JURISDICTION: South Australian Employment Court - Return to Work Act 2014 - Appeal

JUDGMENT OF: The Honourable President Justice Dolphin

Appeal - Working from home - Authorised paid break and reasons for such - Whether employment was a significant contributing cause of the injury - Place of employment considered - Some evidence at first instance on circumstances leading to injury - Hazard in the workplace - Authorities considered - Answer to the question of law involves both factual and legal findings - Held: per Dolphin PJ and Calligeros DPJ - The reasoning relied on s 7(5)(b) of the RTW Act and the fact that the injury occurred at the applicant's place of employment to conclude that employment was a significant contributing cause of the injury - Satisfying that requirement goes beyond relying on those provisions of the RTW Act which import a causal or temporal connection with employment - Proceeding remitted to trial judge in conformity with the reasons provided - Held: per Crawley DPJ - Statutory provision to facts as found correctly applied - Appeal should be dismissed.

Vercoe v Local Government Association Workers Compensation Scheme [2024] SAET 91

State of South Australia v Roberts [2018] SASCFC 25

Smith v Australian Woollen Mills Limited [1933] HCA 60; (1933) 50 CLR 504

Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

Power v Return to Work Corporation of South Australia & National Pharmacies [2020] SAET 252

Sorn v Return to Work Corporation of South Australia (Hardkou Pty Ltd) [2025] SAET 31

Bill Williams Pty Ltd v Williams [1972] HCA 23; (1972) 126 CLR 146

Lander v British United Shoe Machinery Co. (1933) 149 LT 395

Lancashire and Yorkshire Railway Co. v Highley [1917] UKHL 509; (1917) AC 352

Upton v Great Central Railway Co. (1924) AC 302

Brooker v Thomas Borthwick & Sons (Aus.) Ltd. (1933) AC 669

Ward v State of SA (Department for Primary Industries and Regions SA (PIRSA)) [2016] SAET 28

Dallimore v Return to Work Corporation of South Australia [2020] SASCFC 115

Dallimore v Return to Work Corporation of South Australia (No. 2) [2021] SASCFC 8

Whimpress v Return to Work Corporation of South Australia [2022] SAET 123

Schinckel v Return to Work Corporation of South Australia [2023] SASCA 32

Return to Work Corporation of South Australia v Wastell [2024] SASCA 98.

On appeal from a decision of Auxiliary Deputy President Magistrate Carrel [2024] SAET 91

1. Should Lauren Vercoe be entitled to workers compensation for the injury that she sustained when she fell over a dog fence, that she had erected in her sunroof doorway, when she was on a coffee break and whilst she was working from home?
2. At first instance, a learned Auxiliary Deputy President concluded that she should.
3. This appeal concerns the correctness of that conclusion in the context of the atypical facts of the case and the relevant provisions of the Return to Work Act 2014 (RTW Act).
4. I have had the benefit of reading the reasons of Deputy President Judge Calligeros which I agree with. As these proceedings will be remitted to the Deputy President, it is important that there be no slippage in positional stances of the parties as previously adopted before and submitted to her. In that regard, I believe it will be of assistance to set out the various statements and concessions that were made by the insurer appellant, then the respondent at first instance, in order to properly frame the arguments that will be put on remittal.
5. For ease of understanding, I will use the acronym LGAWCS for the appellant. Ms Vercoe's employer, the City of Charles Sturt, will simply be referred to as the council.
6. On the issue of Ms Vercoe working from home, the LGAWCS said that point was not particularly important as it was agreed that she asked for, and the council had granted her permission to work from home on the day of the fall - 19 September 2022. It was accepted, the LGAWCS said, that Ms Vercoe was working from home.[1]
7. Regarding whether Ms Vercoe was on an "authorised break" (within the meaning of s 7(5)(b) of the RTW Act), the LGAWCS conceded she was, saying that the coffee break on 19 September 2022 was similar to any authorised break she would have taken had she been at her council workplace.[2]
8. The taking of such breaks, the LGAWCS confirmed, was encouraged and in fact was almost mandated by the council. Accordingly, the LGAWCS accepted that it was fully conceivable that Ms Vercoe was taking a coffee break immediately before her fall.[3]
9. Therefore, the LGAWCS conceded that Ms Vercoe was permitted by the council to be at home to conduct her work; was permitted to take authorised breaks during that work; and that the council encouraged or induced and permitted her to go and get a coffee during such breaks.[4]
10. On the issue of the dog fence, the LGAWCS confirmed that it would not have been in the contemplation of the council for Ms Vercoe to erect such a 60cm high fence across the passageway that she would have had to walk through - from her workstation to her kitchen - to make a cup of coffee.[5] Ms Vercoe's decision to erect that dog fence, the LGAWCS argued, was "a significant contributing cause" of her injury (a reference to s 7(2)(a) of the RTW Act), and as such her injury was not compensable.[6]
11. For instance, had Ms Vercoe been on her authorised break at home and had been walking to her kitchen to make a cup of coffee, but had somehow slipped, fallen and injured herself, the LGAWCS confirmed that such facts would have been within the contemplation of the council and would have been an event within the council's encouragement or inducement and permission. Her falling over the dog fence - which was a significant and unusual thing - was not.[7]
12. Accordingly, the LGAWCS argued, when Ms Vercoe took her authorised break, and walked towards her kitchen to make a cup of coffee, by erecting the dog fence in the place that she had, she had made her activities on that break 'much more hazardous', which ultimately caused her injury.[8]
13. The primary cause of Ms Vercoe's injury therefore, the LGAWCS submitted, was the dog fence, and that fence had nothing to do with her employment.[9]
14. Also, the LGAWCS conceded that the important or influential cause of Ms Vercoe's fall, and her subsequent injury, was her decision to erect the dog fence in the location she had done so. In that regard, the LGAWCS contended, her decision to create 'a clear hazard' caused her injury; that hazard - the dog fence - was not only an important or influential cause of her injury, it was the only cause.[10]
15. With the above established, for the reasons as explained by Calligeros DPJ, these proceedings should be remitted to the Deputy President to

