Farrow-Smith and Comcare (Compensation) [2022] AATA 3157 (26 September 2022)  
Division:  
File Number:  
Re:  
GENERAL DIVISION  
2021/0312  
Elloise Farrow-Smith  
APPLICANT  
And  
Comcare  
RESPONDENT  
DECISION  
Tribunal:  
Deputy President J Sosso and Member L Benjamin  
Date:  
26 September 2022  
Brisbane  
Place:  
The decision under review is affirmed.  
.....................[SGD].................................  
Deputy President J Sosso  
© Commonwealth of Australia 2022  
CATCHWORDS  
COMPENSATION – Ross River Virus – self-reporting of symptoms – conflicting medical opinion –  
credibility of witnesses – ailment was not contributed to, to a significant degree, by her employment –  
decision under review affirmed  
LEGISLATION  
Safety, Rehabilitation and Compensation Act 1988 (Cth)  
CASES  
Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538  
Amaca Pty Ltd v Ellis (2010) 240 CLR 111  
D’Amico and Comcare [2018] AATA 54  
Davis v Council of the City of Wagga Wagga [2004] NSWCA 34  
E.M.I (Australia) v Bes (1970) 44 WCR 114  
Lees v Comcare [1999] FCA 753  
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468  
Prain v Comcare (2017) FCR 65  
Tully and Comcare [1996] AAT 349  
White and Military Rehabilitation and Compensation Commission [2017] AATA 1555  
SECONDARY MATERIALS  
Farmer, JF, Suhrbier A, ‘Interpreting paired serology for Ross River virus and Barmah Forest virus’, AJGP  
Vol 48, September 2019.  
Flexman, JP, et al, ‘A comparison of the diseases caused by Ross River virus and Barmah Forest virus’  
(1998) 169 MJA 159.  
Harley et al, ‘Ross River Virus Transmission: Infection and Disease: a Cross-Disciplinary Review’, Clinical  
Microbiology Reviews, Oct 2001  
Lucas, RE, Qiao, M, ‘A case of encephalitis in central Australia due to Ross River virus?’ Aust NZ J Med  
1999, Vol 29, 25 March 2008.  
New South Wales Government, ‘NSW Arbovirus Surveillance & Mosquito Monitoring 2019 – 2020’, Weekly  
Update: 14 February 2020 (Report Number 8).  
PAGE 2 OF 62  
REASONS FOR DECISION  
Deputy President J Sosso and Member L Benjamin  
26 September 2022  
INTRODUCTION  
1.  
2.  
Ms Elloise Farrow-Smith (the Applicant) seeks review of a decision dated 11 December 2020 by a Review  
Officer of Comcare which affirmed a determination of 9 September 2020 declining liability to pay  
compensation for the contraction of Ross River Virus, pursuant to s 14 of the Safety, Rehabilitation and  
Compensation Act 1988 (Cth) (the Act) – Exhibit 1 T19 pp. 167 – 172.  
The Applicant was born in 1969 and moved to the Northern Rivers District of New South Wales in 1974.  
Apart from periods during which she undertook study or work duties, the Applicant has been a resident of  
this region since 1974 – Exhibit 4 para 5.  
3.  
4.  
The Applicant has resided at Suffolk Park, which is in the Byron Bay locality, since 2002 – Exhibit 4 para  
21.  
The Applicant commenced working with the Australian Broadcasting Corporation (ABC) as a journalist in  
June 1999. At all relevant times, the Applicant was employed as a journalist with the ABC – Exhibit 1 T7 p.  
30, Exhibit 2 para 2.5.  
5.  
6.  
On 12, 13 and 14 February 2020, the Applicant was assigned to cover floods which were affecting the  
Tweed, Chinderah, Tumbulgum, Coraki and Woodburn localities – Exhibit 1 T3, p. 10, Exhibit 4 para 33.  
The Applicant stated that she had noticed mosquitos at all of the places she visited in the 12 – 14 February  
2020 period; however, it was only on the third day that she remembered being bitten – Exhibit 4 paras 41,  
43 and 51.  
7.  
On 12 February 2020, the Applicant worked with Ms Bronwyn Herbert, and they covered the floods at  
Tweed Heads, Chinderah and Tumbulgum. The Applicant had the task of filming the floods – Exhibit 2 para  
2.7, Exhibit 4 para 34. In her statement of 14 April 2021, the Applicant gave this account of her clothing on  
that day – Exhibit 4 paras 35 – 36:  
“35. I was wearing long pants. These were cotton pants that were fitted but not tight. I wore lace up  
heavy duty boots. These were ankle high boots. The boots had been provided by the ABC. I  
wore ankle socks with them.  
36. I wore a linen blazer type jacket with one button at the front, long sleeves and a collar with a  
T-shirt underneath. The jacket had pockets. I also wore a rain coat over the top.  
PAGE 3 OF 62  
37. I wore a similar outfit every day, except that I did not wear the rain coat on 14 February. By  
then, the rain had stopped and the sun had come out behind the clouds. It was hot and humid  
but overcast.”  
8.  
On 13 February 2020, the Applicant worked with Ms Leah White, where they both covered the floods in the  
same locations – Exhibit 2 para 2.8, Exhibit 4 para 38.  
9.  
Finally, on 14 February 2020, the Applicant worked with Ms Donna Harper, covering the floods at Coraki  
and Woodburn – Exhibit 2 para 2.9, Exhibit 4 para 39.  
10.  
In her 14 April 2021 statement, the Applicant gave the following account of what had occurred on 14  
February 2020 – Exhibit 4 paras 44 – 56:  
“44. At Coraki on 14 February, I was filming by the river and especially down at the riverside  
caravan park. I noticed that there were lots of mosquitos around. There was mosquito  
repellent in the car. I put some on.  
45. We then went to Woodburn, and filmed there.  
46. We returned to Coraki in the late afternoon. We noticed the river had risen further. We got out  
near where the two rivers joined. We were at the water’s edge. It looked like a good place to  
film as it was shady under the trees.  
47. A swarm of mosquitos descended on us from the trees.  
48. Donna went back to the car.  
49. I could not move as fast because I had to pack up the camera equipment. I had a camera,  
tripod and back pack. I had to remove the camera from the tripod, pack up the equipment and  
carry it back to the car. Donna was unable to assist me with this because she has bad knees.  
50. My hands, ears, face and the back of my neck were exposed. 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.  
51. That is the only occasion in the 3 days that I recall being bitten by mosquitos.  
52. I got back to the car as soon as I could.  
53. I estimate that the mosquito attack went on for about 5 minutes. This occurred at about 4:00  
p.m. or a bit later. The sky was overcast but it wasn’t raining.  
54. I was the driver. I got into the driver’s seat and drove back to the ABC at Lismore. This took  
about 35 minutes.  
55. 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.  
56. I was scratching the areas that I could reach.”  
11.  
In her Workers’ Compensation Claim form, the Applicant provided the following account of what transpired  
during the course of covering the floods – Exhibit 1 T3 pp. 10 – 11:  
“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  
PAGE 4 OF 62  
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. Two weeks later (late Feb) I began to experience aching joints and fatigue.  
The following week (early March) my condition worsened but I thought it was the flu. Then the  
COVID-19 lockdown happened and I was unable to get to a Doctor. My condition worsened and I  
thought I had COVID and tried to get tested. However the health authorities were not doing  
widespread testing in March so refused me. By early April my health had deteriorated. I attended  
the local Dr surgery and the Dr ruled out COVID and was of the opinion that I had Ross River virus.  
He then sent me for blood tests which confirmed Ross River virus. I have not had this illness before.  
12.  
The Applicant’s account of the incident at Coraki was corroborated by her work colleague, Ms Harper, who  
provided the following undated statement – Exhibit 1 T7 p. 33:  
“I was working with my ABC colleague, Elloise Farrow-Smith on February the 14th, 2020 covering  
the impact of floods on the river communities of Coraki and Woodburn for stories to cover multiple  
media platforms for the ABC.  
The first time we arrived at Coraki was around 10am and we later returned to Coraki in the  
afternoon after visiting and filming another flooded river location at Woodburn.  
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. I was able to return from those sites  
to the work car and write/file my stories inside the vehicle for radio news, online and Facebook.  
However Elloise’s work commitments required her to be outside the car in order to film/use the  
camera to gather video/tv content. On a number of occasions I did not get out of the car whilst  
Elloise filmed at different river locations.  
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 and they were ferocious. We were both wearing long sleeves and pants. Elloise wore lace-  
up work boots and a long sleeved cream linen blazer. I recall this because she got mud on the  
blazer and we had a conversation about the blazer because she called it her ‘work’ blazer.”  
13.  
From 17 February 2020 until 28 February 2020, the Applicant worked at the ABC offices in Lismore before  
starting long service leave; however, she started to feel unwell on 26 February 2020, and, by 28 February  
2020, was “pretty bad” – Exhibit 4 paras 64 – 66  
“64.  
On the evening of 26 February, I attended a function with a group of ABC employees. This  
was a film premiere at the cinema at Byron Bay.  
65.  
66.  
I recall that I did not feel very well that evening. I was not drinking.  
By Friday 28 February 2020, I was feeling pretty bad. This was my last day at work before  
proceeding on long service leave. I was intending to take leave for about 3 months.”  
14.  
15.  
On her way home from work, the Applicant visited a Chemist at Goonellabah where she spent about $400  
on medications such as Panadol and Nurofen, as well as temperature scans, vitamins, eucalyptus  
products, tissues and other items. The Applicant claimed that she was not thinking logically or clearly, was  
delirious and struggled to drive home – Exhibit 4 para 69.  
The Applicant spent the weekend in bed and suffered from body aches and pains. She took Panadol and  
Nurofen to relieve her symptoms – Exhibit 4 paras 71 – 72.  
PAGE 5 OF 62  
16.  
On 3 March 2020, the Applicant travelled to Yamba to stay with her mother. She was subsequently joined  
by her partner and son. The Applicant gave the following account of her time in Yamba – Exhibit 4 paras 73  
– 76:  
“73. My mother was insistent that we go on the holiday as planned. On 3 March we left for Yamba.  
We regularly holiday at Yamba. My mother drove us to Yamba. We were joined there by my  
husband and my brother and my son. I was still taking panadol and nurofen.  
74. We stayed at Yamba from 3 to 7 March 2020.  
75. We had a house on Pilot Hill. The house had fly screens.  
76. I had a bedroom. I spent most of my days in bed. I got up to go to a massage place in Yamba  
each day to relieve my body aches. Then I would go home and back to bed. I did not get any  
better. I could not do any of the things we usually do on holiday in Yamba because I felt  
exhausted and like I had the flu.  
77. I did not try to go to a doctor in Yamba, I thought I had the flu and should keep away from  
people.”  
17.  
The Applicant returned to her home, but her condition continued to deteriorate. She was tended to by her  
partner, and thought she had contracted coronavirus. On 6 April 2020, the Applicant saw her General  
Practitioner (GP) and a blood test was organised which confirmed that she suffered from Ross River Virus.  
Due to the debilitating effects of the disease, she was unable to return to work at the conclusion of her long  
service leave, and eventually, returned to work in October 2020 on reduced hours. Unfortunately, she was  
unable to cope and has still not recovered – Exhibit 4 paras 80 – 91.  
18.  
A medical certificate of 6 May 2020 from the Applicant’s treating GP, Dr Gregory Gover, contained the  
following information – Exhibit 1 T5 p. 18:  
“Ms Elloise Farrow-Smith has been diagnosed with Ross River Virus infection and is sick and  
unable to attend work.  
Her symptoms began in early March, and she was unable to continue work from that point.  
Dates which relate to illness are from 2nd March – 30th May 2020.”  
19.  
20.  
On 3 June 2020, the Applicant lodged a Workers’ Compensation Claim – Exhibit 1 T3 pp. 8 – 16.  
The Applicant stated that the condition she was claiming for was Ross River Virus infection with resulting  
physical injury, depression and incapacity/inability to perform work/employment – Exhibit 1 T3 p. 9. The  
time the Applicant first noticed signs and symptoms was stated to be 10:00am on 28 February 2020–  
Exhibit 1 T3 p. 11.  
21.  
The following symptoms were noted – Exhibit 1 T3 pp. 9 – 10:  
“Extreme fatigue, headache, body and joint aches especially – ankles, toes, wrists, fingers,  
shoulders, knees. [U]nable to put pressure on my joints, have to roll out of bed to get out. Difficulty  
sitting to standing and in sitting down. [D]ifficult to walk exhaustion. Swollen and sore lymph.  
[U]nable to grasp things, unable to turn door handles, unable to open things, generally fingers not  
working…”  
PAGE 6 OF 62  
22.  
23.  
On 9 September 2020, a Comcare Claims Manager declined the Applicant’s claim under s 14 of the Act –  
Exhibit 1 T12 pp. 140 – 142.  
It was accepted that the Applicant was suffering from Ross River Virus; however, the Claims Manager was  
not satisfied that the Applicant’s employment was “significant in the causation of your condition” – Exhibit 1  
T12 p. 140.  
24.  
In reaching this conclusion, the Claims Manager had regard, inter alia, to pathology reports of 7 and 24  
April 2020 which are discussed below. The Claims Manager concluded as follows – Exhibit 1 T12 p. 141:  
“In Comcare’s assessment, we found that if your exposure to Ross River Fever was between 9th –  
14th February 2020 and a maximum incubation period was taken of 21-days, your serology results  
should have been IgM positive/IgG negative around 5th – 10th March and IgM positive/IgG positive  
19th – 24th March. However, Comcare notes that these results were found on 7 April 2020 and 24  
April 2020 respectively.  
Dr Grover [sic] reviewed this medical research and provided a report dated 27 August 2020. In his  
report he noted that your reported symptoms align with your stated exposure in February but also  
states:  
‘Yes, I do agree with Comcare’s assessment on the expected pattern of change of antibody  
status overtime. However, because serology was not performed earlier than the 07/04/20, the  
opportunity of a positive IgM and negative IgG finding is not available.’  
Further advice was sought from Comcare’s Clinical Panel Doctors who advised that the serology  
result were more consistent with the March exposure to mosquitoes and that Dr Grover [sic] had  
noted the opportunity of a positive IgM and negative IgG finding was not available, however the  
results of the 7 April 2020 were positive IgM and negative IgG.  
Compensation matters are decided on the probability that something is so, as opposed to the  
possibility that it may be so. Whilst Comcare acknowledges that you suffer from Ross River Fever,  
based on the inconsistencies in onset of symptoms, serology results as well as your multiple  
exposures to mosquitoes in locations prone to Ross River Fever, Comcare cannot be satisfied that it  
is probable your employment with Australian Broadcasting Corporation has significantly contributed  
to your condition. Accordingly, your claim has been declined.”  
25.  
Reference was made to advice from Comcare’s Clinical Panel Doctors. A Clinical Panel Review was  
conducted by Dr James Chan on 2 September 2020 – Exhibit 1 T11 pp. 135 – 139. Dr Chan made the  
following observations – Exhibit 1 T11 p. 137:  
“Comment:  
a.  
b.  
The reported exposure in Northern NSW for work in Feb 2020 and onset of symptoms can be  
consistent with the IE developing RRV. However, there was a delay in performing serology till  
early April 2020.  
IE is noted to have had mosquito bite exposures in Feb 2020 and also early March 2020 in  
regions that have known RRV  
c.  
d.  
e.  
Serology in early April 2020 was positive for IgM and negative for IgG  
Serology later in April 2020 was positive for both IgM and IgG.  
The GP has incorrectly stated the test in early April was positive for both and therefore  
consistent with the article about RRV serology in Folio 24. The serology is more consistent  
with the March exposure  
PAGE 7 OF 62  
Note: however, there are false positives possible. Interpretation should be sought from an expert in  
the area such as an infectious disease specialist.”  
26.  
27.  
The Applicant sought a reconsideration of this determination. On 11 December 2020, the Comcare Review  
Officer affirmed the 9 September 2020 determination – Exhibit 1 T19 pp. 167 – 172.  
The Review Officer found that the Applicant had sustained Ross River Virus infection – Exhibit 1 T19 p.  
168. However, the Review Officer then found that this condition was not significantly contributed by the  
Applicant’s employment, but rather, it was more probable that the infection was contracted whilst the  
Applicant was on “annual leave” (sic) in March 2020 – Exhibit 1 T19 p. 168.  
28.  
29.  
In addition to the material that the Claims Manager considered, the Review Officer also considered a report  
of Dr Marcus Navin, Occupational Physician, of 7 December 2020.  
In accordance with the recommendation of Dr Chan, Comcare had requested that the Applicant attend and  
be assessed by Dr Navin but, in an email of 27 November 2020, the Applicant’s legal representatives  
advised that she would not be attending the appointment. Comcare subsequently arranged for Dr Navin to  
review the extant documentation and provide a report based on that material – Exhibit 1 T19 p. 168.  
30.  
The Review Officer made the following observations – Exhibit 1 T19 pp. 168 – 169:  
Dr Navin provided a report dated 7 December 2020 in which he advised that the blood tests carried  
out subsequent to 6 April 2020 indicate the evolution of a recent (i.e. de-novo) infection. He advised  
that, when adopting the widest scope for symptom development of 21 days to the presentation of  
symptoms, the exposure to the virus would have occurred on or about the second week of March  
2020. He advised that it was more probable than not that exposure in March 2020 was the source of  
the Applicant’s infection, noting that the Applicant’s work-related travel was in early February 2020.  
Dr Gover advised that it is possible that the Applicant’s infection could have been contracted at time  
other than her potential workplace exposure and that there are no means of proving this one way or  
the other with any surety.  
Dr Navin advised that the standard incubation period is seven to nine days post infection before the  
onset of symptoms. Dr Navin further acknowledged that there is a spectrum from three days to  
longer, but not beyond 21 days, based on medical literature, and that the Applicant’s serology  
results were inconsistent with an exposure in early February 2020.  
31.  
Having considered all of the material before him, the Review Officer preferred the assessment and findings  
of Dr Navin – Exhibit 1 T19 p. 169:  
“…due to his areas of expertise as an Occupational Physician, which includes Infectious Diseases,  
together with his detailed explanation of the likely development of your condition and assessment of  
the relationship between your condition and your employment. This opinion is supported by Dr  
Chan.”  
PAGE 8 OF 62  
ISSUES  
32.  
33.  
It is not disputed that the Applicant contracted Ross River Virus – Exhibit 2 para 3.1, Exhibit 3 para 28.  
Comcare submitted that the issue to be determined is initial liability to pay compensation under s 14 of the  
Act, and whether Comcare is liable to pay compensation for incapacity for work under s 19 or for medical  
expenses under s 16, is not within the jurisdiction of the Tribunal – Exhibit 3 para 27. Reference was made  
to the Full Federal Court decision of Lees v Comcare [1999] FCA 753; 56 ALD 84 (Lees).  
34.  
In Lees, their Honours, Wilcox, Branson and Tamberlin JJ, made the following observations:  
“[27] As Finn J noted, s14 is the central provision of the Act so far as the liability of Comcare to  
pay compensation is concerned. S14 creates a liability in Comcare in respect of injuries  
suffered by employees which result in death, incapacity for work or impairment. However,  
the liability in Comcare created by s14 is qualified in two ways. First, such liability is a liability  
‘[s]ubject to’ PtII of the Act. That is, it is a liability limited in its extent by other provisions of  
PtII of the Act (see, for example, s17(2)). Secondly, the liability is a liability to pay  
compensation ‘in accordance with’ the Act. That is, it is a liability to pay the compensation for  
which the statute provides, as required by the Act (see, for example, s17(3)(4) and s(5), s19,  
s20, s24 and s25).  
[28]  
A consideration of the provisions of PtV and PtVI of the Act tends, in our view, to confirm the  
above construction of s14 of the Act…  
[30]  
It is clear that PtV of the Act envisages first, the giving of notice of an injury and separately,  
and in most cases it may be assumed subsequently, the making of a claim for compensation  
in accordance with an approved form. The claim for compensation envisaged by s54 is not, it  
would seem, necessarily a claim for compensation under a particular section, or particular  
sections, of the Act. The form approved by Comcare as required by s54(2)(a) reflects the  
generic nature of a claim under the section. It is headed ‘Claim for Rehabilitation and  
Compensation’. It requires the provision of detailed information concerning the injury and  
time taken off work because of the injury, but it does not provide for the provision of  
information of the kind that would be necessary before a determination could be made  
under, for example, s16, s17, s18, s20, s21, s24 and s25 of the Act.  
[31]  
The claim, and the claim form, envisaged by s54 of the Act reflects the practical reality that a  
claim for compensation is likely to be made relatively soon after the suffering of an injury,  
particularly if incapacity for work or significant medical expenses result from the injury. At the  
time that this initial claim is made it may be quite impossible for the employee to provide  
details of, for example, the fact or extent of any permanent impairment. For the reasons  
expressed below, the determination which is made on a claim, as required by s54 of the Act,  
will ordinarily be a determination under s14 of the Act.  
