JURISDICTION: South Australian Employment Court - Return to Work Act 2014 - Hearing and Determination

JUDGMENT OF: His Honour Deputy President Judge Calligeros

Journey injury claim - The applicant is a pilates instructor who was injured taking a walk in a 30 minute break between two classes (the walk) - The applicant was not paid during the break - The three classes the applicant was contracted to take on the day in question are part of a broken shift within the meaning of the applicable award - The applicant undertook the walk because she wished to keep mentally and physically fresh and keep warm as it was cold in the studio - The walk was submitted by the applicant to be a journey under s 7(8) of the RTW Act - The applicant was not aware there were lockers available to securely store items and locked her bag, which included run sheets for the classes, in her car - The applicant was hit by a cyclist and injured as she was crossing the road at the end of the walk to retrieve her bag from her car - HELD: 1. The walk is a journey within the meaning of s 7(8) - The relatively short distance covered by the walk and the fact it was not between two specific points are not factors that are determinative of whether the walk was a journey sin the relevant sense - By reference to the ordinary meaning of the language of s 7(8), and to what is capable of amounting to a journey within the meaning of s 7(8), the walk is a journey in the relevant sense - 2. Whilst there were work-related reasons to undertake the walk, they do not rise to a sufficient level so the walk can be described as being undertaken in the course of carrying out duties of employment - The evidence shows that the applicant exercised a preference to go for a walk when other options to remain warm and limber were available - Decision rejecting the claim confirmed.

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

Paparella v WorkCover GIO Australia (Kangaroo Island Ferries Pty Ltd) [1998] SAWCT 57

Russo v Workcover Corporation - Mercantile Mutual Insurance (SA) Workers Compensation Ltd. (S.K. & A. Savas) [1999] SAWCT 70

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

McGuire v Workcover Corporation/Vero Workers Compensation (SA) Ltd (Peter Page Holden Pty Ltd) [2006] SAWCT 11

TransAdelaide v Karanicos [1996] SASC 5536

South Australia v Brophy [1997] SASC 6046; (1997) 68 SASR 97

Return to Work SA v Backhouse [2019] SAET 34

1. This decision concerns a claim made by Allison Priolo in which she seeks compensation for injuries sustained on 15 April 2024 when a bicycle collided with her. The parties have proceeded on the basis that the scope of the decision is limited to whether the injuries arose in the course of Ms Priolo's employment with Young Men's Christian Association of South Australia Incorporated (YMCA or the employer).
2. The claim is advanced on the basis that Ms Priolo was injured in the course of a journey undertaken in the course of carrying out duties of employment pursuant to s 7(8)(a) of the Return to Work Act 2014 (RTW Act).

1. Ms Priolo is 49 years of age. In 1996 she completed a Bachelor of Arts in Dance at the University of Adelaide. She subsequently obtained numerous qualifications including Certificate III in Fitness, Certificate IV in Fitness, mat work and reformer pilates certifications and a degree in public health nutrition.
2. Ms Priolo has worked in various fitness centres. From around 2015 she was employed on a casual basis by Goodlife Health Clubs as a fitness instructor. Between October 2022 and January 2024 she worked as a pilates instructor for Derrimut Health and Fitness Pty Ltd.
3. In January 2024, Ms Priolo applied for work as a pilates instructor with YMCA. She was successful and commenced in the role in March 2024.

1. Ms Priolo was provided with a written contract of employment by YMCA to work as a pilates instructor on 27 March 2024 and provided with a written contract to work as a yoga instructor on 2 April 2024.
2. Ms Priolo partook in an induction on 14 February 2024 prior to signing the employment contract to work as a pilates instructor. The induction was at the Purruna Spencer Newton Centre (Centre), where pilates classes were conducted. The Centre is in the grounds of Scotch College at Torrens Park.
3. Ms Priolo stated in her evidence affidavit that YMCA had a preferred structure or framework in relation to how pilates and yoga classes were conducted. She created separate run sheets outlining the routines/exercises to be used in different types of classes in keeping with directions given to her. She kept the run sheets in a bag that she took to work. The bag also contained her purse, water bottle, makeup bag, towel and microphone belt.
4. Ms Priolo described her induction, which was conducted by Angie Ashri, pilates studio manager of YMCA, in the following way:[1]

33. The induction process took place on or about 14 February 2024 with Ms Ashri. The induction was at the Centre.

34. I was paid for my time at the induction.

35. The induction included a tour of:-

a. The studio in which I would be conducting/teaching Pilates classes.

b. Ms Ashri also showed me the location of the yoga studio and I was informed that students at Scotch College occasionally use the Yoga studio.

c. The staff room behind the pool area where there were kitchen facilities and where I was shown to clock in and out before and after a shift.

36. I do not recall seeing a whiteboard during the induction process.

37. I do not recall being shown or told about lockers for staff use during the induction process.

38. During the induction process, I was advised of the following:-

d. Each class goes for 50 minutes, with 10 minutes between each class to allow informal chats with the participants and to use the restroom when there were no participants in the studio.

e. There were no restrictions on what I could do if there was a 30-minute time period between the end of a 7:00 am class and the beginning of a 8:30 am class.

f. The open shelves inside the studio were to be used by the members of YMCA and the class participants.

g. The small car park at the Centre on campus was for use by members, and I should only park my vehicle in this area when it was dark outside and if I felt unsafe.

