South Australian Employment Tribunal Act 2014 - Appeal

JUDGMENT OF: The Honourable President Justice Dolphin

Appeal - The appellant worked as a Pilates instructor and was injured when struck by a bicycle whilst going for a walk between classes - At trial she contended that the walk was journey for the purposes of the Act - She contended that s 7(8) of the Return to Work Act was part of code for injuries that arise out of or in the course of a journey, and that she satisfied one of the tests of compensability provided by that code - The appellant's case was that the walk during which she was injured was undertaken in the course of her carrying out duties of employment because she was preparing herself to be ready for taking a class - The appellant contended that this readiness manifested itself in one of two ways, one being that it was necessary to enable her to be fit and ready for the class, the other being that need to return to her car to retrieve a bag the contained run sheets that she said were required by her to conduct the class - There was conflicting evidence given at trial as to whether the run sheets were required and what their purpose was - The trial judge found that the appellant was on a journey and that s 7(8) of Act was part of a code such that the general test of compensability provided by s 7(2) of the Act did not apply - Having noted that the appellant was not asked or directed by the employer to undertake the walk and that her goals of staying mentally and physically alert, to keep warm, and to reduce the risk of injury, could have been achieved by other means the judge rejected the argument that walk was conducted as part of the appellant's duties of employment - Having found that the appellant needed the run sheets to conduct the class, the judge said that in relation to her needing to retrieve her bag from her car, whilst this was one of the work-related aspects of the walk, it was not akin to a duty of employment because other options to keep warm and limber were available to her and because she exercised a preference to go for a walk at a time when she was not subject to direction from the employer -The judge therefore rejected the argument that the return to the car was conducted as part of the appellant's duties of employment - On appeal the appellant did not challenge the conclusion in relation to the walk generally, but she did challenge the conclusion in respect of the case based on her needing to retrieve her bag from her car - She did so on two bases, the first being that on the correct application of the law that case should have succeeded, the second being that in respect of it, the judge's reasons were inadequate - The Corporation filed a notice of contention contending that the judge erred in concluding that s 7(8) of Act was part of a code and that the general test of compensability provided by s 7(2) of the Act did not apply - Held: That the judge did not fully resolve the conflicting evidence given at trial as to whether the run sheets were required and what their purpose was - Held: That because the determination of the issue requires consideration of the factual matrix as a whole and that the addition or subtraction of any one fact might be decisive, that failure renders the judge's reasons legally inadequate - As to the notice of contention - Held: That there are two decisions of the Full Bench on point that support the judge's conclusion and that as we are not satisfied that those decisions are plainly wrong we must follow them - Held: That the appeal is allowed and the application for review is remitted to the judge for further determination restricted to the topic of the appellant's need or requirement to retrieve from her car the run sheets and the notice of contention is dismissed - Return to Work Act 2014, South Australian Employment Tribunal Act 2014, Workers Rehabilitation and Compensation Act 1986.

Priolo v Return to Work Corporation of South Australia & Anor [2025] SAET 29

Wheeler v State of South Australia [2012] SASCFC 111; (2012) 114 SASR 111

State of South Australia v Brophy (1997) 68 SASR 97

Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439

Turner v Return to Work Corporation of South Australia and ABA Plumbing and Gas Pty Ltd [2021] SAET 45

Utilities Management Pty Ltd v Thelan [2021] SAET 247

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

South Australian Police Department v Barber [2001] SAWCT 100

Smith v Workcover Corporation/Mmi W.C. (S.A.) Ltd. (Underdale Metal Processing) [1997] SAWCT 10

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

Nancollas v Insurance Officer [1985] 1 All ER 833

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

Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334

DL v The Queen [2018] HCA 26; (2018) 266 CLR 1

Return to Work Corporation of South Australia v Anna Katis [2020] SAET 153

Park v Peach [1967] VicRp 60; [1967] VR 558

Pond v WorkCover/Allianz Australia (Wunda Joinery) [2001] SAWCT 69

Wolmar v Travelodge Australia Ltd (1975) 26 FLR 249

Grantham v Department for Correctional Services [2025] SAET 57

Totaan v R [2022] NSWCCA 75; (2022) 108 NSWLR 17

TransAdelaide v Karanicos (unreported, Supreme Court, SA No S5536 of 1996, 3 April 1996)

Brown v Return to Work Corporation of South Australia (Allstaff Instrument & Electrical Division Pty Ltd) [2024] SAET 51

1. The appellant, Allison Priolo, was at all relevant times employed by the Young Men's Christian Association of South Australis Inc (the YMCA) as a Pilates instructor at the Purruna Spencer Newton Centre (the Centre), which is located within the grounds of Scotch College, Torrens Park, South Australia.
2. Ms Priolo commenced that employment in late March 2024. On 15 April 2024, Ms Priolo arrived for work at about 5.45am, having parked her car in McLaren Street. McLaren Street joins Blythewood Road as a T-junction. The Centre is adjacent to one side of Blythewood Road. McLaren Street is on the opposite side of that road.
3. After she had completed a Pilates class at the Centre at 8.00am that day, Ms Priolo went for a walk outside of the Centre during the 30 minute break that she had before her next class was due to commence at 8.30am. Upon commencing her walk, she headed to her car in McLaren Street and placed her bag inside it. She then walked to Blythewood Road and walked along it until it was time to turn around and head back to work. As she did so, with the intention of going back to her car to retrieve her bag, she was struck by a bicycle and was injured. It is common ground that Ms Priolo was struck after she had walked along Blythewood Road, towards the Centre and that she was in the process of crossing McLaren Street when she was hit.
4. Ms Priolo made a claim for compensation under the Return to Work Act 2014 (the RTW Act) seeking compensation on account of her injuries, alleging that they occurred in compensable circumstances. The respondent, the Return to Work Corporation of South Australia (the Corporation), rejected that claim. It determined that Ms Priolo's injuries did not arise from her employment with the YMCA. The YMCA supported the Corporation's determination.
5. Ms Priolo now appeals against a decision by a judge of this Court that upheld the Corporation's rejection of her claim. The appeal to this Full Bench is limited to a question of law.[1]