determine the issues pertinent to the second limb of s 7(2)(a) of the RTW Act.

1. This appeal concerns a finding made by a learned Auxiliary Deputy President, that a worker who was injured when she tripped over a pet fence whilst working in her home, sustained a work injury within the meaning of ss 4 and 7 of the Return to Work Act 2014 (RTW Act).
2. The term, "work injury" is defined in s 4 to mean an injury that arises from employment under s 7. Relevantly to this appeal, s 7 provides:

(1) This Act applies to an injury if (and only if) it arises from employment.

(2) Subject to this section, an injury arises from employment if -

(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; and

(b) ...

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

(a) ...; and

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

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

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. The appellant is the Local Government Association (LGA), a body corporate constituted as a public authority with a purpose stated under Schedule 1 of the Local Government Act 1999 of promoting and advancing the interests of local government The respondent, Lauren Vercoe, is employed by the City of Charles Sturt. The Return to Work Corporation of South Australia has intervened in the proceeding as of right pursuant to s 200 of the RTW Act.
2. It is convenient to set out the Auxiliary Deputy President's description of the background to the proceeding:[11]

Background

Ms Verco (sic) has been employed by the City of Charles Sturt (the Council) as an Asset Programmer/Operations Programmer since 2012. While her duties were mainly office-based, from time to time throughout her employment, she was permitted to work from home.

During the times that she was working from home, Ms Vercoe did not receive any direction from the Council about what activities were or were not permitted to be carried out during authorised breaks.

Prior to the COVID-19 pandemic, Ms Vercoe usually took advantage of this workplace flexibility to work from home when her child was unwell or for other life commitments, using a work issued laptop.

In response to the COVID-19 pandemic, to ensure business continuity, the Council introduced various measures including expanding its working from home arrangements. Changes in arrangements made by the Council acted on recommendations or directions of the State Government. Ultimately, working from home arrangements are said to have extended to all council staff.

While Ms Vercoe continued to work from the Council's Woodville office in the early stages of the COVID-19 pandemic, from July 2020 she worked consistently from home and eventually set up a home office in her sunroom, where the accident occurred on 19 September 2022.

[Footnotes omitted]

1. The circumstances in which the respondent was injured were described by the Auxiliary Deputy President in this way:[12]

On 14 September 2022, Ms Vercoe sent a message to Mr Glapa via Microsoft Teams (Teams) seeking approval to work from home on Monday 19 September 2022, as she was looking after a colleague's dog. There is no dispute that Mr Glapa acknowledged her request in a reply that provided tacit approval.

Ms Vercoe deposed that on 18 September 2022, she erected a 60cm high metal pet fence in the doorway of her sunroom for the purpose of keeping the puppy away from her pet rabbit.

Having commenced work the following day at around 8:30am, Ms Vercoe deposed that she got up from her chair in her home office at around 9-9:30am to make a cup of coffee. This was something Ms Vercoe says she would have done had she been working in the office around the same time, as she did not have set times for short breaks over the course of her working day.

Further, Ms Vercoe deposed that throughout her employment, the Council had encouraged her to get up from her desk regularly and this remained the case with flexible working arrangements. Ms Vercoe annexed a screenshot of a council video on the topic and deposed that the video included encouragement to "take regular breaks", "get out in the sunshine" and "enjoy time with the dog".

When taking her coffee break on the 19 September 2022, the route to the kitchen from Ms Vercoe's sunroom required her to walk through the doorway across from where she had erected the pet fence. As the fence was there, Ms Vercoe says that she had to step over it and when doing so, her left foot (the trailing foot) caught the top of the pet fence, causing her to lose balance and fall forward.