1. Prior to 15 April 2024, Ms Priolo had completed shifts on 25 March 2024 and 8 April 2024. On both occasions, and on 15 April 2024, Ms Priolo parked her car on McLaren Street, which joins the opposite side of Blythewood Road to the side the Centre is located on. Ms Priolo had driven to the Centre from her home in the Adelaide Hills.
2. On 15 April 2024 Ms Priolo was contracted to conduct classes at 6am, 7am and 8:30am.
3. Each pilates class ran for 50 minutes. Ms Priolo remained in the Centre in the 10 minute period after a class because she was contracted and paid to do so. She went for a walk in the 30 minute break between the end of the 7am class and the beginning of the 8:30am class (the walk). Ms Priolo did not work and was not paid to work in the period between 8am and 8:30am.
4. The shift Ms Priolo worked on 15 April 2024 is a broken shift under cl 13.4 of the Fitness Industry Award 2020 (Cth) (Award) which provides:

13.4 An employee may be rostered to work a broken shift on any day provided that:

(a) the shift is not broken into more than 2 parts;

(b) the total length of the shift is not less than 3 hours, exclusive of meal breaks; and

(c) the span of hours from the start of the first part of the shift to the end of the second part of the shift is not more than 12 hours.

1. In her affidavit, Ms Priolo described the walk in the following way:[2]

42. In order to stay fresh (physically and mentally) between the end of the 7:00 am class and the start of the 8:30 am class, I went for a walk in the area adjacent to the Centre / the campus on Blythewood Road. This ensured that I was mentally and physically prepared and able to adequately perform my duties.

43. Before and after each shift on 25 March 2024 and 8 April 2024, I believe I clocked on and off where the staff room is located.

44. It was my preference to go for a walk rather than attending the school café or stay in the studio so that I could stay warm. Also, I did not want to spend money.

45. Since I did not know about secure lockers to store my personal belongings within the Centre, I brought my bag with me to the studio during classes for access to my belongings and equipment that I use during the classes that I teach, such as the class / run sheets. I took my bag with me when going on walks during the 30-minute time period as mentioned above because I did not want to leave my bag unattended in the studio for security purposes. To avoid carrying the bag (due to the weight of the bag), I placed my bag in my car before continuing with my walk. Once I finished my walk, I would take my bag from my car and return to the Centre so I can use the equipment in my bag for the next class.

1. After completing the 7am class on 15 April 2024, Ms Priolo walked from the Centre across Blythewood Road and put her bag in her car. She locked her car and then walked downhill along Blythewood Road in a westerly direction. She turned around and walked back up Blythewood Road in an easterly direction to retrieve her bag from her car. As she commenced crossing McLaren Street she was hit by a cyclist riding a bicycle down McLaren Street and in the process of turning left onto Blythewood Road to travel downhill in a westerly direction.
2. As the parties seek a determination of liability, it is not necessary to provide much detail about the injuries sustained. The injuries are serious and include a traumatic brain injury, a fractured C3/4 vertebrae, fractured cheekbones and a dislocated left shoulder which required surgery.
3. In oral evidence Ms Priolo explained that she needed to get the run sheets from her bag because whilst pilates instructors usually design their own classes, Ms Ashri wanted 2 of the 3 different types of pilates classes that Ms Priolo taught at the Centre conducted in a specific way.
4. In relation to the induction, Ms Priolo said that she and Ms Ashri only spent a few minutes in the staff room which had lockers where staff could place their belongings securely. She said that Ms Ashri did not tell her during the induction that lockers were present and could be used by staff to store their belongings. Ms Priolo said that the Centre was unlocked and there was an indoor swimming pool with access to the staff room and she did not wish to leave her things there unsecured whilst conducting classes.
5. Ms Priolo stated that she had raised the subject of the Centre being quite cold with Ms Ashri. She said that she was told the temperature was set by Scotch College and 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.
6. Ms Priolo explained that she was told by Ms Ashri that she was to park outside the Centre carpark unless she had personal safety concerns in doing so because parking spaces in the Centre carpark were limited and members were to be given priority use.
7. In cross-examination Ms Priolo was challenged about it being "pretty light" when she arrived at the Centre at about 5:50am on 15 April 2024. It was put to her that daylight saving had finished on 7 April 2024. She said that she was not aware of that fact but did not have concerns about her personal safety parking on McLaren Street in any event.
8. Ms Priolo was shown a photograph of the staff room at the Centre which showed a kitchen with a sink, dishwasher and microwave oven, beyond which there were cupboards with metallic handles and open shelves beneath. She stated that the short time in the staff room focussed on a device on the microwave oven which staff used to clock on and off. It was put to Ms Priolo in cross-examination that Ms Ashri had told her the wooden cupboards were lockers which were available for use by staff. Ms Priolo disagreed and said that if she had been told that, she would have locked her bag in one of the lockers. She said that she still would have walked between 8am and 8:30 am, but would not have crossed Blythewood Road to lock her bag in her car because the bag would have been in a locker.
9. It was also put to Ms Priolo that she could have conducted the 8:30am class without the need to walk beforehand given the gap between the end of the 7am class and the start of the 8:30am class was only 40 minutes. Ms Priolo disagreed. She said that she knew how her body operated and did not want to risk injury by cooling down before the 8:30am class. Later in cross-examination Ms Priolo explained that she went for a jog near her home before driving for 15 minutes to arrive at the Centre and conduct the 6am class. Ms Priolo stated that she arrived about 10 minutes before the 6am class and did some stretching during that time. When it was put to her that she would remain warm because of the classes, Ms Priolo said that in classes she demonstrated exercises and checked on how participants were performing exercises, and that was not the same as jogging or exercising herself. She said that the cold environment in the studio did not assist her to stay limber and the whole point was to get out of the studio.