1. The primary test for an entitlement to compensation under the RTW Act is prescribed by s 7(1). It provides that the "Act applies to an injury if (and only if) it arises from employment".
2. Section 7(2)(a) then provides:

(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;

1. Other relevant sections of the Act include s 7(5) of the RTW Act, which provide as follows:

(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. Finally, there is s7(8) of the RTW Act. It 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

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

(ii) the worker's place of residence or place of employment and -

(A) an educational institution the worker attends under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; or

(B) a place the worker attends to receive a medical service, to obtain a medical report or certificate (or to be examined for that 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 compensable injury,

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.

1. The hearing before the judge was conducted by reference to Statements of Issues and Contentions filed by all parties.
2. In her Statement of Issues and Contentions, Ms Priolo contended that the walk that she undertook during her work break on 15 April 2024, was a journey for the purposes of the Act. She contended that s 7(8) of the Act was a code for injuries that arise out of or in the course of a journey, and that she satisfied one of the tests of compensability provided by that code, in that the walk during which she was injured was undertaken in the course of her carrying out duties of employment, because she was preparing herself to be ready for taking the 8.30am class. She contended that this readiness manifested itself in one of two ways. The first concerned the need to be fit and ready. The second concerned the need to get her bag.
3. In connection with the first, she noted that the YMCA had rostered a half hour gap between the end of the 7.00am class and the beginning of the 8.30am class. She asserted that the environment where she conducted the Pilates classes at the Centre was cold and for her to be ready for the 8.30am class it was necessary for her to move about and stay active between classes, and that she achieved this by going for the walk.
4. In connection with the second, she contended that during this break she had placed her personal bag, which included material required by her for the 8.30am class, in her car which was parked on the street. She alleged that she did not think it safe or secure for to leave her personal bag at the Centre during the gap. She contended that she was obliged to return to her car to retrieve this material to have it with her when she commenced the 8.30am class, and that she was in the process of returning to her car to do so when she was struck by the bicycle.
5. The YMCA's Statement of Issues and Contentions denied that Ms Priolo was in employment when she was injured. It asserted that the YMCA did not provide Ms Priolo with any encouragement, inducement, or direction to leave the Centre between classes. It stated that there was no need for Ms Priolo to move and stay active between classes, and that it provided no encouragement for her to do so. It denied that she perceived that it was not safe for to leave her bag at the Centre during the gap, given the obvious location and availability of secure lockers at the place where she had to sign on and off for the day's shifts.
6. The Corporation's Statement of Issues and Contentions identified the issue for determination as: "Did the alleged injuries suffered by the Applicant in the bike incident on 15 April 2024 arise from employment within the meaning of s 7(8) of the RTW Act".[2] It then essentially repeated the contentions made by the YMCA.
7. At the commencement of the hearing, counsel for the Corporation qualified its position by stating that the reference to s 7(8) in its Statement of Issues and Contentions was in response to Ms Priolo's case, but added that it also denied that the circumstances of her injury were compensable by reference to s 7 more generally.[3] We shall return to this later.
8. There were only two witnesses who gave evidence at trial, Ms Priolo, and the YMCA's Pilates Studio Manager, Angie Ashri.
9. Ms Priolo spoke of her prior employment history. She said that she began working as a Pilates instructor in about October 2022, and in January 2024, she applied for work as a Pilates instructor with the YMCA. She said that having obtained a position as a casual instructor, she was given an induction in which she was told that each Pilates class goes for 50 minutes, with 10 minutes between each class to allow informal chats with the participants and to enable her to use the restroom, when there were no participants in the studio. She said she was told that there were no restrictions on what she could do if there was a 30-minute time period between the end of a 7:00 am class and the beginning of the 8:30 am class.
10. Ms Priolo said that based on her discussions with Ms Ashri she understood that there was a preferred structure or framework for the different types of Pilates classes. She said that as a result she created separate class/run sheets that outlined routines and exercises that she had prepared and tailored for the respective class styles and participants. She said that she kept these sheets in her personal bag, that also contained her purse, water bottle, makeup bag, towel and microphone belt.
11. She said she was told that the small car park at the Centre was for use by members, and that she should only park her vehicle in that area when it was dark outside and if she felt unsafe.
12. Ms Priolo said that prior to 15 April 2024, she had completed shifts at the Centre on 25 March 2024 and 8 April 2024. She said that in connection with all three shifts, she drove to the Centre from her home in the Adelaide Hills and parked her car on McLaren Street. She said that her practice was to stay at the Centre during the break after the 6.00am class finished and that after the 7.00am shift, she would go for a walk in the 30 minute break before the 8:30am class was to commence. She spoke of the need to stay physically and mentally fresh between the end of the 7:00am class and the start of the 8:30am class, and that this was the reason why she went for a walk along the streets in the area adjacent to the Centre. She said that she had spoken to Ms Ashri about how cold it was in the Centre and was informed that the YMCA had no control over it. She said that Ms Ashri had told her to bring a jacket with her to the Centre because of how cold the environment was.
13. Ms Priolo added that she preferred to go for a walk rather than attend the school café or stay in the studio so that she could stay warm and not spend money. She said that she brought her personal bag with her to the Centre so that she could access her belongings and equipment, such as the class/run sheets, that she used during the classes that she taught. She said that she took her bag with her when going on walks during the 30-minute time break before the 8.30am class, because she did not want to leave her bag unattended in the Centre for security purposes. She said that she did not know about secure lockers to store her personal belongings within the Centre. She said that to avoid carrying the bag when going for her walk she placed it in her car before continuing with her walk.
14. Ms Priolo said on 15 April 2024, she adopted that same practice. Her intention was that once she had finished her walk, she would return to her car in McLaren Street, and retrieve her bag before returning to the Centre to commence the 8.30am class. She said that she walked from the Centre across Blythewood Road, put her bag in her car, locked her car and then walked downhill along Blythewood Road in a westerly direction. She said that she then turned around and walked back up Blythewood Road in an easterly direction to retrieve her bag from her car. She said that as she commenced crossing McLaren Street, she was hit by a cyclist riding a bicycle down McLaren Street.
15. Ms Priolo's apparent need to have run sheets to conduct the Pilates classes was the subject of some oral evidence.
16. For example, she was asked why in relation to her work at the YMCA she created class or run sheets and what was involved in those sheets. She said:

Yes, because Angie who was the Group Fitness Manager, she specifically designed special types of classes, so instead of - usually for Pilates we just create our own classes, but she specifically had three or four particular types of classes that she wanted to run, and they were to be performed in specific way, so there might be four or five sets of specific types of exercises. One was actually very specifically choreographed to music, so we had to actually know exactly the order of the exercises. And so, we needed the run sheet in order to be able to remember the actual exercises to teach.[4]

1. She said that she prepared a sheet for each of the three classes she conducted. When asked what she put onto each sheet, she said:

I can't remember the exact exercises, but there would be - I can't - I can't remember the exact exercises, but for an example, there might be eight to 12 exercises per class, and I'd need to put the amount of repetitions that I was going to do for each exercise and the amount of sets that I was going to do for each exercise, what order they - I'd need to do them in, what pre-requisite exercises I would need to do in order for them to be safe.[5]

1. The judge then asked Ms Priolo whether she prepared the run sheets because she was new at the job, or whether she thought that she would need them no matter how long she was there. In response to this, she said:

I think to a certain degree, yes. Yes, but I was only teaching one class a week, so I think even - you know, it still is - six months is still - when you're only teaching one class a week...however, Angie did change the classes regularly, so even if you were there six months, she still would have changed the class, and you would still have had to learn a new style of class.[6]

1. When asked why she went back to her car before returning to the Centre, she said:

Well, I needed the folder that had the class sheet to teach the next class in it.[7]

1. Ms Priolo was not cross-examined about this topic.
2. Ms Ashri also gave some evidence about this issue. She said:

In running a class, it is not a requirement that an instructor creates run sheets that outline routines and exercises, however it is expected for some class styles that the instructor plans and knows their own class structure and for classes with a specific structure, that they know the class plan. How they prepare for a class, is their personal preference. It is not unusual for an instructor to create their own notes. Sometimes an instructor will print out what YMCA provide. The YMCA preference is that the instructor does not have notes in class or be seen checking them.[8]

1. This was pursued in cross-examination, which led to this exchange:

Mr Warren: Would you agree then that at least in relation to Reform and Power Form classes, there was a fair bit of material that the instructor would need to follow and would need to have either memorised or have access to in order to conduct the class?

Ms Ashri: Correct.

Mr Warren: So even for an experienced instructor on a second or third shift, you might expect that they have at least some means of access to make sure - not obviously, but to make sure that they're following the correct content of the classes.

Ms Ashri: That is correct. Generally, we prefer that there are not obvious notes in the class. Firstly, it demonstrates that the instructor is not completely around the material of the class, and it also makes members feel uncomfortable if class has to stop because the instructor has to check notes. However, it is common practice for there to be shorthand notes somewhere out of sight a little bit, and an instructor as they're moving around cueing the room if they're feeling a bit lost and what comes next or what was that spring choice, they can have a quick glance very quietly at what's coming next, so then it's not obvious to the members and there's no uncomfortable pauses in the class.[9]

1. Elsewhere in her evidence, Ms Ashri stated that YMCA does generally discourage staff from parking in the Centre carpark and agreed that the Pilates studio in the Centre was cold.
2. In closing submissions, Ms Priolo's counsel, Mr Warren KC, emphasised that she needed to ensure that she was able to properly conduct the 8:30am class and the walk facilitated that end. He referred to the YMCA's policy document and submitted that it imposed obligations upon Ms Priolo, which included her ensuring that she was ready to commence work. He argued that this meant that she had to be able to commence a class at its outset. He pointed to the stipulation in the policy that employees are to devote all their time and attention whilst at work to the business of YMCA. He submitted that this, along with the directive that employees are to take reasonable care for their own health and safety and ensure good mental and physical health, brought the walk within the scope of undertaking duties of employment. Although he referred to the alternate case based upon Ms Priolo's apparent need to go back to her car to retrieve the run sheets, his submissions on this issue were brief.
3. Whilst stressing that Ms Priolo's case was presented as a journey injury case, Mr Warren submitted that in any event, the requirements of s 7(2) of the RTW Act had been met.
4. Counsel for the YMCA, submitted that Ms Priolo's walk was not a journey for the purposes of s 7(8) of the RTW Act. He submitted that a 'journey' is relevantly a description describing travelling between definite points. He argued that just as a lunchtime stroll would not meet that definition, so it was with Ms Priolo's walk in her break between classes.
5. Next, he submitted that the provision in the Act dealing with authorised breaks, s 7(5)(b) of the RTW Act, had no application, as that subsection only applies to injuries sustained during such breaks when the injury is sustained "at the worker's place of employment", which was not the case here.
6. He then referred to the general provision, dealing with compensability, s 7(2), and submitted that Ms Priolo failed to meet both limbs; the injury did not arise out of or in the course of her employment; and her employment was not the significant contributing cause.
7. Counsel for the Corporation adopted and supported these submissions.
8. Neither the Corporation's counsel, nor counsel for the YMCA, made any submissions regarding Ms Priolo's alternate case based on her going to her car to retrieve the run sheets.