Ms Vercoe deposed that she stretched out her right arm to grab hold of the wall or door to prevent herself falling to the ground but was unsuccessful. She fell to the ground with her full weight onto her right knee and right side, including her right arm and shoulder.

Feeling instant and extreme pain, Ms Vercoe called out to her husband. Either she or her husband called an ambulance. Ms Vercoe was then conveyed via ambulance to the Royal Adelaide Hospital (the RAH).

[Footnotes, para numbers omitted]

1. Relevantly to the appeal s 7 of the RTW Act provides:

(1) This Act applies to an injury if (and only if) it arises from employment.

(2) Subject to this section, an injury arises from employment if -

(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; and ...

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

(a) ...

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

1. The term, "place of employment" is defined in s 4 of the RTW Act:

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. The Auxiliary Deputy President observed that the COVID-19 pandemic brought about a significant change in workplace practices and led to many workers, and for some time most workers, performing work at home or working from home. The Auxiliary Deputy President observed that there was no dispute between the parties that Ms Vercoe's place of employment on the relevant day was her home,[13] and that the injuries in issue were sustained during an authorised break from work such that s 7(5)(b) of the RTW Act applied to deem the injury to have arisen in the course of employment.[14]
2. Next, the Auxiliary Deputy President observed that the layout of Ms Vercoe's house required her to walk up to and over the pet fence to get from the sunroom where she was working to the kitchen to make a coffee.[15] The Auxiliary Deputy President found that in attempting to traverse over the pet fence, one of Ms Vercoe's feet caught the top of the pet fence causing her to fall onto her right side.
3. The Auxiliary Deputy President found that in falling on her way to make a coffee during an authorised break from work, the first limb of s 7(2)(a) was satisfied. The injury arose out of employment by virtue of s 7(5)(b). In turning to the requirement that employment be a significant contributing cause of the injury, the Auxiliary Deputy President found that the only cause of injury was the pet fence, which was therefore an important or influential cause of the fall and the injury.[16]

1. The question of law raised in the Notice of Appeal is:

Was Ms Vercoe's employment with the City of Charles Sturt a significant contributing cause of her right humerus fracture and right knee injury (section 7(2) of the Return to Work Act 2014)?

1. The grounds of the appeal are:
   1. The learned Member erred in law in holding that the facts as found fell within the statutory enactment of s 7(2) of the RTW Act such that Ms Vercoe's employment was a significant contributing cause of her injuries.
   2. The learned Member misdirected herself in the application of the question of law under s 7(2) of the RTW Act by:

2.1 confusing and conflating considerations of whether the injuries arose out of or in the course of employment with the distinct question of whether employment was a significant contributing cause of the injury (at [111]-[115]);

2.2 distinguishing authorities where the place of employment was the mere occasion for a worker's injury (at [112]), without reasoning or findings to justify such a conclusion;

2.3 failed (sic) to evaluate the facts and circumstances surrounding the employment of Ms Vercoe in evaluating whether employment was a significant contributing cause of the injury.

1. Mr Roberts KC appeared with Mr Colgrave on behalf of the appellant and the intervenor.[17] The appellant submitted that the "significant contributing cause" requirement in s 7(2)(a) is additional to the well-known "arising out of or in the course of employment" requirement in s 7(2) that is commonly used in Australian and English workers compensation legislation. The additional requirement was designed to restrict access to compensation and disallow claims where an injury arose out of or in the course of employment, but employment was not in any real or meaningful way responsible for the injury: State of South Australia v Roberts.[18]
2. The appellant emphasised that an evaluative judgment must be made in relation to whether employment was a significant contributing cause of an injury,[19] and that involves paying close attention to all relevant facts and circumstances of the employment.[20]
3. It was submitted that the Auxiliary Deputy President observed that there was "some evidence" that Ms Vercoe was going to check on the puppy whilst going to the kitchen to make a coffee.[21] The appellant stated it was not clear whether that comment was meant to be a finding that there were two purposes for the trip to the kitchen, but it is apparent there were two such purposes.
4. The appellant did not assert that because the pet fence was erected without the employer's knowledge the injury was not necessarily caused by employment, but submitted that should have been one of the matters to be evaluated and weighed but was not.
5. A similar complaint was made about the finding that Ms Vercoe was working from home "with the Council's approval to look after a colleague's puppy".[22] It was said that finding suggested that Ms Vercoe was working from home for reasons completely unrelated to her employment.
6. In addressing the authorities cited by Ms Vercoe concerning injuries that arise as a result of the presence of hazards in the workplace, the appellant submitted that those cases require an analysis of whether the hazard is a characteristic condition of the workplace not found in everyday life.[23]
7. The appellant summarised its complaints about the decision under appeal in this way:[24]

So can we just round up, perhaps, in this way. First by treating the breadth of the definition of "place of employment" as having a form of universal operations in order to salve in the proposition that there was an exposure to a hazard in the workplace, and without consideration of the connection to employment, was to misunderstand and misapply the statutory test.