1. Ms Ashri deposed that the Centre needed a new instructor and she considered that Ms Priolo would be a good fit. Ms Ashri said instructors were not required to use run sheets, but it is expected that they know the class plan in classes which have a specific structure. She stated that the induction takes 2 hours because of the "huge emphasis on class styles".[3]
2. When dealing with the time spent in the staff room during the induction Ms Ashri stated that her usual process was to go to the staff room. She stated that YMCA does generally discourage staff from parking in the Centre carpark. She stated that Ms Priolo was a casual employee under the Award.
3. In cross-examination Ms Ashri agreed that the Reform and Power Form pilates classes had to be conducted in keeping with plans provided by YMCA. With the third type of class, Calm, Ms Priolo could use her discretion about which exercises to use.
4. Ms Ashri agreed that with 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".[4]
5. Ms Ashri described the device on the microwave oven in the staff room as a tablet and stated that staff members were required to sign on and off through it. She did not consider that the shift Ms Priolo worked on 15 April 2024 was a broken shift within the meaning of the Award but acknowledged that view was not based on legal expertise or advice.
6. Ms Ashri agreed that much of what she deposed in her affidavit about Ms Priolo's induction was based on her normal practice and not a clear recollection of Ms Priolo's induction. She acknowledged that her use of expressions like 'I would have' and 'my normal practice is' in her affidavit indicated that was the case.
7. Ms Ashri was questioned about policies and procedures that apply to YMCA employees. She said that employees were expected to "comply with the obligations and requirements of the policies and procedures that were in place".[5] She confirmed that was the case with the YMCA South Australia Work Health and Safety Responsibilities Procedure.[6] When asked about the YMCA South Australia Code of Conduct Policy (Policy),[7] Ms Ashri said that YMCA employees were expected to comply with its provisions.

1. Mr Warren KC, counsel for Ms Priolo, submitted that the facts of the matter are relatively straightforward and Ms Priolo's account of events should be accepted. Mr Warren emphasised that Ms Priolo needed to ensure that she was able to properly conduct the 8:30am class and the walk facilitated that end.
2. In relation to whether the walk was a journey within the meaning of s 7(8) of the RTW Act, Mr Warren submitted that a round trip may be a journey, citing the ill-fated expedition of Burke and Wills.
3. In relation to whether the walk was undertaken in the course of carrying out duties of employment Mr Warren submitted that Ms Priolo was working one shift broken into two parts under cl 13.4 of the Award rather than engaging in two separate periods of employment. It followed, he said, there was one period of work with a break or interval, rather than separate periods of employment.
4. Mr Warren submitted that the Policy imposed obligations upon Ms Priolo including to ensure that she was ready to commence work. He said that included being 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. That, 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.
5. Whilst emphasising that Ms Priolo's case was presented as a journey injury case, Mr Warren submitted that if I was against that, I should consider s 7(2) of the RTW Act and find its requirements satisfied.
6. Mr Hanus, counsel for YMCA, referred to two decisions of the Workers Compensation Tribunal in relation to the journey injury provisions of the Workers Rehabilitation and Compensation Act 1986 (WRC Act). Those provisions are almost identical to ss 7(8)-(10) of the RTW Act. Mr Hanus submitted that the walk was neither of a sufficient distance to be considered a journey nor was it between two specific points. He said those things were requirements or characteristics of a journey. The legislation and authorities referred to are detailed later in these reasons.
7. In addition to submitting that the walk was not a journey, Mr Hanus submitted that the evidence showed that Ms Priolo would have gone for a walk even if she had not taken her bag to her car. Stopping at the car was therefore inconsequential. Mr Hanus said there was no real difference between this case and a sedentary worker going for a walk at lunchtime.
8. In response to the submission that Ms Priolo was injured during a break within a period of employment, Mr Hanus pointed out that s 7(5)(a) of the RTW Act only covers injuries which occur in authorised breaks when a worker is at the place of employment during the break. He submitted that it would be an odd result if this injury was covered when a worker injured in a similar way during a lunch break is not.
9. Mr Harms, counsel for the respondent, adopted the submissions made by Mr Hanus. Mr Harms outlined the history of the journey injury provisions in the WRC Act and the restrictions that were imposed on journey injuries during the life of the WRC Act. He observed that restrictions were not imposed in relation to various attendances and circumstances statutorily included to form part of employment such as being injured during an authorised break whilst at the place of employment.
10. Mr Harms submitted that when injured, Ms Priolo was simply going for a walk and not undertaking a journey. By way of illustration he said that if Ms Priolo had injured herself whilst jogging before commencing work to prepare for work, the injury is not a work injury under s 7.
11. In reply, Mr Harms countered a submission that Ms Priolo was not challenged about the purpose of the walk being as she described and being work-related. Mr Harms submitted that at paragraphs [42] and [44] of her affidavit, Ms Priolo stated that she preferred to go for a walk rather than go to the coffee shop or stay in the pilates studio.