1. The judge was impressed by Ms Priolo's evidence. He stated that she gave her evidence clearly and in a forthright fashion. He formed the view that she was a diligent instructor. He thought that Ms Ashri confirmed Ms Priolo's evidence in three important respects: YMCA employees were told not to park in the Centre car park unless they had safety concerns about parking externally; the Pilates studio was cold; and two of the three classes on 15 April 2024 required Ms Priolo to follow a specific exercise routine.
2. The judge found that Ms Priolo needed run sheets to conduct most of the classes and found that a run sheet was required for the last class. He also made a finding that had she not left her bag in the car, she would not have crossed Blythewood Road and would not have walked on the McLaren Street side of Blythewood Road.
3. After citing the relevant statutory provisions, the judge noted that counsel for the YMCA and the Corporation submitted that Ms Priolo was not undertaking a journey when injured. He rejected those submissions. He said:

I consider that Ms Priolo was engaged in a journey when a cyclist collided with her on 15 April 2024. The language and context of s 7(8) suggest that the walk should be characterised as a journey. For the reasons given above I am not persuaded that neither the shortness of the walk nor it not being between two specific places is determinative of whether it is a journey. It is not difficult to think of short journeys and journeys not between specific places that can and should appropriately fall within s 7(8)(a) and (b). I consider that whether the journey has a sufficient work-related character is determined by the other requirement in s 7(8)(a), that is, whether the journey was undertaken in the course of carrying out duties of employment.[10]

1. The judge then noted that Ms Priolo was not asked or directed by the YMCA to undertake the walk. The judge observed that whilst he accepted that Ms Priolo undertook the walk to stay mentally and physically alert, to keep warm, and to reduce the risk of injury, she acknowledged that those goals could have been achieved by other means, such as sitting in a warmer area in the Centre, exercising in the Pilates studio, or by sitting in the coffee shop.
2. The judge noted that the walk occurred during an unpaid break during which Ms Priolo could spend her time as she pleased.
3. The judge then stated that whilst there were work-related aspects involved in Ms Priolo undertaking the walk, he was not satisfied that she was undertaking duties of employment in doing so. He added that he was also not satisfied that in doing so she was complying with an implicit instruction given by the employer, or something incidental to that.
4. The judge said that in relation to her needing to retrieve her bag from her car before returning to the studio, whilst this was one of the work-related aspects of the walk, it was not akin to a duty of employment because other options to keep warm and limber were available to her and because she exercised a preference to go for a walk at a time when she was not subject to direction from the employer.
5. The judge concluded by stating he would not deal with the alternative submission that the injury should succeed under s 7(2) of the RTW Act if it does not succeed under s 7(8). He said that having found that Ms Priolo was injured whilst undertaking a journey, the decision of the Full Court in Wheeler v State of South Australia (Wheeler) [11] compelled the conclusion that s 7(2) had no application.
6. Wheeler concerned a claim for compensation under the Workers Rehabilitation and Compensation Act 1986 (WR&C Act) by a police officer who was injured when assaulted whilst working interstate as an instructor. It was found that at the time when he was injured, he was on a journey for the purposes of that Act. An issue arose as to whether the journey provisions in the WR&C Act were an "exclusive code" in relation to journey injuries. White J, with whom Sulan and Nicholson JJ agreed, held that they were. In reaching that conclusion White J referred to the judgment of Doyle CJ in State of South Australia v Brophy, (Brophy) [12] where he said:

There is also reason to think that subs (5) is intended as an exclusive code in relation to a disability that arises out of or in the course of a journey. This is suggested by the opening provision of that subsection, and by the fact that subs (2) now begins with the words "Subject to this section".[13]