Secondly, by failing to consider the extent to which the worker was exposed to this hazard in her daily life, the point made in Smith and the but for test in Roberts, there was a failure to properly weigh the matters that called for consideration in the question of sufficiency of connection.

Thirdly, there was no consideration of the fact that this was an authorised break. To the contrary, what was done was to say this wasn't unauthorised or impermissible and, therefore, the case doesn't fail by reason of it. That much is true. It didn't take it outside of the scope of employment, as the Deputy President Magistrate found, but it didn't mean that it didn't fall for consideration as to part of the evaluation of the sufficiency of connection. She was in her home dealing with something ordinary in her home, exposed to home-style hazards while in a break.

Then, fourthly, and the effect of those first three propositions is there was a failure in truth, we submit, to engage in the evaluative exercise that was contemplated. Reasoning that there was an exposure to a hazard in the workplace, where the workplace was the home, as being the only dispositive reasoning leading to the finding of causation is, in our respectful submission, an error of law and incapable on that finding to make out the statutory test.

So, ultimately, we submit that the error here evident is equating the exposure to a hazard in the workplace, where the workplace is one's home, to a causation finding. While the deputy president magistrate was clearly alive to working from home, it formed no part of the reasoning, because instead what seems to have been considered was that the home is the authorised workplace, therefore, it's a workplace hazard. That shouldn't have been the exercise, in our submission.

1. Mr Warren KC appeared with Ms Theodore on behalf of the respondent and submitted that not only was it open to find that employment was a significant contributing cause of the injury in issue, that conclusion was the only conclusion reasonably open. The case is not one where the injury arose from a medical condition that simply manifested at work,[25] or at a social function.[26] The injury arose because of a feature of the workplace.[27]
2. The respondent submitted that in essence, the appellant appeals from the finding that the pet fence was a characteristic of the place of employment at the time when the respondent was injured. She says that is a complaint about a finding of fact, which is beyond the ambit of this appeal.
3. It was submitted that there was no controversy that the respondent's home was her place of employment on the day in question. That included everything within the home, the submission proceeded. In addition, because the authorised break from employment took place at the place of employment, an injury sustained during the break is a work injury.
4. The respondent contended that the second limb of s 7(2)(a) is satisfied because the Auxiliary Deputy President found a causal connection, and not a temporal connection, between the injury and the employment.[28]
5. The respondent then submitted that the appellant is really saying that it was open on the evidence to find that the pet fence was a feature of the respondent's home and not in any way a feature of the place of employment.[29] The respondent contended that the appellant is bound by how it argued the case at first instance, and at first instance it accepted that the respondent's home was her place of employment at the relevant time.
6. It was submitted by the respondent that the Auxiliary Deputy President found that the pet fence was a characteristic of the place of employment because the whole of the respondent's home was the place of employment and because the employer had not taken any steps to ensure that hazards which might be encountered in that workplace were ameliorated. Those findings satisfied the second limb of s 7(2)(a). The issue raised on appeal of whether there were two reasons why the respondent stood up and went to walk to her kitchen was not raised with her in cross-examination it was said.
7. The respondent summarised her submissions in the following way:[30]

So this matter, in the end, is really an appeal about whether the pet fence, in the circumstances of this matter, was a feature of a place of employment. The answer to that is decided on the facts. The answer to that, from her Honour's findings, was: it was, in the circumstances of this matter, a feature of the place of employment. Therefore, the test is satisfied - and was satisfied in the circumstances of this matter.

Consideration

1. It is well established that the expression "arises out of employment" refers to a causal connection between an injury and the relevant employment and the expression "arises in the course of employment" refers to a temporal connection between the injury and the relevant employment.[31]
2. To arise from employment under s 7(1) of the RTW Act, s 7(2)(a) requires that a physical injury must arise out of or in the course of employment and employment must be a significant contributing cause of the injury. The placement of the words "or" and "and" in s 7(2)(a) means that while a physical injury can either arise out of or in the course of employment, the "significant contributing cause" requirement must always be satisfied.[32]
3. Subsection (5) of s 7 treats five attendances as forming part of a worker's employment for the purposes of s 7. As the respondent's injury was sustained during an authorised break, s 7(5)(b) applies to these facts. Section 7(5)(b) is based on a temporal connection with employment and applies during an authorised break taken at the place of employment.
4. The respondent was correct in submitting that the Auxiliary Deputy President was also satisfied that there was a causal connection between the injury and the employment given the definition of "place of employment" because the pet fence the respondent tripped on was part of her place of employment on the day in question.
5. In dealing with the "significant contributing cause" requirement in the second limb of s 7(2)(a) the Auxiliary Deputy President said:[33]

Here, as the respondent correctly identifies, the primary cause (being the only cause) of Ms Vercoe's injuries is tripping over the pet fence. However, in my view, the respondent's contention that the erection of the pet fence without the Council's direction or instruction (or even knowledge) should lead to a finding that her injury was not caused by employment, adopts a too narrow view. I agree with Ms Vercoe's submission that it is not to the point.