(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; ...

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

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

(b) the journey is between -

(i) the worker's place of residence and place of employment; 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. Ms Priolo gave evidence clearly and in a forthright fashion. I formed the view that she is a diligent instructor. I accept her evidence other than in relation to the subject of how much daylight was present when she arrived at work just prior to 6am on the day she was injured.
2. Ms Ashri's evidence supports 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; 2 of the 3 classes on 15 April 2024 required Ms Priolo to follow a specific exercise routine. Those matters are non-contentious. As Ms Priolo had just started working at the Centre, I find that she needed run sheets to conduct most of the classes. The evidence is not clear whether a run sheet was needed for the 8:30am class. As run sheets were required for 2 of the three classes, I find that a run sheet was required for the last class.
3. To the extent of any difference between the evidence of Ms Priolo and Ms Ashri, I prefer Ms Priolo's evidence. Parts of Ms Ashri's affidavit are expressed in terms of what she 'would have done' and not what she did. Ms Ashri accepted that she used that expression where her recollection was incomplete. That contrasts with Ms Priolo's evidence. For that reason I accept Ms Priolo's account about what the induction involved.

1. Most of the authorities referred to in these reasons concern s 30(5) of the WRC Act. Section 30(5) is the analogue and statutory predecessor of s 7(8) of the RTW Act. The two provisions are materially the same and have been treated as operating in the same way by this court.[8]
2. In submitting that Ms Priolo was not undertaking a journey when injured, the employer and the Corporation relied upon Paparella v WorkCover GIO Australia (Kangaroo Island Ferries Pty Ltd),[9] where the worker fell from a mooring rope he was "monkey climbing". One issue that fell for decision was whether the worker was engaged in a journey at the time of the fall. In relation to that issue the Deputy President said:[10]

The word `journey' is not defined in the Act but there is no reason to assume that it is limited to travels along public thoroughfares or the like, not that that would necessarily be decisive here. The Websters Dictionary refers it to being `the act or an instance of travelling from one place to another', but I think that more is required than that. If that were the position, then it might follow that whenever a worker was in motion and not stationery he or she would be regarded as upon a journey. I am inclined to think that the more restrictive meaning contained within the Oxford Dictionary, which refers to it being an expedition over some distances is more likely to reflect what Parliament had intended. Not that distance necessarily provides the answer. I say that because the word `distance' is as capable of as many shades of meaning as the words `place' or `journey'. But what I think it means is moving from one definite place or point over some distance to another definite place or point. The extent of the distance might depend upon the nature of the place or point. It will, be as is inevitably the case, a matter that will turn upon the relevant facts. The two places might be sufficiently unrelated that although geographically proximate, travel even over a short distance, might fairly be regarded as a journey. On the other hand, they might be so closely connected, that travel, even over some distance, might not be so regarded. The facts in this case do not point conclusively one way or the other. In a sense, the worker was moving between places that were unrelated, that is, the boat and the shore. In another sense, they were inextricably linked, not just by the rope that connected, but by the circumstances generally.

I accept that this is very much a matter of impression. But applying what I hope to be a practical and common sense approach, I think that there is a sufficient connection between the rope and the vessel and the shore, that having regard to all of the circumstances, no journey as contemplated by section 30(5) was involved.

1. In Russo v Workcover Corporation - Mercantile Mutual Insurance (SA) Workers Compensation Ltd. (S.K. & A. Savas),[11] a taxi driver was injured whilst walking a short distance to get some food before picking up his next customer. It was held that the short walk was not a journey:[12]

The issue then arises as to whether the worker's movements in leaving the taxicab and proceeding to the delicatessen in the Cosmos Shopping Centre, amounts to a journey. I made the point in Paparella (supra) `that this is very much a matter of impression'. At one extreme, if the worker had parked his car and walked a distance of a few metres to sit an adjacent park bench, and consumed some food that he had taken with him, I do not think that anyone would seriously suggest that in covering that distance, the worker was embarking upon a journey. On the other hand, if he had stopped his vehicle, with the intention of breaking for an extended period of time, had walked a distance and then caught a bus to a distant location with the intention of returning an hour or so later, one might far more readily come to the conclusion that in embarking upon that activity, the worker was involved in a journey as contemplated by section 30(5) In this instance, the worker was intending to traverse a distance of about 80 or so metres. He contemplated that he would be able to traverse the distance, purchase and consume food and be back in his taxi in sufficient time to drive to and collect a customer in under ten or so minutes. Applying what I hope to be a practical and common sense approach to this situation I do not think that he was involved in a journey for the purposes of section 30(5) at that time.