1. On appeal, Ms Priolo identifies two alleged errors of law.
2. The first contends that the judge misdirected himself as to the relevant statutory test. She contends that on the facts as found, the statutory test under s 7(8)(a) of the RTW Act was satisfied such that the requisite connection with employment was established.
3. The second, contends that the judge failed to provide adequate reasons for his decision to explain as to why, at the time she was injured, she did not meet the statutory test of compensability.
4. The Corporation lodged a notice of contention in which it asserted that contrary to the judge's ruling, ss 7(8), (9) and (10) of the RTW Act do not constitute a code which operates to exclude the second causal limb of s 7(2) of that Act, namely that the employment was a significant contributing cause of the injury. Next, it contended that even if Ms Priolo's claim met the criteria prescribed by s 7(8), her claim fails because she does not satisfy the test of compensability prescribed by s 7(2) of the RTW Act.
5. In connection with the first ground of appeal, Mr Warren submitted that on the facts as found by the judge, Ms Priolo was required as part of her job to return to her car to retrieve the material required by her to conduct the 8.30am class at the Centre. He submitted that these facts could only lead to one conclusion, namely that when she was walking back to her car, when she was injured, Ms Priolo was carrying out the duties of her employment. He submitted that in not reaching this conclusion, the judge misdirected himself because he focused only upon the purpose of the walk generally, which he found was not undertaken as a duty of employment, and failed to also consider the specific walk to collect the run sheets. He submitted that the judge's observation that there were other means available to Ms Priolo to achieve her stated aims in going for the walk was irrelevant to the issue as to whether in respect of this aspect of Ms Priolo's walk, the statutory test was met. He submitted that the judge erred by being distracted by considering what else Ms Priolo could have been doing on the break between classes, rather than considering what she was doing at the time she sustained injury, and why she was doing it.
6. In respect of the second ground of appeal, Mr Warren submitted that the judge provided no explanation as to why he concluded that Ms Priolo's specific walk to collect the running sheets was not complying with an implicit instruction given by the employer, or something incidental to that. He noted that the judge found that Ms Priolo required the run sheet for the next class that she was to teach, that the run sheet was in her bag in her car, and that she was walking to her car to retrieve her bag when she was hit by the cyclist and injured. He submitted that these findings were significant, and required the judge to provide reasons as to why the task of retrieving the run sheet was not carrying out a duty of employment or was reasonably incidental to performing her job. He submitted that the only reference that the judge made to this was to link complying with an implicit instruction given by the employer. He submitted that the reader of the judge's reasons was left to speculate what he meant when he used the term "akin to a duty of employment". He said that whilst the reader might be able to discern why the judge did not consider the placing of the bag with run sheet in the car to be a duty of employment, the reader could not discern why the retrieval of the bag with the run sheet for the next class to be taught upon completion of the walk, was not reasonably incidental to performing her job.
7. The Corporation's counsel, Mr O'Leary SC, submitted that on the face of it, the judge's reasons did disclose that he understood the relevant legal principles to be applied. He submitted that in truth, on appeal, Ms Priolo was seeking to revisit the findings made by the judge, which he submitted was beyond the scope of this appeal. He submitted that the judge's key findings were: when Ms Priolo was injured she was not performing a task that she had been employed to perform; she was never expressly asked or directed to undertake the journey by the YMCA; the act of walking to retrieve her bag was not imposed by way of instruction, nor was it dictated by the YMCA's exercise of control; the walk was initiated by Ms Priolo during an unpaid break, and, crucially, at a time when she was free to spend her time as she wished.
8. He submitted that the judge did consider and rejected the contention that Ms Priolo's walk fell within the scope of an implied duty that was reasonably incidental to an activity for which she was employed. He submitted that the judge reasoned that although Ms Priolo had a general obligation to be ready for her next class, it was plain that this did not translate into a specific obligation to retrieve the run sheet in the manner undertaken. He submitted that Ms Priolo was not subject to a positive obligation requiring her to engage in a walk of this nature during the break, and it was not reasonably incidental to the next class or her duties of employment generally.
9. Next, he noted that the RTW Act does not prescribe what weight a judge is obliged to accord particular facts in determining whether a journey is undertaken in the course of carrying out duties of employment. He submitted that in the context of an appeal is limited to a question of law, this was significant. Her submitted that it followed, that the judge's conclusion that in undertaking the walk Ms Priolo was not complying with an implicit instruction given by the employer, or something incidental to that, should be seen as a finding of fact that is immune from review on appeal. He referred us to the decision of the High Court in Vetter v Lake Macquarie City Council (Vetter) [14] where Gleeson CJ, Gummow and Callinan JJ said:

However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v Cozens was just such a case. The only question raised was whether the appellant's behaviour was 'insulting'. As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact.

Earlier in Williams v Bill Williams Pty Ltd Mason JA had observed:

"[I]t may happen that the tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law.

The principle has been enunciated that, if different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact."[15]

1. In respect of the complaint about the adequacy of the judge's reasons, Mr O'Leary submitted that on any sensible view, Ms Priolo could not have been left wondering why she did not succeed. Her contract expressly provided that each offer of work was a separate contract such that there could be no instruction as to what to do between contracts and that because at the time of her injury she was on the course of a "broken shift", she was free to do what she wanted during the break. He added that her decision to go for a walk during the break was not her only option and that she could have, but elected not to, do something else. He submitted that the freedom to do what she wanted to do between classes was determinative, because it established that in electing to go for a walk, she was not carrying out her duties of employment and she was not doing something reasonably incidental thereto.
2. As to the notice of contention, Mr O'Leary accepted that in respect of analogous provisions the WR&C Act, the Full Court of the Supreme Court in Wheeler held that the journey provisions in that Act were an exclusive code. He also accepted that where provisions are re-enacted from earlier legislation the presumption is that they serve the same purpose. He submitted that the creation of new provisions in respect of the criteria to be met for compensability in the RTW Act, which now relevantly includes: "the employment was a significant contributing cause of the injury", was not a re-enactment of earlier legislation that had as its primary test of compensability: "a disability is compensable if it arises from employment"[16], such that cases on this issue decided under the WR&C Act no longer had application. He submitted that this in turn leads to the conclusion that the decisions of the Full Bench in Turner v Return to Work Corporation of South Australia and ABA Plumbing and Gas Pty Ltd (Turner) [17] and Utilities Management Pty Ltd v Thelan (Thelan),[18] both of which held that ss 7(8), (9) and (10) of the RTW Act comprised of a code, should not be followed.
3. In Turner, Rossi DPJ, with whom Calligeros DPJ agreed, said:

In Wheeler v State of South Australia White J referred to the cognate sub-provisions of s 30 of the WRC Act as constituting a code for compensability of journey accidents. That was followed by Kourakis CJ in Mills v Return to Work Corporation of South Australia.

The reasoning which led to the conclusion of a code for journey accidents under s 30 of the WRC Act applies equally to ss 7(8)-(10) of the RTW Act.[19] (Footnotes omitted)

1. The same view was expressed by Calligeros DPJ, with whom Cole DP agreed, in Thelan where he said:

In Karanicos and Brophy, and without ultimately deciding the issue, Doyle CJ expressed the view that the journey injury provisions in s 30 of the repealed Act probably constituted a code.