[34]  
The definition of ‘determination’ makes it plain that it is part of the scheme of the Act for  
determinations to be made under the various sections referred to therein. In particular, the  
definition reveals that a determination may be made under s14 of the Act. A determination  
under s14 cannot amount to more than a determination that Comcare ‘is liable to pay  
compensation in accordance with this Act’ in respect of a particular injury. The amount of  
compensation which Comcare will be liable to pay, the person or persons to whom the  
compensation will be payable and the time or times at which Comcare's liability will give rise  
to a present obligation to make payments are, as the above examination of the structure of  
the Act reveals, all matters to be determined under other provisions of the Act.  
[35]  
This is not to say that a determination under s14 is without real significance. Such a  
determination will involve findings on the following matters. First, that an appropriate notice  
PAGE 9 OF 62  
of injury has been given to the relevant authority as required by s53 of the Act; secondly, that  
a claim for compensation has been made as required by s54 of the Act; thirdly, that the  
person who made the claim or on whose behalf the claim was made was an ‘employee’ at  
the time of the alleged injury (s4 and s5); fourthly, that the employee suffered an injury (s4);  
and finally, that the injury has resulted in death, incapacity for work or impairment.”  
35.  
At the Hearing, the Tribunal referred to Comcare’s submission, as well as the Full Federal Court decision in  
Lees, and observed that the Tribunal stands in the shoes of the decision-maker and does not have  
jurisdiction to go beyond the subject of the decision. Accordingly, in this matter, as the sole question  
determined in the reviewable decision was liability under s 14 of the Act, the Tribunal cannot go further and  
determine if Comcare was liable to pay for medical expenses under s 16 or for compensation for incapacity  
under s 19 – Transcript (Tr.) 16.5.2022 p. 11.  
36.  
37.  
38.  
Ms Fraser of Counsel, for the Applicant, accepted that the sole issue to be determined was liability under s  
14 – Tr. 16.5.2022 p. 11.  
At the outset, there was a difference between Ms Fraser and Mr Clark of Counsel, for Comcare, as to  
whether this was an injury (other than a disease) or a disease matter.  
This issue will be further dealt with when discussing legal principles governing the matter; however, at the  
outset, the Tribunal proceeds on the basis that this is a disease matter. As such, the two issues to be  
determined are as follows:  
(a)  
(b)  
whether the Applicant has suffered an ailment, which, in this matter, is Ross River Virus, which  
question can be answered in the affirmative; and  
whether the ailment was contributed to, to a significant degree, by the Applicant’s employment with  
the ABC.  
39.  
The Tribunal also accepts, based on the factual matrix outlined above, the key issue is whether the  
Applicant contracted Ross River Virus before 28 February 2020, whilst she was working for the ABC, or  
after she commenced long service leave.  
THE HEARING  
40.  
41.  
A Hearing was convened in Brisbane on 16 and 17 May 2022.  
The Applicant was represented by Ms Michele Fraser of Counsel and Comcare by Mr Charles Clark of  
Counsel.  
PAGE 10 OF 62  
42.  
The Applicant appeared in person on the first day of the Hearing and was cross-examined by Mr Clark.  
Also giving evidence on the first day were the Applicant’s partner, Mr John D’errey (in person), Dr Gover  
and Dr Navin.  
43.  
44.  
45.  
On the second day of the Hearing, evidence was received from Professor Tony Korman.  
Leave was given for the parties to provide written closing submissions.  
The Applicant provided the Tribunal with Submissions for the Applicant (SA) on 29 June 2022 and  
Submissions in Reply for the Applicant (SRA) on 13 July 2022.  
46.  
Comcare provided the Tribunal with Respondent’s Outline of Submissions (ROS) on 29 June 2022 and  
Reply Submissions on Behalf of the Respondent (RSR) on 13 July 2022.  
THE LAW  
47.  
48.  
Subsection 14(1) of the Act provides that Comcare is liable to pay compensation in respect of an injury  
suffered by an employee if the injury results in death, incapacity for work, or impairment.  
Injury” is defined by s 5A(1) as follows:  
“(a) a disease suffered by an employee; or  
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury  
arising out of, or in the course of, the employee’s employment; or  
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee  
(whether or not that injury arose out of, or in the course of, the employee’s employment), that  
is an aggravation that arose out of, or in the course of, that employment;  
but does not include a disease, injury or aggravation suffered as a result of reasonable  
administrative action taken in a reasonable manner in respect of the employee’s employment.”  
49.  
Disease” is defined by s 5B(1) to mean:  
“(a) an ailment suffered by an employee; or  
(b) an aggravation of such an ailment;  
that was contributed to, to a significant degree, by the employee’s employment by the  
Commonwealth or a licensee.”  
50.  
51.  
52.  
Significant degree” is defined by s 5B(3) to mean “a degree that is substantially more than material.”  
Aggravation” is defined in s 4(1) to include “acceleration or recurrence.”  
Finally, “ailment” is defined in s 4(1) to mean:  
“any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or  
gradual development).”  
PAGE 11 OF 62  
53.  
54.  
In determining if, in this matter, the “injury” suffered by the Applicant is a “disease” or “an injury (other than  
a disease)”, the Tribunal is guided by the High Court decision of Military Rehabilitation and Compensation  
Commission v May (2016) 257 CLR 468 (May).  
French CJ, Kiefel, Nettle and Gordon JJ provided the following analysis of the task to be performed by the  
Tribunal in this matter:  
“39. On appeal to this Court, the appellant contended that the Full Court applied an incorrect  
concept of ‘injury (other than a disease)’ and did not recognise that the Act treats ‘disease’  
and ‘injury (other than a disease)’ as separate but related bases of liability. In particular, the  
appellant contended that the Full Court was wrong to hold that ‘injury (other than a disease)’  
did not require a ‘sudden or identifiable physiological change’.  
40. Mr May contended that there was nothing in the context, structure or purpose of the Act to  
require a ‘sudden or identifiable physiological change’ and that the basic notion of ‘physical  
injury’ is ‘something which involves a harmful effect on the body’ or ‘a disturbance of the  
normal physiological state which may produce physical incapacity and suffering or death’.  
Meaning of ‘injury’ under s 4(1) of the Act  
41. As seen earlier, subject to an exception for disciplinary action and other matters not now  
relevant, ‘injury’ was defined in s 4(1) of the Act to mean:  
‘(a) a disease suffered by an employee; or  
(b) an injury (other than a disease) suffered by an employee, being a physical or mental  
injury arising out of, or in the course of, the employee's employment; or  
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an  
employee (whether or not that injury arose out of, or in the course of, the employee's  
employment), being an aggravation that arose out of, or in the course of, that  
employment; …”  
(Emphasis added.)  
42. The set of conditions answering the definition of ‘injury’ in the Act relevantly comprises  
two  
sub-sets, ‘disease’ and ‘injury (other than a disease)’, the latter sometimes referred to, not  
necessarily helpfully, as injury simpliciter. They comprise separate but related bases of  
liability. Each has a different meaning in the statutory scheme.  
43. As appears from the definition of ‘disease’, a ‘disease’ for the purposes of the Act must be an  
ailment or an aggravation of an ailment. That is not sufficient to establish the existence of a  
disease. The ailment or aggravation thereof has to have been contributed to in a material  
degree by the employee's employment by the Commonwealth.  
44. An ‘injury (other than a disease)’ covers the other sub-set of ‘injury’. Various aspects of this  
limb of the definition of ‘injury’ should be observed. First, the phrase ‘other than a disease’  
means that if an employee establishes that they have a ‘disease’ within para (a) of the  
definition of ‘injury’, there is no need to consider para (b). Secondly, an ‘injury (other than a  
disease)’ suffered by an employee must be ‘a physical or mental injury arising out of, or in the  
course of, the employee's employment’ (emphasis added). That is to say, the physical or  
mental injury has to have a causal or temporal connection with the employee's employment.  
Thirdly, that need for a causal or temporal connection in respect of a ‘physical or mental injury’  
in para (b) directly raises the question – what does ‘injury’ mean in that paragraph?  
45. ‘Injury’ in para (b) is used in its ‘primary’ sense. As Gleeson CJ and Kirby J explained in  
Kennedy Cleaning Services Pty Ltd v Petkoska, if ‘something … can be described as a  
sudden and ascertainable or dramatic physiological change or disturbance of the normal  
physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that  
word’ (emphasis added).  
PAGE 12 OF 62  
46. That physiological change or disturbance of the normal physiological state may be internal or  
external to the body of the employee. It may be, for example, the breaking of a limb, the  
breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an  
arterial wall or a lesion to the brain. Each would be described as an ‘injury’ in the primary  
sense.  
47. However, as the Full Court correctly held, ‘suddenness’ is not necessary for there to be an  
‘injury’ in the primary sense. A physiological change might be ‘sudden and ascertainable’. A  
physiological change might be ‘dramatic’. The employee's condition might be a ‘disturbance of  
the normal physiological state’. That an ‘injury’ in the primary sense can arise, and can be  
described, in a variety of ways does not mean that ‘suddenness’ is irrelevant. As the Full Court  
said, ‘suddenness’ is often useful where there is a need to distinguish a physiological change  
from the natural progress of an underlying (and in one sense, closely related) disease (as  
occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the  
physiological change – the nature and incidents of that change – that remains central.  
48. That an ‘injury’ in the primary sense can arise, and be described, in a variety of ways was  
recognised by Gleeson CJ and Kirby J in Kennedy Cleaning when their Honours stated:  
‘[C]onsideration [must] be given to the precise evidence, on a fact by fact basis,  
concerning the nature and incidents of the physiological change accepted at trial. If this  
evidence amounts, relevantly, to something that can be described as a sudden and  
ascertainable or dramatic physiological change or disturbance of the normal  
physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense  
of that word.’  
(Emphasis added)  
49. It is against that background that the Act requires the tribunal of fact to give consideration to  
“the precise evidence, on a fact by fact basis, … accepted at trial’ and then to ask certain  
questions in order to determine whether an employee is suffering a ‘disease’ or an ‘injury  
(other than a disease)’.  
50. First, does the evidence amount, relevantly, to something that can be described as an  
‘ailment’, being a physical or mental ailment, disorder, defect or morbid condition? Secondly, if  
so, was that state contributed to in a material degree by the employee's employment by the  
Commonwealth?  
51. If the answer to both those questions is ‘Yes’, there is a ‘disease’ within para (a) of the  
definition of ‘injury’. Of course, in some cases, the answer to those questions may be  
admitted. That is, the employee may admit that the answer to the first question, or both the  
first and the second questions, is ‘No’.  
52. If there is not a ‘disease’ within para (a) of the definition of ‘injury’, the tribunal of fact next  
inquires whether there is an ‘injury (other than a disease)’ within para (b). The third question is  
– does the evidence demonstrate the existence of a physical or mental ‘injury’ (in the primary  
sense of that word)? Generally, that will be determined by asking whether the employee has  
suffered something that can be described as a sudden and ascertainable or dramatic  
physiological change or disturbance of the normal physiological state. However, that judicial  
language is not to be construed or applied as if it were the words of a statute defining a  
necessary condition for the existence of an ‘injury (other than a disease)’. The language of  
judgments should not ‘be applied literally to facts without further consideration of what is  
conveyed by the reasoning’ in the cases from which it is derived, or without regard to the text  
and scheme of the Act.  
53. If there be an ‘injury’ in the primary sense of the word, the next question is – did that injury  
arise out of, or in the course of, the employee’s employment by the Commonwealth? If that  
question is answered ‘Yes’, there is an ‘injury (other than a disease)’ within para (b) of the  
definition of ‘injury’ in s 4(1) of the Act. In some circumstances, if the answer is ‘No’, it may be  
necessary to ask whether the case is one involving aggravation of an injury. That question  
does not arise in this appeal.  
54. It may be that there are circumstances in which the identification of a physiological change, a  
disturbance of the normal physiological state or a psychiatric disorder may satisfy the  
PAGE 13 OF 62  
definition of ‘ailment’ (and therefore result in a positive answer to the first question) but the  
second question is answered ‘No’. But if that is the position on the evidence, there will not be  
any relevant overlap between a ‘disease’ and an ‘injury (other than a disease)’ in the definition  
of ‘injury’ in s 4(1) of the Act. It reflects the fact that there are marked differences between  
arising ‘out of’ or ‘in the course of’ (in para (b)) and ‘contributed to in a material degree’ (for  
para (a)) in the definition of ‘injury’. And it simply means that the employee was unable to  
satisfy the different level of employment connection required under para (a) of the definition of  
‘injury’ under the Act.  
55. This construction of the definition of ‘injury’ in s 4(1) of the Act does not ‘rob’ the ‘disease’ limb  
of utility. The ‘disease’ limb of the definition remains an additional basis of liability.  
56. The proper construction of the Act reflects the importance of the distinction drawn by the Act  
between ‘disease’ and ‘injury (other than a disease)’ in the definition of ‘injury’ in s 4(1) of the  
Act and recognises that each creates a different basis for liability under the statutory scheme.”  
(footnotes omitted)  
55.  
As will be seen from their Honours’ analysis, the first task required of the Tribunal is to determine, from the  
evidence presented, if the Applicant suffered from an ailment as defined in s 4 of the Act. The definition of  
ailment” refers to a “morbid condition (whether of sudden onset or gradual development)”.  
56.  
57.  
The word “morbid” is defined in the 4th edition of the Macquarie Dictionary as follows:  
“1. Suggesting an unhealthy mental state; unwholesomely, gloomy, sensitive. Extreme. Etc. 2.  
affected by, proceeding from, or characteristic of disease. 3. relating to diseased parts”.  
As Comcare submits, Ross River Virus is a disease of gradual onset, caused by a pathogen following  
infection brought about by mosquito bites, and resulting, inter alia, in the type of symptoms experienced by  
the Applicant – Exhibit 3 para 28. In Tully and Comcare [1996] AAT 349, the Tribunal also proceeded on  
the assumption that the disease provisions apply when a person is claiming compensation for Ross River  
Virus – see [36] – [38].  
58.  
It was recognised by the High Court in May, and in subsequent Court and Tribunal cases, that disease and  
injury other than a disease are not necessarily mutual exclusive concepts – see Prain v Comcare (2017)  
FCR 65 at [72]. However, the High Court made it explicitly clear in May that if the evidence before a  
decision-maker allows that person to reach a conclusion that an applicant has suffered an ailment, then the  
disease provisions of the Act must be applied. We are satisfied, on the evidence presented, that the  
Applicant suffered an ailment as a result of experiencing mosquito bites, and apply s 5B to the evidence  
presented.  
THE EVIDENCE  
Introduction  
59.  
As outlined above, the Tribunal received into evidence testimony from the Applicant and her partner, Mr  
D’errey, as well as from three medical professionals: Dr Gover, Dr Navin and Professor Korman.  
PAGE 14 OF 62  
60.  
61.  
62.  
Before proceeding with the details of the evidence presented, it is relevant to deal with one submission of  
Ms Fraser. She submitted that Comcare did not challenge the Applicant’s account of her debilitating  
symptoms – SRA para 1.  
This submission was challenged by Mr Clark who, in turn, submitted that the Applicant’s account of  
disabling symptoms in late February 2020, and being bedridden for a number of weeks thereafter, was not  
reflected in contemporaneous medical records – RSR para 1.  
Although we will deal, at length, with the Applicant’s testimony below, it is the case that Mr Clark cross-  
examined the Applicant, at length, about her health in the period between February to April 2020. Indeed,  
his cross-examination of the Applicant was challenged by Ms Fraser. The following exchange occurred –  
Tr. 16.5.2022 pp. 20 – 21:  
“MR CLARK: All right. My question was this: ‘She is worried about EBV. Has had a sore throat one  
month ago?’---Yes, 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, and we were just talking.  
Once again though, what’s recorded there is not reflective of, you know, a four, five, perhaps nearly  
six week history of debilitating symptoms, is it?---They’re really short consults – they’re really busy –  
15 minute consults.  
MS FRASER: Can I object to this? There’s a limit to which this witness can be asked about notes  
taken by her medical practitioner in the course of the consultation. And the other proposition that my  
friend put is that this doesn’t reflect a lengthy period of illness, when in fact it’s talking about things  
that happened a month previously.  
DEPUTY PRESIDENT: Yes, Mr Clark.  
MR CLARK: Are you happy for me to proceed, or do you want me to respond to the objection?  
DEPUTY PRESIDENT: I was waiting for you to respond.  
MR CLARK: Look, I appreciate there’s a limit as to how much the cross examination can persist for.  
It hasn’t reached that level yet. Our position is simply this, that the applicant’s statement has already  
established – sets out a lengthy period of quite debilitating symptoms where she was bedridden,  
and, as I’m about to put to her, and I’ll be asking you to consider, that you might have expected, you  
know, a symptom description, or symptoms description of that magnitude, or of that sort, to be put,  
rather than what’s contained there.  
DEPUTY PRESIDENT: Just proceed, Mr Clark.  
MR CLARK: Thank you. You’ve heard which way I’m going with this argument. You agreed with me  
that that’s what you told Dr Hannah, okay, and you’ve also agreed that the fairly pervasive history,  
which you have told the tribunal about, about, you know, these lengthy symptoms for, by this stage,  
four to five weeks, is not mentioned there, is it?  
MS FRASER: Can I ask my friend what it is he says was agreed to, because I’m not sure I do agree  
with any proposition he put in respect to this matter?  
MR CLARK: Well, I distinctly heard her say that she agreed that she’d told the doctor that she was  
worried about EBV, has had a sore throat one month ago.”  
63.  
Accordingly, we do not accept that the Applicant’s account of her medical condition between the time she  
covered the floods in the Northern Rivers District of New South Wales in early February 2020 until her  
consultations with Dr Neil Hannah in April 2020, was not challenged by Mr Clark during his cross-  
examination.  
PAGE 15 OF 62  
64.  
65.  
It also follows that we do not agree with Ms Fraser’s submission (SRA para 1) that we are precluded from  
finding that either the Applicant’s or Mr D’errey’s evidence should not be accepted.  
Ms Elloise Farrow-Smith  
The Tribunal had the benefit of receiving a detailed statement dated 14 April 2021 from the Applicant.  
Extracts from that statement are set out in the Introduction.  
66.  
67.  
We also had the benefit of receiving oral testimony from the Applicant on the first day of the Hearing.  
The Applicant, under cross-examination, testified that when filming the floods at Coraki at approximately  
4pm, she felt mosquito bites to her face, neck and hands – Tr. 16.5.2020 pp. 15 – 16.  
68.  
Mr Clark then dealt with the Applicant’s final day at work before taking long service leave, and, in particular,  
her visit to a Chemist Warehouse at Goonellabah. The following exchange occurred – Tr. 16.5.2020 pp. 17  
– 18:  
“You’d agree with me that a lot of these purchases are for purposes other than any muscular aches  
and pains, aren’t they?---I was purchasing things primarily for my illness. I was not feeling well and  
so I was not really thinking clearly, and I was grabbing a lot of different things there.  
Well, just, you know, there’s toothpaste – that’s just a routine purchase, isn’t it?---It is.  
Zovirax cold sore cream?---For my son.  
Elastoplast?---For my son.  
Sensodyne toothpaste?---For my son.  
Sorbent tissues?---For me, because I felt I was coming down with the flu or something.  
A lot of magnesium tablets?---Well that’s good for muscle aches and pains, and I felt really achy.  
In his statement, your partner says in paragraph 19 - - -  
MR CLARK: It’s in page 30 of the – it’s in the tender bundle, page 31. We haven’t had recourse to  
that document. He records a conversation. He asks you ‘Why so much.’ She said, ‘I feel terrible. I’m  
not well.’ And he goes on to say this:  
At about this time we started hearing about COVID. I didn’t know what COVID was.  
understood it was aching joints and not feeling well.  
I
Now, that was his understanding. Was your understanding the same at that time? ---We’d heard a  
lot, yes, about that.  
In respect of not only – well, there was panic buying in supermarkets at that time, you recollect  
that?---Yes.  
And equally, there was panic buying in respect of pharmacies and chemists, wasn’t there?---Sorry,  
is your question was there panic buying, or was I panic buying?  
Sorry, I can be more specific. Your purchase of all those items, what, do you say was potentially  
motivated by the fact that there was panic buying of all these sorts of items and you wished to  
accumulate as many of those items as possible in those circumstances?---I disagree. I was not  
feeling well and I was buying them for myself at that time.  
But did you have the understanding then that aching joints and not feeling well might be indicative of  
you having contracted COVID?---At that point I just thought I felt like I had the flu.  
PAGE 16 OF 62  
Nevertheless, by any measure your condition was quite debilitating, wasn’t it?---Yes.”  
69.  
70.  
71.  
The Applicant confirmed that she stayed with her mother in Yamba from 2 March 2020 until 7 March 2020,  
when she returned home – Tr. 16.5.2020 p. 19.  
The Tribunal was presented with the Applicant’s health summary of visits to the Bay Centre Medical Clinic  
between 5 February 2019 and 9 July 2020 – Exhibit 1 T22 pp. 195 – 204.  
