Alicia Kras v Return to Work Corporation of South Australia [2025] SAET 105

(a) in the case of a physical injury - the injury arises out of or in the course of employment and the employment was a significant contributing cause of the injury;

(b) ...

1. Section 7(5) of the Act deems certain attendances by a worker to be a worker's employment. It relevantly provides:

(5) For the purposes of this Act, a worker's employment includes -

(a) attendance at the worker's place of employment on a working day but before the day's work begins in order to prepare, or be ready, for work; and

(b) attendance at the worker's place of employment during an authorised break from work; and

(c) attendance at the worker's place of employment but after work ends for the day while the worker is preparing to leave, or in the process of leaving, the place; and

(d) ...

(e) ...

1. The expression "place of employment" is defined in s 4 of the Act as follows:

"place of employment" means a place where a worker is required to carry out duties of employment and, if the place is a building, includes land within the external boundaries of the land on which the building is situated.

1. Section 7(8) of the Act contains special provisions in respect of journey accidents. It relevantly provides:

(8) An injury that arises out of or in the course of a journey arises from employment if (and only if) -

(a) the journey is undertaken in the course of carrying out duties of employment; or

(b) the journey is between -

(i) the worker's place of residence and place of employment; and

...

and there is a real and substantial connection between the employment and the journey being undertaken at the time of the accident out of which the injury arises.

(9) However, the fact that a worker has an accident in the course of a journey to or from work does not in itself establish a sufficient connection between the accident and the employment for the purposes of subsection (8)(b).

1. The Corporation rejected Ms Kras's claim on the basis that she did not sustain an injury arising out of or during the course of her employment with Torrens Transit, and her employment with Torrens Transit was not a significant contributing cause of any injury she may have sustained, as required under s 7 of the Act.
2. In the Statement of Issues and Contentions that the Corporation filed in these proceedings, it contended that at the time of her fall, Ms Kras had left her place of employment and was in the course of a journey for the purposes of s 7(8) of the Act. I understood it to contend that the journey was not undertaken in the course of carrying out duties of employment, it was a journey between her place of employment her place of residence, and that there was no real and substantial connection between her employment and the journey being undertaken at the time of the fall.
3. The issues that falls for determination in these proceedings are whether the Corporation's contentions are correct.
4. Before discussing the evidence, I need to make some observations about the Depot. It is situated on the north eastern corner of the intersection of North East Road and Tolley Road, St Agnes. The Main Building of the Depot is a few metres back from the frontage of North East Road towards the western end of the Depot. Where the Depot meets North East Road, there is a gate that leads on to that road. I shall refer to this gate as Gate 1. Immediately to the west of the Main Building, is a staff car park area within the Depot. Immediately to the east of that building, is an area where buses can be parked. These are buses that require maintenance or repair. Further east is a steam bay where buses can be cleaned. Further east again, abutting North East Road is the St Agnes Park 'n' Ride Carpark. There is a gate in north western corner of the St Agnes Park 'n' Ride Carpark that leads into the Depot. I shall refer to this gate as Gate 3.
5. It is an agreed fact that the St Agnes Park 'n' Ride Carpark is leased by Torrens Transit.
6. Bus driving involves shift work. Ms Kras said that she usually worked afternoon shifts, which is referred to as the intermediate shift. She said that during a shift, she might be required to drive any one of a variety of different routes. At the commencement of each shift, she would collect a shift folder from the sign-on area located inside the Main Building that contained details of the routes that she was required to travel for the shift.
7. She said that her understanding was that staff had to park in the St Agnes Park 'n' Ride Carpark. She said that during her initial training, it was explained to all the trainees that they were required to park there and that there was no charge for parking there. In her affidavit of evidence, Ms Kras attached a copy of a sign that she said had been placed on a notice board inside the Main Building that read as follows:

STAFF PARKING ST. AGNES

It has been noticed that numerous operators are not parking their cars correctly.

The following must be observed at all times:- AM Peak Broken Portion - Park 'n' Ride AM Straight Shift - Top Car Park. Overflow goes to Park 'n' Ride. Do not Park illegally or on Admin Car Park Reserved Spots.

Intermediate Shifts - Park 'n' Ride

PM Peak Broken Portion - Park 'n' Ride PM Shift - Top Car Park. Overflow goes to Park 'n' Ride.

Do not Park illegally or in Admin Car Park Reserved Spots.