1. In The State of South Australia v Roberts,[34] Parker J said:[35]

While each of the words in the phrase "and the employment was a significant contributing cause of the injury" is important, in the context of the present appeal, the key word is "significant". The Macquarie Dictionary relevantly defines the word "significant" to mean "important, of consequence" while the Oxford English Dictionary provides the following relevant definition "sufficiently great or important to be worthy of attention; noteworthy; consequential; influential".

(Footnotes omitted)

1. Parker J reasoned that a contributing cause of an injury will be significant if it is an important or influential cause. His Honour observed that the use of the indefinite article in s 7(2)(a) indicates there may be more than one significant contributing cause of an injury and that the cause relied upon does not have to be the most significant contributing cause. In describing the purpose or object of the second limb of s 7(2)(a), Parker J said:[36]

I consider that the Deputy President correctly concluded that the object of the "significant contributing cause" test is to disallow claims where an injury arose out of or in the course of employment but the employment was not in any real or meaningful sense responsible for the injury.

1. An example of such a case is a worker with a long history of back injuries who sustains an aggravation bending forward to pick up a light object at work. Another example may be found in the facts of Bill Williams Pty Ltd v Williams,[37] a case where an irate husband attended a workplace and shot a worker who was having an affair with his wife. The High Court held that the injury did not arise out of or in the course of employment. Reliance was placed upon the fact the worker had fled the workplace when injured. The flight is not surprising. The assailant had a gun and threatened to emasculate the worker. If the worker had not fled, and the injury had been found to have arisen in the course of employment, the worker may have had difficulty proving that employment was a significant contributing cause of injury given the issue between the assailant and the worker that led to the injury was private in nature and unrelated to employment.
2. Before the Auxiliary Deputy President and on appeal, the appellant contended that the pet fence should not be viewed as part of the respondent's employment when applying s 7(2)(a) to the facts. The respondent countered that by submitting that as her home was her place of employment at the relevant time, and the pet fence was a feature of that place, the finding that employment was a significant contributing cause of the injury was correct. Resolving the disagreement gives rise to the interaction between s 7(5)(b) and the significant contributing cause requirement in s 7(2)(a). Section 7(5) 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) attendance at an educational institution under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; and

(e) attendance at a place to receive a medical service, to obtain a medical report or certificate (or to be examined for the purpose), to receive recovery/return to work services or for the purposes of a recovery/return to work plan, or to apply for, or receive, compensation for a work injury.

1. The attendances in s 7(5) all arise when a worker is in a particular place at a particular time. The time element creates a temporal connection between the injury and employment. The attendance may also have some degree of causal connection to employment because each place in s 7(5) has a relationship to employment. However, it does not follow that either the temporal or the causal aspect of the connection with employment in the attendance satisfies the second limb of s 7(2)(a). If a worker who has had many prior back injuries re-injures their back when tying up their shoelaces in preparing to leave work, s 7(5)(c) satisfies the requirement that the injury arose from employment, but not the requirement that employment was a significant contributing cause of the injury.
2. Turning to the definition of "place of employment", the respondent was injured within the external boundaries of the land on which her house is situated, so the injury occurred at her place of employment. However, that does not remove or satisfy the requirement that employment is a significant contributing cause of the injury. Roberts found that the requirement is separate and additional to finding that the injury arose from employment.[38]
3. Those observations qualify the respondent's submission that because the dog fence was a characteristic of the place of employment and was the sole cause of injury, employment was a significant contributing cause of the injury. That logic is self-fulfilling and disregards the second limb of s 7(2)(a). I will return to that observation after discussing some cases that concern how and when a characteristic feature of a place of employment may satisfy the second limb of s 7(2)(a).
4. In Sorn v Return to Work Corporation of South Australia and Hardkou Pty Ltd,[39] a characteristic feature of the place of employment was found to be a significant contributing cause of injury. The worker became unconscious for a reason unrelated to employment and fractured his neck when he collapsed and fell on some metal stairs he had walked up to tell his supervisor he was unwell and needed to go home. The supervisor told the worker he would drive the worker to a doctor or hospital. The worker collapsed whilst descending the stairs on the way to the supervisor's car. The vertebral fracture sustained in the fall was found to have occurred because the fall took place on metal stairs and not a flat surface.
5. In Smith v Australian Woollen Mills Ltd,[40] the worker had a diabetic episode at work, fainted and fractured two ribs when he fell on an iron guard rail designed to protect workers from operating machinery.
6. The workers in Smith and in Sorn became unwell and passed out at work due to causes unrelated to their employment. Their injuries were found to have arisen from employment because the fall brought them into contact with a characteristic feature of the workplace which was responsible for the nature of the injury they sustained. While the worker in Smith only had to show that the injury arose out of or in the course of employment, the reasoning employed by the plurality is relevant to considering whether employment is a significant contributing cause of an injury:[41]