Mr Clark referred to the surgery consultation notes of 6 April 2020 prepared by Dr Hannah – Exhibit 1 T22  
p. 198:  
Presenting complaint  
comes for fluvax but has polyarthralgia  
hands ankle and r shoulder  
no swelling no redness  
APP4  
Examination:  
no joint swelling or redness  
Impression  
APP4  
? rh  
Plan  
blds and review  
trial nsaid  
represtent for fluvax in 2 weeks  
Reason for visit:  
Joint pain…”  
72.  
The Applicant agreed that she was complaining to Dr Hannah of hands, ankle and right shoulder pain and  
the following exchange occurred – Tr. 16.5.2020 pp. 19 – 20:  
“That he examined you, that he could find no swelling or no redness?---I guess that’s what he said. I  
had – my fingers felt quite swollen, because that was one of the feelings that I got from it.  
Well, he does – in that examination, he said ‘no joint swelling or redness.’ You say that’s not  
correct?---Well, that’s his finding. I just remember feeling my joints hurting.  
You’d agree with me, by this time you’d had five weeks of quite debilitating illness, hadn’t you?---I  
had.  
And would you also accept that that history is not reflected in what the doctor has recorded as to  
what you told him?---I was unable to get to the doctor before then, because we were in lockdown.  
I appreciate that, but once you did, on 6 April, do you accept the proposition that that history does  
not record the fairly lengthy five weeks of debilitating symptoms which you had by that time  
suffered?---It actually was a flu vax for my son and myself, and it was a short – and I had mentioned  
in that doctor’s consult when he was giving my son and me the flu vax, which I didn’t get, I talked  
with him about me being unwell, and then that’s when he said come back for a blood test.  
PAGE 17 OF 62  
But what is recorded there, do you accept the proposition, simply does not reflect that five week  
history of debilitating symptoms, does it?---No, because it was just a short consult for my son to get  
a flu vax basically.  
But clearly his suspicions were aroused, to the extent that he ordered you to undertake some blood  
tests?---Yes. I was grateful for that.”  
73.  
Mr Clark then turned to the surgery consultation notes of 9 April 2020 where Dr Hannah made the following  
observations – Exhibit 1 T22 p. 199:  
Presenting complaint  
call for results  
discussed +ve RRF  
but could be false +ve or cross reacting  
seh [sic] is worried about EBV as had sore throat 1 month ago  
was down in yamba and got snmashed [sic] by mosquitoes  
Plan  
advised nsaids for joint pain  
review in 2 weeks  
consider fluvax then if onogn symptoms recheck serology  
Reason for visit:  
RRV…”  
74.  
It will be noted that Dr Hannah wrote that the Applicant informed him that she “was down in yamba and got  
snmashed [sic] by mosquitoes”. In her statement of 14 April 2021, the Applicant denied that she informed  
Dr Hannah that she was bitten by mosquitoes in Yamba – Exhibit 4 para 78:  
“78. I did not get bitten by mosquitos at Yamba and I did not tell Dr Hannah that I was ‘smashed by  
mosquitos’ at Yamba. I was talking about Coraki.”  
75.  
76.  
The following exchange occurred between Mr Clark and the Applicant – Tr. 16.5.2022 p. 22:  
“Did you tell him … ‘Was down in Yamba and got smashed by mosquitoes?’---No. I told him – he  
said where have you been, and I said that I’ve been – told him where I’d been, but I didn’t say that I  
was in Yamba and got smashed by mosquitoes. That doesn’t follow.”  
Ms Fraser made the following submission regarding this notation – SA para 3.22:  
“His notes are unpunctuated, but assuming that his note of 9 April 2020, ‘was down in Yamba and  
got smashed by mosquitos’ was intended to convey that Ms Farrow Smith reported being smashed  
by mosquitos at Yamba, and not disparate events, ‘(e)xperience teaches that busy doctors  
misunderstand or misrecord histories…’”  
77.  
78.  
Ms Fraser quoted from the New South Wales Court of Appeal decision of Davis v Council of the City of  
Wagga Wagga [2004] NSWCA 34 at [35].  
We are not persuaded that Dr Hannah would have made a specific notation about the Applicant being  
bitten by mosquitoes in Yamba without receiving that information from the Applicant. We agree with Mr  
PAGE 18 OF 62  
Clark that “it is fanciful to suggest” (RSR para 1) that the difference between the Applicant’s statement  
quoted above and Dr Hannah’s notation, can be reconciled by suggesting that he misunderstood or  
misread what the Applicant told him. It is inconceivable that Dr Hannah would have noted that the Applicant  
told him Yamba if she was talking about Coraki. We deal further with this matter in the Consideration part of  
this decision.  
79.  
Mr Clark asked the Applicant a series of questions about the absence of any reference in Dr Hannah’s  
notes of 9 April 2020 of her suffering the signs and symptoms she claimed she experienced in the period  
immediately after ceasing work on 28 February 2020 – Tr. 16.5.2022 pp. 21 – 22:  
“Your statement sets out a lengthy history that by 9 April you have been suffering quite debilitating  
symptoms which caused you to be bedridden?---Yes.  
But do you accept that that history doesn’t appear in the consultation note with Dr Hannah on 9  
April?---I’m just not sure, like, what – how to answer that question though, because I’m not – these  
are his notes, which he just, you know, jots down and we had a chat. We definitely talked, but I just  
don’t know what I’m meant to answer, sorry.  
DEPUTY PRESIDENT: Just before Mr Clark proceeds, can I ask you this question? ---Yes.  
Mr Clark’s asking, in our opinion, fair questions about the disparity between the signs and symptoms  
of Ross River fever and that which was noted by the doctor. Did you tell the doctor about those  
signs and symptoms and he has omitted to put them in his records, or did you not tell him about  
your signs and symptoms?---I did tell him about my signs and symptoms. I said I had aching joints,  
and that’s – I described everything to him, and that’s why he said I think you should get tested for  
Ross River. If I hadn’t told that to him he wouldn’t have tested me for Ross River.  
Okay. Thank you. Yes, Mr Clark.  
MR CLARK: More specifically, did you tell him that you’ve been bedridden by, not always, but  
bedridden and afflicted by quite debilitating symptoms for about five weeks by that stage?---Yes.  
Did you tell him – sort of the next line – ‘Was down in Yamba and got smashed by mosquitoes?’---  
No. I told him – he said where have you been, and I said that I’ve been – told him where I’d been,  
but I didn’t say that I was in Yamba and got smashed by mosquitoes. That doesn’t follow.  
You’d agree with me there’s no reference to, in any of these, either on 6 April or 9 April, to any  
exposure to mosquitoes back in mid February - - -?---Sorry, where do you want me to look now?  
In either of those entries on 6 April or 9 April, there’s no mention of any reference to mosquito  
exposure back in mid February, is there?---There’s a reference to mosquitoes on 9 April there, but  
there’s just not a lot of notes. I mean I talked with him much more than what’s said here I guess.”  
80.  
81.  
82.  
83.  
Finally, Mr Clark drew the Applicant’s attention to the surgery consultation notes of Dr Gover of 6 May 2020  
– Exhibit 1 T22 p. 200.  
The Applicant accepted that this was the first time she had raised with Dr Gover that she had been bitten  
by mosquitoes whilst working at Coraki – Tr. 16.5.2022 p. 22.  
Further, the Applicant accepted that this was in the context of her leave entitlements and her desire that get  
recredited for leave in some way” – Tr. 16.5.2022 p. 23; Exhibit 1 T22 p. 200.  
The surgery consultation notes, relevantly, are as follows – Exhibit 1 T22 p. 200:  
PAGE 19 OF 62  
“Elloise needs a medical certificate  
did go on long service leave and is definately [sic] unwell, may get recredited for leave in some way  
reports that she feels that she was bitten whilst on assignment by work at Coraki: remembers being  
bitten a lot whilst floods were about  
advised not able to say if this was so, endemic RRV in Byron and SP [Suffolk Park]  
may not be a work related/compensatable illness…”  
Mr John D’errey  
84.  
85.  
Mr D’errey is the partner of the Applicant. He prepared a statement dated 16 December 2021 – Exhibit 6.  
Mr D’errey stated that he had been in a de facto relationship with the Applicant for about 20 years and they  
have a son aged 16. Mr D’errey stated that he built their home which is on the top of a hill and which does  
not have any nearby bodies of water – Exhibit 6 paras 1 – 7.  
86.  
87.  
The house has fly screens and is well protected from insects. The property also has sealed rainwater tanks,  
and the water from the house gutters flow into the rainwater tanks – Exhibit 6 paras 8 – 9.  
Mr D’errey stated that he remembered that before the Applicant left for Yamba, “she came home with a lot  
of pharmaceuticals and devices.” The Applicant told Mr D’errey that upon being questioned why she had  
purchased so much, she replied “I feel terrible. I’m not well” – Exhibit 6 paras 14 – 17.  
88.  
89.  
The Applicant left for Yamba with her mother, and Mr D’errey followed a day later. When he arrived in  
Yamba, “Elloise was still unwell”. The Applicant and her family stayed in a house and she only left the  
house to get massages with her mother. Mr D’errey recounted that the Applicant “laid down a lot” – Exhibit  
6 paras 20 – 23.  
After the family returned to Yamba, the Applicant’s condition worsened – Exhibit 6 paras 26 – 27:  
“26. 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.  
27. At first Elloise 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.”  
90.  
91.  
During cross-examination on 16 May 2022, Mr D’errey re-iterated the views outlined in his Statement – Tr.  
16.5.2022 pp. 26 – 27.  
Dr Gregory Gover  
Dr Gover is a GP who operates from the Bay Centre Medical Clinic in Byron Bay, New South Wales – Tr.  
16.5.2022 p. 29.  
PAGE 20 OF 62  
92.  
93.  
As previously noted, Dr Gover provided the Applicant with a Medical Certificate on 6 May 2020, in which he  
stated that she had been diagnosed with Ross River Virus infection, was sick and was unable to attend  
work, and her symptoms began in early March 2020 – Exhibit 1 T5 p. 18.  
At the request of Comcare, Dr Gover prepared a report dated 7 July 2020 in which he answered a series of  
Questions – Exhibit 1 T8 pp. 119 – 122.  
94.  
95.  
Dr Gover diagnosed the Applicant as suffering from Ross River Virus infection – Exhibit 1 T8 p. 119.  
The clinical signs and symptoms supporting this diagnosis were as follows – Exhibit 1 T8 pp. 119 – 120:  
“The clinical signs which have been evident are; arthritis affecting the metacarpophalangeal joint of  
the left thumb, dactylitis of the right middle finger, reduced ability to make a fist, and reduced grip  
strength in both hands.  
Symptoms that have been reported: polyarthralgia, swelling of the hand joints, muscle aches,  
fatigue, excessive need of sleeping, unrefreshing sleep, right calf soreness, feeling faint, dizziness,  
vertigo, lethargy, exhaustion, difficulty concentrating, difficulties problem solving, difficulty in  
attending to and managing daily activities of living, difficulty in memory, generalised headache,  
facial aching, pain and tenderness in thoracic cage, reduced exercise capacity, dysthesias in fingers  
and palms.”  
96.  
97.  
In response to a Question about the work-related factors for the Applicant’s claimed condition, Dr Gover  
referred to the Applicant being bitten by mosquitoes whilst reporting on local flooding events on 9, 12, 13  
and 14 February 2020 at Tweed Heads, Tumulgum, Coraki and Woodburn – Exhibit 1 T8 p. 120.  
Dr Gover opined as follows as to when the Applicant first suffered from clinically identifiable symptoms –  
Exhibit 1 T8 p. 120:  
“The first identifiable symptom Ms Farrow-Smith reported was the onset of muscle aches and  
soreness on the 28th February 2020.  
Ross River Virus has an incubation period of 7 – 9 days usually, with a reported range of between  
3-21 days. This would be consistent with an exposure to the virus around the time that Ms Farrow-  
Smith was reporting the flooding events and bitten by mosquitoes.”  
98.  
99.  
Dr Gover confirmed that he first consulted with the Applicant about her claimed condition on 6 May 2020  
and, prior to that, she was treated by Dr Hannah – Exhibit 1 T8 p. 120.  
The next Question Dr Gover was asked was as follows – Exhibit 1 T8 p. 121:  
“6. Having regard to Ms Farrow-Smith’s serology, the date of exposure and the incubation period  
of Ross River Fever, is it possible, that Ms Farrow-Smith’s claimed condition is attributable to  
factors other than her employment with the Australian Broadcasting Corporation? In particular,  
please comment on the probable contribution of any non-employment related factors.”  
100. The following answer by provided by Dr Gover – Exhibit 1 T8 p. 121:  
“It is not possible to provide the same degree of certainty of causality in this circumstance compared  
to a physical injury, for example, which occurs at a work place.  
PAGE 21 OF 62  
It is not possible to say that the Ross River infection certainly occurred during her employment on  
the days listed in response 3.  
It is possible that the infection could have been contracted at another time, and there are no means  
of proving this one way or the other with any surety.  
Dr Hannah in his notes on the 9th April 2020 records that: ‘she is worried about EBV as had a sore  
throat 1 month ago, was down at Yamba and got smashed by mosquitoes’.  
I understand that Ms Farrow-Smith went to Yamba for a holiday in early March, and was attacked by  
mosquitoes there but had already begun to experience muscle aches in late February. This  
suggests that Ms Farrow-Smith may have been already symptomatic with Ross River Virus infection  
at this time.”  
101. Comcare wrote to Dr Gover on 27 July 2020 seeking clarification about some of his responses. In his letter  
of 27 August 2020, Dr Gover noted that Ross River Virus serology had been performed for the Applicant in  
2014 and 2016, with the results suggestive that she had not, prior to 2020, been exposed to Ross River  
Virus – Exhibit 1 T10 p. 134.  
102. Importantly, Dr Gover made the following observations – Exhibit 1 T10 pp.133 – 134:  
“As previously outlined the incubation period for Ross River Virus is between 3-21 days and is most  
often 7-9 days, after which physical symptoms can be expected to arise.  
Ms Farrow Smith reported that she began to experience physical symptoms such as muscle aches  
and soreness on the 28th February 2020, occurring respectively 14 days to 19 days (from 9th - 14  
February 2020) after reporting at local flooding events and being bitten multiple times by  
mosquitoes.  
Based upon our knowledge of the incubation period, potential exposure dates could range from the  
7th – 25th February 2020. It is therefore consistent that an exposure could of occurred on those  
dates whilst Ms Farrow Smith she was working.  
The serology that was first performed on the 07-04-2020 was IgM positive and IgG positive,  
equating to between 53 to 58 days after potential exposures on the 9th February up to the 14th  
February 2020 and therefore is consistent with figure 1 of the article mentioned.”  
103. The article referred to was Farmer, JF, Suhrbier A, ‘Interpreting paired serology for Ross River virus and  
Barmah Forest virus’, AJGP Vol 48, September 2019 pp. 645 – 649.  
104. The accuracy of the last paragraph of Dr Gover’s observations was the subject of subsequent  
correspondence outlined below.  
105. The Tribunal has also been presented with two subsequent reports of Dr Gover. The first of those reports is  
dated 27 July 2021 and was prepared at the request of the Applicant’s legal representatives – Exhibit 5.  
106. Dr Gover was asked to provide his opinion as to whether, on the balance of probabilities, the Applicant  
contracted Ross River Virus on either 12, 13 or 14 February 2020, or at some other time. Dr Gover’s  
response was as follows – Exhibit 5:  
“In my opinion, on the balance of probabilities, Ms Farrow Smith contracted Ross River Virus on the  
12, 13th or 14th February 2020.  
My reasoning for this is  
PAGE 22 OF 62  
1. Her prior serology for Ross River Virus had been negative (last checked on the 3rd November  
2016).  
2. Ms Farrow-Smith reports that she was working as an ABC journalist reporting on local flooding  
events at Tweed Heads, Tumulgum, Coraki and Woodburn on the 9th, 12th-14th February 2020 and  
recalls being bitten by swarms of mosquitoes at each of these locations.  
Flooding events are recognised to be particularly high risk for contracting Ross River Virus.  
3. Ms Farrow Smith clearly developed her initial symptoms in late February 2020.  
The first identifiable symptom Ms Farrow-Smith reported was the onset of muscle aches and  
soreness on the 28th February 2020.  
Ross River Virus has an incubation period of 7-9 days, usually, with a reported range of between 3-  
21 days. This would be consistent with an exposure to the virus around the time that Ms Farrow-  
Smith was reporting the flooding events and bitten by mosquitoes.  
4. Initial antibody testing for RRV was performed on the 6th April after she initially consulted at this  
medical practice demonstrating IgM positive antibodies.  
Her subsequent antibody testing on the 27th April demonstrated IgM positive and IgG positive  
antibody titres.  
The progression of IgM antibodies to IgG antibodies confirmed Ross River Virus Infection.  
Ms Farrow-Smith did not fully serocovert to IgG antibodies until the 5th February 2021, that is IgM  
negative/IgG positive, which reflects the slowed response of her immune system to this infection.  
The timing of the progression of IgM antibodies to IgG antibodies cannot be relied upon to give a  
precise timing of infection date due to varying degrees of seroconversion that exists in the  
population.  
However, with the combined facts of a clear predisposing event, being bitten by mosquitoes at a  
flood event, onset of clear symptomology suggestive of Ross River Virus infection two weeks after  
being bitten, and positive serology, I conclude that it is probable Ms Farrow Smith contracted RRV  
infection on the 9th, 12, 13th or 14th February 2020.”  
107. The second report is dated 8 February 2022 and was also prepared in response to a request from the  
Applicant’s legal representatives – Exhibit 7.  
108. Dr Gover conceded that there was an error in his report of 27 August 2020, and opined as follows:  
“The report should read: ‘The serology that was first performed on the 7-4-2020 was IgM positive  
and IgG negative…’”  
(bold in the original)  
109. However, despite this ostensibly serious error, Dr Gover opined that it did not change his opinion and  
provided the following reasoning:  
“The seroconversion from IgM positivity to IgG positivity over time confirms the presence of Ross  
River Virus Infection.  
The temporal relationship between her work exposure to mosquitoes at a flood event on and the  
later development of typical symptoms of Ross River Virus at 14-19 days afterwards, along with  
the typical progressive pattern of IgM and IgG positive results, eventual loss of IgM positivity, and  
persistence of IgG antibodies is entirely consistent with a work related exposure on the 9th,  
and 12-14th February 2020.”  
(bold in the original)  
110. Dr Gover gave evidence on the first day of the Hearing.  
PAGE 23 OF 62  
111. Ms Fraser asked Dr Gover a series of questions concerning a supplementary report of Professor Korman  
dated 13 May 2022 – Exhibit 10. The following exchange occurred concerning a possible slow response to  
Ross River Virus – Tr. 16.5.2022 pp. 32 – 33:  
“Do you see that Professor Korman comments on that and concludes there was no evidence of a  
slowed response to the Ross River virus? Just dealing with the comments that seroconversion was  
demonstrated on 24 April 2020, what do you understand ‘seroconversion’ to be?---So, a  
seroconversion in the sense of this test is, as Dr Korman pointed out, it’s where there becomes  
(indistinct) of IgG antibodies, the longer term antibodies against the infection. Yes, so that’s what the  
seroconversion actually means.  
You understand, Doctor, that Ms Farrow-Smith’s blood was tested I think on the 6th or the 7th, or  
certainly the result came back on 7 April, and then again on 24 April. So within that timeframe, what  
is the earliest time that there could have been evidence of seroconversion, that is, IgG positivity?---It  
follows that it was 10 days, which is the average. It wouldn’t be – it’d – within 10 days of the  
inoculation. But there are circumstances where the seroconversion can take a lot longer than is  
usual, and so I don’t think we can infer much about – there are a range of individuals who (indistinct)  
within a short space of time, within 10 days/two weeks. Some will take a much longer amount of  
time.  
If I could just stop you there. What do you say is the evidence supporting your assertion of a slowed  
response to the Ross River virus infection?---The fact that she had serology pictures as they were;  
that Elloise developed symptoms within a couple of weeks of being bitten by mosquitoes in early  
February in 2020, she developed, you know, quite consistent signs and symptoms of Ross River  
virus infection, you know, after what would be a usual incubation period. The pattern of her  
antibodies did change over time, and it was consistent with a Ross River virus infection, but if we  
look at the way in which they occurred, it was slow compared to usual, and that’s what my assertion  
is.  
Do you agree with Professor Korman’s comment below where he said, ‘Timing of infection can’ –  
and he’s underlined ‘can’ – ‘be estimated, based on the timing of detection of IgM and IgG?’---Well, I  
mean it depends what you call estimates. Estimates are guesses really, and this is the case with a  
lot of scientific guess is that they have error. If you look at standard deviations, there’s – a  
percentage of that is which will exist out of those standard deviations. So, it’s an estimate; it’s a  
guess. It can be used, but is it definitive? Is it forensic? The answer is, well, you know, I don’t think  
one can conclude that, and that’s based upon what – you know, what we saw with Elloise’s pattern  
of, you know, having symptoms after that flood event where she got bitten by mosquitoes, a couple  
of weeks later became symptomatic, and then starts (indistinct) – you know, the pattern of her  
antibodies changed appropriately over time, but it seemed to take longer than is usual.  