1. For the following reasons, caution needs to be exercised in relation to the findings and comments in Paparella and Russo about journeys.
2. The facts of Paparella are unusual to say the least. The worker was not performing duties of employment when injured, so the finding that he was not engaged in a journey when injured is not part of the ratio decidendi of the case. The worker took it upon himself to "monkey climb" the rope without an express or implied direction from the employer. Perhaps most importantly, Paparella was decided before judgment in three seminal journey injury cases was delivered by the Full Court of the Supreme Court. While those cases mainly concern the expression "in the course of carrying out duties of employment", the last of them, Wheeler v State of South Australia,[13] also concerns how s 30(5) of the WRC Act operates.
3. The finding that the worker in Russo was not in the course of a journey when injured did not alter the outcome as the injury was found to be compensable under s 30(2) of the WRC Act. If Russo had been decided after Wheeler, and the finding was that the worker was undertaking a journey when injured, the claim could not have succeeded under s 30(2).
4. In McGuire v Workcover Corporation/Vero Workers Compensation (SA) Ltd (Peter Page Holden Pty Ltd),[14] a Full Bench of the Workers Compensation Tribunal dismissed an appeal brought by a worker who was injured crossing the road in front of his place of employment to purchase his lunch. The Full Bench referred to Russo and stated that it was decided on its own facts.[15]
5. In TransAdelaide v Karanicos,[16] Doyle CJ observed that in amending the journey provisions of the WRC Act, Parliament restricted the ambit of such claims.[17] His Honour rejected a submission that because the worker was injured whilst undertaking a journey to obtain a medical certificate for a workers compensation claim, duties of employment were being undertaken. Doyle CJ held that the expression "duties of employment" is a narrower concept than the expression "in the course of employment".[18] His Honour held that while the injury was sustained during a medical attendance for a work injury and therefore was part of the course of employment by virtue of s 30(3)(e) of the WRC Act, the requirement for the worker to provide a medical certificate arose from the WRC Act, not the contract of employment.[19]
6. In South Australia v Brophy,[20] various employment requirements applied to a police issue motorcycle that the worker, a police motorcycle officer, was riding home after completing work for the day when he was injured. Two such requirements were that the route taken to the officer's home had to be direct and the time taken had to be limited to what was required by a direct journey home. Despite that, and despite police motorcycle officers being under a duty to respond to situations which may see them recalled to duty whilst travelling home at the end of a working day, the journey was found to not have been undertaken in the course of carrying out duties of employment. While the worker could have been called on to exercise power or authority as a police officer during the journey, that did not occur and the journey was therefore not undertaken in the course of carrying out duties of employment.
7. Wheeler concerns a South Australian police officer who attended a training course in Queensland. On the final day of the course the worker attended a debriefing at the Mt Isa Police Station. Afterwards the worker went to the police social club next door where he drank alcohol and socialised from about 5:30pm to 11pm. Whilst walking back to his motel, the worker stopped to get some food. He was injured in an altercation that took place outside a pizza bar he was leaving. At first instance, and in the first appeal, the claim was argued by reference to s 30(2) of the WRC Act, the analogue of s 7(2) of the RTW Act. Reference was made to s 30(5) of the WRC Act, however the Deputy President at first instance was asked by the parties to not decide the matter by reference to s 30(5). On further appeal, the Full Supreme Court found that the claim had to be decided by reference to s 30(5) as the journey provisions in s 30 are an exhaustive code which excludes the application of s 30(2) to a journey case.
8. In Wheeler, White J (with whom Sulan and Nicholson JJ agreed) considered Karanicos and Brophy. His Honour observed that in Karanicos, Doyle CJ opined that ss 30(5)-(7) of the WRC Act, which correspond to ss 7(8)-(10) of the RTW Act, probably constitute an exclusive code that applies to journey injuries. White J adopted Doyle CJ's description of the journey provisions as a code in Brophy in stating that s 30 states "exhaustively the circumstances in which a journey injury will be compensable".[21] His Honour then made the following finding:[22]

Accordingly, I would hold that subss (5)-(7) do state exhaustively the circumstances in which injuries arising out of, or in the course of, a journey may be held to arise from employment.