In these circumstances, we think we should not follow the reasoning in Lander's Case.[42] We think that if an additional element or consideration is needed before it can be said that a workman's injury arises out of his employment when the injury is occasioned by his falling, through causes personal to himself, against some physical object where he is at work, that additional element or consideration is to be found, not necessarily in risks of injury inherent in the place, but also in the character of the thing, physical contact with which causes the injury. If the workman's fall brings him into contact with something which, like plant or machinery, is peculiar to the work or occupation, and is not common both to industrial and private life, then the reason for his suffering includes the important circumstance that but for doing the particular piece of work which he was in fact performing he would not have experienced that particular sort of injury. We think that the reasoning disclosed by the citations we have made from Lord Sumner,[43] Lord Haldane[44] and Lord Atkin[45] requires the conclusion that, because the form, nature and extent of the injury sustained when the appellant fell were determined by a characteristic feature of the premises where he was obliged to work, a feature, in this case, characteristic of the conditions of employment and not to be found in ordinary life, the employment materially contributed to the injury, which accordingly arose out of it.

1. In Ward v State of SA (Department for Primary Industries and Regions SA (PIRSA)),[46] the worker suffered a seizure whilst working on a boat. Work colleagues placed the worker in the recovery position. When he became conscious again, he felt severe pain in his ankle. The ankle had been fractured. It was found that the fracture occurred whilst the worker was unconscious and was being moved by his colleagues. The Deputy President held that s 7(2)(a) was satisfied. Although employment was not responsible for the seizure, employment was found to be a significant contributing cause of the injury.
2. In Roberts Parker J agreed with some key observations made in Ward:[47]

I also consider that the Deputy President was correct in adopting the analysis by Gilchrist DPJ in Ward v The State of SA. Gilchrist DPJ correctly stated that the word "significant" in s 7 is an ordinary word that requires the fact-finder to make an evaluative judgement as to whether or not there is a sufficiency of connection between the worker's employment and the injury to permit the conclusion that the worker's employment was a significant contributing cause of the injury. Gilchrist DPJ also correctly recognised that there can be multiple contributing causes of an injury. One or more of those causes may be very important, but a cause that is less important can nevertheless be a "significant contributing cause."

1. The injury in Sorn was found to satisfy the significant contributing cause requirement in s 7(2)(a) for these reasons:[48]

In this case, Mr Sorn went upstairs to tell Mr Markou that he felt unwell. He could have gone home and asked someone else to tell Mr Markou he was unwell. Instead, Mr Sorn told Mr Markou he felt unwell in person. That required him to go up the stairs. Mr Markou told Mr Sorn to remain in the lunchroom, came back to see how Mr Sorn was a short time later and then decided to take Mr Sorn to get medical attention. Mr Sorn had to go down the stairs to get into Mr Markou's car. That led to Mr Sorn being on the stairs when he fell. The symptoms that led to Mr Sorn losing consciousness and Mr Sorn's employment were both partly responsible for him being on the stairs at the time of the fall.

One relevant cause of the injury is the symptoms experienced by Mr Sorn after he consumed food at work on 6 February 2024. Those symptoms caused Mr Sorn to lose consciousness and fall. Another relevant cause of the injury is the stairs Mr Sorn was descending when he lost consciousness. The physical nature of the stairs combined with the fall caused the injury. While the symptoms may be the primary or most influential cause of the injury, the stairs are nonetheless a significant contributing cause in my view. As Mr Carney said, Mr Sorn's C1 vertebra would not have been fractured had he not been standing at the top of a flight of steel stairs when he lost consciousness.