In the next paragraph, Professor Korman said, ‘RRV IgM is able to be detected from day four, post  
onset of symptoms.’ Is that invariably the case?---I’m sorry, could you just repeat that question?  
Yes. It’s a little over halfway down that page: ‘RRV IgM is able to be detected from day four, post  
onset of symptoms.’ We’ll have to ask Professor Korman what he means by that exactly, but to your  
understanding, is it invariably the case that - - -? ---No, it’s not. It’s not invariably the case, and it’s  
really difficult to tie that down and what I would say.  
And - - -?---And, yes, I guess the other thing that I’d say is that with these serological tests, if you  
have a patient in front of you and you’ve got the ability to take their blood sequentially over time on  
day one, day two, you know when they’ve been inoculated, you can study these things, but we’re  
talking about a person who presents a couple of times over the course of months and we don’t have  
the opportunity to accurately assess their antibodies as they stay, and these antibodies can appear  
on one day and not be there the day prior. It’s based on the nature of these tests, which are  
basically (indistinct) cooking tests: they either work or they don’t.  
Further down that paragraph, the last sentence, Professor Korman says, ‘RIV IgG nearly always  
appears within 10 days of illness onset.’ Do you see that?---Yes.  
And I think you started saying something about this earlier, that it wasn’t always the case?---That’s  
true. I mean, there’s been case reports which have shown that IgG seroconversion might not  
happen for some months after an inoculation in some cases, and you know, I think there is a case  
PAGE 24 OF 62  
report that we have seen that demonstrates that in an Australian man with (indistinct) encephalitis,  
which related to Ross River virus.  
Is that report entitled, ‘A case of encephalitis in central Australia due to Ross River virus,’ and it was  
published in the Australian and New Zealand Journal of Medicine in 1999, and the authors are  
Lucas and Qiao, is that - - -?---That’s right. That’s correct, yes.”  
112. The article referred to was admitted into evidence and marked as Exhibit 11.  
113. Under cross-examination, Dr Gover was, first, referred by Mr Clark to his Medical Certificate of 6 May 2020,  
and Dr Gover confirmed that the Medical Certificate was based on information provided to him by the  
Applicant – Tr. 16.5.2022 p. 35. Dr Gover’s attention was drawn to the surgery consultation notes of the  
same date, in which Dr Gover recorded that the Applicant had informed him that she may get recredited for  
leave in some way – Exhibit 1 T22 p. 200:  
“advised not able to say if this was so, endemic RRV in Byron and SP  
may not be work related/compensatable illness”.  
114. The following exchange then occurred between Mr Clark and Dr Gover – Tr. 16.5.2022 p. 36:  
“Okay. And it goes on to note:  
May not be a work-related/compensable [sic] illness.  
Certainly you believed that to be the case, what you’ve just written there?---Certainly from what I’ve  
known about, you know, WorkCover and legal procedures, it’s always difficult to (indistinct) when  
you catch an infection.”  
115. Mr Clark drew Dr Gover’s attention to his report of 7 July 2020, in which he stated that the Applicant  
complained of muscle aches and soreness on 28 February 2020, and the following exchange occurred –  
Tr. 16 May 2022 pp. 37 – 38:  
“You accept the proposition that muscle aches and soreness may be indicative of any range of  
different conditions other than, and including Ross River fever?---Yes.”  
116. Dr Gover’s attention was also drawn to his observation that Ross River Virus usually has an incubation  
period of 7 – 9 days (with a reported range of between 3 – 21 days) and that it was consistent with the  
Applicant’s exposure to the virus around the time of the flooding events – Tr. 16.5.2022 p. 38.  
117. Mr Clark referred to Dr Gover’s report of 27 August 2020, and, in particular, to his erroneous observation  
that the serology performed on 7 April 2020 produced an IgM positive and IgG positive result. The following  
exchange then occurred – Tr. 16.5.2022 pp. 39 – 41:  
“You said this – second paragraph on the top of the page:  
The serology that was first performed on 7 April 2020 was IgM positive and IgG positive.  
?---Yes. That probably is in error. I’ll just have a look. ‘First performed on 07/04’, yes. So, that is in  
error. So, on 07/04, the pattern of their antibodies is actually IgM positive and IgG negative. So, that  
was written in error. That was by mistake.  
Well, it may have been an error. But, it takes your opinion; doesn’t it?---No, it doesn’t take my  
opinion in a single way. Elloise was bitten by mosquitos. She developed strong symptoms of Ross  
PAGE 25 OF 62  
River virus in what I see on a regular basis that Ross River virus behaves in. Her serology changed  
over time in a pattern that is regular, although it did take, in my opinion, a lot longer than it usually  
does and she suffered a, you know, quite a severe course of Ross River infection. It doesn’t change  
my opinion at all. That is a mistake and it’s not intentional and it doesn’t change from my opinion of,  
you know, the circumstances at all.  
Doctor, you accept the proposition that from the point of view of medical science, the passage of the  
serology results is a tool that can be legitimately used to fix some sort of date for the initial mosquito  
bite which has caused the fever; what do you say to that?---I think the operative word is we ‘can’.  
You know, like, what does that mean? What does – what’s ‘can’?, or, ‘can be helpful’, it’s used as a  
clinical guide and there’s not a forensic tool. There’s a range of – you know, there is uncertainty in  
the measurement of many things in science. There is built-in error into everything pretty much we do  
and measure. And I believe that, you know, there’s a real possibility, or probability, that – I would  
say there’s a probability that Elloise was not going to buy a mosquito at those flood events, she was  
bitten multiple multiple times, you know, during a flooding event. She was on the side of a road next  
to a river and reports being chased inside by hundreds of mosquitos and - - -  
Chased inside? Chased inside where?---Into her vehicle.  
I see?---So, she was standing on the side of the road and got chased inside her vehicle by  
mosquitos, she was bitten that many times. So, I mean, these tests can be used to be helpful  
identifying exposure date. But, there’s an error, you know, and there’s a range. And I think the case  
report, that has been shown, does reflect that. In some instances, seroconversion can take a lot  
longer. In my opinion, you know, the way in which she had persistence of her IgM antibodies is  
reflective of what was happening with her immune system. But, these are guides and as a clinical  
guide rather than to nail down a precise estimate. To do this, you know, there are better tests. And,  
of course, we can have PCR tests now. I don’t know if they’re, you know, available outside of  
research facilities and they’ll provide a lot more statistical and scientific accuracy. But, they are still  
subject to error as well.  
So, are you quite finished?---Yes.  
You’d agree with me that the mistake you made was to find that she had positive responses to both  
the G and M antibodies some 17 days earlier, at least, than what it actually was?---That was a  
mistake. I think, you know, I was in error there. I don’t know what happened there with my report. I  
apologise.”  
118. Mr Clark turned to Dr Gover’s 27 July 2021 report, and, in particular, to his assertion that the timing of the  
progression of IgM antibodies to IgG antibodies cannot be relied upon to give a precise timing of an  
infection date. The following exchange occurred – Tr. 16.5.2022 pp. 42 – 43:  
“Then in the next paragraph you say:  
There’s the timing of a progression of the IgM antibodies cannot be relied upon to give a  
precise timing of infection date.  
?---Yes.  
Now, I’m suggesting to you that that’s simply not correct?---Well, it is not correct. Because, you  
know, you can see that case study where there’s an example of a man in central Australia who had  
been bitten by mosquitos and developed IgG antibodies months later. And this strikes the heart of  
what we’ve been saying that it’s not precise, it’s not completely accurate and there is error in that  
some people don’t convert at precisely the right times. The clinical guides, yes, for most people and  
you could say that. But, you can say that they should follow the usual periods of seroconversion but  
some don’t. And I’d stand by that. You can’t rely upon the seroconversion date. It depends upon the  
person’s immune system. It’s not a direct test. It’s not a correct test if (indistinct words) infection’s  
there. (Indistinct words) of antibodies that have to be produced by a person’s immune system.  
Can I put this proposition for your comment. Do you know of Professor Korman?---Only by where he  
works and what he does, yes, I’d recognise.  
PAGE 26 OF 62  
Would you accept the proposition that on these issues, that we’ve been speaking about, his  
expertise is greater than yours?  
...  
WITNESS: Look, I’m not a professor of infectious diseases, I’m a GP. And I’m here to listen to my  
patients and understand and make diagnoses on common presentations and try out the ones that  
are a bit more tricky. And I’ve got to say, this was a fairly straight forward case of Ross River virus  
and based upon her history and, you know, what subsequently evolved, you know, I believe that it’s  
all consistent. I don’t have any reason to believe that it was otherwise. But, yes, Professor Korman  
is eminently qualified and I fully respect his expert in these matters. But, the thing that I could say is,  
like, I would ask that is there any chance/there is no chance that these immunoglobulin tests are  
completely accurate in every case? Is that what he would stand by? I don’t know. You’d have to ask  
him that question yourself.  
Well, can I put this proposition to you. You proceeded on the basis that the history which she gave  
to you, to use your words, has been completely accurate; isn’t that so?---Yes, that’s right.”  
119. Finally, Mr Clark referred to Dr Gover’s 8 February 2022 report, and noted that Dr Gover had  
acknowledged his error in reporting the results of the 7 April 2020 serology but observed it had not changed  
Dr Gover’s opinion. The following exchange then occurred – Tr. 16.5.2022 p. 43:  
“Okay. You acknowledge the unintentional error?---Yes.  
And you say that it doesn’t change your opinion?---That’s right.  
At the very least, that error encompasses, being almost charitable to you, a 17 day distinction as to  
when the infection could have occurred; isn’t that right?---Yes, there’s a delay in IgG positivity –  
we’ve been talking about over the last hour about this one – what I’m saying is that, you know, she  
had typical symptoms of Ross River virus that fell within our understanding of what would be an  
incubation period and the progression of the pattern of her antibodies entirely consistent with Ross  
River virus. So, it doesn’t change my opinion at all that, you know, I thought it’s probable and it’s  
highly consistent. There’s no reason not to believe that didn’t happen, you know, at those flood  
events.”  
Dr Marcus Navin  
120. As previously noted, Dr Navin provided, at the request of Comcare, a report dated 7 December 2020, on  
the Applicant’s claimed condition based on a file review – Exhibit 1 T18 pp. 157 – 162.  
121. Dr Navin opined that the standard incubation period for Ross River Virus was 7 to 9 days post infection  
before the onset of symptoms, with a spectrum from 3 days to longer, but not beyond, 21 days – Exhibit 1  
T18 p. 158.  
122. Subsequently, Dr Navin provided the following opinion as to the likely date of infection – Exhibit 1 T18 p.  
159:  
“…Ms Farrow-Smith’s symptoms are reflected in the clinical notes indicating that her symptoms  
developed prior to an assessment on 6 April 2020. The medical record has no consultation between  
10 February 2020 and 6 April 2020. However, the blood tests carried out subsequent to 6 April 2020  
would indicate the evolution of a recent (i.e. de-novo) infection. From the AFP journal (and adopting  
the widest scope for symptom development of 21 days to the presentation of symptoms) the  
exposure to the virus would have occurred on or about the second week of March.  
It is noted that Ms Farrow-Smith was on long service leave as of and from 2 March 2020.”  
PAGE 27 OF 62  
123. In response to subsequent Questions, Dr Navin opined that the Applicant was infected after she  
commenced long service leave and, consequently, there was no temporal link between the Applicant’s  
employment and her exposure to Ross River Virus – Exhibit 1 T18 p. 160.  
124. At the beginning of his report, Dr Navin made the following key observations – Exhibit 1 T18 pp. 157 – 158:  
“Subsequent to her attendance on 6 April 2020, serum was collected and tested. The results have  
been reported as to the possibility of an early onset of Ross River Virus infection. I draw your  
attention to the Pathology Report dated 6 April 2020 where the laboratory has indicated ‘early acute  
infection or an abnormal result due to crossover’… A convalescent phase blood test was conducted  
on 23 April 2020 which confirmed the presence of IGG indicating the conversion from acute phase  
IgM to the development of the final immune phase with the conversion of a positive IgG. It can be  
understood that had an infection occurred in February 2020 that both the IgG and IgM would have  
been present with the 6 April 2020 blood test.  
The evidence of serum conversion therefore would indicate that Ms Farrow-Smith acquired the new  
infection in the 7 to 9 days (approximate - as the duration of her symptoms has not been  
contemporaneously recorded in the GP's notes) prior to 6 April 2020.”  
125. Dr Navin gave evidence on the first day of the Hearing.  
126. First, Mr Clark asked Dr Navin to explain the serology tests undertaken by the Applicant, and, in particular,  
the antibodies IgM and IgG – Tr. 16.5.2022 p. 47:  
“…there was some serology tests conducted in respect of the applicant in this case and there’s two  
different antibodies which seem to be highlighted in those tests. Firstly, there’s what’s called an  
‘IgG’; secondly, an ‘IgM’. Now, firstly, can you just briefly explain to the tribunal what they represent,  
please, and how they feature in any presentation of Ross River virus?---Certainly. The IG means it’s  
an immunoglobulin. The immunoglobulin is broken down to various subfractions depending upon  
the nature of the illness and the nature of the condition. In matters of infectious diseases, the IgM is  
the first responder level of immunity to any infection and, therefore, it’s the initial marker of any  
infection. Full immunity, or protection from any subsequent infection, is sustained and maintained by  
the IgG which is component which is involved in providing long term protection and binding to any  
infectious material that may come into contact with that person over time. Therefore, the initial  
presenting symptom is, if you like, is the quick response IgM to alert the body to the processes of  
the infection and to sustain a cascade of immune response followed by the completion of such with  
the IgG.  
Okay. Now, these antibodies; are they separate and distinct?---Indeed they are separate and  
distinct and they are different sizes, molecular weight and conformity.  
Okay. There’s some suggestion in Dr Gover’s reports that the IgG might, as it were, become IgM; is  
that how the physiology works at all or not?---No, it’s the reverse if anything. The IgM initiates the  
initial response and sustains the cascade of the infection prevention which is summated in the IgG.”  
127. Next, Mr Clark questioned Dr Navin on the importance of the sequence of serology tests in determining the  
time that the Applicant was infected with Ross River Virus – Tr. 16.5.2022 p. 48:  
“Okay. By reference to not only your experience but what also the medical literature discloses; how  
important is the sequence of the serology tests in, as it were, potentially fixing some time when the  
Ross River virus infection incurred; namely, the mosquito bite?---Certainly. Following the mosquito  
bite, the body has - if nobody has previous immunity – the mosquito bite injects the virus and then  
the virus multiplies producing the infection which is then manifested in the form of perhaps fevers,  
arthritis or painful – not arthritis, painful joints correctly, a sense of fatigue or unwellness which is  
often associated with body pains of a general sort and a headache which are symptoms which take  
PAGE 28 OF 62  
a person to see a medical practitioner. The symptoms are quite distinctive in terms of Ross River in  
terms of the multiple joint discomfort which then leads one with the noting the time of the year and  
the circumstances, leads to a possibility of a viral infection from whatever source, the blood test  
detects, usually within the first few days after the onset of symptoms, the presence of IgM which is  
specifically a marker for the Ross River virus rather than any other particular virus. That then  
ascertains that the IgM is a marker for a new infection in the absence of any other markers.”  
128. Dr Navin went on to testify that the 7 April 2020 blood test suggested “that the IgM would have only been  
arisen no more than 21 days following an injection” – Tr. 16.5.2022 pp. 49 – 50.  
129. The second test which disclosed both antibodies were present “instructs us that the IgG, which became  
apparent in the convalescent period, usually within 10 days of the symptom development, suggests that a  
normal powerful development of immune response was present following the normal cascade of immunity  
development indicative of, in the absence of a prior IgG, that there was no prior exposure or experience to  
the virus in Ms Farrow-Smith’s blood system as the IgG is a permanent protector for future infection” –  
Tr. 16.5.2022 p. 50.  
130. When cross-examined by Ms Fraser, Dr Navin referred to an article by Jillann Farmer and Andreas  
Suhrbier, ‘Interpreting paired serology for Ross River virus and Barmah Forest virus diseases’, which is  
found at Exhibit 1 T9 pp. 128 – 132 and was published in the Australian Journal of General Practice,  
Volume 48 No. 9 in September 2019.  
131. The authors made the following observations – Exhibit 1 T9 p. 129:  
“After an infectious mosquito bite, there is usually an incubation period of 7–9 days before disease  
develops in symptomatic cases, and in these cases the peak of alphaviral viraemia appears to  
coincide with disease onset. Alphaviral-specific IgM responses usually develop after day four post-  
onset of symptoms. Alphavirus-specific IgM usually lasts from 1–3 months, with levels generally  
falling after this time. Within two weeks of an elevated virus-specific IgM response, a virus-specific  
IgG level usually becomes detectable, with IgG levels persisting for a long period, probably for  
life…”  
(footnotes omitted)  
132. Dr Navin stated that Ross River Virus was present in urban environments in Queensland, as well as  
regional areas of south east Queensland and northern New South Wales – Tr. 16.5.2022 p. 51.  
133. Subsequently, Dr Navin explained that when he referred to the Applicant as experiencing a de novo  
infection, he was referring to the fact that she had not previously been infected with Ross River Virus  
because, if she had a resolved infection, there “may well be no IgM, just merely the IgG” – Tr. 16.5.2022 p.  
52.  
134. When questioned about the timing of the onset of the IgG antibody, Dr Navin referred to a Table in the  
Farmer and Suhrbier article located at Exhibit 1 T9 p. 130.  
PAGE 29 OF 62  
135. Dr Navin testified that, in normal circumstances, the onset of symptoms occurs within 7 – 14 days from the  
date of the bite, and then there was the following exchange with Ms Fraser – Tr. 16.5.2022 p. 53:  
“You’re just guessing, Doctor. There’s no way you could know that?---Indeed nobody can. But, the  
development of the immune response indicates that the IgM being present suggests that already  
there was some immune development occurring. But, the lack of IgG would suggest that there was  
no infection or repair to the infection which occurred as at 6 April.  
So, what you have in IgM is an infection is detected; is that correct?---The infection is affirmed as  
being to Ross River.  
Yes. And with IgG, it’s referred to the convalescent phase, is the point at which the immune  
response is getting on top of the infection?---It is not yet quite convalescent. But, it is the infection  
being under control by the normal immune mechanisms of the body.”  
136. While agreeing that not everyone’s immune system functions in the same way, Dr Navin went on to opine  
that there was no abnormality in the Applicant’s immune response process and that she exhibited the  
normal markers for immune mechanisms. When questioned by Ms Fraser to justify this opinion, Dr Navin  
referred to clinical notes which suggested that the Applicant had normal reactive protein, ESR, CRP, and  
her white cell counts were normal – Tr. 16.5.2022 pp. 53 – 54.  
137. Under further questioning by Ms Fraser, the following exchange occurred – Tr. 16.5.2022 p. 54:  
“And it’s impossible, or virtually impossible, to isolate the virus in blood tests; is that right?---No,  
that’s correct. Usually the virus is not routinely sought. It’s the immune response which is sought to  
identify which virus it would be as opposed to any of the other viruses.  
So, you’re dependent upon the vagaries of the individual person who’s been infected as to that  
immune response; would you agree with that?---I’m sorry, with all due respect, in this instance Ms  
Farrow-Smith has no vagaries in her immune response.  
Well, the fact she’s symptomatic is a difference between her and most people who are infected with  
this virus; isn’t it?---No, I think she presented with the normal symptoms that are associated with the  
virus which suggest that she was infected and the tests proved that infection. She had the normal  
symptoms.  
Okay. So, are you aware that many people who are infected with the virus (indistinct words)  
symptoms?---That may well be true. But, that shows a robust immune response perhaps. But, in this  
instance, however, with all due respect, in this instance the symptoms matched the concern of the  
general practitioner who ordered the correct test demonstrating the presence of the developing  
immunity consistent with an infection from the Ross River virus.”  
138. Ms Fraser put to Dr Navin that if the Applicant was suffering symptoms of Ross River Virus at the end of  
February 2020, she could not have been infected in March 2020. Dr Navin responded that if “she were to  
have been infected in February, in April she would have had IgG…” – Tr.16.5.2022 p. 55.  
139. Under cross-examination, Dr Navin made the following concessions and observations – Tr. 16.5.2022 pp.  
56 – 57:  
(a)  
(b)  
he relied on the Applicant’s treating doctor’s notes to opine when the Applicant first suffered from  
clinically identifiable symptoms of Ross River Virus;  
he knew the Applicant lived at Suffolk Park;  
PAGE 30 OF 62  
(c)  
(d)  
he practised as a GP in Byron Bay for “many months”, had been back to Bryon Bay over the  
subsequent years and knew the area “quite well”;  
he did not know what street the Applicant lives in and did not know “whether it’s an elevated and dry  
position or a moist and swampy” position;  
(e)  
(f)  
he knew less about her holiday accommodation at Yamba; and  
middle aged people often experience more aggressive symptoms of Ross River Virus than younger  
people.  