It would be greatly appreciated if you don't park in spots allocated to Wilsons Security, TT Staff Cars and Office Personnel.

Staff not adhering to the above procedures may face a disciplinary action

Thank You for your Anticipation

St Agnes Team.

1. Ms Kras said that she had broken her left wrist at work in 2022, following which she returned to work on light duties for about three months. She said that her light duties involved parking duties that required her to stand at the Depot entrance driveway and as each vehicle entered to park, she cross checked the vehicle registration with a list that she had been given. She said that if the vehicle was not on the list, she had to turn it away.
2. Ms Kras spoke of having a discussion with the Operational Manager at that time, Reno Ballaco, during which he stressed that it was important that people followed the Notice.
3. Ms Kras said that when she first commenced work at the Depot, staff were able to access the St Agnes Park 'n' Ride Carpark via Gate 3. She said that sometime in late 2019, the gate broke and a padlock was placed on the gate, such that access to the St Agnes Park 'n' Ride Carpark was no longer possible by that means. She said that from time to time the gate was repaired, but as of 11 July 2024, the gate was broken and padlocked such that the only way she could access the St Agnes Park 'n' Ride Carpark was to use Gate1, and then walk along the footpath adjacent to North East Road, before entering the carpark.
4. Ms Kras said that on Thursday 11 July 2024, she finished her shift around 5.45 pm, parked her bus, and walked towards the Main Building. She said that she then went to her locker, talked to some other drivers, and checked the roster for her shifts for the following day. She then waited inside the Main Building for her then partner, now fiancé, Phillip Wilson, so that he could walk her to her car. Mr Wilson also works for Torrens Transit. When he arrived, they walked together though the Deport, and Gate 1, before walking along the footpath where she had her fall. She said that at the time she was wearing her work boots and had walked about fifty metres and was at a point where the footpath and the driveway to the St Agnes Park 'n' Ride Carpark merge, with some parts more raised than others. She said that her right foot landed on part of the raised driveway and part of the footpath, and her right ankle rolled, causing her to fall backwards heavily on her right hand and knee.
5. In cross-examination, Ms Kras accepted that she had never been told that she had to park in the St Agnes Park 'n' Ride Carpark. She also agreed that the gates leading into the Depot, such as Gate 3, are locked to stop members of the general public gaining access to the Depot.

1. Ms Bosboom, counsel for Ms Kras, submitted that the circumstances of Ms Kras's injury fell squarely within s 7(5)(c) of the Act, namely that she was attending her place of employment, but after work ends for the day, while she was preparing to leave or was in the process of leaving the place.
2. She submitted that the footpath should be seen as her place of employment for three reasons. First, because of the sign directing her to park at the St Agnes Park 'n' Ride Carpark. Second, because the St Agnes Park 'n' Ride Carpark is leased by Torrens Transit. Third, because the existence of Gate 3 contemplated a direct means of access from the Depot to the carpark and, had it been operational, Ms Kras would never have been on the public footpath in complying with her employer's direction to park in that car park.
3. Mr Colgrave, counsel for the Corporation, submitted that the evidence does not support a finding that Ms Kras was obliged to park her car at the St Agnes Park 'n' Ride Carpark. He submitted that it was no more than a facility provided to the bus drivers to park closer to the Depot.
4. He submitted that the notice regarding parking was to warn people not to park in the admin car parks and that in no sense was it a direction that Ms Kras must park in the Park 'n' Ride.
5. As to the lease of the St Agnes Park 'n' Ride Carpark, he submitted that it should be seen as primarily the lease of facility to enable members of the public who might be using Torren Transit buses to conveniently park, rather than an extension of the place of employment. He noted that "place of employment" is defined in s 4 of the Act and submitted that the St Agnes Park 'n' Ride Carpark does not meet that definition.
6. Having noted that Ms Kras agreed that the gates leading to the Depot are locked to stop members of the public gaining access to the Depot, he submitted that this indicates the boundaries of the place of employment. He contended that as soon as Ms Kras passed through Gate 1, she left the boundaries of the place of her employment.
7. Mr Colgrave referred me to the judgment of the Full Court in Wheeler v State of South Australia[1] (Wheeler). That case concerned a journey accident. It involved a police officer from South Australia who went to Mount Isa in Queensland, to help and assist as a lecturer and a trainer at training sessions being run by the police forces in that area. He had been accommodated in a local motel, and he was there for a week to present the course. On the last Friday of the course, there was a debriefing session at the Mount Isa Police Station which finished at about 4.30pm. Following this, the participants went to the adjacent police club to have some drinks and to socialise which was followed by a further debrief. All were free to leave at any time. The claimant chose to stay at the police club until 11.00pm and then he left with others, intending to return to the motel where he was staying. En route the group went to a pizza bar. Whilst waiting outside the pizza bar the claimant was assaulted by a member of the public and suffered injuries. Mr Colgrave submitted that a factor relevant to the finding that the claimant's injuries did not occur in compensable circumstances was the fact that he had finished his actual work sometime earlier and when injured was on his own time.
8. Having noted that Ms Kras had finished work some time before she fell on the public footpath, he sought to obtain support from Wheeler in submitting that Ms Kras's injuries were not compensable He noted that the Full Bench in Wheeler in holding that the injuries sustained were not compensable, observed that the claimant "had no further obligations as an instructor to SAPOL or NCTC." He submitted that the same was true for Ms Kras when she was walking along the public footpath towards the St Agnes Park 'n' Ride Carpark. He contended that once she left the gate of the Depot, she had the same relationship with the Depot as any ordinary member of the public walking on a public footpath towards a carpark that was open to the public, and that she had left her place of employment and had begun her journey home.