In Wheeler v State of South Australia, White J agreed with Doyle CJ's view. His Honour explained that in using the word 'code' to describe the journey injury provisions, Doyle CJ meant that the provisions exhaustively stated the circumstances in which a journey injury will be compensable. Because the journey provisions are a code, White J held that s 30(2) of the repealed Act, which contains the test for compensability, did not apply to journey injuries. By logical extension, the requirement in s 7(2) of the RTW Act that employment be a significant contributing cause of a physical work injury does not apply to journey injuries.[20] (Footnotes omitted)

1. Mr O'Leary submitted that we should instead adopt the approach taken in Power v Return to Work Corporation of South Australia and National Pharmacies Distribution Centre (Power) [21] . That case concerned a claim for compensation under the RTW Act in respect of injuries sustained by a worker when he fell on to the hard floor of a bathroom at the Adelaide Convention Centre whilst attending an awards night hosted by his employer. This potentially brought into play s 7(7) of the RTW Act which provides:

An injury does not arise from employment if it arises out of or in the course of the worker's involvement in a social or sporting activity, except where the activity forms part of the worker's employment or was undertaken at the direction or request of the employer.

1. In Power, the trial judge found that the worker had received an email invitation from his employer to attend the awards event in circumstances that amounted to a request by the employer that he attend the awards night. Having found that the worker had been requested to attend the awards night within the meaning of s 7(7) of the RTW Act, the judge found that the section did not exclude the appellant's injury as arising from employment. The judge then proceeded to deal with the application of s 7(2)(a) of the RTW Act. He observed that there are two limbs to s 7(2)(a), each of which must be established on the balance of probabilities, being first, that the injury arose out of or in the course of employment, and second, that the employment was a significant contributing cause of the injury. The judge found that the worker experienced a health related episode that led to him striking his head on the door handle of the bathroom, falling backwards and then hitting his head on the floor, such that the cause of his injury was the medical episode. He then found that the worker's attendance at the Convention Centre was no more than the occasion for the medical episode to manifest itself, without employment being a significant contributing factor to the injury and therefore upheld the rejection of the worker's claim.
2. On appeal, the worker in Power argued that s 7(7) of the RTW Act was a stand-alone provision, and that accordingly s 7(2)(a) did not apply. He argued that because the judge found that he was engaged in a social activity at the request of the employer, and he sustained injury arising out of or in the course of that social activity, that was sufficient for the injury he sustained to be compensable. The respondent countered by submitting that s 7(2)(a) and s 7(7) must be construed by reference to the principles of statutory construction, and a proper reading of s 7 in the context of the RTW Act made it clear that injuries which come within s 7(7) of the Act, must meet the test of employment being a significant contributing cause of injury.
3. In accepting the respondent's submission, Cole DP, with whom the other members of the Full Bench agreed, said:

Section 7(2)(a) is a provision of limitation in relation to claimed injuries. Without employment being either a significant contributing cause or the significant contributing cause, depending on whether injuries are physical or psychiatric, injuries arising from employment will not be compensable.

In my view, all that section s 7(7) does is to limit the circumstances in which an involvement in a social or sporting activity will be regarded as employment. The section does two things. First, it provides that an injury does not arise from employment if it arises out of or in the course of the worker's involvement in a social or sporting activity. That is the starting point. Then it provides for exceptions, namely where the activity forms part of the worker's employment or is undertaken at the direction or request of the employer. Section 7(7) is a provision which limits what is employment for the application of the RTW Act.

Section 7(7) says nothing about the cause of injury. That is because, in my view, s 7(2)(a) deals with causation in relation to physical injuries, by requiring that the employment was a significant contributing cause of the injury.

I consider that s 7(2)(a) properly construed applies to physical injuries, and what is relevant employment is determined by the other provisions of s 7 including s 7(7). In my view s 7(2)(a) of the Act applies to injuries which come within s 7(7) of the RTW Act.[22]

1. Cole DP added that it would be a strange, if not absurd, outcome for a person carrying out traditional employment who sustains an injury to be required to meet the test that the employment was a significant contributing cause of their injury, but a person injured from involvement in a social or sporting activity as directed or requested by the employer does not have to meet that test.[23]
2. Mr O'Leary submitted that while the first limb of s 7(2)(a) of the RTW Act is qualified by ss 7(8) and 7(9), the second limb of s 7(2), namely, that employment be "a significant contributing cause" is not qualified by ss 7(8) and 7(9). Hence, he said, that the second limb of s 7(2) must be satisfied in a journey case. He submitted to conclude otherwise would be to place too much emphasis on the obiter comments on s 30(5) of the WRC Act of Doyle CJ in Karanicos and White J's observations in Wheeler, and would give insufficient weight to the fact that s 7(2) of the RTW Act had introduced the second limb of s 7(2) as an express limitation on the application of the Act as a whole.
3. Mr O'Leary added the same absurdity alluded to by Cole DP in Power arises in respect of s 7(8) of the RTW Act, if the approach taken in Power is not applied.
4. Mr Warren submitted we are bound by Wheeler, Turner and Thelan, to reject the Corporation's submissions. He added that it was significant that s 7(2) of the RTW Act contains the chapeau "subject to this section"' and that s 7(8) is expressed in terms of "if and only if". He submitted that this fortifies the view that that s 7(2)(a) is a provision of general application, whereas s 7(8) is a provision of specific application and that the journey provisions in the RTW Act are a complete code that apply to the exclusion of s 7(2)(a).