140. Dr Navin testified that his report was based on the material presented to him as he was unable to interview  
the Applicant. In particular, his report was grounded in his interpretation of the serology conducted. The  
following exchange usefully summarises Dr Navin’s understanding of the serology performed and his  
interpretation of it – Tr. 16.5.2022 pp. 58 – 59:  
“MS FRASER: All right. Dr Navin, your entire report, as I understand it, is based on the serology  
interpretation; is that correct?---Yes, that was the material supplied to me in the absence of my  
meeting Ms Farrow-Smith.  
So, if you’re wrong about the serology interpretation and how certain it can be of indicating a  
progression from infection to disease et cetera, if you’re wrong about that, then your whole report  
would fall away; is that right?---I do not believe that the science and the medical evidence supplied  
by Dr Grover [sic] is wrong. The reports from the laboratory affirm the natural progression of the  
exposure to and recovery from Ross River virus. I didn’t - - -  
Do I understand Dr Gover says that natural progression occurred from mid-February to the onset of  
symptoms at the end of February and then – did you understand that? ---I understand that is his  
assertion. However, laboratory tests, that he himself ordered, do not support such an assertion.  
And to your way of thinking, the interpretation of those serology tests are set in stone; are they?---  
They would be sufficiently defended, I’m sure, by any medical practitioner with experience.  
And you’re aware, aren’t you, that the interpretation of the serology of Ross River virus, that the  
standards have changed at least twice in 2013 and 2016; are you aware of that?---It matters not in  
2020, with all due respect, ma’am.  
All right. Are you able to recall any further material either that Comcare supplied to you or you  
supplied to Comcare? Because, if you understand, other than the report Dr Gover drew on, you  
don’t really identify in the body of your report much of the material that was supplied to you or that  
you supplied to Comcare; can you recall any other documents?---There were no other documents  
other than those that were submitted to me and all I needed to do was refer to the well-established  
scientific basis for the development of immunity. Again, which is also included in the document to  
which I’ve made reference earlier.  
Is that the only research document you relied upon?---With all due respect, ma’am, Ross River virus  
is not a rare or unusual condition. It’s well-established, it’s well understood. There is a well-  
established methodology and understanding in terms of the diagnosis and treatment of the disorder.  
There is no rarity or difficulty. This is a condition which is well recognised in the Australian context in  
particular. Therefore, there’s no need to make reference to or to draw upon other sources of  
information. This is standardised information with medical experience. There is no need to make  
further reference. The article to which Dr Gover referred encapsulates, quite simply and correctly,  
the nature of Ross River and requires no further amplification.”  
PAGE 31 OF 62  
141. Ms Fraser submitted that Dr Navin was “evasive” when responding to her Question about the material he  
relied upon – SA para 8.20. We will deal below with our findings on the weight we place on the medical  
evidence presented.  
142. Dr Navin also testified that for “the purposes of diagnosis, it is merely the presence or absence of the IgG”  
and the titre “is not relevant in a simple condition such as this” – Tr. 16.5.2022 p. 60. Titre is the  
measurement of the concentration of an antibody.  
143. Ms Fraser submitted that this proposition was contradicted by Professor Korman – SA para 8.22.  
144. Finally, Ms Fraser sought to ask Dr Navin questions relating to an article published by Flexman, JP, et al, ‘A  
comparison of the diseases caused by Ross River virus and Barmah Forest virus’ (1998) 169 MJA 159 –  
Exhibit 13.  
145. As Dr Navin had not been previously referred to this article, and had not read it, we determined that it would  
be unfair to allow him to be cross-examined about the contents of the article. Further, as the article was  
referred to by Professor Korman, we were of the opinion that it would be preferable that Professor Korman  
be cross-examined about the findings made in the article.  
Professor Tony Korman  
146. Professor Korman is an adjunct clinical professor in the Department of Medicine at Monash University, as  
well as holding the position of Director of Infectious Diseases and Director of Microbiology at Monash  
Health. Further, he is a specialist in clinical microbiology and the interpretation of diagnostic tests – Tr.  
17.5.2022 p. 73.  
147. Professor Korman provided two short reports to Comcare. The first of the reports is dated 24 June 2021 –  
Exhibit 8.  
148. First, Professor Korman noted that there is no available contemporaneous objective medical evidence  
which confirmed when the Applicant first experienced symptoms of Ross River Virus.  
149. Second, Professor Korman opined that, on the balance of probabilities, a significant causal connection  
between the acquisition of Ross River Virus and the Applicant’s employment was not able to be made.  
Whilst the time of symptom onset is unable to be ascertained, the serology conducted is more consistent  
with the acquisition of the infection in late March, rather than in mid-February 2020.  
150. Third, Professor Korman noted that the incubation for Ross River Virus is normally 7 – 14 days but could  
vary from 3 – 21 days.  
PAGE 32 OF 62  
151. Fourth, Ross River Virus IgG nearly always appears within 10 days of illness onset and, in this case,  
Professor Korman opined, the test results are more suggestive of acquisition of infection in late March  
2020, rather than in mid-February 2020.  
152. Fifth, the acquisition of Ross River Virus by the Applicant was, in Professor Korman’s opinion, more likely to  
be attributable to factors other than her employment, including her residence at Suffolk Park, her holiday in  
Yamba and other activities in March 2020.  
153. The second report of Professor Korman is dated 13 May 2022 – Exhibit 10.  
154. Professor Korman’s attention was drawn to Dr Gover’s report of 27 July 2021 and, in particular, to the  
following extract:  
“Ms Farrow-Smith did not fully seroconvert to IgG antibodies until the 5th February 2021, that is IgM  
negative / IgG positive, which reflected the slowed response of her immune system to this infection.  
...  
The timing of the progression of IgM antibodies to IgG antibodies cannot be relied upon to give a  
precise timing of infection date due to varying degrees of seroconversion that exists in the  
population’.”  
155. Professor Korman opined that there was no evidence of a slowed response in the Applicant to her Ross  
River Virus:  
“Seroconversion is defined as conversion from IgG not detected to IgG detected, and this was  
demonstrated on 24 April 2020. As expected, RRV IgG remains detected (and would be expected to  
remain detectable indefinitely). RRV IgM was still detected in June 2020, but not detected in  
February 2021, again as would be expected. RRV IgM is able to be detected before the detection of  
RRV IgG, but IgM levels usually drop below the level of detection after 1–3 months. There was no  
evidence of a ‘slowed response’ to the Ross River virus infection.”  
156. In response to the proposition that the timing of the progression of IgM antibodies to IgG antibodies cannot  
be relied upon to give a precise timing of infection date due to varying degrees of seroconversion that exist  
in the population, Professor Korman gave the following response:  
“Timing of infection can be estimated based on the timing of detection of RRV IgM and RRV IgG in  
paired Ross River virus serology tests. There is no evidence of ‘varying degrees of seroconversion  
that exists in the population’.  
RRV IgM is able to be detected from day four post onset of symptoms (which usually occur after an  
incubation period 7-9 days following an infectious mosquito bite) and but IgM levels usually drop  
below the level of detection after 1–3 months. RRV IgG nearly always appears within 10 days of  
illness onset, and remains detectable indefinitely.  
Therefore, given the results of paired Ross River virus serology on 7 April 2020 (IgM detected, IgG  
not detected) and 24 April 2020 (IgM detected, IgG detected) would indicate that the RRV infection  
was acquired:  
- no earlier than 19-21 March 2020  
(IgG not detected on 7 April 2020, detectable maximum 10 days after 7-9 days incubation period ie  
17-19 days prior) and  
- no later than 25-27 March 2020  
PAGE 33 OF 62  
(IgM detected on 7 April 2020, detectable 4 days after 7-9 days incubation period ie 11-13 days  
prior)”  
157. Professor Korman gave testimony on the second day of the Hearing.  
158. He was first asked a series of Questions by Mr Clark.  
159. Having confirmed that Ross River Virus starts with a mosquito bite, Professor Korman then explained the  
relevance of IgM and IgG antibodies – Tr. 17.5.2022 pp. 74 – 75:  
“…Well, Ross River virus is usually diagnosed by a measurement of antibodies or serological  
testing. We don’t usually detect the virus itself. It can be detected early on, but it’s unusual. So we  
rely on checking for antibodies, which is the body’s reaction to the virus. The first kind of anti – there  
are two main kinds of antibodies that are detected. One is called IgM and one is called IgG. The IgM  
form of the antibody is detected early. Usually after about four days after the onset of symptoms and  
it usually will go away after a couple of months. So the presence of IgM would usually indicate a  
form of recent infection. The IgG form of antibody is detectable a little bit later, but almost always  
detectable by about 10 days following the symptoms and it will remain positive indefinitely. In this  
case, it’s ideal because we have two specimens taken a couple of weeks apart, and that enables us  
to more accurately estimate the time of infection.”  
160. Professor Korman observed that, in this matter, there were two blood tests which showed a progression  
from negative to positive IgG, and which, therefore, lent itself to a more accurate estimation of the time of  
infection – Tr. 17.5.2022 p. 75.  
161. Turning to the timing estimates in the 13 May 2022 report set out above, the following exchange occurred –  
Tr. 17.5.2022 p. 76:  
“Okay. Those views are predicated upon your understanding of what science says about that  
serology testing, is that so?---Yes, as I’ve said, there’s an incubation period. That’s the period  
between the bite of the mosquito and the development of symptoms. That’s almost always between  
seven and nine days. Very occasionally, earlier and possibly later. But in most cases, seven to nine  
days. And then, as I mentioned before, the IgM is detectable from four days after that. And the IgG  
is almost always detectable a maximum of 10 days following the symptoms. So with simple  
mathematics, they’re the dates that you come up with as a most likely estimate of the time of  
infection.”  
162. Professor Korman explained that seroconversion is a conversion of IgG from negative to positive, which  
was confirmed on 24 April 2020. He went on to opine that there was no evidence of a slowed response in  
the Applicant. He noted that there “was detection of IgG antibodies on 24 April, so within a couple of weeks  
of the first test” – Tr. 17.5.2022 p. 77.  
163. Mr Clark drew Professor Korman’s attention to the Lucas and Qiao article, ‘A case of encephalitis in central  
Australia due to Ross River virus?’ Aust NZ J Med 1999, Vol 29, p. 268 (Exhibit 11), which is referred to  
above in the context of Dr Gover’s evidence.  
164. In that matter, a 33-year-old Caucasian male was admitted to the Intensive Care Unit of the Alice Springs  
Hospital in April 1997 having collapsed at home. He had been working on a remote central Australian  
PAGE 34 OF 62  
community and was bitten by mosquitoes. A provisional diagnosis of encephalitis was made, and he was  
treated accordingly. He was discharged from hospital 17 days after admission. On discharge, he was alert  
and cooperative with fluent speech and normal comprehension.  
165. On admission, antibodies to RRV (Ross River Virus) were negative, a high level of IgM antibodies were  
detected at 8 days post admission. However, IgG antibodies were negative in the same specimen. Further  
review of the viral serology three months after admission revealed the development of a high level of RRV  
IgG antibodies and decreased levels of IgM antibodies to below cut-off value.  
166. Mr Clark then asked Professor Korman to comment on whether the proposition contained in the Lucas and  
Qiao article supported the proposition expounded by Dr Gover. Professor Korman referred to an article by  
Harley et al, ‘Ross River Virus Transmission: Infection and Disease: a Cross-Disciplinary Review’, Clinical  
Microbiology Reviews, Oct 2001, p. 909 – 932. This article was admitted into evidence as Exhibit 14.  
167. The following reference was made in the Harley et al article to the Lucas and Qiao article – p. 914:  
“Lucas and Qiao reported a 33-year-old male who was admitted to the intensive care unit of the  
Alice Springs (Fig.1) hospital with encephalitis. There was no rash or evidence of arthritis.  
Cerebrospinal fluid Gram stain, latex agglutination for bacterial capsular antigens, cryptococcal  
antigen, and India ink stain tests were negative. There was no serologic evidence for other causes  
of acute and postinfectious meningoencephalitis. On admission, HI and ELISA testing for IgG and  
IgM to RRV were negative. IgM on ELISA was positive after 8 days and remained so for 34 days  
postadmission. IgG was negative on both of these occasions, but became positive 90 days  
postadmission. A diagnostic (4-fold) rise in total antibody titer was not observed using HI testing.  
The IgG seroconversion after 90 days was later than would be expected, even allowing for the slow  
seroconversion noted by Qiao (120; M. Qiao, personal communication, 1999).”  
(footnotes omitted)  
168. Professor Korman made the following observations concerning the Harley et al article – Tr. 17.5.2022 pp.  
77 – 78:  
“All right?---So that was a long review of the topic. From Australian experts, actually. They  
specifically comment on that case because it was unusual. They note that they’d actually spoken to  
the laboratory with a personal communication and that the long seroconversion time was unusual.  
That’s the first point. The second point is I note that the measurement – there was – they did include  
in a table in that article the measurement of units. So the cut off, I don’t want to get too technical, but  
the cut off of the test was 10 units. On day 34 the patient’s serum had a measurement of 9.4 units.  
That’s very close to the cut off, and I would imagine within probably a short period of time that would  
have become positive, over the cut off. Finally, that paper from 1999, from using the Panbio assay  
– that’s an Australian company that started tests in the, sort of, early 1990 I think. I think over the  
past 20 years the tests may well have been improved. There was a suggestion that, again in that  
review article by Harley, that the test may not have been as good at picking up every single kind of  
strain of Ross River virus. It may not have been as good at picking up a particular strain that that  
patient may have had in the Northern Territory. So there were some explanations. I think it’s  
certainly an unusual case, and the vast majority of people develop IgG within 10 days of infection.  
Thank you?---Sorry, of symptoms.”  
169. Ms Fraser, when cross-examining Professor Korman, referred to a document by the New South Wales  
Government, ‘NSW Arbovirus Surveillance & Mosquito Monitoring 2019 – 2020, Weekly Update: 14  
PAGE 35 OF 62  
February 2020 (Report Number 8)’, in which it is noted, inter alia, that mosquito numbers were high in that  
period at Tweed Heads, Ballina and Yamba. This document was admitted into evidence as Exhibit 12.  
170. Professor Korman agreed that there were high mosquito numbers in the areas in which the Applicant was  
working between 12 – 14 February 2020 – Tr. 17.5.2022 p. 81.  
171. He also agreed that Ross River Virus infections peak in southern Queensland and northern New South  
Wales in the period of February to May each year– Tr. 17.5.2022 p. 81.  
172. The following exchange occurred between Ms Fraser and Professor Korman when questions were asked  
about the Applicant possibly having a slowed immune response – Tr. 17.5.2022 p. 82:  
“Yes. Now, you’ve said a couple of times in answer to questions of my friend – from my friend – that  
there’s no evidence of a slowed immune response. Do you recall giving that evidence?---Yes.  
And you’re not denying that Ms Farrow Smith may have had a slowed immune response, you’re just  
saying there’s no evidence of it that you have seen?---As I mentioned, there was already – again,  
I’m not sure what a slowed response means, but if it means the slow detection of IgG antibodies,  
that’s not the case. IgG antibodies were detected on 24 April.  
Well, that would be slow if, in fact, she was infected in February, wouldn’t it?---Right. Yes, I  
understand, yes. It would be very unusual. As I’ve mentioned in my reports, almost always, IgG is  
detectable about 10 days after the onset of symptoms.  
Yes. What kind of things can bring about a slowed immune response? I mean, could it be something  
as simple as working very hard, being rundown, being middle aged, all of that type of thing?---I don’t  
think so.  
Well, in your view, what brings about a slowed immune response?---I mean, people with very low  
immune systems, so patients with immunocompromise due to medications or an underlying  
immunodeficiency may not mount a response at all. They may not develop antibodies, or may  
develop them slowly. I don’t think that’s – I don’t think that’s in this case though.  
And that’s because you say there’s that period between the tests? Between 7 April and 24 April, is  
that right?---Yes. Yes, it’s developed within those two weeks.  
Yes. In fact, you’ve got no idea when she would have first had those IgM antibodies, because she  
wasn’t tested until – the blood wasn’t taken until 6 April, is that right? ---Well, I wouldn’t say we  
have no idea. As I said, we have an ideal situation in this case where we have two tests within a  
couple of weeks. We have one test which showed that the IgG was not detected but IgM was. So  
there was recent infection, but it was prior to the development of IgG. And then, about two weeks  
later, the IgG was detectable as you’d expect with recent infection.  
In fact, the IgG may have been detectable at any time from 7 April up until the 24th when it was  
detected. Is that correct?---That’s possible, yes.”  
173. Under cross-examination, Professor Korman gave the following testimony – Tr. 17.5.2022 pp. 83 – 85:  
(a)  
(b)  
Ross River Virus is usually diagnosed retrospectively with antibody tests;  
there is usually a level above which the particular test will be deemed to be positive; it is only  
reported either above or below that cut off;  
(c)  
the articles outlined in his report marked as Exhibit 8 were not referred by Comcare, but were  
compiled following a literature review;  
PAGE 36 OF 62  
(d)  
he agreed that for Ross River Virus, IgG appears within 10 days of illness onset, but it would be  
most unusual” for it to be delayed for a month or more;  
(e)  
(f)  
he later clarified that IgG “almost always occurs within 10 days of onset”;  
this proposition is “accepted in scientific literature”; and  
(g)  
it is hard to determine exactly when a person living in a Ross River Virus prone location has become  
infected, particularly, if they had multiple exposures.  
174. When asked about the normal incubation period for Ross River Virus, Professor Korman opined as follows  
– Tr. 17.5.2022 p. 86:  
“Just to comment on that period. It almost always is seven to nine days. In terms of the range of  
three to 21, the evidence for down to three days was based on a questionnaire survey of notified  
cases. So when they ask people when did your symptoms start in relation to when they had – it was  
down to as low as possibly three days, but I think that’s much less common. More importantly, the  
21 day figure comes from a single case report, okay. So there’s one documented case. That was at  
2001. But there was one document case which was that far out. So I think that the seven to nine  
days is a much more likely figure for incubation period. That’s the first step. And then, you know,  
when the antibodies become positive is the second step.”  
175. Professor Korman went on to testify that the incubation period could be greater than 10 days “but very  
unlikely”, but he could “not rule that out” and it was not “impossible” – Tr. 17.5.2022 p. 87.  
176. There was a lengthy exchange between Ms Fraser and Professor Korman about the basis for concluding  
that the usual incubation period for Ross River Virus was seven to nine days. Ms Fraser asked Professor  
Korman if he was relying on Exhibit 14 for this proposition. Professor Korman confirmed that he was relying  
on that article and noted that it was written “by experts in the field” and he would “defer to them on the  
incubation period being seven to nine days” and that that understanding had not changed over the past 20  
years – Tr. 17.5.2022 p. 87.  
177. Ms Fraser then referred to the following extract from the 2001 Harley et al paper – Exhibit 14 p. 913:  
“The incubation period for most arboviruses is 5 to 15 days. RRV usually incubates for 7 to 9 days,  
based on the experience of 20 patients who lived in areas of no risk, visited transmission zones, and  
developed symptoms with diagnosis confirmed by HI testing.”  
(footnotes omitted)  
178. However, Ms Fraser did not put to Professor Korman the final two sentences in the paragraph, which are  
as follows:  
“Incubation may be as long as 21 days or as short as 3 days. The first estimate is based on a  
questionnaire- survey of notified cases and the latter on a single case report.”  
PAGE 37 OF 62  
179. Ms Fraser put it to Professor Korman that his estimate of the usual incubation period was based on an  
article published in 1980 which, in turn, was based on the experience of 20 persons. While Professor  
Korman was unable to refer to other articles, he testified as follows – Tr. 17.5.2022 pp. 88 – 89:  
“In the many thousands of cases, in the many thousands of cases in Australia and in other parts of  
the world, it’s consistent with that incubation period being about seven to nine days, it’s just much  
harder to confirm definitively when people may be infected every day that they’re living in one of  
those areas.”  
180. The following exchange occurred between Ms Fraser and Professor Korman – Tr. 17.5.2022 p. 89:  
“But you can’t point us to any study after 1980 which confirms this seven to nine day window, can  
you, Professor?---I’m not certain whether there’s other studies of a similar vein. So I think in early  
days, 40 years ago, they were still trying to work out what the true incubation period was.  
Yes?---That study was one of the studies with a unique population of people not from the area in  
whom they were able to pinpoint more accurately. Now, since then, and with many, many  
thousands of cases in Australia and elsewhere, the incubation period of seven to nine days usually  
holds, but is more difficult to be completely certain of.  
Well, it’s usually assumed, and I’ve put that to you, rather than usually holds, because there - - - ?---  
What I - - -  
There hasn’t been any further study that you can point to?---Well, if there’s been studies – if there’s  
been evidence that refutes that, that is contrary to that, which suggested typical shorter or longer  
incubation periods, then I would expect that to have been published in the literature, but it hasn’t  
been.  