1. There was a time over the course of the history of workers compensation in this State when in the context of journeys between home and work, little turned on the definition of "place of employment".
2. For example, prior to 1994, under the Workers Rehabilitation and Compensation Act 1986 (the WR&C Act) the relevant provisions of that Act which dealt with conditions under which a disability were compensable, provided, amongst other things, that the employment of a worker included a journey between the worker's residence and place of employment and attendance by the worker at the worker's place of employment after concluding work for the day.
3. Under the WR&C Act as it then was, the definition of "place of employment" as contained in s 3 of that Act was sparse. It merely stated that it included a "place of pick-up", which in turn was defined as meaning "a pre-arranged place at which employers select workers for employment". As McCusker DPJ observed in WorkCover Corporation (Just Cuts Pty Ltd) v Leanne Christie[2] (Christie) in the context of journeys, no more elaborate definition was required, because "it had not mattered where the place of employment ended and the journey began... because both were covered".[3]
4. All of that changed with the enactment of the Workers Rehabilitation and Compensation (Administration) Amendment Act 1994 (the WR&C Amending Act). It limited the circumstances in which injuries sustained in journey accidents would be compensable,[4] and that in turn made it necessary the create a more prescriptive definition of "place of employment". Unlike the situation as it was before, it now mattered when a worker ceased to be at the place of employment, and when the journey home had begun. These provisions are virtually identical to those under consideration in this case.
5. When legislation such as this prescribes the right to compensation by reference to whether at the time of the injury the worker has arrived or ceased to be at a defined place, arbitrary results can ensue.
6. It is sufficient to refer to Vickers v Jarrett Industries Pty Ltd[5] (Vickers). In that case the worker had been driven home from work by a friend. Because it was raining, the friend drove into the driveway of the worker's home and having got out of the car, the worker fell in the driveway. The issue was whether the worker was still on the journey between work and her place of abode when she fell. If she had already arrived at her place of abode, her case would fail.
7. In upholding the claim in Vickers, Bray CJ said:

... I think that the force of the preposition 'between' has been underestimated. I agree that the governing concept is the concept of a journey but not necessarily the whole of the journey but only so much of it as is between the two areas. What is wholly inside one area cannot in my view be between that area and another area. What is between two areas is exclusive of both: Reg v Fisher [1839] EngR 221; (1837) 8 C & P 612 (173 ER 641). I agree with respect with what Smithers J said in Fillipone v Abel Drainers Pty Ltd (1969) 14 FLR 456, at p 461.

In a case like this it is necessary for the appellant to devote some detailed attention to the location of the boundaries of his destination in order to show that they do not encompass the place where he was injured. For although, when injured, he may still have been travelling, the section may not avail him if he is travelling within the confines of the place which is identified as his destination.

The definition of 'journey' in sub-s 6 which I have quoted above emphasizes the concept of passage between two places.

