Return to Work Act 2014

JUDGMENT OF: His Honour Deputy President Judge Gilchrist

Journey accident while the worker was travelling to work at the employer's Christie's Beach office the day after she had attended the employer's Adelaide office - Whether the journey was undertaken in the course of her carrying out her duties of employment - In a previous judgment following an earlier hearing this Court focussed upon and rejected the worker's case that in transporting boxes of pamphlets and computer equipment from the employer's Adelaide office to its Christies Beach office she was carrying out her duties of employment - There was evidence adduced in that hearing that the worker had also taken files with her to participate in a file review - The Court of Appeal held that it was an error of law not to make findings in connection with those files and the file review and that the application for review be remitted for further hearing and determination - Issues around the reliability of the worker's evidence that someone in management specifically asked her to bring all of a particular category of files that numbered between 60 and 150 files from the Christies Beach office to the Adelaide Office to do a file review - Held that the worker did not transport that number of files and she did not participate in a file review meeting - Held that the files that the worker had with her when she went to that Adelaide office were her own files that she intended to work on at that office during that day - Held that there is a very real possibility that the worker attended the Adelaide office with files because it suited her and that she made the choice to do so and that the Court is not satisfied to the requisite degree that she was directed or requested to take files to work on at the Adelaide office during the working day prior to her accident - Held that apart from the fact that she was fulfilling an expectation that she would return the files and take the boxes that were the subject of the earlier hearing to the Christies Beach office, her journey to work on the morning of accident was the same as any other routine journey that she embarked upon to travel from her home to her workplace at Christies Beach - Held that the evidence does not permit a finding that when she had her accident the worker was in the course of carrying out her duties of employment - Held that the Corporation's rejection of her claim must therefore be upheld - Return to Work Act 2014, Workers Rehabilitation and Compensation Act 1986.

Return to Work Corporation v Wastell [2024] SASCA 98

Rapson v WorkCover Corporation [2007] SASC 172

Brown v Department for Education [2023] SAET 32

Andrew Barrett v Department of Treasury and Finance [2025] SAET 69

Poniatowsa v Hickinbotham [2009] FCA 680

Wheeler v State of South Australia (2012) 114 SASR 111

TransAdelaide v Karanicos [1996] SASC 5536

Mason v State of SA (Department of Education, Training & Employment) [2002] SAWCT 22

Nogare v Mosaic Flooring Co Ltd [1965] SASR 120

St Helen's Colliery Co v Hewitson [1924] AC 59

Blee v London & North Eastern Railway Co [1938] AC 126

The Corporation (The City Swim School) v Jeanette Anne Rowberry [1996] SAWCAT 1

The State of South Australia (Department of Education and Children's Services) v Attwell-Gill [1996] SAWCAT 105

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

Curran v Wills Industries Pty Ltd [2000] SAWCT 36

Owen v Department of Education Training and Employment [2001] SAWCT 104

Mason v State of SA (Department of Education, Training & Employment) [2002] SAWCT 22

The State of South Australia (In Right of the Department of Education and Children's Services) v The Estate of Mason [2002] SAWCT 114