Yes?---Subsequent to 2001, all of the articles that I’ve read, all of the evidence that I’m aware of,  
points to that being an accurate measurement of the typical incubation period.  
Points to it being an assumption that is made, would you agree with that?---I don’t think it’s an  
assumption, no. I think it’s actually evidence which has not been refuted by ongoing studies. So all  
of the literature still holds that that’s the case. Now, it is a small initial study with a unique  
population, but all of the other studies and all of the other clinical experience, all of the health  
department disease definitions, would also include that incubation period. So I don’t think it’s – I  
think you’re somewhat distorting it to say it was based on one small study from 40 years ago and  
that’s it. It’s quite well established and has not been refuted with any subsequent studies.”  
181. Professor Korman testified that that the seroconversion, going from negative to positive, “is absolutely  
confirmatory of infection” – Tr. 17.5.2022 p. 90. However, IgM alone “can be prone to false positives” – Tr.  
17.5.2022 p. 91.  
182. The sequence of events, as described by Professor Korman, was that IgM is detectable first, then the IgG  
will be positive after that, and then, after a few months, the IgM will not be detectable anymore “and it will  
be IgG alone” – Tr. 17.5.2022 p. 91.  
183. Finally, Ms Fraser referred to an abstract of a 1993 article (referenced at footnote 44 of Exhibit 13), that  
was referred to in support of the suggested proposition “for the 10-day period between onset of infection  
and the IgG positivity” – Tr. 17.5.2022 p. 95:  
“Ross River virus and Barmah Forest virus are mosquito borne alphaviruses. Both cause illnesses  
which may be characterised by arthritis, fever and rash. A detailed study was carried out of an  
outbreak of RRV and BFV occurring at Nhulunbuy, Norther Territory in early 1992. Sero were tested  
PAGE 38 OF 62  
for antibodies to RRV, BFV and Sindbis virus by hemagglutination inhibition (HI), and for IgM to  
RRV or BFV by indirect immunofluorescence. There were 33 cases of BFV infection, 19 diagnosed  
by rising IgG titres, 14 by positive IgM; and 22 RRV cases, six by rising IgG, 16 by IgM. For RRV all  
patients had a HI titre of at least 40 within five days of onset of symptoms. In contrast, 13 out of 32,  
41 per cent, of BFV cases had titres below 40 one week after onset. RRV IgM was always detected  
in acute specimens, whereas BFV IgM remained negative for up to six days after onset. Long term  
follow up showed that both RRV IgM and BFV IgM could persist for over six months. Detection of  
IgM in acute samples appears to be reliable in diagnosing RRV infection, but may be negative in  
BFV infection. The presence of IgM does not necessarily mean recent infection. Rising titres of IgG  
are required to confirm infection.”  
184. Ms Fraser put to Professor Korman that the abstract did not support the proposition that IgG nearly always  
appears within 10 days of Ross River Virus illness onset – Tr. 17.5.2022 p. 96.  
185. In reply, Professor Korman made the following observations – Tr. 17.5.2022 pp. 96 – 97:  
“…I don’t think that abstract alone is the sole basis for the statement that IgG is almost always  
positive within 10 days… that’s probably the first instance of that assertion in a very reputable article  
by experts in the field. There are many other articles subsequent to that, and I think the article that  
you included in the pack was by Farmer et al from 2019… and it has very similar statements about  
the presence of IgM and IgG and the timing of those related to infections. So I don’t think we’re  
really basing our entire statement on one obscure abstract referred to in one Medical Journal of  
Australia article, which is then referred to in a review article. This is established scientific  
interpretation of Ross River virus testing.”  
186. It is necessary to deal with one aspect of the Applicant’s submissions. Ms Fraser made the following  
assertion, after quoting only the first sentence of Professor Korman’s testimony set out immediately above  
– SA para 9.36:  
“It was put to Professor Korman that he could not point to where the figures came from in any  
satisfactory way. The Deputy President interrupted before Professor Korman could answer that  
question. The Deputy President asked: ‘Is it accepted medical knowledge, it’s not a debateable  
thing, that the incubation period is in that time period?’ Thus encouraged, and over objection,  
Professor Korman said: ‘It’s accepted medical knowledge’.”  
187. With due respect, this submission is does not accurately reflect what transpired. Ms Fraser cross-examined  
Professor Korman at length. At times, her cross-examination was repetitive, and she would, sometimes,  
talk over or attempt to hector the witness. Ms Fraser started questioning Professor Korman about the basis  
for the proposition of a 10 day period between the onset of infection and the IgG positivity at page 95 of the  
Transcript of 17 May 2022. By page 97, Professor Korman, after repeated questioning, pointed out that this  
was “established scientific interpretation of Ross River virus testing” and that “every other subsequent  
publication regarding Ross River virus serological testing, including the paper I mentioned from 2019, is  
consistent with that statement.”  
188. Not deterred by this testimony, Ms Fraser continued to deal with the same issue and the following  
exchange occurred – Tr. 17.5.2022 p. 97:  
“And you’ve got the footnote to 44, which I’ve read you the entire abstract?---Yes, but I don’t think it  
changes what I’ve written, which is consistent with the established scientific evidence on Ross River  
virus testing.”  
PAGE 39 OF 62  
189. Again, not being deterred by the answer given, Ms Fraser went to ask this Question – Tr. 17.5.2022:  
“And assumed, but you can not, and notwithstanding the literature that you’ve listed as an annex to  
your report, you can not point to where these figures come from in any satisfactory way. Would you  
agree with that?”  
190. This was the same question being asked time and time again, and despite Professor Korman’s repeated  
and consistent answers, Ms Fraser persisted with this line of questioning, which did not assist the Tribunal.  
191. Deputy President Sosso then asked a series of questions of Professor Korman, focusing on his practical  
experience in dealing with Ross River Virus patients, and then having ascertained his practical experience,  
the question which Ms Fraser objected to was asked.  
CONSIDERATION  
Introduction  
192. Despite the complexity of the medical evidence presented, the questions to be determined by the Tribunal  
are relatively straightforward.  
193. It is not disputed that the Applicant contracted Ross River Virus in early 2020 and that she had not  
previously suffered from this disease. It is also not disputed that, since contracting the disease, the  
Applicant has suffered a range of debilitating symptoms. In short, we accept that the Applicant was sick  
during most of 2020.  
194. The central issue before the Tribunal is when the Applicant contracted Ross River Virus.  
195. The Applicant’s case is that she was exposed to mosquitoes whilst covering flooding in northern New South  
Wales in the period 12 – 14 February 2020, and that she started experiencing symptoms of Ross River  
Virus on 28 February 2020, her last day at work before commencing long service leave.  
196. Comcare’s case is that the Applicant contracted Ross River Virus after she commenced long service leave  
and, therefore, it is not a compensable ailment.  
197. In reaching a conclusion about which proposition best comports with the evidence presented, it is  
necessary to form a view about the medical evidence that was received.  
198. The Tribunal had the benefit of receiving written and oral evidence from three medical practitioners: Dr  
Gover, Dr Navin and Professor Korman.  
199. All three medical practitioners have had experience in treating persons suffering from Ross River Virus.  
PAGE 40 OF 62  
200. Both Dr Gover and Dr Navin have practised as GP’s in northern New South Wales.  
201. Dr Gover has the benefit of having treated the Applicant for a lengthy period of time. The Tribunal found Dr  
Gover to be an articulate witness, and it was clear to us that he is very knowledgeable about Ross River  
Virus.  
202. It was also the case, however, that Dr Gover’s evidence was, ostensibly, focused on assisting the  
Applicant’s cause. His evidence was, at times, less than convincing. We will deal with this aspect of his  
evidence below.  
203. Attention can be drawn to the following observations in D’Amico and Comcare [2018] AATA 54:  
“[51] The Tribunal was presented with a range of medical opinions. Each of those was put in a  
professional manner. It is always difficult in matters such as these to form a conclusive view  
when it is clear that conflicting professional opinions are firmly and honestly based. However,  
that is the mandate of a tribunal of fact.  
[52] While, as a general rule, the Tribunal gives more weight to the evidence of a treating doctor  
compared with the evidence of a medico-legal witness, that is not always the case. The  
Tribunal will give more weight to specialist physicians expert in their field, to the opinions of  
general practitioners or persons who do not hold a degree in medicine.  
[53] Further, some caution is required when receiving evidence from a GP who has been treating a  
person for many years. It is often the case that in such circumstances the bonds of familiarity  
and friendship subconsciously erode the professional impartiality born of a less familiar and  
lengthy relationship. It is often the case that a treating doctor falls into error by becoming more  
of an advocate than a dispassionate professional. This, it should be added, is not a criticism,  
but simply a reflection of the vicissitudes of human empathy.”  
204. Ms Fraser submitted that the only expert evidence consistent with the unchallenged facts is that of Dr  
Gover. She went on to submit that his evidence was based on listening to the Applicant and his clinical  
experience in dealing with Ross River Virus infections – SA para 10.  
205. The Tribunal does not accept that only Dr Gover’s evidence is consistent with the unchallenged facts, as  
Comcare did, in fact, challenge the Applicant’s account of her suffering from debilitating symptoms from 28  
February 2020 – see ROS paras 15 – 19. Ms Fraser’s assertion to the contrary, in SRA para 1, is simply  
incorrect.  
206. The Tribunal observed Dr Gover’s testimony when he was questioned by Mr Clark about the error in his  
report of 27 August 2020 in which he opined that the Applicant’s IgG was positive on 7 April 2020, whereas  
it was negative. The following exchange with Mr Clark ensured – Tr. 16.5.2022 p. 40:  
“Well, it may have been an error. But, it takes your opinion; doesn’t it?---No, it doesn’t take my  
opinion in a single way. Elloise was bitten by mosquitos. She developed strong symptoms of Ross  
River virus in what I see on a regular basis that Ross River virus behaves in. Her serology changed  
over time in a pattern that is regular, although it did take, in my opinion, a lot longer than it usually  
does and she suffered a, you know, quite a severe course of Ross River infection. It doesn’t change  
my opinion at all. That is a mistake and it’s not intentional and it doesn’t change from my opinion of,  
you know, the circumstances at all.  
PAGE 41 OF 62  
Doctor, you accept the proposition that from the point of view of medical science, the passage of the  
serology results is a tool that can be legitimately used to fix some sort of date for the initial mosquito  
bite which has caused the fever; what do you say to that?---I think the operative word is we ‘can’.  
You know, like, what does that mean? What does – what’s ‘can’?, or, ‘can be helpful’, it’s used as a  
clinical guide and there’s not a forensic tool. There’s a range of - you know, there is uncertainty in  
the measurement of many things in science. There is built-in error into everything pretty much we do  
and measure. And I believe that, you know, there’s a real possibility, or probability, that – I would  
say there’s a probability that Elloise was not going to buy a mosquito at those flood events, she was  
bitten multiple multiple times, you know, during a flooding event. She was on the side of a road next  
to a river and reports being chased inside by hundreds of mosquitos and - - -  
Chased inside? Chased inside where?---Into her vehicle.  
I see?---So, she was standing on the side of the road and got chased inside her vehicle by  
mosquitos, she was bitten that many times. So, I mean, these tests can be used to be helpful  
identifying exposure date. But, there’s an error, you know, and there’s a range. And I think the case  
report, that has been shown, does reflect that. In some instances, seroconversion can take a lot  
longer. In my opinion, you know, the way in which she had persistence of her IgM antibodies is  
reflective of what was happening with her immune system. But, these are guides and as a clinical  
guide rather than to nail down a precise estimate. To do this, you know, there are better tests. And,  
of course, we can have PCR tests now. I don’t know if they’re, you know, available outside of  
research facilities and they’ll provide a lot more statistical and scientific accuracy. But, they are still  
subject to error as well.”  
207. We were surprised that Dr Gover, whilst admitting he made a serious error, then went on to testify “it  
doesn’t take my opinion in a single way.” Further, Dr Gover then gave somewhat animated testimony about  
the Applicant being bitten by mosquitoes based entirely on her self-reporting. We formed the view that Dr  
Gover’s testimony was tainted by subconscious bias, and the views he expressed were not the product of  
dispassionate objective analysis, but rather intended to advance the Applicant’s case.  
208. In addition, the Tribunal was presented with the surgery consultation notes of Dr Gover, as well as a  
number of reports. It is clear from the surgery consultation notes of 6 May 2020 (discussed below), as well  
as his report of 7 July 2020, that Dr Gover did not hold the views he expressed during his testimony.  
Indeed, in his surgery consultation notes of 6 May 2020, he opined that the Applicant’s Ross River Virus  
may not be a work related/compensatable [sic] illness” – Exhibit 1 T22 p. 200.  
209. Consequently, we have some issues with the testimony of Dr Gover.  
210. In comparison, both Dr Navin and Professor Korman gave objective and dispassionate testimony.  
211. We note that Ms Fraser accused Dr Navin of a “desire to agree with whatever Comcare puts to you” – Tr.  
16.5.2022 p. 58. We formed a favourable view of the objectivity of Dr Navin. He gave measured,  
dispassionate and learned testimony. In short, we did not observe any attempt by him to answer the  
questions posed in a manner deliberately designed to advance the position of Comcare and harm the case  
of the Applicant. From our observation, Dr Navin simply answered the questions posed in a manner which  
comported with his knowledge of medical science as it applied to the facts of this matter.  
PAGE 42 OF 62  
212. Finally, we had the benefit of listening to the evidence of Professor Korman. We were very impressed by  
Professor Korman’s testimony. He is clearly an expert in his field of medical science, and gave learned and  
helpful testimony. He was not argumentative and made appropriate concessions. He certainly could not be  
accused of giving biased or inadequate testimony.  
213. For the reasons given, on the whole, we preferred the medical opinions expressed by Dr Navin and  
Professor Korman over those given by Dr Gover. However, we acknowledge that, subject to the caveats  
outlined above, Dr Gover is clearly a learned professional who has years of experience of dealing with  
persons afflicted with Ross River Virus.  
The Applicant’s account of her medical state: February – April 2020  
214. The Applicant’s account of her medical condition, from the time she was covering the floods in northern  
New South Wales in February 2020 until she was examined by Dr Hannah on 6 April 2020, has been set  
out at length above.  
215. First, it is not contested that, between 12 – 14 February 2020, the Applicant was assigned, by her  
employer, to cover the floods in northern New South Wales, and that, on each of those days, she formed  
part of a crew of two. The Tribunal has the benefit of a statement of Ms Harper who worked with the  
Applicant on 14 February 2020 covering the floods in Coraki and Woodburn. Ms Harper recounted how  
both she and the Applicant were bitten by swarms of mosquitoes at both of these locations – Exhibit 1 T7 p.  
33.  
216. The Applicant set out, at length, in her statement, how she was bitten by mosquitoes whilst covering the  
floods, and she repeated this history when giving testimony.  
217. We accept that the Applicant was bitten by mosquitoes whilst working for the ABC in the period 12 – 14  
February 2020, and, in particular, on 14 February 2020 – Exhibit 4 para 51.  
218. However, we have some problems with the Applicant’s account of what transpired from 28 February 2020  
and, in the period, leading up to her examination by Dr Hannah.  
219. The Applicant stated that, on Friday 28 February 2020, she was feeling “pretty bad” and was “delirious” and  
not able to think clearly. She complained of body aches and pains – Exhibit 4 paras 66 – 71. Despite her  
illness, she travelled with her mother to Yamba where she spent most of the time in bed suffering from  
aches and pain. On or about 7 March 2020, the Applicant returned to her Suffolk Park home. The Applicant  
stated that she was unwell, suffering from debilitating symptoms and was confined to bed for the period  
March – June 2020.  
PAGE 43 OF 62  
220. The Applicant’s account of her condition, between 28 February 2020 and in the months that followed, were  
supported by her partner, Mr D’errey, in both his statement and his testimony.  
221. The problem we have with this account is that it is not reflected in the clinical notes of Dr Hannah who  
examined the Applicant on 6 April 2020.  
222. Before dealing with Dr Hannah’s notes, we make two observations.  
223. First, Dr Hannah was not called to give evidence. The Tribunal did not have the benefit of listening to his  
testimony and forming a view of his credit as a witness. All the Tribunal can proceed with are his clinical  
notes, and the Tribunal has no reason to doubt their veracity.  
224. Second, we draw no adverse inferences from the fact that the Applicant did not see a doctor until 6 April  
2020. Normally, if a person was suffering from the debilitating conditions she described, it would be  
assumed that they would promptly seek medical assistance. However, it was extremely unfortunate that, as  
a matter of common knowledge, the COVID-19 pandemic radically changed the Australian landscape in  
March 2020, and our society had to endure prolonged lockdowns. It was the case, for a few weeks, that  
persons could not travel far from their homes, and almost all services, including critical medical services,  
were severely disrupted and access to normal medical care was limited.  
225. The Tribunal has the benefit of two surgery consultation notes prepared by Dr Hannah: 6 and 9 April 2020.  
226. First, the surgery consultation notes of 6 April 2020 state that the Applicant came for a flu vaccination for  
herself and her son, but was suffering from polyarthralgia in her hands, ankle and shoulder. Dr Hannah  
found no swelling or redness, but took blood samples – Exhibit 1 T22 p. 198.  
227. It will be noted that there is no mention in the surgery consultation notes of the Applicant suffering from  
debilitating symptoms for more than a month. Clearly, the Applicant was suffering from joint pain when she  
was assessed by Dr Hannah, but he makes no mention of prolonged sickness.  
228. During cross-examination, the Applicant gave the following account of what transpired at the consultation –  
Tr. 16.5.2022 pp. 19 – 20:  
“You’d agree with me, by this time you’d had five weeks of quite debilitating illness, hadn’t you?---I  
had.  
And would you also accept that that history is not reflected in what the doctor has recorded as to  
what you told him?---I was unable to get to the doctor before then, because we were in lockdown.  
I appreciate that, but once you did, on 6 April, do you accept the proposition that that history does  
not record the fairly lengthy five weeks of debilitating symptoms which you had by that time  
suffered?---It actually was a flu vax for my son and myself, and it was a short – and I had mentioned  
in that doctor’s consult when he was giving my son and me the flu vax, which I didn’t get, I talked  
with him about me being unwell, and then that’s when he said come back for a blood test.  
PAGE 44 OF 62  
But what is recorded there, do you accept the proposition, simply does not reflect that five week  
history of debilitating symptoms, does it?---No, because it was just a short consult for my son to get  
a flu vax basically.”  
229. It is tolerably clear that the Applicant did not mention to Dr Hannah that she had been suffering debilitating  
illness for the previous six weeks.  
230. Second, the surgery consultation notes of 9 April 2020 disclose that the Applicant informed Dr Hannah that  
she had a sore throat a month ago and was worried about EBV.  
231. Dr Hannah went on to note – Exhibit 1 T22 p. 199:  
“was down in Yamba and got snmashed [sic] by mosquitoes”.  
232. Two observations can be made about these notes.  
233. It will be observed that, again, Dr Hannah makes no mention of any prolonged illness that the Applicant  
was suffering from. This failure to note a history of debilitating symptoms commencing six weeks earlier can  
only be explained by the fact that the Applicant never told Dr Hannah that she was, in fact, in a state of ill  
health for six weeks. If she had done so, Dr Hannah, as an apparently competent GP, would have noted  
that information.  
234. The next observation is that Dr Hannah refers to the Applicant being “smashed” by mosquitoes at Yamba.  
235. It should be noted that the Applicant denied that she told Dr Hannah that she had been bitten by  
mosquitoes in Yamba – Tr. 16.5.2022 p. 22:  
“Did you tell him… ‘Was down in Yamba and got smashed by mosquitoes?’---No. I told him – he  
said where have you been, and I said that I’ve been – told him where I’d been, but I didn’t say that I  
was in Yamba and got smashed by mosquitoes. That doesn’t follow.”  
236. With due respect to the Applicant, the Tribunal was not convinced by her answer.  
237. The fact that Dr Hannah specifically mentions Yamba is significant. Dr Hannah, presumably, resides in the  
Byron Bay region. He would more likely than not know the geographical distance between Coraki and  
Woodburn and Yamba. The three locations are geographically distant. There is no apparent logical reason  
why Dr Hannah would confuse Coraki with Yamba. Clearly, he was relying on the Applicant’s self-reporting,  
and it defies logic to contend either that Dr Hannah was confused, or that the Applicant provided him with  
wrong information. We proceed on the basis that the surgery notes made by Dr Hannah accurately reflect  
the information he was provided by the Applicant.  
238. Dr Hannah also saw the Applicant on 23 April 2020 and 30 April 2020. Dr Hannah stated in the 30 April  
2020 surgery consultation notes that the Applicant was suffering from ongoing fatigue and joint pains, “neds  
PAGE 45 OF 62  
med cert for work” and “currently on long service leave till July”. Dr Hannah gave a medical certificate for  
the period 6 April 2020 until 31 May 2020 – Exhibit 1 T22 p. 200.  