Mr Warren was correct to submit that the stairs are a characteristic of the place of employment that played an important role in relation to the occurrence of the injury. In my view the claim should succeed because that characteristic feature played a significant role in causing the fracture of the C1 vertebra. As the High Court said in Smith, "the form, nature and extent of the injury sustained when the appellant fell were determined by a characteristic feature of the premises where he was obliged to work".[49]

1. The facts of this case are different to the facts in Smith, Sorn and Ward. The work injuries in those cases followed a loss of consciousness that was not caused by employment. The injuries that ensued were compensable because a characteristic feature of the place of employment caused them. The injuries in Ward and Sorn were also found to satisfy the second limb of s 7(2)(a). That requirement was not present in Smith.
2. While the pet fence was a feature of the respondent's home and place of work on the day in question, it was only present on that day. Unlike the guard rail in Smith, or the stairs in Sorn, the pet fence was not "peculiar to the respondent's work or occupation" but rather was "common both to industrial and private life".[50] That important factual difference between this case and Smith and Sorn is why those cases cannot be relied upon here.
3. Reliance on Sorn here is misplaced for another reason. The stairs the worker collapsed on were causally significant because of the accepted evidence that the worker would not have fractured his neck had he not collapsed on the stairs. He went up the stairs to tell his supervisor in person that he was ill and needed to go home. The respondent could have tripped on a different object at home and sustained similar injuries to those she sustained as a result.
4. The word "characteristic" is defined by the Macquarie Dictionary as:[51]

1. Relating to, constituting, or indicating the character or peculiar quality; typical; distinctive; -n. 2. A distinguishing feature or quality...

1. Returning to the question of law raised by the Notice of Appeal, in my view, the second limb of s 7(2)(a) was not properly applied to the facts. It was reasoned that the application of s 7(5)(b) and the pet fence being a characteristic of the place of employment, taken together, meant that employment was a significant contributing cause of the injury. That reasoning ignores that the significant contributing cause requirement is separate and additional to finding that the injury arose out of or in the course of employment. It is not enough to find a causal connection between the injury and employment. Employment must also be a significant contributing cause of the injury.
2. Reliance on s 7(5)(b) and the respondent's home being her place of employment foreclosed the result and led to other relevant facts not being considered and weighed. While the pet fence was a part of the place of employment on the day in question, it also had a private purpose. It was erected to keep the respondent's pet rabbit safe from the puppy she was minding. There was no work-related element involved in that. Also, while the respondent was injured during an authorised break from employment, there may have been more than one reason for taking the break:[52]

While there is some evidence that Ms Vercoe was also going to check on the puppy, I am satisfied on Ms Vercoe's evidence that she was taking an authorised paid coffee break.

1. Characterising the break as an authorised paid break for coffee led to another potential reason for taking the break not being weighed in determining whether employment was a significant contributing caused of the injury. The finding that the injury occurred during an authorised break is not determinative of that issue. An example may help explain why.
2. If the respondent had sustained injury in her front yard whilst collecting a newspaper during an authorised break because she fell into a hole dug by SA Water, does it necessarily follow that employment was a significant contributing cause of the injury? On the reasoning employed in this case, the answer is that it does because each injury occurred at the place of employment, during an authorised break and a characteristic feature of the place of employment was solely responsible for the injury. In my view, reliance on s 7(5)(b) and the respondent's home being the place of employment oversimplifies the exercise. All the relevant facts must be weighed.
3. I am not suggesting that the conclusion reached by the Auxiliary Deputy President cannot be reached. The findings about the employer's attitude and practice towards the respondent working from home need to be considered and weighed along with the considerations I have mentioned.
4. The outcome is for the Auxiliary Deputy President to decide. The appeal is limited to a question of law under s 26I of the South Australian Employment Tribunal Act 2014 (SAET Act) and this Full Bench cannot find or decide issues of fact.
5. In Dallimore v Return to Work Corporation of South Australia,[53] Stanley J explained the nature of that limitation:[54]

The appeal to the Full Bench of the South Australian Employment Court from the deputy president's decision, like the appeal to this Court, is confined to a question of law. It is not open to this Court on appeal to interfere with the factual finding made as to the level of impairment suffered by the appellant due to pulmonary hypertension. Neither was it open to the Full Bench to do so...

1. The issue came before the Full Supreme Court a second time after the Full Bench set aside the first instance decision after remittal. Another explanation of the limits of the Full Bench's jurisdiction ensued.[55]
2. Referring to those passages in Dallimore, a Full Bench of this Court declined an invitation to substitute its view for an erroneous first instance decision in Whimpress v Return to Work Corporation of South Australia.[56]
3. In Schinckel v Return to Work Corporation of South Australia, the Court of Appeal reiterated that the Full Bench of this Court is not able to make findings of fact in an appeal under s 26I of the SAET Act.[57]
4. That view was confirmed most recently, in Return to Work Corporation of South Australia v Wastell.[58]
5. The question of law articulated in the Notice of Appeal asks whether employment was a significant contributing cause of the respondent's injury. As the answer to that question involves both factual and legal considerations, the question is not ideal. A different formulation could be:

Whether on the facts as fully found by the Auxiliary Deputy President, s 7(5)(b) of the RTW Act and the definition of "place of employment" had the result that the only conclusion reasonably open was that employment was a significant contributing cause of the respondent's injury within the meaning of s 7(2)(a) of the RTW Act.

