to his father’s activities prior to testing positive is of little weight and assistance as we don’t know how he is aware of his father’s activities, presumably he was not present with his father when he visited the building site, lacks relevant detail for example how many people were present on the building site, did he travel to the site with others, were there any meetings with groups of people, did they wear masks, did they social distance, did any of the persons present subsequently test positive to COVID-19. Also, whilst the applicant refers to the “days before” how many days is he referring to when the accepted incubation period is between 1-14 days.
The first respondent complains that not only is there is a lack of evidence as to the activities and potential exposure of the applicant’s father to the virus but also that there is a lack of evidence as to why the applicant’s father was testing for COVID-19 on 12 February and for how long had he been testing.
In Mr Stockley’s submission on behalf of the first respondent an inference should be drawn from the failure of the applicant to adduce any evidence as to the activities of his father, from his father, that his evidence would not have assisted the applicant’s case.
A Jones v Dunkel[2] inference can be drawn where a party fails to call or otherwise tender evidence that would have been expected to be favourable to that party without a sufficient explanation being given for its absence. The inference that can be drawn is that the untendered evidence would not have helped the party who failed to tender it and entitles the trier of fact to more readily draw any inference available to be drawn from the other evidence. The inference cannot be drawn that the untendered evidence would in fact have been adverse to the party not tendering it.[3]
[2] [1959] HCA 8; (1959) 101 CLR 298.
[3] Manly Council v Byrne [2004] NSWCA 123; State Bank of NSW v Brown [2001] NSWCA 22.
I decline to draw an inference. The applicant has the right to rely on the presumption created by s 19B of the 1987 Act which places the burden on the respondent to displace the presumption. Also, the applicant has also provided some evidence as to the father’s activities even though that evidence in my view is of little assistance.
In my view even if such an inference were drawn it would not provide any meaningful assistance to the first respondent as the inference cannot be drawn that the untendered evidence would have been adverse. Mr Stockley correctly conceded that the drawing of any such inference could not fill the lacuna in the evidence.
It is the respondent who bears the onus to displace the presumption under s 19B of the 1987 Act that Michelle Hayes contracted COVID-19 in the course of her employment with the first respondent and that her employment was the main contributing factor to the contraction of the disease. For the above reasons I am not satisfied that it is more than just a possibility that Michelle Hayes contracted the virus from the applicant’s father. Such a possibility does not satisfy the test of balance of probabilities.[4] I therefore find that Michelle Hayes contracted COVID-19 in the course of her employment with the first respondent and that her employment was the main contributing factor to the contraction of the disease.
[4] Seltsam Pty Limited V McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29.
As I have found that Michelle Hayes contracted COVID-19 in the course of her employment with the first respondent and that her employment was the main contributing factor to the contraction of the disease I also find that Michelle Hayes died as a result of the COVID-19 infection that she contracted in the course of her employment with the first respondent.

[2025] NSWPIC 131

8 April 2025