Jellicoe v R P & LJ Robertson [2006] SAWCT 10

WorkCover/EML (RP and LJ Robertson) v Jellicoe [2007] SAWCT 59

Wright v Department of Education and Children's Services [2006] SAWCT 65

Department of Education and Children's Services v Wright [2007] SAWCT 52

Lillicrap v Forestry SA [2013] SAWCT 6

Buckett v Department of Health and Ageing [2014] SAWCT 51

Department of Health and Ageing v Buckett [2015] SAWCT 39

Department of Health and Ageing v Buckett [2015] SASC 173

Nancollas v Insurance Officer [1985] 1 All ER 833

Smith v Stages [1989] 1 AC 928

Vickers v Jarrett Industries Pty Ltd (1977) 15 SASR 526

CSR Ltd v McCourt [1997] SASC 6417

Wastell v Return to Work Corporation of South Australia [2023] SAET 4

1. Following judgment by the Court of Appeal,[1] this matter has been remitted to me to receive further evidence and to make further findings.
2. To put the remittal into context, it is necessary for me to traverse some of the evidence adduced in the initial hearing before me and the facts previously found by me.
3. The applicant worker, Ms Wastell is a qualified legal practitioner. On 22 May 2018, she commenced working as a solicitor for the Women's Legal Service SA (WLSSA) on a part-time basis.
4. At all relevant times, WLSSA had an office in Adelaide and an office at Christies Beach. Ms Wastell was primarily based at the Christies Beach office. Her duties involved court work, and visiting safety houses, community centres and schools. She was also required to attend the Adelaide office for meetings and mentoring. She attended at the Adelaide office sporadically, perhaps once a month. She said that having a car was a requirement of the job.
5. In an affidavit sworn by Ms Wastell on 17 June 2022, she stated that on 11 October 2018, she attended at WLSSA's Adelaide office for a meeting as well as participating in regular file reviews with Jody Knighton, WLSSA's Managing Solicitor. She said that on that day she did not attend WLSSA's Christies Beach office. She said that she had been 'requested/directed" to attend that Adelaide office but she could not remember who made that request or direction. She suggested that it would have come from either Ms Knighton or WLSSA's CEO, Zita Adut Deng Ngor. She said that there was a regular practice to meet in WLSSA's Adelaide office for file reviews and other "instructions/dissemination" of information to staff. She said that during that day, she was set up at a desk and then was moved to a meeting room where the file review took place. She said that she and Ms Knighton went over all of the files for a new program known as InDIGO. She said that this required her to go through the physical files. She said that she had brought them with her from WLSSA's Christies Beach office and stored them at her home before taking them to the city the next day.
6. From time to time when she travelled from one office to the other, Ms Wastell would transport items connected with her employment. On 11 October 2018, she was asked to collect items from the Adelaide office to take to the Christies Beach office the next day. These comprised of two boxes containing computer equipment and pamphlets. She left the Adelaide office between 5.00 pm and 6.00 pm in her car. She had with her, her work computer, telephone, files and the two boxes. When she arrived at her home in Blakeview, about 30 kilometres north of Adelaide, she removed all of the WLSSA items from her car, and stored them in her kitchen. It can be inferred that WLSSA expected her to store the items securely.
7. On the morning of 12 October 2018, Ms Wastell loaded the WLSSA items, including the files, into her car and at about 7.15 am she set off on her journey to work at WLSSA's Christies Beach office. It can be inferred that this was her normal time of departure. Whilst travelling on the Southern Expressway at about 8.30 am, her car crashed through a safety barrier and struck a pole causing her serious injuries. She has not been able to return to work since.
8. Ms Wastell contended that the injuries occurred in compensable circumstances for the purposes of the Return to Work Act 2014 (the Act).
9. Because Ms Wastell's injuries occurred in the course of a journey, for them to be compensable, she needed to satisfy the requirements of s 7(8) of the Act. That provision provides alternative gateways to compensability. Ms Wastell limited her case to the gateway provided by s 7(8)(a), which provides that an "injury that arises out of or in the course of a journey arises from employment if (and only if) the journey is undertaken in the course of carrying out duties of employment".
10. I understood Ms Wastell's case to be that she was carrying out her duties of employment when she was transporting the boxes containing computer equipment and pamphlets to WLSSA's Christies Beach Office, because WLSSA had asked her to do so, and had she not done so, it would have needed to engage a courier.
11. I concluded that in undertaking that journey, Ms Wastell was not in the course of carrying out her duties of employment.
12. Given the way the case was run, I gave little attention to the fact that Ms Wastell alleged that she had been directed to attend at WLSSA's Adelaide office for meetings and file reviews and that in connection with this, she had taken files from the Christies Beach office, which she had transported home the previous day.
13. As I understand the decision of the Court of Appeal, I erred in not making findings in respect of the meetings and file review, and that I am now required to make further findings and determine, whether in light of them, that in undertaking the journey that led to her injuries, Ms Wastell was in the course of carrying out her duties of employment for the purposes of s 7(8)(a) of the Act.
14. In connection with the remittal, Ms Wastell now relies upon a further affidavit sworn on 30 September 2024. In it, she stated that she worked part‑time for WLSSA, and usually worked on Tuesdays, Wednesdays and Thursdays, between 8.30 am until 5.00 pm or 5.30 pm. She said that sometimes, depending upon workload, she might work additional days. She said that she rarely took files home and would normally only did so, if she had to complete an urgent task, or if she had an early morning court attendance.
15. Ms Wastell spoke about a program that had recently been introduced by WLSSA, called the InDIGO program. She said that it was aimed at assisting people who are escaping from domestic violence. She said that at around the time of her accident, she was in the process of reviewing all of the InDIGO files. She said that there were somewhere between 60 to 150 physical files that contained things like court documents, photographs, statements, file notes, telephone notes, and attendance records. She said that she was one of only two people employed at WLSSA's Christies Beach office specifically for the InDIGO program. The other person was the senior solicitor, Jodie McRae.
16. She said that on 10 October 2018, which was a Wednesday, she had been undertaking her usual role at WLSSA's Christies Beach office, when the legal staff were advised that there would be a solicitor staff meeting at WLSSA's Adelaide office the following day. She said that as her manager was not in the office, she was to be the only staff member from Christies Beach who would be attending that meeting.
17. She added that it was a regular practice for there to be meetings at WLSSA's Adelaide office to conduct file reviews, as well as training and professional development. She said that on or about 10 October 2018, someone in management specifically asked her to bring all of the InDIGO files from the Christies Beach office to do a file review. She again stated that she could not recall whether she was asked to do this by Ms Ngor or Ms Knighton.
18. She said that because the other solicitor that worked at WLSSA's Christies Beach office, Ms McRae, was on leave at the time, it became her role to take all of the InDIGO files to WSLLA's Adelaide office.
19. She said that these files comprised of manila folders and were stored at the Christies Beach office in metal filing cabinets in alphabetical order. She said that between about 5.00 pm and 6.00 pm on 10 October 2018, she loaded all of the files into a large canvas bag, which was one of her husband's travel bags. She said that she had taken the bag to work for the specific purpose of transporting the files.
20. She said that she understood that at the meeting the following day, each individual file would be examined to identify what matters WLSSA would pursue, and to discuss the nature of and progress of the administrative processes that she was implementing.
21. She said that on 11 October 2018, she left home at about 7.45 am, which was later than normal, as she was going to WLSSA's Adelaide office, rather than in Christies Beach office. When she arrived at WLSSA's Adelaide office, she parked her car and carried the bag of files and some personal items into the office. She said that she was set up at a desk and placed the bag of files under her feet and began her usual work until it was time for the solicitor's meeting which was before lunch.
22. She said that the file review was undertaken by Ms Knighton. She said that she took the files out, one by one, and that the file review took about an hour. She said that they discussed where each case was, in terms of the client's ability to get involved, and whether the administrative processes that she was trying to put in place were appropriate. She said that the matters were inherently sensitive, given the nature of domestic violence, which was a feature of every file. She said that some of the files were not hers, so they took longer to assess.
23. She said that after the meeting, she put all of the files that she was not working on back into the travel bag. She said that the files that she was working on were dispersed on the meeting room table and that she remained in the meeting room for the rest of the day, and she completed her work there. She said that at the end of the day, she placed these files with the others in the travel bag. She then drove home, and then took the travel bag and some boxes, that she had been asked to take to WLSSA's Christies Beach office, inside.
24. She said that the following morning, she left home at the usual time of 7.15 am, with the travel bag and boxes, intending to travel to WLSSA's Christies Beach office. She had the accident that is the subject of these proceedings whilst undertaking that journey.
25. Ms Wastell now also relies upon an affidavit sworn by her husband, Andrew, on 9 May 2025. In it, he spoke of receiving a telephone call from Ms Wastell on 12 October 2028, in which she told him that she had been involved in a car accident and was being transferred by ambulance to the Flinders Medical Centre. He said that when he arrived at the hospital, she seemed panicky about things that she had left in her car. He said that she asked him to get files from her car and deliver them to WLSSA's Christies Beach office. He said that when he located Ms Wastell's car, he took out her handbag, two cardboard boxes and a large black military duffle bag that he had lent her, that contained files. He said that he then drove with these items to that office and when he arrived, after stating that Ms Wastell had been involved in a serious accident and was in hospital, he went back to his car to retrieve the boxes and the bag. He said that he was asked to place the items in an area that was in an open plan area of the office. He did not state how many files were in the bag.
26. The Return to Work Corporation now relies upon the evidence of Ms Knighton. She swore an affidavit on 11 April 2025, wherein she stated that she had no recollection of Ms Wastell attending WLSSA's Adelaide office on 11 October 2018.
27. She stated that it would be usual for the staff of WLSSA's Christies Beach office to attend a Staff Meeting by dialling in, rather than attending personally, unless the staff member happened to be in the Adelaide office for another purpose or was in Adelaide to attend court.
28. When she was asked about this, with the suggestion that Ms Wastell may have attended that Adelaide office because she was going to court, she said:

... at that stage, Jody McRae was the most experienced solicitor that Women's had employed at that point. Someone else appearing on her behalf in the Family Court just wouldn't have - have made sense, unless it was a very quick adjournment.[2]

1. It is notable that Ms Wastell has never suggested that the reason she was in WLSSA's Adelaide office that day was to attend court.
2. Ms Knighton said that she had no recollection of ever conducting a file review with Ms Wastell at WLSSA's Adelaide office. She added that it would have been unusual for her to have scheduled such a review with her, because at that time most of the files were in the name of the senior lawyer, Ms McRae, and she was on leave.
3. She said that having subsequently sought a report listing of the files opened between the commencement of the InDIGO program and Ms Wastell's accident of 12 October 2018. Based on this, she believed that as of 12 October 2018, there were only about 20 physical files and virtuality all of them were in Ms McRae's name.
4. She said that when a file review was undertaken, the review for each file took about 10 to 15 minutes, and a signature would be placed on the inside of the file to confirm that it had been checked. She said that she could not find any evidence of having conducted a file review on 11 October 2018.
5. Ms Knighton said that her examination of WLSSA's records indicates that there was a casefile meeting on 11 October 2018 in WLSSA's Adelaide office. She said that casefile meetings were scheduled weekly and their purpose was to determine whether WLSSA would act for the client and if so, in what capacity. She said that in connection with matters discussed at casefile meetings, no files had been opened, and that if it was decided that WLSSA would act for the client, a file would then be created.
6. She said that the casefile meetings involving the WLSSA's Christies Beach office were sometimes conducted by phone. She said that on average, casefile meetings lasted about an hour. She said that the meeting would not involve any formal file supervision, no notes would be taken, and no physical files were brought up for discussion.
7. In cross-examination, Ms Knighton accepted that when staff from WLSSA's Christies Beach office attended at the Adelaide office it would be normal for them to spend the whole day there. Although she had no recollection of Ms Wastell attending at WLSSA's Adelaide office on 11 October 2018, she accepted that she had no information or documentation that indicated that Ms Wastell did not do so. She accepted that if staff from WLSSA's Christies Beach office attended that Adelaide office for the entire day, it would be expected that they would take some files with them to work on during the day.
8. In response to Ms Knighton's affidavit of 11 April 2025, Ms Wastell filed a further affidavit, sworn on 13 May 2025. Attached to this affidavit were copy extracts from Ms Wastell's Outlook Calendar. The extracts are for the week of 8 to 12 October 2018.
9. Ms Wastell explained that the calendar contains colour coding. Purple records that she will not be in the office, red is to block a time slot out so that no appointments could be scheduled. Green is to record client appointments. Light blue is a standard category recording no specific allocation.
10. The entry for Monday, 8 October 2018, is marked in purple for the whole day, with a notation in light blue that it was a CPD Seminar at the Law Society of South Australia.
11. The entry for Tuesday, 9 October 2018, is marked in purple for the whole day.
12. The entry for Wednesday, 10 October 2018, is marked in green between the hours of about 9.30 am to midday recording two no‑show appointments and a marked section in red between about midday and 12.15 pm, marked "Legal Meeting Jody".
13. The entry for Thursday, 11 October 2018, is marked in red stating that "Kylee to work CBD". It is then marked in light blue between 9.00 am and about 9.30 am recording "Cancelled staff meeting". The rest of the calendar for that day is blank until 3.00 pm, which is marked in red until about 4.00 pm, recording "Case Management Meeting".
14. Annexed to the affidavit was a copy of an email from Kalyani Desai, that was addressed to Rebecca Dempsey and Kylee, who can be taken to be Ms Wastell. It stated:

Hi Rebecca,

According to the Staff Meeting dates (below) you don't need to be in the city for this meeting. I think Kylee is there because she has other client matters up there.

You can just come into Christies and dial in if you prefer. Might be safer as they often cancel meetings ½ hr prior to start times.

1. Attached to the email was a circular email that contained a series of dates for WLSSA Staff Meetings, that included Thursday, 11 October 2018 at 9.30 am.
2. It will be recalled that the Outlook Calendar recorded that the staff meeting that had been scheduled between 9.00 am and about 9.30 am had been cancelled. In her affidavit, Ms Wastell claimed that in fact, that Staff Meeting went ahead. She said:

... there is also a calendar entry which shows that a staff meeting was scheduled for the morning of 11 October 2018 which has a notation which shows that it was cancelled. As I recall, the staff meeting had been cancelled very shortly before its commencement which, according to my Outlook calendar was due to start at 9.30am. To the best of my recollection, the staff meeting proceeded as everyone had arrived or dialled in for it so a decision was made to proceed despite it being previously cancelled.

1. Annexed to her affidavit were notes that appear to be minutes of the Staff Meeting that were recorded by Ms Wastell.
2. The minutes note that Ms Knighton chaired the meeting.
3. They record that six people were in attendance, and eight were apologies. It seems likely that some of those who attended did so by tele‑link.
4. The minutes refer to things like an up-coming quiz night, collecting prizes, organising a food truck, selling tickets and having selected a quiz master.
5. They then move to discuss client surveys and they refer to new property matters being subject to a three week wait and children who are eligible for legal aid being able to be referred.
6. They then record that one of the staff, who would appear to be a lawyer, was leaving, but had agreed to stay on until others returned to enable her files to be distributed, noting that recruitment for her replacement had not yet commenced.
7. They note that a specific person was pregnant.
8. They note that InDIGO had formed a partnership with "women are strong", and that someone identified as Jodie had been invited to speak on white ribbon panel in the south.
9. They note some movement of admin staff.
10. They record a query about opening and closing files, and noted that when closing a file it was necessary for a form recording those certain things had been done, was ticked and that it was necessary to answer every question of that form. They added that the next staff meeting would involve file management.
11. They refer to "Vol program", of a new meeting the following Monday and another in a couple of weeks, of going over forms, and that everyone seems to be doing a reasonable job. There was then a general discussion about what appears to be file management.
12. They then move to OHS noting that two staff who were presumably involved in this were apologies and another person not named as an attendee or apology had been going through policies etc.
13. They record Ms Knighton stating that the group should utilise each other noting that the people who come to them are from different walks of life and experiences, of their difficulties in dealing with the legal system and of the need to provide them with information. They refer to a poster in the kitchen and refer to gym membership, massager, counselling, the importance of debriefing and that professional support is available.
14. The minutes conclude under the title: "Any other business" noting that there was to be a half day training for all on 19 November 2018 and that everyone was to bring their laptop. They note the Christmas closure and that although the office was to be closed for three weeks, it was permissible for staff to work the third week.
15. It will be apparent that although some of the topics discussed at the Staff Meeting were important, it was the sort of meeting where participants would not have been disadvantaged by participating remotely.
16. Ms Wastell said that in terms of notation on the Outlook Calendar she used the expressions, "file review", "case management meeting" and "solicitor case file review" interchangeably. She said that it was only upon reading Ms Knighton's affidavit, that she came to realise that Ms Knighton saw a distinction between these types of meetings. I interpolate to observe that this evidence did appear to me to be convincing.
17. Despite what Ms Knighton said about not having a recollection of having a meeting with Ms Wastell, Ms Wastell maintained that she was required to take files with her to the Adelaide Office on 11 October 2018, for the purpose of conducting a file review with Ms Knighton. She said she had a specific recollection that the 3.00 pm to 4.00 pm red notation in her Outlook Calendar for 11 October 2018, was time that she had set aside for drafting documents, conducting file reviews and other practice management tasks.
18. She annexed to her affidavit a copy of an SMS that she received from Ms McRae at 9.45 am on 11 October 2018 that purportedly supported this. It read:

RE: Indigo Report...apologies from me (on leave). Overall the Program is going well. Although as you are aware that since the last meeting (last was cancelled) there has been some team members (Kylee & I) who have had to cope with extreme circumstances. Those affected thank everyone for their support and well wishes. This has been handled well for a small team (with support from WLS and SCJC). Only identified issue has been a delay in CLASS entries and administrative tasks. However we are confident we will get back on track with those quickly. On a brighter note, Indigo has formulated a partnership with the Women are Strong Program (you might need to explain this program - 8 weeks etc and who runs it). Indigo with (sic) be providing the Cle/indigo program information sessions specific to those affected by FV. This network has already proved fruitful with referrals being made from these as sessions.

The reason I took all of the InDIGO physical files to the Adelaide Office was because the InDIGO office was new and the InDIGO team were in the process of establishing a file management process. It was part of my role to work on this. I took all of the files so I could show Ms Knighton the progress that had been made and seek her feedback and input on it. At that time, there was some electronic documents on the system but you could not look up a file electronically and determine the status of the matter. That is why the physical files were required. I cannot recall who this direction came from but I understood that all of the files would be reviewed and then I would return them back to the Christies Beach office on 12 October 2018.

As I recall, on Wednesday, 10 October 2018, I went to Jodie McRae's office and emptied the contents of two draws of a filing cabinet. I estimate that the drawers were approximately three quarters full and there was still room for more files.

The files contained in the filing cabinet were standard manilla folders. The contents of each manilla folder would vary depending on the type of matter, whether the file had been officially opened on our system or whether it was still in the investigation stage, and how long the matter had been with the InDIGO program for.

...

As I was not ordinarily the solicitor with the day to day conduct of all of the files, I recall that I was directed to bring all of the files to the Adelaide office for the Solicitor Case File review meeting scheduled with Ms Knighton on 11 October 2018.

1. In cross-examination, Ms Wastell was asked whether she has an actual recollection of being asked on 10 October 2018 to attend a solicitor staff meeting the following day. She said that she now believes she had the days mixed up and was in fact asked to attend the meeting on Monday 8 October 2018. In saying this, she used the expression; "as it's been pointed out to me".[3] When she was asked if someone else had pointed it out to her. She denied this. She said: "That it's pointed. As in, I - I've noted - by reading it, I've gone, "Oh, the days".[4]
2. Later, after agreeing that she worked out that she had the day wrong after going over the transcripts, her affidavits and the affidavits of Ms Knighton and that of her husband, she claimed to have a clear recollection that on Monday, 8 October 2018, she was directed to go to the Adelaide office with the files the following Thursday.
3. She said that meetings were often scheduled a few weeks or a month in advance, but often meetings changed, and she might be told not to come in, but ring up instead. She said that in connection with meetings related to InDIGO, they were not always done in person, and would sometimes be conducted via tele-link.
4. She agreed that she could not remember who gave her the direction, but stated that it was in the nature of a request. She added: "... I distinctly remember being told - I may have mixed up the days, but I distinctly remember being told to bring the files from Joe's office (sic)[5]... I was a junior at the time. ... I would never, ever, ever have brought that many files, or the entirety of the files of the Indigo, ... without being told to".[6]
5. Ms Wastell agreed that the file review meeting took about an hour. She accepted that within that hour, somewhere between 65 and 150 files were reviewed. She said that some of the files only took two seconds to review.
6. Ms Wastell explained the difference between a case review meeting and a file review meeting. She said:

We did have case file meetings, which was, specifically, does anyone have something to bring to the table because of our caption, because of our grants; is it something that we can open up and have an active file or not. Those meetings did involve others, because everyone from the different departments would do that.

My meeting, that was separate to that, was solely about the extra work that we were doing for the reason I had been told to bring the files - and when I say files, I mean I'd emptied the two drawers, and we know what those cabinet files can hold, and, due to the nature of domestic violence, sometimes those files would be very thin; sometimes those files would be very thick. So I took everything and was implementing it, and so I was being told to show what I was implementing on behalf of the Indigo team.[7]

1. When it was put to Ms Wastell that she in fact participated in a case file review meeting with Ms Knighton and had no need to bring in all of the files from WLSSA's Christies Beach office, she disagreed. And when it was suggested that her memory of taking a lot of files to WLSSA's Adelaide office was based on reconstruction as opposed to actual memory she said:

No, because of the fact of the MVA, it is something that I have thought over again and again and again since the day it happened. As opposed to my memory has changed, I'm trying to fill in holes, I'm trying to put together a jigsaw puzzle in whatever means.[8]