1. The answer to that question is no. It did not follow from the facts as found, and the provisions mentioned, that the only reasonable conclusion was that employment was a significant contributing cause of the injury.

Foreclosing any other result meant the second limb of s 7(2)(a) had no work to do.

1. I would remit the proceeding to the now Deputy President Judge to be decided in conformity with these reasons after hearing further submissions from the parties. Neither party suggested that any remittal made should include taking further evidence. The respondent should have her costs of the appeal to be paid by the LGA.

1. I have had the benefit if considering the detailed and careful reasons of his Honour Calligeros DPJ. Whilst I adopt the background of the matter and his assessment of the facts and law generally, I find myself in disagreement with his Honour in 3 key respects which compels me to reach a different view on the fate of this appeal.
2. Firstly, his Honour's assessment of the prerequisites of a hazard being a characteristic of the workplace. In my opinion, it is not to the point that it was temporary. It was a characteristic of the workplace at the time of the injury. A temporary barrier at work to shield against, say a spill, would be no less a characteristic of the workplace because it was temporary.

Secondly, his Honour's conclusion that it was significant that the characteristic had a private purpose, rather than being a requirement of the workplace. Again, in my view the purpose of the characteristic is irrelevant. The stairs in Sorn simply were there: the workplace was not required to be on multiple levels; it just happened to be so.

1. I can best illustrate my views by an example. If a worker whilst at work trips over a box of work files on the way to make a coffee in an authorised break, that injury would be compensable. The presence of the box of files was a characteristic of the workplace, albeit temporary, and the hazard which caused the injury. Had the box of files been a co-worker's box of shopping instead, I consider the compensability of the injury should be the same, notwithstanding the characteristic resulted from a private purpose unrelated to work. It was a hazard encountered by the worker whilst carrying out their employment at their place of employment.
2. In much the same way the duty on an employer to keep a workplace safe is not limited to dangers that have a work-related purpose but extends to all dangers upon the workplace whether or not of a temporary nature.
3. Thirdly, that the reason for the break and consequent trip to the kitchen may not have been solely for a coffee break but also to check on the welfare of the puppy. I consider the Auxiliary Deputy President's finding of fact that Ms Vercoe was taking an authorised paid coffee break was reasonably open to her, being a finding based upon the evidence of Ms Vercoe.
4. Accordingly, I consider the Auxiliary Deputy President correctly applied the statutory provision to the facts correctly as found by her or uncontested. The employment was a significant contributing cause of the injury. No error being made out, I would dismiss the appeal.

[1] Appeal Book pp 25-101 Transcript 06/03/24; AB 28.07-09 & 86.36-37.

[11] Vercoe v Local Government Association Workers Compensation Scheme [2024] SAET 91 [6]-[11].

[17] Referred to hereafter collectively as the appellant unless the context does not permit.

[18] [ 2018] SASCFC 25 [89]; [111].

[23] Smith v Australian Woollen Mills Limited [1933] HCA 60; (1933) 50 CLR 504 at 515-516.

[25] Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547; Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310.

[26] Power v Return to Work Corporation of South Australia & National Pharmacies [2020] SAET 252.

[27] Sorn v Return to Work Corporation of South Australia (Hardkou Pty Ltd) [2025] SAET 31.

[31] See Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547 per Dixon CJ at 556-557 and Menzies J at 575 and the cases referred to there.

[32] Except for an injury sustained in a journey under s 7(8)-(10).

[34] [2018] SASCFC 25.

[35] Ibid [100], Kourakis CJ and Blue J agreeing.

[37] [1972] HCA 23; (1972) 126 CLR 146.

[38] [2018] SASCFC 25 [82].

[39] [2025] SAET 31.

[40] [1933] HCA 60; (1933) 50 CLR 504.

[42] Lander v British United Shoe Machinery Co. (1933) 149 LT 395.

[43] Lancashire and Yorkshire Railway Co. v Highley [1917] UKHL 509; (1917) AC 352 at 372.

[44] Upton v Great Central Railway Co. (1924) AC 302, 308.

[45] Brooker v Thomas Borthwick & Sons (Aus.) Ltd. (1933) AC 669 at 676-677.

[46] [2016] SAET 28.

[47] [2018] SASCFC 25 [114].

[48] [2025] SAET 31 [47]-[49].

[49] [1933] HCA 60; (1933) 50 CLR 504 at 516.

[50] [1933] HCA 60; (1933) 50 CLR 504 at 515.

[53] [2020] SASCFC 115.

[54] Ibid [54], Peek J and David AUJ agreeing.

[55] Dallimore v Return to Work Corporation of South Australia (No. 2) [2021] SASCFC 8 [8].

[56] [2022] SAET 123 [48]-[50].

[57] [2023] SASCA 32 [52], Bleby and David JJ, Mazza AUJ.

[58] [2024] SASCA 98.