1. We commence with the issue as to whether it is within our jurisdiction to review the judge's conclusion that the circumstances of Ms Priolo's injury did not meet the criteria established by the statutory test. Is that conclusion one of fact or law? As Kirby J observed in Vetter:

...the distinction between questions of fact and questions of law is important in many fields of law. Despite the attempts of many "distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated". Some of the attempts of the past to establish rules were described in Collector of Customs v Agfa-Gevaert Ltd as importing "artificial, if not illusory" distinctions, as well as rules of limited help in particular circumstances.[24]

1. Much could be written about apparent inconsistencies across a range of jurisdictions as to what does or does not amount to a question of law.[25] But now is not the time and place for us to venture into this. Whilst we accept that in respect of many of the statutory formulae contained within the RTW Act, the answer to the question whether the conclusion is one of fact or law is not free from doubt, on the issue as to whether an activity is or is not "carrying out duties of employment", the position is clear. In Brophy the Full Court on an appeal limited to a question of law had no hesitation in reversing a decision of the Workers Compensation Appeals Tribunal, on this issue. It plainly regarded the question as one of law. Later cases have endorsed that view. [26] It is one that we are bound to adopt.
2. Did the judge err in reaching his conclusion?
3. In Wheeler,[27] White J, with whom Sulan and Nicholson JJ agreed, said:

...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 an 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.[28]

1. On appeal, there was no challenge to the judge's conclusion that the whole of Ms Priolo's walk was not an activity that comprised of duties of employment. Nor could there have been. That conclusion was plainly correct.
2. It is understandable that this was the main focus of the judge's decision, because that is the way the case was run before him. But there is no doubt that there was an alternate basis upon which the case was argued, albeit that at trial it assumed much less prominence. Ms Priolo was clearly contending that she had to go back to her car to retrieve her bag and the belongings it contained, in readiness for the 8.30am class, and at the point when she headed towards her car, as opposed to walking more generally, she was carrying out her duties of employment.
3. Having made a finding that Ms Priolo needed run sheets to conduct most of the classes and found that a run sheet was required for the last class, the judge concluded that Ms Priolo was not carrying out her duties of employment because other options to keep warm and limber were available to her, and she exercised a preference to go for a walk at a time when she was not subject to direction from the employer.
4. There was a clear conflict on the evidence as to how significant the run sheets that Ms Priolo and Ms Ashri spoke about, were. Whilst the judge addressed this to some extent, in finding that a run sheet was required by Ms Priolo for the last class, he did not elaborate on what he meant by "required" and therefore left some aspects of the conflict unresolved. At its highest, Ms Priolo's evidence might have enabled a finding they were necessary for her to do her job and that she could not have performed it satisfactorily without them. But having regard to what Ms Ashri said on this issue, bearing in mind that Ms Priolo was relatively inexperienced in connection with her work as a Pilates instructor for the YMCA, other findings were open to the judge. He could have found that the run sheets comprised of no more than some sort of comfort and reassurance to Ms Priolo, that were not strictly necessary for her to conduct the class. He could have found that their importance extended beyond this, but perhaps not as far as Ms Priolo contended.
5. As was observed in Nancollas v Insurance Officer,[29] in deciding issues such as this, the factual matrix must be considered as a whole, and the addition or subtraction of any one or more facts might make all the difference. The absence of detailed findings about how significant the run sheets were places us at a disadvantage in determining whether the judge reached the right conclusion, because we cannot be certain that other findings may have led to a different result. Further findings are required to resolve this. And it is not a defect that we can remedy. In Dallimore v Return to Work Corporation of South Australia (No 2)[30] the Full Court emphatically stated that it is not within the jurisdiction of this Full Bench in dealing with an appeal limited to a question of law to be deciding facts.
6. In saying this, we are not to be understood as saying that further findings might necessarily result in a different outcome. And it is not appropriate for us to be suggesting what the result should be, depending upon what additional facts might be found, because to do so would be tantamount to answering hypothetical questions, which as the High Court said in Bass v Permanent Trustee Co Ltd[31], is an exercise that is incompatible with the efficient administration of justice.[32]
7. That absence of detailed findings also invites consideration as to whether the judge's reasons were legally inadequate.
8. In Return to Work Corporation of South Australia v Wastell[33] the Court of Appeal cited with approval the following passage from the judgment of Nettle J (dissenting in the result) in DL v The Queen:

Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law.[34]