Therefore, though I agree with much of Judge O'Loughlin's analysis of the concept of journey, I am of opinion that it is not the whole of the relevant journey which is covered by s 9(2)(a) but only so much of it as is between the place of abode and the place of employment. It follows that I agree that there is involved in the resolution of the question before us a boundary test of some kind.[6] (Emphasis added mine)

1. And so it is here. The delineation of what is the worker's place of employment and the commencement of a journey between a worker's place of employment and place of residence involves a boundary test of some kind.
2. In this case, when she injured herself, Ms Kras had left the place where she carried out the duties of her employment and had passed beyond the land within the external boundaries of the land on which the Main Building was situated. The evidence does not clearly establish that she had arrived the St Agnes Park 'n' Ride Carpark when she fell, but even if it had, that carpark was not a place where she was required to carry out duties of employment.
3. To hold that her injuries were nonetheless compensable as having occurred at her place of employment, because she had to walk along a public footpath to access a carpark leased by Torrens Transit that she had been encouraged to use, and that she might have been at the edge of that carpark when she injured herself, would require giving place of employment an extended meaning.
4. Such an approach was urged upon the Worker Compensation Tribunal in Jahic v Holden By Design.[7] That case concerned a claim for compensation under the WR&C Act. Holden By Design was wholly within the former Holden plant at Elizabeth. On 10 March 1999, after he finished work for the day, Mr Jahic drove his car out of the Holden car park to go home. He passed through the gate and drove out onto a road that gave access to Grainger Road, Elizabeth. Whilst he was on that road, ie the access road, he lost control of his vehicle and collided with trees and was injured. The access road was not owned by his employer and the accident occurred outside the limits of the employer's land, which was fenced. The access road was used by Holden By Design employees and Holden employees to gain access to their respective places of employment. It was common ground that the road was also used by members of the public.
5. The worker's counsel argued that "place of employment" is a concept wider than that of "premises of the employer" and extended the location to that of ingress and egress which were necessary for a worker to access the employer's actual physical premises. It was argued that because the worker was egressing from his employer's premises in driving out on the egress road to Grainger Road, he was at "the place of employment" when the motor vehicle accident occurred. In rejecting that submission, Thompson DP said:

There is no support at all for the proposition that the "place of employment" per se extends to ingress and egress to the employment. The reason for this is simple. It is not what the Act says. When ingress and egress falls outside of the boundaries for consideration it will usually be a s 30(5) case unless the location of the incident is one where "duties of employment" are being undertaken.

...

On the facts of this case it is quite clear that the worker had left the place of employment. Furthermore the worker was doing nothing that could be construed as carrying out the duties of employment (and indeed he specifically says so ie was going home) when he was driving his car on the road.[8] (Emphasis mine)

1. I respectfully agree. The definition of place of employment in s 4 of the Act means what it says. In this case, Ms Kras had passed through the external boundary of the Depot and when injured, she was no longer at the place of her employment and had commenced her journey home.
2. It can be seen that in respect of journeys between a worker's place of residence and place of employment for injuries sustained during the course of such journeys to be compensable under the Act either the journey must have been undertaken in the course of carrying out duties of employment, or there is a real and substantial connection between the employment and the journey.
3. In connection with the first of these alternatives, in Wheeler,[9] White J, after referring to the judgment of Doyle CJ in TransAdelaide v Karanicos,[10] said:

Thus, the concept of carrying out duties of employment has at its heart the doing of something which workers may be required to do, either because it is the activity for which they are employed, or because it is within the power of control of the employer to direct that it be done. In addition, a journey which is reasonably incidental to one or other of these circumstances may amount to the carrying out of a duty of employment.[11]

1. I find that Ms Kras was not directed to, nor was she required to, park in the St Agnes Park 'n' Ride Carpark. When she had her fall, she had finished work for the day. There is no evidence that suggests that Torrens Transit had the right to exercise any control over how she conducted her journey home. The evidence does not support a finding that in undertaking her journey home, Ms Kras was carrying out duties of her employment
2. I now turn to consider the second of these alternatives. It can be seen that 7(8)(b)of the Act speaks of a real and substantial connection between the employment and the journey being undertaken at the time of the accident out of which the injury arises and s 7(9) of the Act speaks of a connection between the accident and the employment.
3. In Turner v Return to Work Corporation of South Australia/ABA Plumbing and Gas Pty Ltd,[12] I expressed the opinion that s 7(9) adds to the test of compensability prescribed by s 7(8). I said:

In my opinion, the combined effect of ss 7(8)(b) and 7(9) is that the 'real and substantial connection' test under the current Act is a more stringent test than the test under the repealed Act. It requires not only for there to be a real and substantial connection between the employment and the journey, but it also requires a finding of a real and substantial connection between the employment and the accident.[13]

1. In Mills v Return to Work Corporation of South Australia,[14] (Mills) Kourakis CJ explored what the expression 'real and substantial connection" means. He said:

On a proper construction of s 30(5) of the WRCA, the phrase 'a real and substantial connection' cannot be limited to a causal one. What lesser connection, falling short of causation, might satisfy the requirement?