1. White J observed that s 30(2) is a provision of general application while s 30(5) is a specific provision. His Honour also observed that sub-s (2) is expressed to be "subject to this section".
2. The reasoning in Wheeler about the interaction between ss 30(2) and 30(5) applies equally to the interaction between ss 7(2) and 7(8) of the RTW Act.[23] It follows that s 7(2) does not have application and need not be satisfied if s 7(8) has application. It must still be shown that the injury arises from employment under s 7(1), but that requirement will be met if s 7(8) is satisfied. In other words, an injury will be found to arise from employment under s 7(1) if s 7(8)(a) is satisfied without any other provision in s 7 needing to be satisfied.[24]
3. The Corporation and YMCA submitted that based on Paparella, a journey involves "moving from one definite place or point over some distance to another definite place or point".[25]
4. While the word "journey" suggests travelling some distance, it does not follow that s 7(8) has a minimum distance requirement. The Deputy President in Paparella also stated that distance does not "necessarily provid[e] the answer".[26] The context of s 7(8) suggests that is the case. If a worker is told by the employer to cross the road in front of the place of employment to purchase something and is injured doing so, the shortness of the distance travelled does not prevent the injury from having occurred in the course of a journey within the meaning of s 7(8)(a). If a worker resides adjacent to their place of employment, the close proximity of the two places does not prevent the short walk from one place to the other from being a journey under s 7(8)(b).
5. While evidence was not given about the extent of the walk, I infer that it would have lasted for 10 to 15 minutes and covered about one kilometre.
6. In my view, a journey is not precluded from coming within s 7(8)(a) because it is not from one definite point to another. The word "journey" in ordinary everyday usage does not necessarily import a trip between two specific points. An ocean cruise which departs from and returns to the same port without stopping along the way can properly be described as a journey. A worker may be instructed by their employer to drive around a suburb to find a suitable site for a business. While no specific place may be travelled to or stopped at, the outing can properly be described as a journey undertaken in the course of carrying out duties of employment.
7. 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.

1. Ms Priolo was engaged as a casual employee under the contract of employment.[27] The contract of employment provides that there is "no firm advance commitment to indefinite and continuing work" (cl 3.2) and that the offer of work was at the discretion of YMCA, as was Ms Priolo's election to accept or decline work offered to her by YMCA (cl 3.3).
2. Clause 3.4 of the contract of employment provides that:[28]

Each occasion that you work will form a separate contract of employment, which ceases at the end of that engagement. You agree that any future engagements with YMCA South Australia will be on the same terms as this Contract.

1. Clause 6.5 of the contract of employment provides that:[29]

During your employment, you must:

a) Diligently and faithfully perform all the duties and responsibilities set out in your position description and such other duties as YMCA South Australia may require from time to time (including for any Related Entities) that are within your capacity;

b) Comply with all lawful and reasonable directions given to you by or on behalf of YMCA South Australia;

c) Act in YMCA South Australia's best interests and not use your position for an improper purpose or for private benefit;

d) During work hours, devote the whole of your time and attention to YMCA South Australia's business;

e) Attend staff meetings or training outside work hours as reasonably required by YMCA South Australia;

f) Always act lawfully and use all reasonable endeavours to ensure that YMCA South Australia complies with its legal obligations, including in relation to work health and safety laws, employment laws and discrimination laws;

g) Disclose to YMCA South Australia at the earliest opportunity all potential or actual conflicts between your personal interests and the interests of YMCA South Australia and any other matters likely to impact the performance of your duties, including any physical or psychological conditions that may limit your ability to fully perform all of your duties and responsibilities;

h) Conduct all business and interpersonal transactions in a matter that is consistent with YMCA South Australia's Mission and Values as amended from time to time; and

i) Protect the property of YMCA South Australia from theft, damage or neglect and give notice immediately to YMCA South Australia of any such theft, damage, or neglect which may come to your attention.

1. Ms Priolo was not asked or directed to undertake the walk by the employer. The Corporation and the employer submitted that she was therefore not undertaking duties of employment when she was injured. Ms Priolo submitted that she was undertaking duties of employment when injured during the walk based upon this passage in Wheeler:[30]

Thus, the concept of carrying out duties of employment has at its heart the doing of something which workers may be required to do, either because it is the activity for which they are employed, or because it is within the power of control of 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.

1. The last sentence of that passage was relied upon by Ms Priolo to submit that the journey she was undertaking was reasonably incidental to an activity for which she was employed and/or that she was acting in accordance with an implicit direction given by the employer when injured. Counsel for Ms Priolo emphasised that the journey took place between separate periods of employment, and the Policy expressly provides that employees had to be ready to commence work. Clause 3 of the Policy follows. The two sub-clauses expressly relied upon by Ms Priolo are underlined:

3. Fair, Safe and Ethical Environment

• YMCA has a responsibility to provide a safe, encouraging and supportive work environment that recognises and values diversity, abilities and contributions of workplace participants.
• Workplace participants are entitled to be treated with respect and work in an environment free from discrimination, harassment, bullying or vilification.
• Equally, workplace participants have a responsibility to act with integrity, honesty, transparency and impartiality in their dealings with colleagues, external contacts and members of the wider community.
• Workplace participants, at all times, must:

• Behave in a way that upholds the values of YMCA: honesty, respect, caring and responsibility
• Perform their duties in a safe and competent manner in accordance with relevant Work Health and Safety (WHS) legislation and YMCA policies and procedures
• Take care not to put themselves or other workplace participants at risk or reduce their ability to carry out their duties through unsafe practices and inappropriate behaviour
• Act in the interests of YMCA as a whole, honestly and in good faith
• Use care and diligence in fulfilling their role and in exercising the responsibilities attached to that role
• Maintain and develop the knowledge and skills necessary to carry out their duties and responsibilities
  • Respect YMCA's ownership of all of its property; including but not limited to funds, equipment, supplies, books, records and confidential information (however described)
• Comply with all applicable legislation and the reasonable and lawful directions of YMCA
  • Report any known or suspected instances of inappropriate, dishonest or fraudulent conduct to appropriate YMCA Management
• Report unlawful or unethical behaviour