1. What is at issue here, is not whether the conclusion reached by the judge was right or wrong. It is whether his reasons meet the threshold that justice has been seen to be done.[35] In fairness to the judge, given the way the trial was conducted, his focus on Ms Priolo's stated need to stay mentally and physically alert, to keep warm, and to reduce the risk of injury, was understandable. But, with respect, his reasons do not make it clear, that he independently of this part of her case, adequately considered the alternate case that she ran at trial about her need to retrieve the run sheets.
2. To borrow the words of the Court of Appeal in Return to Work Corporation of South Australia v Wastell,[36] in our view it was necessary for the judge to address the evidence of the apparent need or requirement for Ms Priolo to retrieve from her car the run sheets to conduct the 8.30am Pilates class, and what was entailed in retrieving them and to explain the significance, or otherwise, of that evidence to his conclusion that Ms Priolo's journey was not undertaken in the course of her employment. With respect, in failing to do so, the reasons of the judge were inadequate. This is an error of law that requires correction.
3. This then leaves the Corporation's notice of cross contention.
4. In our opinion, the suggested conflict between the approaches taken by the Full Bench in Power as opposed to Turner and Thelan, is more illusory than real. Sub-sections 7(5) and (7) of the RTW Act must be seen in the context of "[t]he widening, over the years, of the conception of what belongs to an employment".[37] Because that concept might change over time, bearing in mind that these are matters of degree that take into account contemporary understandings of the employment relationship,[38] there might be uncertainty as to what employment does and does not include. This explains the purpose of these provisions. Section 7(5) of the RTW Act puts beyond doubt, that employment includes the activities specified in that sub-section. On the other hand, s 7(7) must be taken as reflecting Parliament's view, that in respect of injuries sustained in social or sporting activities, a brake on that widening was necessary, and it puts beyond doubt that employment only includes these activities when that activity forms part of the worker's employment or is undertaken at the direction or request of the employer.
5. In both cases, Parliament has defined what employment does and does not include. In neither case, has Parliament displaced the added qualification contained in s 7(2)(a) of the RTW Act, in respect of injuries other than psychiatric injuries, that the employment must be a significant contributing cause of the injury.
6. In contrast to this, s 7(8) does not define what employment does or does not include. Its focus is directed towards the attributes of the journey, by prescribing what characteristics of a journey enable it to be said to be a journey that arises from employment.
7. Thus, we do not see any inconsistency between Power, and Turner and Thelan.
8. The Full Court in Wheeler clearly and unequivocally held that the predecessor to the journey provisions contained in the WR&C Act was a complete code. That decision has been held by two decisions of this Full Bench in Turner and Thelan to warrant the conclusion that ss 7(8), (9) and (10) of the RTW Act are similarly a complete code. Under the principle of stare decisis, the starting position is that we are bound to follow those decisions.
9. In Pond v WorkCover/Allianz Australia (Wunda Joinery),[39] the Full Bench of the Workers Compensation Tribunal emphasised the important policy considerations involved in following precedent and of the need for restraint when contemplating not following an earlier decision. It added that caution must be exercised when reconsidering the construction of a statute, especially in the context of a specialist jurisdiction.[40]
10. Moreover, as was observed in Grantham v Department of Correctional Services, in matters of the construction of words, reasonable minds might differ as to their meaning.[41] In the context of deciding whether to depart from an earlier decision on a matter of statutory construction, this is significant. As Bell CJ, writing on behalf of the New South Wales Court of Criminal Appeal in Totaan v R[42] observed:

...whilst intermediate appellate courts are not legally bound by their own earlier decisions, they should only depart from such authority or the authority of courts of co-ordinate jurisdiction within the national system if they are of the view that the decision in question is "plainly wrong" and, such an error having been identified, there are "compelling reasons" to depart from the earlier decision or decisions. The fact that reasonable minds might differ on the interpretation of a statutory provision will generally be insufficient to warrant a conclusion that an earlier or existing interpretation of the provision or provisions in question was "plainly wrong".[43] (Footnotes omitted)

1. Whilst we can accept that there is some force in the arguments put by the Corporation on this issue, we are far from convinced that Turner and Thelan are plainly wrong. It is notable that the qualification to s 7(2) that it is "subject to this section" is identical to that which prefaced s 30(2) of the WR&C Act. Like Doyle CJ in TransAdelaide v Karanicos,[44] we think that the obvious explanation for the use of this expression is that it contemplates that there are provisions within s 7 to which s 7(2)(a) does not apply. In conformity with Turner and Thelan, these include ss 7(8), (9) and (10) of the RTW Act.[45]
2. We therefore dismiss the Corporation's notice of cross contention.

*** The appeal is allowed and the application for review is remitted to the judge for further determination restricted to the topic of Ms Priolo's need or requirement to retrieve from her car the run sheets to conduct the 8.30am Pilates class on 15 April 2024, and what was entailed in retrieving them.

• Liberty to apply as to the costs of the appeal.**

[1] Section 26I of the South Australian Employment Tribunal Act 2014.

[10] [2025] SAET 29 at [64].

[11] [2012] SASCFC 111; (2012) 114 SASR 111.

[12] (1997) 68 SASR 97.

[14] [2001] HCA 12; (2001) 202 CLR 439.

[17] [2021] SAET 45.

[18] [2021] SAET 247.

[21] [2020] SAET 252.

[25] Many of these are collected and discussed in South Australian Police Department v Barber [2001] SAWCT 100. See also the differences between the majority and minority judgments in Smith v Workcover Corporation/Mmi W.C. (S.A.) Ltd. (Underdale Metal Processing) [1997] SAWCT 10.

[26] See, for example: Return to Work Corporation of South Australia v Wastell [2024] SASCA 98 at [31]- [32].

[27] [2012] SASCFC 111.

[29] [1985] 1 All ER 833 at 840.

[30] [2021] SASCFC 8 at [8].

[31] [1999] HCA 9; (1999) 198 CLR 334.

[33] [2024] SASCA 98.

[34] [2018] HCA 26; (2018) 266 CLR 1 at [131].

[35] Return to Work Corporation of South Australia v Anna Katis [2020] SAET 153 at [51].

[36] [2024] SASCA 98 at [108].

[37] Park v Peach [1967] VicRp 60; [1967] VR 558 at 565 per Adam J.

[38]Wolmar v Travelodge Australia Ltd (1975) 26 FLR 249 at 255.

[39] [2001] SAWCT 69.

[41] Grantham v Department for Correctional Services [2025] SAET 57 at [105].

[42] [2022] NSWCCA 75; (2022) 108 NSWLR 17.

[44] (unreported, Supreme Court, SA No S5536 of 1996, 3 April 1996) at [20].

[45] See also: Brown v Return to Work Corporation of South Australia (Allstaff Instrument & Electrical Division Pty Ltd) [2024] SAET 51 at [40]- [65].