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23.5.2 Is the ADF posting cycle relevant to liability?
ADF members are subject to posting cycles which may transfer their place of residence and work from an area in Australia where Ross River or Barmah Forrest virus is absent, to a place where it is endemic. It is common for clients claiming compensation for these illnesses to assert that they would not have been residing in an area where the disease is endemic, had it not been for their employment. However, S7(2) deals with diseases endemic in a community thus:
2)Where an employee contracts a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before the symptoms of the disease first become apparent shall, unless the contrary is established, be taken for the purposes of this Act, to have contributed in a material degree to the contraction of the disease if the incidence of the disease among persons who have engaged in that employment is significantly greater than the incidence among persons who have engaged in other employment in the place where the employee is ordinarily employed.
The key part of this subsection is: '... if the incidence of the disease among persons who have engaged in that employment is significantly greater than the incidence among persons who have engaged in other employment in the place where the employee is ordinarily employed.'
Firstly, the place where the person was posted at the time of the infection, is the 'place where the employee is ordinarily employed', regardless of the fact that a member may be posted several times during an ADF career.
Naturally this relates to postings, not temporary transfers for a course etc. or deployments into field exercises within an Australia: see below for discussion of this circumstance.
Secondly, the Act requires the incidence of disease to be higher for the employee's employment type, than it is for other workers performing other work but in the same area. This means that the client must demonstrate that the general environmental risk of infection is greater for an ADF member of his/her work stream than for a member of the general population.