1. The walk took place in a 30 minute break between a class that ended at 8am, and a class scheduled to commence at 8:30am. Clause 13.4 of the Award describes the shift worked on the date of injury as a broken shift. A broken shift cannot be broken into more than two parts (cl 13.4(a)) and the total length of the shift must not be less than 3 hours (cl 13.4(b)).
2. Clause 13.5 of the Award contains the term "rostered hours". The Award does not define "rostered hours", so it is not clear whether rostered hours include any break in a broken shift. The term does not appear elsewhere in the Award and appears to have a specific function so I do not consider it further.
3. The Corporation submitted that Ms Priolo would have undertaken the walk regardless of whether she had locked her bag in her car. Ms Priolo gave evidence that if she did not have to leave her bag in her car she would not have crossed Blythewood Road and would not have walked on the McLaren Street side of Blythewood Road. I accept that evidence.
4. Clause 3 of the Policy does not assist Ms Priolo's case in my view. The reference to unsafe practices and inappropriate behaviour in the first underlined sub-clause seems to be directed at behaviours and practices that are relatively serious. While the sub-clause refers to risk to self, it appears to be mainly directed to behaviours and practices that affect others, such as clients and other employees. The second underlined clause focusses on exercising care and diligence in relation to the responsibilities that attach to a role. Failing to undertake activity in a 30 minute break between classes does not amount to failing to exercise due care and diligence in exercising a responsibility attached to a role in my view. It is hard to imagine the employer relying on that clause to take some form of punitive action against an employee who sustains injury taking a class. Whilst I accept Ms Priolo's concern about protecting against injury, she stated that she did not perform all the exercises with clients. Much of her time was spent observing clients and demonstrating how exercises should be performed.
5. While Ms Priolo undertook the walk to stay mentally and physically alert, to keep warm and to reduce the risk of injury, her affidavit acknowledges that those goals could have been achieved by other means, such as sitting in a warmer area in the Centre, for example the staff room, or by exercising in the pilates studio or by sitting in the coffee shop. Ms Priolo did not spend the break in the coffee shop because she did not wish to spend money, however her acknowledgement that was an option qualifies the need to undertake the walk. Other options were available.
6. In Wheeler the worker argued that he was injured in the course of carrying out duties of employment because "he was subject to an implied obligation to use the Outback Motel for accommodation while in Mount Isa and accordingly that his activity in returning to the motel was part of the discharge of that duty".[31] White J dismissed that argument for the following reasons:[32]

On the findings made by Hannon DP it is difficult to conclude that the appellant's journey answers any of these descriptions. It cannot be said that the appellant was carrying out a duty of his employment in the sense of engaging in an activity for which he was employed. Persons employed as drivers, couriers, district nurses or commercial travellers will undertake a journey in order to carry out employment duties of this kind, but the worker's journey cannot be sensibly characterised in the same way.

Counsel did not contend that the appellant's duty to return to the motel arose from an express obligation imposed by the Commissioner of Police or the NCTC. He submitted that it was to be implied from the circumstances. There is a difficulty in such a characterisation. The appellant did not commence the journey until well after he had completed his employment activities for the day and until well after he became free to use his time as he wished.

1. In formulating his understanding of what undertaking duties of employment involved, in Wheeler White J had regard to this passage from Karanicos:[33]

[I]t seems to me that the focus of the expression "duties of employment" as a matter of ordinary language is a reference to the carrying out of tasks under a contract of employment or the performance of an activity which is related to that which the worker was employed to do. This is by no means a precise test, and has to be applied in a commonsense and practical manner. But to my mind the ordinary meaning of the language suggests that it requires an affirmative answer to the question of whether one would say that in undertaking the journey the worker was performing the worker's job, complying with an instruction from the employer given by the employer in the exercise of its control as employer, or doing something reasonably incidental to one of those things. It is also necessary to view the journey in context. By that I mean that one should not look at the journey in isolation but should consider what preceded it and what was going to follow it. Sometimes the link between the journey and the employment would only emerge when the journey was seen in context.