1. Mr Warren KC, counsel for Ms Wastell, submitted that I should accept her evidence that she was asked to take the files and other material to WLSSA's Adelaide office. He accepted that it was not open to make a finding that the asking was a direction to do so. He submitted that what was important, was that Ms Wastell gave consistent evidence that this was flagged on a request to take the materials to the Adelaide office, and that I should find accordingly.
2. Mr Warren submitted that in driving her car and transporting the files from her home to WLSSA's Christies Beach office on 12 October 2018 Ms Wastell was carrying out a duty of her employment.
3. In the alternative, he submitted that, in driving her car and transporting the files from her home to WLSSA's Christies Beach office, Ms Wastell was doing something that was reasonably incidental to performing her job.
4. He submitted that there is a fundamental difference between physical legal files and boxes of pamphlets, brochures, and the like that were the subject of my adverse earlier ruling. He stressed that the files needed to be stored safely and securely at WLSSA's Christies Beach office, because they contained confidential and private information and they needed to be at the Christies Beach office so that those working there could have access to them. He submitted that it was a duty of Ms Wastell's employment to return the files to that office or that the return of the files was reasonably incidental to what her duties of employment were.
5. He submitted that because Ms Wastell's accident occurred whilst she was in the process of returning the files WLSSA's Christies Beach office, that is decisive, and that fact that it was also a journey from her home to work was of no consequence.
6. Mr Roder KC, counsel for the Corporation, did not challenge Ms Wastell's honesty. What he did challenge, was the accuracy of her recollection, which he submitted had been affected by reconstruction. He submitted that the idea that she had with her the entire file load of WLSSA's Christies Beach office to participate in a file review meeting that was to be conducted within an hour or so, was implausible. He added that Ms Knighton has no recollection of ever having done a review of that many files.
7. Mr Roder submitted that I cannot be satisfied to the requisite standard, that Ms Wastell's version of events is correct.
8. Mr Roder accepted that Ms Wastell probably had some files with her when she attended WSLA's Adelaide office. But he submitted that this does not lead to a finding that in driving to work the following day when she had those files in her car, she was carrying out her duties of employment. He submitted that whatever files that Ms Wastell had, she was not required to take them home, and she was not required to make the particular journeys that were made.
9. Mr Roder accepted that Ms Wastell's decision to take the files home with her and to take them to the Christies Beach office the following day was undoubtedly convenient for WLSSA and Ms Wastell, because it would have avoided her having to return to WSSLA's Adelaide office the next day to collect the files. But he added that this did not change the character of the journey that Ms Wastell had undertaken on the morning of 12 October 2018, namely that she was driving herself to work. He submitted that she was on her own time, with no direction for WSSLA as to how to undertake that journey, and that she was not carrying out her duties of employment when doing so.
10. Mr Roder referred to the judgment of White J in Rapson v WorkCover Corporation[9] where he spoke of the need in determining whether a journey was undertaken in the course of carrying out duties of employment to give consideration to the purpose, or purposes, of the journey.[10] He submitted that my conclusions in respect of Ms Wastell's case based upon her transporting the boxes to WSSLA's Christies Beach office applies with equal force to the files case. That is, this was a journey that was being made to travel to work that was no different from any other journey that she made from time to time to do so.

1. In determining what findings I should now make, it is appropriate for me to take into account the evidence adduced at the first hearing. But it is not appropriate for me to slavishly adopt the findings that I then made. I must make findings based on the evidence that is now before me. As Calligeros DPJ observed in Brown v Department for Education:[11]

Findings of fact are made to resolve disputes between parties on the balance of probabilities and by reference to the evidence adduced and the arguments advanced.[12] (Emphasis added)

1. The corollary of this, is that in connection with the same dispute, different evidence, and different arguments, may lead to different findings.
2. In this case, the Court of Appeal observed in its decision that has led to this remittal, that because the files were not the focus of the evidence, issues relevant to the files question, were not explored as thoroughly as they might have been, and the evidence relevant to the files case, was not comprehensively adduced or interrogated. Hence it said:

Simply to remit the matter to the trial judge to make further findings on the evidence already adduced would potentially occasion unfairness to RTWSA.[13]

1. In light of this, I approach the task of fact finding with an open mind. Importantly, whereas in the initial hearing I only had the benefit of Ms Wastell's evidence, I now have the benefit of Ms Knighton's evidence, as well as supplementary evidence from Ms Wastell, evidence from Mr Wastell, and more rigorous questioning of Ms Wastell's recollection.
2. Based on all of the evidence, I make the following findings.
3. On Thursday, 11 October 2018, Ms Wastell did not attend at WLSSA's Christies Beach office. Instead, she left home at about 7.45 am, which was later than usual, and drove straight to WLSSA's Adelaide office. It would be reasonable to draw the inference that she arrived at the Adelaide Office sometime between 8.30 am and 9.00 am.
4. Despite the notation that a scheduled Staff Meeting that was to be conducted at WLSSA's Adelaide office was cancelled, it did proceed at 10.00 am that day. Ms Wastell attended it personally, and she took the minutes of the meeting.
5. As observed above, the topics discussed at the Staff Meeting were of a type that could be discussed via tele-link, and it can be inferred that some of the attendees of that meeting did so remotely. It is also reasonable to draw the inference that if she wished to do so, Ms Wastell could have attended that meeting via tele-link from WLSSA's Christies Beach office.
6. Ms Wastell has consistently stated that she had some files with her when she attended at WSLLA's Adelaide office on 11 October 2018. I accept that evidence. It would be reasonable to draw the inference that after the Staff Meeting at the Adelaide office that day, Ms Wastell worked on files that she had brought with her from Christies Beach.
7. I think it likely that Ms Wastell spent all that day at WSLLA's Adelaide office and I so find.
8. As to what other findings should be made, I make a general observation about Ms Wastell's evidence.
9. Recently, in Andrew Barrett v Department of Treasury and Finance,[14] Crawley DPJ cited the following passage from the judgment of Mansfield J in Poniatowska v Hickinbotham on the issue of the reliability of witnesses:

