A journalist who believes she contracted Ross River Virus (RRV) from a mosquito bite while working in a flooded area, has won an appeal to have her compensation claim reconsidered.
ABC reporter Elloise Farrow-Smith was diagnosed with RRV in April 2020, and attributed her infection to mosquito bites she sustained in February 2020 while filming floods in Tweed Heads, Chinderah, Tumbulgum, Coraki and Woodburn, in the Northern Rivers region of New South Wales.
Ms Farrow-Smith lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) with Comcare. In September 2020, Comcare declined the claim, saying it was satisfied she “suffered an ailment” but not “that your employment was significant in the causation of your condition”.
An internal review affirmed the decision, finding the condition “was not significantly contributed to by your employment, but rather it is more probable than not that you contracted the infection while on annual leave (in Yamba) in March 2020”. That decision was affirmed by the Administrative Appeals Tribunal (AAT) in January 2021.
In a 26-page decision published on Tuesday, Federal Court Justice Kennett ordered the AAT reconsider its decision according to law.
Ms Farrow-Smith alleged the tribunal erred in law in several ways, including that it denied her procedural fairness by “rejecting unchallenged evidence in breach of the rule in Browne and Dunn”; and that it failed to give adequate reasons and make sufficient findings of fact to support its decision.
The journalist had submitted that when filming on 14 February 2020 – despite wearing long sleeves and insect repellent – she was subject to an “attack” by a “swarm” of mosquitoes, lasting about five minutes. She had also reported to a doctor that she had been “smashed” by mosquitoes during a holiday at Yamba in March.
The AAT stated that the medical science presented, in the form of serology, supported the theory that Ms Farrow-Smith was infected in March rather than in February. The tribunal therefore concluded that her ailment was not contributed to, to a significant degree, by her employment with the ABC.
Justice Kennett pointed out that Ms Farrow-Smith had not been questioned directly about the proposition she had suffered a significant number of mosquito bites at Yamba. The AAT had cross-examined her through the notes of the doctor, instead of asking her directly about her symptoms, which made later reliance on the proposition by the tribunal unfair, he said.
He said it was clear “Ms Farrow-Smith was not seeking to persuade the tribunal that the days on which she filmed flooding in the course of her employment were the only occasions on which she could potentially have been infected”.
“The key issue of fact was whether the tribunal should be satisfied that the bites suffered by Ms Farrow-Smith in the course of her employment were the bites that infected her with RRV,” he said.
Justice Kennett said the reporter “would have had significant difficulty persuading the tribunal that her RRV infection should be attributed to the mosquito bites she sustained while filming”.
“I am not satisfied, however, that this difficulty was insurmountable. Comcare did not submit that it was necessarily a complete barrier to success for Ms Farrow-Smith. A case concerning the causes of a disease will rarely be able to be proved with certainty by eliminating all possible origins but one,” he said.
“In the present case, had Ms Farrow-Smith’s evidence been accepted, it would have been open to the tribunal to find that the multiple mosquito bites she received while filming in the course of her employment were most likely to have been the source of the RRV infection.
“Such a finding would be at least logically possible if the tribunal accepted that apart from this event Ms Farrow-Smith was rarely if ever bitten by mosquitoes. The expert evidence as construed by the tribunal weighed heavily against, but did not entirely exclude, such a finding.
“As noted earlier, the tribunal was somewhat dismissive of Ms Farrow-Smith’s evidence in this regard. However, there is a realistic prospect that the case could have taken on a different complexion if Ms Farrow-Smith had been given a proper opportunity to confront the suggestion that she had been “smashed” by mosquitoes at Yamba (and that her evidence was therefore incorrect).”
Justice Kennett said that although Ms Farrow-Smith’s case clearly faced significant difficulties, it was not bound to fail.
“The failure to afford her procedural fairness was therefore material. It requires that the decision of the tribunal be set aside,” he said.
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