1. While there were work-related aspects involved in Ms Priolo undertaking the walk, I am not satisfied that she was undertaking duties of employment in undertaking the walk. The walk took place during an unpaid break. Other than those parts of the Award and the Policy which apply beyond actual hours of work, Ms Priolo was not subject to the direction of the employer when injured. The 7am class finished at 7:50am but Ms Priolo could not leave the Centre until 8am because she was contracted to work and paid to work until 8am. She was required to be available to talk to participants in the 7am class between 7:50am and 8am. That contrasts with the period between 8am and 8:30am when Ms Priolo could spend her time as she pleased.
2. Mr Warren's submission that Ms Priolo was working one shift broken into two parts under cl 13.4 of the Award rather than engaging in two separate periods of employment is correct to a point, but does not have regard to cl 3.4 of the employment contract which provides that "[e]ach occasion that you work will form a separate contract of employment, which ceases at the end of that engagement". Clause 3.4 could be construed to mean that the 7am class and the 8:30am class were worked under separate contracts of employment or to treat the three classes on 15 April 2024 as part of one contract of employment. It is not necessary to find which view is correct as s 7(2) does not apply here because I have found the injury occurred in the course of a journey and given how the case has been presented. It was not contended that this is an interval case, that is a case in which the injury occurred in an interval between periods of employment. It is sufficient for present purposes to find that Ms Priolo was injured between 8am and 8:30 am during a short break between classes when she was entitled to spend that time as she chose, subject to being ready to conduct the 8:30am class.
3. Mr Warren made refence to Return to Work SA v Backhouse,[34] a case where a fly in/fly out worker at a remote mine site was injured playing cricket in a period during which he transitioned from night shift to day shift. There was no encouragement, inducement or requirement from or by the employer for the worker to play cricket. There was, however, a fitness for work policy which applied. A Full Bench dismissed an appeal against the decision of a Deputy President who at first instance found the injury arose from employment. Mr Warren did not suggest that the decision has direct application to these facts but pointed to the application of the policy which was in the following terms:[35]

Staff must manage their rostered time off to prevent the effects of fatigue from impacting on their ability to perform their work. This includes obtaining adequate sleep and taking particular care to prevent fatigue at critical times, such as returning to site or shift change. Staff must report safety and health issues to their immediate supervisor or a member of the Byrnecut management team.

1. That policy requires employees to take particular care to prevent fatigue at critical times and cites shift change as a critical time. There is a stronger relationship between that policy and the activity of playing cricket than the relationship between the Policy and the walk in my view.
2. Paragraphs 42 and 44 of Ms Priolo's affidavit as set out above do not suggest that in undertaking the walk, Ms Priolo was undertaking duties of employment. Paragraph 42 states that the purpose of the walk was to stay fresh physically and mentally and be physically and mentally able to adequately perform duties. Mention was not made of minimising the risk of injury and needing to keep warm and limber to achieve that end. Paragraph 44 mentions staying warm, but acknowledges that there were other options available to achieve that end. Paragraph 44 suggests that Ms Priolo exercised a personal preference in deciding to undertake the walk. Staying warm and limber could have been achieved by sitting in the indoor pool area, which was warmer than the pilates studio, performing some form of exercise or movement whilst remaining in the pilates studio or sitting in the staff room. In oral evidence Ms Priolo elaborated on her motivation for undertaking the walk and that motivation was given a stronger work-related flavour than the account in the affidavit. Despite that I am not satisfied that in undertaking the walk Ms Priolo was undertaking duties of employment, or as Doyle CJ described it in Karanicos, performing her job. I am also not satisfied that Ms Priolo was complying with an implicit instruction given by the employer, or something incidental to that.
3. In relation to Ms Priolo needing to retrieve her bag from her car before returning to the studio, whilst that is one of the work-related aspects of the walk it is not akin to a duty of employment because other options to keep warm and limber were available and because Ms Priolo exercised a preference to go for a walk at a time when she was not subject to direction from the employer.
4. I do not propose to 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). I have found that Ms Priolo was injured whilst undertaking a journey. Given that finding, Wheeler makes it very clear that s 7(2) has no application here.
5. For those reasons the decision under review should be confirmed.

1. The decision dated 19 June 2024 rejecting the applicant's claim for compensation for injuries sustained on 15 April 2024 is confirmed.
2. The applicant and the other party are entitled to reasonable costs of and incidental to the application for review dated 8 July 2024.

[1] Affidavit of Allison Priolo, 13 October 2024 [33]-[38].

[3] Affidavit of Angela Ashri, 5 December 2024 [18].

[8] For example, in Turner v Return to Work Corporation of South Australia and ABA Plumbing and Gas Pty Ltd [2021] SAET 45 and in Utilities Management Pty Ltd v Thelan [2021] SAET 247.

[9] [1998] SAWCT 57.

[11] [1999] SAWCT 70.

[13] [2012] SASCFC 111; (2012) 114 SASR 111.

[14] [2006] SAWCT 11.

[16] [1996] SASC 5536.

[17] Ibid [5]; Millhouse and Williams JJ agreeing.

[20] [1997] SASC 6046; (1997) 68 SASR 97.

[21] [2012] SASCFC 111; (2012) 114 SASR 111 [17].

[23] Turner v Return to Work Corporation of South Australia and ABA Plumbing and Gas Pty Ltd [2021] SAET 45 [47]; Utilities Management Pty Ltd v Thelan [2021] SAET 247 [51].

[24] In the case of a journey to which s 7(8)(b) applies, s 7(9) and s 7(10) must also be satisfied.

[25] [1998] SAWCT 57; Tr 71.33-34.

[26] [1998] SAWCT 57.

[30] [1997] SASC 6046; (1997) 68 SASR 97 [55].

[31] [2012] SASCFC 111; (2012) 114 SASR 111 [53].

[33] [1996] SASC 5536 [23].

[34] [2019] SAET 34.