Most obviously, there may be a real and substantial connection between employment and an accident if the employment has substantially increased the risk of an accident of a kind in which the worker was involved, even if the evidence falls short of satisfying the tribunal of fact that the employment contributed to the occurrence of the accident.[15]

1. On appeal in Turner v Return to Work Corporation of South Australia and ABA Plumbing and Gas Pty Ltd (Turner)[16], Calligeros DPJ noted that I had made a finding that there was no real and substantial connection between the employment and the journey. He then added that because on any view such a connection had to be established for s 7(8)(b) of the Act to apply, it was not necessary to decide what effect the different connections required by s 7(8)(b) and s 7(9) have.[17]
2. The other member of the majority in Turner dismissing the appeal, Rossi DPJ, said:

Irrespective of whether the amendments before this Full Bench have the effect of a more stringent test, whether an accident in the course of a journey has occurred in compensable circumstances is to be determined by whether the evidence establishes a real and substantial connection between the employment and the journey being undertaken at the time of the accident out of which the injury arises and that will require evidence which establishes a sufficient connection between the accident and the employment.[18]

1. I do not read anything in the judgments of Calligeros PDJ and Rossi DPJ in Turner that is inconsistent with the proposition that for a case to succeed under s 7(8) of the Act, the evidence must establish a real and substantial connection between the employment and the journey being undertaken at the time of the accident out of which the injury arises, and the evidence must establish a sufficient connection between the accident and the employment, and that the sufficiency of that connection is in the sense discussed by Kourakis CJ in Mills. That is, both must be made out for the claim to succeed.
2. In this case, in my opinion, neither has been made out. In The Corporation (The City Swim School) v Jeanette Anne Rowberry,[19] I said that the words 'real and substantial connection' contemplate something more than simply 'but for', in the sense that "it would require something more than being able to say, that had it not been for the worker's employment, the accident would not have happened". By parity of reasoning, I would hold that something more is required than being able to say, that had it not been for the worker's employment, the journey would not have occurred. This is not a case where Torrens Transit had stipulated the time at which Ms Kras was obliged to undertake her journey or the route by which it was to be undertaken. She could have made arrangements to wait at Gate 1 and have Mr Wilson collect her car and drive it to her. In my opinion, the connection between her employment and the journey is not real and substantial.
3. As to the second limb, there is nothing about Ms Kras's employment that establishes that it substantially increased the risk of an accident of a kind in which she was involved when she fractured her right wrist on 11 July 2024.
4. In summary, the evidence does not establish a real and substantial connection between Ms Kras's employment and the journey being undertaken at the time of her accident nor a sufficient connection between the accident and her employment.
5. In conclusion, none of the potential gateways to compensation under the Act that might be available in a case such as this have been met. Ms Kras's injuries therefore did not occur in compensable circumstances under the Act and the rejection of her claim must be upheld.
6. I do not pretend that the outcome is a satisfactory one. If Ms Kras had tripped and fallen before she passed through Gate 1, she undoubtedly would have been at her place of employment and her injuries would have been compensable. To adopt the words of Bray CJ In Vickers[20], it is not clear to me why injuries sustained in a fall just inside the gate of the Depot should be compensable, while injuries sustained in a fall just outside of it are not.[21] Be that as it may, that is the law.

2 I grant the parties liberty to apply as to costs.

[1] (2012) 114 SASR 111.

[2] [2020] SAWCT 22.

[4] Beckwith v The Workcover Corporation [1995] SAWCAT 150.

[5] (1975) 15 SASR 525.

[7] [2001] SAWCT 9.

[10] [1996] SASC 5536.

[11] Wheeler v State of South Australia Ibid at [55].

[12] [2019] SAET 177.

[14] [2020] SASCFC 36.

[16] [ 2021] SAET 45.

[19] [1996] SAWCAT 1.