239. Again, there is no mention in the report about either the Applicant suffering debilitating symptoms from 28  
February 2020 or that his note of her being “smashed” by mosquitoes in Yamba was incorrect.  
240. It is also of interest that the medical certificate provided by Dr Hannah was only from 6 April 2020. If he was  
of the opinion that the Applicant was suffering the signs and symptoms of Ross River Virus prior to 6 April  
2020, it could be presumed that his certificate would have mirrored that view.  
241. The notes prepared by Dr Hannah can be compared with the surgery notes prepared by Dr Gover on 6  
May 2020 – Exhibit 1 T22 p. 200.  
242. The opening words of the surgery notes area as follows:  
“Elloise needs a medical certificate  
did go on long service leave and is definitely [sic] unwell, may get recredited for leave in some way”.  
243. As with her visit to Dr Hannah on 30 April 2020, one of the reasons for the 6 May 2020 consultation was to  
get a medical certificate.  
244. It is not clear to us why the Applicant wanted a further medical certificate, as she was already in receipt of  
one from Dr Hannah. However, insofar as Dr Hannah’s certificate was limited to the period 6 April – 31 May  
2020, it can be inferred that the Applicant was seeing Dr Gover in order to obtain a certificate for a longer  
period of time.  
245. As previously noted, the Applicant told Dr Gover that “she feels that she was bitten whilst on assignment by  
work at Coraki”.  
246. However, what is of interest is that Dr Gover noted that he told the Applicant:  
“advised not able to say if this was so, endemic RRV in Byron and SP  
may not be a work related/compensatable [sic] illness”.  
247. Clearly, when Dr Gover first examined the Applicant, he was not necessarily of the opinion that her Ross  
River Virus was a work-related disease.  
248. This state of mind is reflected in Dr Gover’s report of 7 July 2020 – Exhibit 1 T8 pp. 119 – 122.  
249. First, Dr Gover, quite correctly, noted that mosquito species being carriers of the virus are endemic to the  
Northern Rivers region of New South Wales – Exhibit 1 T8 p. 120:  
PAGE 46 OF 62  
“Ross River Virus is a mosquito transmitted alphavirus. The mosquito species which have been  
identified as being carriers of the virus are endemic to the Northern Rivers Region of NSW.  
Infection is acquired by inoculation of the Ross River Virus with a mosquito bite.  
Mosquitoes are prolific throughout the Northern Rivers Region of NSW throughout the summer  
period and are particularly intense at flood times when large numbers of insects hatch. It is known  
that Ross River Virus outbreaks tend to occur after periods of flooding.”  
250. This observation comports with Dr Gover’s note on 6 May 2020 that Ross River Virus is endemic in Byron  
Bay and Suffolk Park – Exhibit 1 T22 p. 200.  
251. Dr Gover repeated the Applicant’s account of being bitten by swarms of mosquitoes during the period 9, 12  
– 14 February 2020 – Exhibit 1 T22 p. 120. Again, as previously noted, we also accept that the Applicant  
was bitten by mosquitoes whilst on assignment during this period of time.  
252. However, Dr Gover then opined as follows – Exhibit 1 T22 p. 121:  
“It is not possible to say that the Ross River infection certainly occurred during her employment on  
the days listed in response 3.  
It is possible that the infection could have been contracted at another time, and there are no means  
of proving this one way or the other with any surety.  
Dr Hannah in his notes on the 9th April 2020 records that: ‘she was worried about EBV as had a  
sore throat 1 month ago, was down at Yamba and got smashed by mosquitoes’  
I understand that Ms Farrow-Smith went to Yamba for a holiday in early March, and was attacked by  
mosquitoes there but had already begun to experience muscle aches in late February. This  
suggests that Ms Farrow-Smith may have been already symptomatic with Ross River Virus infection  
at this time.”  
253. There are three matters that arise out of this passage from Dr Gover’s report.  
254. The first is Dr Gover’s statement that he was not prepared to opine that the Applicant’s Ross River Virus  
was contracted by being bitten by mosquitoes whilst on work assignments in February 2020.  
255. Second, Dr Gover opines that it is not possible to determine when the Applicant contracted Ross River  
Virus. This opinion, however, is at odds with the views expressed by Dr Navin and Professor Korman, and  
we will deal with the medical evidence below.  
256. Finally, Dr Gover refutes the Applicant’s case that she was not “smashed” by mosquitoes at Yamba.  
Indeed, Dr Gover specifically stated that was she was “attacked” by mosquitoes whilst in Yamba. It is not  
conceivable that, in preparing a detailed report for Comcare in July 2020, that Dr Gover would have got  
something, potentially as important as this, wrong. Presumably, he would have spoken to either Dr Hannah  
or the Applicant, or both, by this time about what had occurred in Yamba. It could not be suggested, with  
any degree of credibility, that both Dr Hannah and Dr Gover were confused and referred to Yamba instead  
of Coraki, or some other location in northern New South Wales.  
PAGE 47 OF 62  
257. It is desirable to deal with two other matters which were raised by the parties and were the subject of  
testimony.  
258. The first is the Applicant’s account of what transpired during her final week at work in February 2020.  
259. The Applicant stated that she felt unwell on 26 February 2020 when she attended a film premiere and, by  
28 February 2020, she was “feeling pretty bad”. She was suffering body aches and pains and was taking  
Panadol and Nurofen to relieve her symptoms – Exhibit 4 paras 66 – 71.  
260. The Applicant also stated, and testified, that, on 28 February 2020, she purchased a large quantity of items  
at a Chemist Warehouse. The Applicant denied that it was panic buying because of COVID-19, rather “I  
was not feeling well and I was buying them for myself at that time” – Tr. 16.5.2022 p. 18.  
261. Dr Gover, in his report of 7 July 2020, placed significance on the Applicant’s symptoms as manifested on  
28 February 2020 – Exhibit 1 T8 p. 120:  
“The first identifiable symptom Ms Farrow-Smith reported was the onset of muscle aches and  
soreness on the 28th February 2020.  
Ross River Virus has an incubation period of 7 – 9 days usually, with a reported range of between  
3-21 days. This would be consistent with an exposure to the virus around the time that Ms Farrow-  
Smith was reporting the flooding events and bitten by mosquitoes.”  
262. Dr Gover’s opinion is based on the self-reporting of the Applicant some time after the events of 28 February  
2020. Dr Gover did not examine the Applicant until 6 May 2020, approximately nine weeks later. Further, in  
his medical certificate of 6 May 2020, Dr Gover opined that the Applicant’s Ross River Virus symptoms  
began in “early March” – Exhibit 1 T5 p. 18.  
263. The Tribunal proceeds on the basis that the Applicant was feeling unwell in the period 26 – 28 February  
2020, and was experiencing body aches and pains. However, the acceptance of this factual matrix, does  
not automatically lead to the conclusion that the Applicant had, by that time, contracted Ross River Virus.  
264. Both Dr Navin and Professor Korman testified that the symptoms experienced by the Applicant could have  
applied to ailments other than Ross River Virus. Professor Korman testified as follows – Tr. 17.5.2022 p.  
100:  
“MR CLARK: You’ve been asked a number of questions about symptom onset and so forth. Now,  
are the symptoms which might be indicative of Ross River virus potentially indicative of other  
conditions?---Yes, they’re not specific. Again, I’m not certain what the symptoms were, but if it was,  
you know, fever, headache, you know, and feeling unwell, that may or may not be related to Ross  
River virus infection. It could be related to other infections as well.”  
265. It is sufficient for the Tribunal to note that, even if we accept (as we do) that the Applicant was unwell in her  
final week at work and was suffering from the symptoms previously outlined, this does not support the  
proposition that she had, by that time, contracted Ross River Virus.  
PAGE 48 OF 62  
266. Second, reference was made to the Applicant’s home in Suffolk Park. In her statement, the Applicant  
provided the following description of her family’s home – Exhibit 4:  
“21. I have lived at my current address since 2002.  
22. My husband built the house. It is well constructed and well maintained.  
23. All the windows have fly screens. The doors have security screens with mesh  
to keep out insects.  
24. We have rainwater tanks. The tanks are not open. There is mesh at the top of  
the tanks.  
25. The roof gutters feed water into the tanks. John (my husband) cleans and  
maintains the gutters.  
26. The house is on the top of a hill. Run off that is not fed into the tank drains  
down the hill. Water does not pond on the property.  
27. There is a lake about 1.5 kms away.  
28. We don’t have air conditioning. There is usually a breeze and we don’t need it.  
29. I cannot recall being bitten by mosquitos in the house.  
30. We have paving and concrete in the yard, and established trees.  
31. I have never had a previous Ross River Virus infection.  
32. I was tested in 2016. The test was negative.”  
267. We accept that the Applicant’s family home is securely constructed, has appropriate screening, is located  
on top of a hill, and has all the other attributes described by the Applicant in her statement. However, we  
have no detailed information about the daily movements of the Applicant from the time she commenced  
long service leave, or, indeed, the time leading up to taking that leave.  
268. We refer to the following exchange between Ms Fraser and Dr Navin which highlights why the information  
about the Applicant’s residence does not lend itself to any sensible findings by the Tribunal – Tr. 16.5.2022  
p. 57:  
“What do you know about her home?---She was living in Suffolk Park.  
And that’s all?---I was a GP in Byron Bay for many months before I settled in practice in another part  
of north New South Wales and I’ve been back to Byron Bay over the subsequent years and I know  
the location quite well.  
Do you know the street that she lives in?---Of course not.  
Do you know whether it’s an elevated and dry position or a moist and swampy?  
DEPUTY PRESIDENT: I think the witness is a doctor, not a real estate agent; is this relevant?  
MS FRASER: Well, I don’t know. It’s in there. ‘(Indistinct words) the location - - -  
DEPUTY PRESIDENT: It sounds like a very nice home. It was built by her partner, a very practical  
man. But, I don’t know what the relevance all this is for me or my colleague.  
MS FRASER: And you know even less about the accommodation at her holiday location; would you  
agree with that?---And I must detail, with all due respect, ma’am, it’s an opportune feeder and  
wherever one may be, and whatever time of the day it might be and wherever a person may be  
located, a mosquito, if it has close access, will feed.  
PAGE 49 OF 62  
No. The correct answer to this question would have been, ‘I know nothing about where she lives  
other than the suburb and I know nothing about her accommodation. But mosquitos are  
everywhere’; is that right?---Yes, we agreed to that at the beginning.”  
The medical evidence  
269. As previously noted, we were impressed by the evidence of both Dr Navin and Professor Korman. It was  
not contested that testing for Ross River Virus is by means of blood samples which demonstrate the  
presence and sequence of IgM and IgG antibodies.  
270. Dr Navin, for example, made the following observation – Exhibit 1 T18 p. 158:  
“Diagnosis is following the taking of paired serology (never less than 14 days apart) following the  
development of IGM acutely following onset (which is sustained) and then the subsequent  
development of IgG to demonstrate conversion to a higher level of immunity over the subsequent  
period.”  
271. Professor Korman, when giving evidence, testified that Ross River Virus is usually diagnosed by  
measurement of antibodies or serological testing. The virus itself is not detected but, rather, antibodies,  
which are the body’s reaction to the virus, are detected. The two antibodies detected are IgM and IgG. The  
IgM antibody is detected earlier and indicates recent infection. The IgG antibody is detected by about 10  
days following onset of symptoms and will remain positive indefinitely. In this matter, the blood sampling  
was “ideal because we have two specimens taken a couple of weeks apart, and that enables us to more  
accurately estimate the time of infection” – Tr. 17.5.2022 pp. 74 – 75.  
272. Dr Navin and Professor Korman also gave similar opinions about the timing sequence of Ross River Virus.  
273. First, Dr Navin provided the following timing estimates for the various stages of Ross River Virus:  
(a)  
(b)  
from infection/mosquito bite to the onset of symptoms – the standard time is 7 – 9 days with a  
spectrum from 3 to 21 days, but not beyond – Exhibit 1 T18 p. 158, Tr. 16.5.2022 p. 49, 53; and  
the IgG antibody becomes apparent in the convalescent period, usually within 10 days of symptom  
development – Tr. 16.5.2022 p. 49.  
274. Second, Professor Korman provided similar timing estimates:  
(a)  
(b)  
(c)  
the incubation period (from infection to onset of symptoms) is “almost always between seven and  
nine days. Very occasionally, earlier and possibly later” – Exhibit 10, Tr. 17.5.2022 p. 76;  
from onset of symptoms to appearance of the IgM antibody is four days after that – Tr. 17.5.2022 p.  
76;  
from appearance of the IgM to appearance of the IgG antibody is “almost always detectable a  
maximum of 10 days following the symptoms” – Exhibit 10, Tr. 17.5.2022 p. 76.  
PAGE 50 OF 62  
275. As will be seen, the timing sequence outlined by Dr Navin and Professor Korman is consistent.  
276. Dr Gover also opined that the incubation period for Ross River Virus is usually 7 – 9 days, with a reported  
range of 3 – 21 days – Exhibit 1 T8 p. 120, T10 p. 133, Exhibit 5.  
277. Dr Gover was provided with an article, “Interpreting paired serology for Ross River Virus and Barmah  
Forest virus diseases” by Farmer and Suhrbier, referred to earlier – Exhibit 1 T9 pp. 128 – 132.  
278. The learned authors opined – Exhibit 1 T9 p. 129:  
(a)  
(b)  
(c)  
after an infectious mosquito bite, the usual incubation period is 7 – 9 days;  
alphaviral-specific IgM responses usually develop after 4 days post-onset of symptoms; and  
within 14 days of an elevated virus-specific IgM response, a virus-specific IgG level becomes  
detectable.  
279. Again, the timing sequence outlined by Farmer and Suhrbier is entirely consistent with the sequences  
opined by Dr Navin and Professor Korman.  
280. The Tribunal was also provided a 2001 article by Harley et al, ‘Ross River Virus Transmission, Infection and  
Disease: a Cross-Disciplinary Review’, which was referred to earlier.  
281. Again, the learned authors opined that the usual incubation period for Ross River Virus was 7 – 9 days and,  
in support of that proposition, reference was made to an article which explored the experiences of 20  
patients who lived in areas of no risk, visited transmission zones, and developed symptoms with diagnosis  
confirmed by HI testing. However, the authors went on to opine, that incubation periods could be as short  
as 3 days or as long as 21 days – Exhibit 14 p. 913. The 21 day period was based on a single reported  
case of a person infected with Ross River Virus in the Cook Islands, and the article reporting this case was  
published in 1981.  
282. When cross-examined by Ms Fraser, Professor Korman’s attention was drawn to the article by Flexman et  
al, ‘A comparison of the diseases caused by Ross River virus and Barmah Forest virus’. The learned  
authors made the following observation – Exhibit 13 p. 160;  
Incubation period: For RRV disease this is usually 7-9 days but may vary from 5 – 21 days…”  
283. This article, which was published in 1998 and authored by eight professionals, is also consistent with the  
timing sequence opined by Dr Navin and Professor Korman.  
284. The difference between the doctors was Dr Gover’s opinion that the Applicant had a slower immune  
response: a proposition which was rejected by both Dr Navin and Professor Korman.  
PAGE 51 OF 62  
285. Dr Gover expounded his theory of the Applicant having a slower immune response in his report of 27 July  
2021 – Exhibit 5. Relevant extracts are set out below:  
“4. Initial antibody testing for RRV was performed on the 6th April after she initially consulted at  
this medical practice demonstrating IgM positive antibodies.  
Her subsequent antibody testing on the 27th April demonstrated IgM positive and IgG positive  
antibody titres.  
The progression of IgM antibodies to IgG antibodies confirmed Ross River Virus Infection.  
Ms Farrow Smith did not fully seroconvert to IgG antibodies until the 5th February 2021, that is  
IgM negative/IgG positive, which reflects the slowed response of her immune system to this  
infection.  
The timing of the progression of IgM antibodies to IgG antibodies cannot be relied upon to  
give a precise timing of infection date due to varying degrees of seroconversion that exists in  
the population.”  
286. Under cross-examination by Mr Clark, Dr Gover gave the following testimony in support of his proposition  
that the Applicant exhibited a slow immune response – Tr. 16.5.2022 p. 32:  
“Do you see that Professor Korman comments on that and concludes there was no evidence of a  
slowed response to the Ross River virus? Just dealing with the comments that seroconversion was  
demonstrated on 24 April 2020, what do you understand ‘seroconversion’ to be?---So, a  
seroconversion in the sense of this test is, as Dr Korman pointed out, it’s where there becomes  
(indistinct) of IgG antibodies, the longer term antibodies against the infection. Yes, so that’s what the  
seroconversion actually means.  
You understand, Doctor, that Ms Farrow-Smith’s blood was tested I think on the 6th or the 7th, or  
certainly the result came back on 7 April, and then again on 24 April. So within that timeframe, what  
is the earliest time that there could have been evidence of seroconversion, that is, IgG positivity?---It  
follows that it was 10 days, which is the average. It wouldn’t be – it’d – within 10 days of the  
inoculation. But there are circumstances where the seroconversion can take a lot longer than is  
usual, and so I don’t think we can infer much about – there are a range of individuals who (indistinct)  
within a short space of time, within 10 days/two weeks. Some will take a much longer amount of  
time.  
If I could just stop you there. What do you say is the evidence supporting your assertion of a slowed  
response to the Ross River virus infection?---The fact that she had serology pictures as they were;  
that Elloise developed symptoms within a couple of weeks of being bitten by mosquitoes in early  
February in 2020, she developed, you know, quite consistent signs and symptoms of Ross River  
virus infection, you know, after what would be a usual incubation period. The pattern of her  
antibodies did change over time, and it was consistent with a Ross River virus infection, but if we  
look at the way in which they occurred, it was slow compared to usual, and that’s what my assertion  
is.”  
287. In support of the proposition that the Applicant exhibited a slow immune response, Dr Gover referred to the  
article by Lucas and Qiao which was discussed above.  
288. The Lucas and Qiao article was referred to by Harley et al at (Exhibit 14 p. 914) and was the subject of  
analysis by Professor Korman when he was cross-examined by Mr Clark – Tr. 17.5.2022 pp. 77 – 78.  
289. The particular factual matrix that was the subject of the Lucas and Qiao article was very unusual, and, as  
Professor Korman explained, laboratory testing has improved significantly since that time. In short, the  
PAGE 52 OF 62  
circumstances that were the subject of the Lucas and Qiao article were not normal or usual, and provide a  
weak base for Dr Gover to propound a delayed response theory.  
290. It is necessary to turn to the testimony of Dr Navin and Professor Korman, both of whom cast doubt on Dr  
Gover’s delayed response theory.  
291. Dr Navin opined that if the Applicant had been infected in February 2020, both the IgG and IgM would have  
been present with the 7 April 2020 blood test. Instead, he opined, the evidence of serum conversion  
indicated that the Applicant was infected approximately 7 – 9 days prior to that date – Exhibit 1 T18 pp. 157  
– 158.  
292. First, Dr Navin opined that the blood test taken on 7 April 2020, which disclosed positive IgM and negative  
IgG, suggested that “the IgM would have only been arisen no more than 21 days following an injection” –  
Tr. 16.5.2022 p. 49.  
293. Second, the blood test taken on 24 April 2020, which disclosed positive IgM and positive IgG, “suggests  
that a normal powerful development of immune response was present following the normal cascade of  
immunity development…” – Tr. 16.5.2022 pp. 49 – 50.  
294. Under cross-examination from Ms Fraser, Dr Navin referred to the Farmer and Suhrbier article, and, in  
particular, to the diagrams found at Exhibit 1 T9 p. 130. Diagram A, which deals with serology consistent  
with a recent infection, states an incubation period of 7 – 9 days, followed by disease onset, IgM negative  
and IgG negative for four days, followed by IgM positive and IgG negative for under two weeks, then IgM  
positive and IgG positive, then IgM negative and IgG positive, with IgG positive likely lasting for the rest of  
an infected person’s life. Diagram A also depicts IgM positive lasting for a period of 1 – 3 months.  
295. Dr Navin opined that the first blood test taken from the Applicant which failed to disclose IgG positive,  
excluded “a prior infection as the IgG is a lifelong immunity” – Tr. 16.5.2022 p. 52.  
296. Ms Fraser put it to Dr Navin that he was not able to say that the onset of the Applicant’s symptoms would  
have occurred, in the normal course, within 7 to 14 days from the time she was infected. The following  
exchange occurred – Tr. 16.5.2022 p. 53:  
“You’re just guessing, Doctor. There’s no way you could know that?---Indeed nobody can. But, the  
development of the immune response indicates that the IgM being present suggests that already  
there was some immune development occurring. But, the lack of IgG would suggest that there was  
no infection or repair to the infection which occurred as at 6 April.”  
297. We observe, at this point, that Dr Navin’s report and testimony were entirely consistent with the medical  
literature presented to the Tribunal, and although he could not say with total certainty when the Applicant  
was initially infected with Ross River Virus, he could provide the Tribunal with an educated estimate based  
on the serology undertaken.  
PAGE 53 OF 62  
298. Ms Fraser then put to Dr Navin that not every person’s immune system functions in the same way.  
299. Dr Navin agreed with this self-evident proposition, but he then referred to the Applicant’s immune system –  
Tr. 16.5.2022 pp. 53 – 54:  
“Indeed not. But, the other materials, that I’ve been provided with subsequently as part of this  
tribunal, demonstrates there is no abnormality in Ms Farrow-Smith’s immune response process. She  
has normal markers for immune mechanisms.”  
300. Under further questioning, Dr Navin testified that the Applicant has normal markers for immune response.  
In particular, he testified that the Applicant “has a normal ESR and CRP, or reactive protein, the white cell  
counts are normal, as I read from the material” – Tr. 16.5.2022 p. 54.  
301. Dr Navin later testified that the Applicant “has no vagaries in her immune response”, that she “had the  
normal symptoms” and her “symptoms matched the concern of the general practitioner who ordered the  
correct test demonstrating the presence of the developing immunity consistent with an infection from the  
Ross River virus” – Tr. 16.5.2022 p. 54.  
302. When Ms Fraser put it to Dr Navin that the Applicant complained of Ross River Virus symptoms in late  
February 2020, Dr Navin replied that if “she were to have been infected in February, in April she would  
have had IgG – Tr. 16.5.2022 p. 55.”  
303. Quite properly, Dr Navin, under further questioning, testified: “I’m sorry, she had symptoms but they were  
not proven to be symptoms of Ross River…” – Tr. 16.5.2022 p. 55.  
304. Despite being subjected to aggressive cross-examination by Ms Fraser, Dr Navin remained resolute in  
providing to the Tribunal consistent, logical and evidence-based testimony.  
305. Later, Ms Fraser challenged Dr Navin’s opinion that the laboratory tests ordered by Dr Gover in April 2020  
did not support the proposition that the Applicant was infected in February 2020. In so doing, Ms Fraser  
questioned Dr Navin on what medical literature he relied upon. In response, Dr Navin referred to “the well-  
established scientific basis for the development of immunity” which included the Farmer and Suhrbier  
article – Tr. 16.5.2022 p. 59.  
306. Importantly, the following exchange then occurred – Tr. 16.5.2022 pp. 59 – 60:  
“Is that the only research document you relied upon?---With all due respect, ma’am, Ross River  
virus is not a rare or unusual condition. It’s well-established, it’s well understood. There is a well-  
established methodology and understanding in terms of the diagnosis and treatment of the disorder.  
There is no rarity or difficulty. This is a condition which is well recognised in the Australian context in  
particular. Therefore, there’s no need to make reference to or to draw upon other sources of  
information. This is standardised information with medical experience. There is no need to make  
further reference. The article to which Dr Gover referred encapsulates, quite simply and correctly,  
the nature of Ross River and requires no further amplification.  
PAGE 54 OF 62  
Now, could I suggest to you that in your report, you’ve not considered Ms Farrow-Smith’s complaint  
about mosquitos being present and biting in the vicinity of flooded rivers in about February 2020?---  
With all due respect to Ms Farrow-Smith, if she had attended the assessment, then I could have  
considered that. She did not. I could only refer to the material on which the claim was used and  
forwarded to me. And perhaps forwarded to Ms Farrow-Smith as part of the process.  
You agree that your report doesn’t consider the scenario where there’s an onset of symptoms on 28  
February?---That is a statement made by the lady on paper. I haven’t seen her to talk to her about  
that. Symptoms arise from lots of different conditions. But, in specific reference to symptoms in  
relationship to Ross River change, the change in her immunity and the absence of prior immunity  
excludes, on the basis of the standardised data and scientific experience, excludes infection in  
February. And with the changes that occurred in April are related to conditions of the disorder of the  
Ross River that she acquired in March.”  
307. As will be seen, both Dr Navin and Professor Korman, when questioned by Ms Fraser about the timing  
sequence for the development of the various antibodies referred to, pointed out that Ross River Virus is not  
a rare disease and has been the subject of considerable medical research and numerous learned articles.  
The timing sequence outlined above, according to both Dr Navin and Professor Korman, is well understood  
and accepted by medical practitioners. The Tribunal has no reason to doubt that this is the case, and no  
evidence was presented to the Tribunal that would cast any serious doubt about the timing sequence relied  
upon by Dr Navin and Professor Korman.  
308. In his report of 13 May 2022, Professor Korman dealt specifically with the proposition advanced by Dr  
Gover that the Applicant experienced a “slowed response” to Ross River Virus infection – Exhibit 10:  
Ms Farrow-Smith did not fully seroconvert to IgG antibodies until the 5th February 2021, that  
is IgM negative/IgG positive, which reflected the slowed response of her immune system to  
this infection.  
Comment: Seroconversion is defined as conversion from IgG not detected to IgG detected, and this  
was demonstrated on 24 April 2020. As expected, RRV IgG remains detected (and would be  
expected to remain detectable indefinitely). RRV IgM was still detected in June 2020, but not  
detected in February 2021, again as would be expected. RRV IgM is able to be detected before the  
detection of RRV IgG, but IgM levels usually drop below the level of detection after 1-3 months.  
There was no evidence of a ‘slowed response’ to the Ross River virus infection.”  
309. When questioned by Mr Clark, Professor Korman testified that the various blood tests conducted on the  
Applicant produced results “that’s entirely consistent with what you’d expect” – Tr. 17.5.2022 p. 76.  
310. Mr Clark drew to Professor Korman’s attention the article by Lucas and Qiao. Professor Korman’s response  
has been set out above. However, for present purposes, Professor Korman testified that he did not “think  
there’s any evidence in this case of a slowed response” – Tr. 17.5.2022 p. 77.  
311. Under cross-examination by Ms Fraser, Professor Korman testified that he was not sure “what a slowed  
response means”, but if it meant a slow detection of IgG antibodies, that was not the case as they were  
detected on 24 April 2020. When pressed if that was a slowed response, if the Applicant was infected in  
February 2020, Professor Korman re-iterated that IgG antibodies “almost always” are detected about 10  
days after symptom onset – Tr. 17.5.2022 p. 82.  
PAGE 55 OF 62  
312. Professor Korman explained that a slowed immune response can occur with people having very low  
immune systems who may not develop antibodies, or only develop them slowly, but he did not think “that’s  
in this case though” – Tr. 17.5.2022 p. 82.  
313. Ms Fraser drew Professor Korman’s attention to the Flexman et al article, and, in particular, to the following  
passage – Exhibit 13 p. 162:  
“For RRV, IgG nearly always appears within 10 days of illness onset, although occasionally it can be  
delayed for a month or more (unpublished data).”  
314. Professor Korman agreed with that statement and noted – Tr. 17.5.2022 p. 84;  
“In particular, the use of the word occasionally. It would be most unusual for that to occur.  
… it almost always occurs within 10 days of onset. You know, occasionally, you know, rarely, a few  
percent of cases might occur after that.”  
315. Ms Fraser referred Professor Korman to an article that was footnoted by Flexman et al as supporting the 10  
day IgG onset proposition, namely Smith et al, ‘Seriological responses to Ross River virus and Barmah  
Forest virus infections [abstract]’, and asked if that was his sole source for that proposition. Professor  
Korman replied: “No, I think that’s accepted in the scientific literature” – Tr. 17.5.2022 p. 85.  
316. Ms Fraser subsequently asked further questions of Professor Korman, but he re-iterated the opinions  
expressed above, namely, that the timing sequence he opined was reflected in the medical literature and  
the views he expressed were not based on a single article or on a survey of a limited number of persons  
who had suffered Ross River Virus.  
317. The thrust of Ms Fraser’s submissions is predicated on the Applicant first experiencing symptoms of Ross  
River Virus on or about 28 February 2020. Dr Gover’s slowed response thesis is also predicated on that  
assumption.  
318. It should be noted that the Applicant’s claimed symptoms of 28 February 2020 have only been corroborated  
by her partner, Mr D’errey. Importantly, Dr Gover did not treat the Applicant on 28 February 2020, and did  
not, in fact, examine her until early May 2020. His thesis about slowed response is, therefore, based  
entirely on the Applicant’s self-reporting.  
319. We do not, as we noted earlier, draw any adverse inferences against the Applicant because she only  
obtained medical assistance on 6 April 2020. As the Applicant noted in her statement, her local doctor’s  
surgery only began accepting patients in April 2020, and presumably, was closed or only semi-operational  
during most of March 2020 due to COVID-19 – Exhibit 4 para 84.  
320. Having regard to the evidence presented, we make the following factual findings:  
(a)  
the Applicant had, prior to 2020, never been infected with Ross River Virus – Exhibit 4 para 31;  
PAGE 56 OF 62  
(b)  
(c)  
(d)  
(e)  
the Applicant was bitten by mosquitoes on 14 February 2020, whilst filming floods at Coraki and  
Woodburn for her employer, the ABC – Exhibit 4 para 51;  
on the evening of 26 February 2020, whilst attending a function in Bryon Bay, she felt unwell –  
Exhibit 4 paras 64 – 65;  
on 28 February 2020, her last day at work before going on long service leave, she felt “pretty bad” –  
Exhibit 4 para 66; and  
the Applicant was suffering body aches and pains and was taking Panadol and Nurofen to relieve  
her symptoms. She spent most of the time in bed – Exhibit 4 paras 71 – 72.  
321. There is no medical evidence before us as to the duration of the Applicant’s illness, or whether that illness  
was, in fact, Ross River Virus. Further, the only third-party evidence presented that assists the Applicant’s  
case that she was bedridden from 28 February 2020 is that of her partner Mr D’errey.  
322. In contradistinction, we have the surgery notes of Dr Hannah who first examined the Applicant on 6 April  
2020, and who took a blood sample which confirmed she was then suffering from Ross River Virus.  
323. The surgery consultation notes of 9 April 2020 taken by Dr Hannah report that the Applicant informed him  
that she “was down in yamba and got snmashed [sic] by mosquitoes” – Exhibit 1 T22 p. 199.  
324. We have no reason to doubt the accuracy of the notes taken by Dr Hannah, and observe that Dr Gover, in  
his report of 7 July 2020, refers to Dr Hannah’s surgery notes and does not dispute their accuracy – Exhibit  
1 T8 p. 121.  
325. Next, we have the evidence of Dr Navin and Professor Korman. As previously noted, we found both  
gentlemen to be impressive and objective witnesses. Both Dr Navin and Professor Korman were adamant  
that the timing of Ross River Virus infection can be estimated on the timing of when IgM and IgG is  
detected in paired Ross River Virus serology tests. Further, Professor Korman opined that he was unaware  
of any evidence of varying degrees of seroconversion existing in the general population – Exhibit 10.  
326. Professor Korman opined that Ross River Virus IgM is usually able to be detected four days following the  
onset of symptoms, and that onset followed an incubation period of between 7 – 9 days. Further, Ross  
River Virus IgG almost always appears within 10 days of the onset of symptoms, and remains detectable  
indefinitely, whereas IgM usually drop below detectable levels after 1 – 3 months.  
327. Based on the results of the paired Ross River Virus serology of 7 and 24 April 2020, Professor Korman  
opined that the Applicant’s infection was acquired no earlier than 19 – 21 March 2020 and no later than 25  
– 27 March 2020 – Exhibit 10.  
PAGE 57 OF 62  
328. This timing estimate is in accord with Dr Navin’s opinion that the Applicant’s “exposure to the virus would  
have occurred on or about the second week of March” – Exhibit 1 T18 p. 159.  
329. Both Dr Navin and Professor Korman were subjected to vigorous and lengthy cross-examination by Ms  
Fraser. Professor Korman, in particular, was subjected to detailed cross-examination about the academic  
literature which he relied upon and whether the timing estimates for Ross River Virus were, in fact, based  
on reliable, contemporary and settled medical knowledge. Having listened to Professor Korman’s testimony  
and perused the literature that was admitted into evidence, we are satisfied that both Dr Navin’s and  
Professor Korman’s timing estimates are based on reliable, accepted and medically proven data.  
330. The clear weight of medical evidence disproves the thesis advanced by Dr Gover and submitted by Ms  
Fraser that the Applicant was infected with Ross River Virus in February 2020 and suffered a slowed  
immune response. For varying reasons, both Dr Navin and Professor Korman convincingly rejected that  
thesis.  
331. Ms Fraser and Dr Gover invite the Tribunal to accept the Applicant’s self-reporting of her condition in  
February and March 2020, and to further accept that she had a slowed immune response. The suggested  
slowed immune response is not based on medical science (other than Dr Gover’s opinion), but rather  
involves ex post facto rationalisation of her blood tests and further involves the Tribunal attempting to  
reconcile those tests with the Applicant’s apparently contradictory self-reporting. Even then, Ms Fraser  
invites the Tribunal to reject the accuracy of Dr Hannah’s surgery notes that report that the Applicant told  
him that she had been “smashed” by mosquitoes in Yamba whilst visiting her mother. In short, the  
Applicant’s case is built on conjecture, and is predicated on the medically unproven argument of slowed  
immune response.  
Conclusion  
332. The Tribunal agrees with Mr Clark’s submission that Dr Navin and Professor Korman are two well  
credentialed experts whose evidence comports with the present scientific literature and the state of current  
medical knowledge – ROS para 40.  
333. Mr Clark drew the Tribunal’s attention to a decision of the New South Wales Court of Appeal, E.M.I  
(Australia) v Bes (1970) 44 WCR 114. His Honour, Herron CJ, made the following observations (at 119):  
“It seems to me that that bears out what I have concluded is the correct principle to apply, namely,  
that it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from the  
medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical  
science may say in individual cases that there is no possible connexion between the events and the  
death, in which case, of course, if the facts stand outside the area in which common experience can  
be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is  
prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay  
evidence may decide that it is probable. It is only when medical evidence denies that there is any  
such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It  
PAGE 58 OF 62  
may be, and probably is, the case that medical science will find a possibility not good enough on  
which to base a scientific deduction, but courts are always concerned to reach a decision on  
probability and it is no answer, it seems to me that no medical witness states with certainty the very  
issue which the judge himself has to try.”  
334. Mr Clark also drew the Tribunal’s attention to the Tribunal determination of White and Military Rehabilitation  
and Compensation Commission [2017] AATA 1555 (White).  
335. That determination involved the application of the principles enunciated by the High Court in Adelaide  
Stevedoring Company Limited v Forst (1940) 64 CLR 538. His Honour, Rich ACJ, made the following  
observations (563 – 564):  
“In my opinion the conclusion of the Full Court is correct. I am greatly impressed by the sequence of  
events. The deceased, who had arrived at an age when arterio-sclerosis and atheroma afflict  
mankind, was a stevedore's labourer. On the day of his death he climbed up the jib of the crane and  
lay prone on the crane with his arms outstretched, trying to replace a wire which had come off the  
gin. He failed to do so, returned to the deck and for some time, with his arms in a position raised  
over his head, helped in holding up a wire rope. Immediately after performing this task he collapsed.  
What weighs so much with me is the fact that he was brought to a standstill, as an ordinary lay  
observer would think, by the exertion he had undergone: Cf. Partridge Jones and John Paton Ltd. v.  
James. I do not see why a court should not begin its investigation, i.e., before hearing any medical  
testimony, from the standpoint of the presumptive inference which this sequence of events would  
naturally inspire in the mind of any common-sense person uninstructed in pathology. When he finds  
that a workman of the not-so-young standing attempts in a posture calculated by reason of the  
pressure on the stomach to disturb or arrest the rhythm of the heart a very strenuous task not  
forming part of his ordinary work and then collapses almost immediately and dies from a heart  
condition, why should not a court say that here is strong ground for a preliminary presumption of fact  
in favour of the view that the work materially contributed to the cause of death? From this standpoint  
the investigation of physiological and pathological opinion shows no more than the current medical  
views find insufficient reason for connecting coronary thrombosis with effort. Be it so. That to my  
mind is not enough to overturn or rebut the presumption which flows from the observed sequence of  
events. If medical knowledge develops strong positive reasons for saying that the lay common-  
sense presumption is wrong, the courts, no doubt, would gladly give effect to this affirmative  
information. But, while science presents us with no more than a blank negation, we can only await  
its positive results and in the meantime act on our own intuitive inferences.  
336. As was pointed out in White, having considered the recent High Court case of Amaca Pty Ltd v Ellis (2010)  
240 CLR 111, to establish causation in the absence of settled and established medical science, the proven  
facts must be sufficiently strong and consistent to support a definite inference of causation (at [65]).  
337. In White, there was no settled medical science on the link between exposure to chromate and the  
development adenoid cystic carcinoma (ACC). In particular, then extant medical science did not say that  
there was no link between chromate exposure and the development of ACC.  
338. In this matter, the state of medical science is quite different. According to Farmer and Suhrbier, there are  
approximately 4,000 cases of Ross River Virus in Australia each year – Exhibit 1 T9 p. 128. Ross River  
Virus was most probably first recorded in 1928 when there were two reports from Hay and Narrandera of  
an “unusual epidemic”. Intermittent outbreaks occurred in the following years and, in 1959, mosquitoes  
PAGE 59 OF 62  
trapped beside the Ross River in Townsville and subsequent testing of persons infected by the virus, led to  
the recognition of Ross River Virus – Exhibit 14 pp. 910 – 911.  
339. There is an enormous body of medical literature on Ross River Virus. It is well known, well documented  
and well researched. The medical science underpinning the existence, nature and timing of the antibodies  
IgM and IgG is also firmly based and not subject to competing scientific conjecture. The Tribunal has been  
greatly assisted by the medical science presented, as it has enabled us to assess the evidence in an  
objective and secure fashion.  
340. Medical science does not deny that there can be slowed immune reaction. Medical science does not deny  
that the Applicant may have contracted Ross River Virus in February 2020 and, for whatever reason,  
demonstrated a slowed immune response. Professor Korman, in particular, quite properly conceded that  
there may always be an isolated case that does not fit the settled and accepted antibody time sequencing  
which he, Dr Navin and the numerous other medical experts outlined. In support of this outlier hypothesis,  
Ms Fraser drew the Tribunal’s attention to the Lucas and Qiao article. We specifically note that we have not  
reached our conclusion by rejecting the possibility of a slowed immune reaction or that such a reaction may  
not be present in some persons for various medical reasons.  
341. In reaching our conclusion, we make the following factual findings:  
(a)  
(b)  
(c)  
(d)  
(e)  
there is no record of the Applicant informing Dr Hannah on either 6, 9, 23 or 30 April 2020 that she  
had been suffering from debilitating illness since 28 February 2020;  
apart from Mr D’errey, there is no other evidence before the Tribunal that would support the  
proposition that the Applicant was seriously ill from 28 February 2020 until 6 April 2020;  
there is no evidence that the Applicant’s illness, on or about 28 February 2020, was Ross River  
Virus;  
the Applicant informed Dr Hannah that she had been “smashed” by mosquitoes in Yamba in March  
2020; and  
Dr Gover repeated this version of events at Yamba in his report of 7 July 2020 without contradicting  
it.  
342. We conclude that the Applicant’s illness, on or about 28 February 2020, was not as a result of Ross River  
Virus.  
343. We further conclude that the medical science presented to the Tribunal, in the form of the Ross River virus  
serology of 7 and 24 April 2020, conclusively support the theses of Dr Navin and Professor Korman that the  
PAGE 60 OF 62  
Applicant contracted Ross River Virus at some time after the first week of March 2020 and whilst she was  
on long service leave.  
344. In reaching this conclusion, we also find that there is no medical science presented to us, other than views  
of Dr Gover, that would support a finding of slowed immune reaction in the Applicant. For different reasons,  
both Dr Navin and Professor Korman gave compelling testimony that convinced the Tribunal that there was  
no secure medical evidence that would support such a hypothesis. Insofar as Dr Gover’s support for the  
hypothesis is based on his belief that the Applicant was infected by Ross River Virus in February 2020, and  
which belief is based entirely on the Applicant’s self-reporting, we prefer the opinions expressed by  
Dr Navin and Professor Korman. We note that the opinions expressed by Dr Navin and Professor Korman  
are based purely on proven medical science and are not based on subjective considerations.  
345. We, therefore, conclude that the Applicant’s ailment, Ross River Virus, was not contributed to, to a  
significant degree, by her employment with the ABC.  
DECISION  
346. The decision under review is affirmed.  
PAGE 61 OF 62  
I certify that the preceding 346  
(three hundred and forty-six)  
paragraphs are a true copy of  
the reasons for the decision  
herein of Deputy President J  
Sosso and Member L Benjamin  
....................[SGD]................................  
Associate  
Dated: 26/09/2022  
Date of Hearing:  
16 and 17 May 2022  
Date Final Submission Received:  
13 July 2022  
In-person  
Applicant:  
Counsel for the Applicant:  
Ms Michele Fraser  
Mr Charles Clark  
Counsel for the Respondent:  
Solicitor for the Applicant:  
Mr Maurice Castagnet  
Castagnet Lawyers  
Solicitor for the Respondent:  
Ms Kate Watson  
HBA Legal  
PAGE 62 OF 62  
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