The reliability of witnesses is always difficult to assess. Each witness sees events from his or her own perspective. Over time there is sometimes a degree of rationalisation to fit objective material (documents) as it emerges into the understanding of events. Some witnesses' memories become refined by a strong belief in the rightness of their role, so that objectivity is lost to a degree.[15]

1. This is particularly apt to describe some of Ms Wastell's evidence in this case. I was left with the firm impression that some of her apparent memory of the events around 11 October 2018, has become influenced by a process of rationalisation. This is perhaps best illustrated by her evidence that since her accident she had been thinking "over again and again and again" that she has been "trying to fill in holes" and that she has been "trying to put together a jigsaw puzzle".
2. I place little weight on the SMS that Ms Wastell received from Ms McRae at 9.45 am on 11 October 2018, as it makes no mention of a meeting to be held that day.
3. I do not accept Ms Wastell's evidence that she had with her between 60 to 150 files with her when she attended WLSSA's Adelaide office on 11 October 2018.
4. Firstly, had there been that many, I would have expected Ms Wastell to have mentioned this in her first affidavit filed in connection with the earlier hearing. There she spoke of two boxes and of files, but made no mention of the number of files.
5. Secondly, I would have expected Mr Wastell to have made comment on the fact that there was a large volume of files in the military duffle bag that he retrieved from Ms Wastell's car. He said that he took the files out of the bag and handed them over to staff at WLSSA's Christies Beach office. He must have observed at least approximately how many files there were. As it was, he made no comment as to their number.
6. Thirdly, there is no reason to doubt Ms Knighton's unchallenged evidence that as of October 2018, there were only about 20 InDIGO physical files at WLSSA's Christies Beach office.
7. I do not accept Ms Wastell's evidence that the reason she had some files with her at WLSSA's Adelaide office that day, was for the purpose of conducting a file review of all of the InDIGO physical files from WLSSA's Christies Beach office.
8. On Ms Wastell's case, the file review was conducted in about an hour. Ms Knighton's evidence that a file review of a physical file would take about 15 minutes per file, rings true. Afterall, these files would not have concerned trivial matters. They potentially concerned allegations of domestic violence, that might have involved applications for intervention orders, urgent applications to the Family Court, and issues around other matters such as emergency accommodation. Ms Wastell's evidence that some files could be reviewed in two seconds seems inherently unlikely. The idea that 150, or 65, or 60 or even 20 such files could be reviewed in an hour, also seems inherently unlikely.
9. Moreover, it makes no sense that Ms Wastell, who at the time had only been working for WLSSA for about six months, as a part‑time junior lawyer, would be attending a file review involving all of the InDIGO physical files from WLSSA's Christies Beach office, when the evidence suggests that most of these files were Ms McRae's files, and at the time she was on leave.
10. Then there is Ms Knighton's evidence that when a file review was undertaken, a signature would be placed on the inside of the file to confirm that it had been checked. That process seems inherently plausible, and I accept that this was Ms Knighton's custom and practice. I also accept her evidence that she could not find any evidence of having conducted such a file review on 11 October 2018.
11. Taking these matters into account, whilst I find that there was a meeting at WLSSA's Adelaide office between Ms Wastell and Ms Knighton on the afternoon of 11 October 2018, I am unable to find that is was as Ms Wastell described. Contrary to her evidence, I find that she participated in a case file meeting of the type described by Ms Knighton, that did not involve any physical files, but instead it was directed towards determining whether in connection with enquiries made, WLSSA would act for the client and if so, in what capacity.
12. I find that the only files that Ms Wastell had with her when she went to WLSSA's Adelaide office on 11 October 2018 were her own files that she intended to work on at that office during that day. Whilst I am unable to make a finding as to the exact number of files that she had with her, given Ms Knighton's evidence that most of the files at WLSSA's Christies Beach office were Ms McRae's files it is likely that there were less than ten files and perhaps, less than five.
13. I find that these were the files that she had placed in her husband's duffle bag when she embarked upon the journey from her home to WLSSA's Christies Beach office on the morning of 12 October 2018.
14. It can be comfortably inferred that had Ms Wastell not otherwise been at WLSSA's Adelaide office on 11 October 2018, it would have been expected that she would have participated in the Staff Meeting that day, by dialling in from WLSSA's Christies Beach office.
15. Indeed, given my finding that the 3.00 pm case file meeting did not involve any physical files, and was of a type that Ms Knighton said could be conducted over the phone, it is reasonable to draw the inference that if she wanted to, Ms Wastell could have participated in that meeting from the WLSSA's Christies Beach office via tele-link.
16. It is understandable why Ms Wastell would have preferred to have attended the meetings personally at WLSSA's Adelaide office. Driving from her home in Blakeview to WLSSA's Christies Beach office involved her leaving home at 7.15 am, and embarking upon a reasonably long journey. Driving from her home to WLSSA's Adelaide office involved her leaving home at 7.45 am, and embarking upon a shorter journey.
17. It is significant that in cross-examination, when Ms Wastell was asked about going straight to the Adelaide office rather than first going to the Christies Beach office, she said: "It was cheaper, it was safer, it was more logical".[16]
18. I do not overlook the fact that in her evidence Ms Wastell never accepted that it was her decision to go to the Adelaide office, and she maintained that she had been "requested/ directed" to do so.
19. But I also do not overlook the fact that considering the nature of the meetings that Ms Wastell attended at WLSSA's Adelaide office on 11 October 2018, as I have found them to be, and the ability for those meetings to be conducted remotely, it makes little sense that Ms Ngor or Ms Knighton or anybody else would have requested or directed Ms Wastell to participate personally, given Ms McRae's absence from the Christies Beach office. It meant that there would be no lawyer at WLSSA's Christies Beach office that day, in circumstances where Ms Wastell's attendance at the Adelaide office was not strictly necessary.
20. In light of this, I cannot discount as a very real possibility that Ms Wastell attended at WLSSA's Adelaide office and took files with her to work on there, because it suited her, and that she made the choice to do so.
21. Wherever the truth lies, I am not satisfied to the requisite degree that Ms Wastell was directed or requested by Ms Ngor, Ms Knighton or anybody else to take files to work on at WLSSA's Adelaide office during the working day on 11 October 2018.
22. I now turn to consider the relevant authorities.
23. In Wheeler v State of South Australia[17] White J after referring to the judgment of Doyle CJ in TransAdelaide v Karanicos (Karanicos) [18] said:

Thus, the concept of carrying out duties of employment has at its heart the doing of something which workers may be required to do, either because it is the activity for which they are employed, or because it is within the power of control of the employer to direct that it be done. In addition, a journey which is reasonably incidental to one or other of these circumstances may amount to the carrying out of a duty of employment.[19]

1. I now embark upon the exercise of seeing how this concept, and the related concept of "arising out of or in the course of employment", has played out in cases concerning accidents sustained in journeys between home and work.
2. Many of these cases under the analogous provision to s 7(8) as contained in the Workers Rehabilitation and Compensation Act 1986 (the repealed Act) were surveyed by McCusker DPJ in Mason v State of SA (Department of Education, Training & Employment).[20]
3. His Honour commenced with a reference to a decision of the Full Supreme Court in Nogare v Mosaic Flooring Co Ltd (Nogare).[21] But before coming to that case, I propose to commence my analysis with a case that was relied upon by the Full Court in Nogare, dating back over forty years earlier, St Helen's Colliery Co v Hewitson (St Helen's Colliery).[22]
4. St Helen's Colliery concerned a claim for workers compensation by a colliery worker who was injured in a railway accident whilst travelling on a train from his home to his place of employment. The worker's employer had entered into an arrangement with a railway company to provide special trains to its workers. The purpose was to facilitate the workers' arrival at work in time to commence their shift. The cost of the train fare was deducted from the workers' wages, but the fare was at a reduced rate. They were not paid when using the train and not all the workers chose to use that mode of transport. Some came by bus. Others walked. It was argued that the worker was at the place of accident because of an implied term of his contract of employment that he had the right, if not the obligation, to use the train. The majority of the House of Lords rejected this argument. They held that the test was whether the worker was engaged in doing something that he was employed to do, or something in discharge of a duty to his employer directly or indirectly imposed upon him by his contract of service. Having found that the worker was under no obligation to use the train, it was held that his accident did not arise out of and in the course of his employment.
5. Another case referred to in Nogare was Blee v London & North Eastern Railway Co (Blee).[23]
6. Blee concerned a ganger who was employed by a railway company who normally worked between 7.20 am and 5.00 pm. Under the terms of his contract of employment, if an emergency arose outside of his normal working hours, he was expected to respond, and if he did so, he was paid at overtime rates, from the time he left his home with a minimum payment of two hours. One evening, at about 10.30 pm, after he had already returned home after work, he received a message requiring him to attend a railway siding to assist in replacing a derailed truck. While he was on his way there, he was struck by car and was killed. It was held that because he was obliged to respond, was obliged to do so with reasonable dispatch, and was being paid from the time he left his home, the accident arose out of and in the course of his employment. Importantly, in the course of his reasons, Lord Atkin said:

There can be no question that, had the workman been going to his ordinary work in the morning, he would not have been entitled to compensation for injury suffered from street risks incurred in transit. His time in such a case is his own: he arrives at the scene of his labour as he pleases. And though it is his duty to present himself at the appointed time, yet his 'employment' does not, in ordinary circumstances begin for the purposes of the Act until he reaches the place where he is employed.[24]

1. That then brings me to Nogare. This was a case in which the widow of a worker who was killed in a motor vehicle accident sought workers compensation benefits on that basis that her husband's accident arose out of or in the course of his employment. The worker, who lived in Adelaide, was a terrazzo worker. His employer approached him one Sunday morning and asked him whether he would be interested in undertaking an urgent job in Mount Gambier, the following day. It was suggested that the worker travel to Mount Gambier with a number of other employees of the employer who had agreed to travel there in the employer's truck. As it was, the worker and his wife intended to visit their daughter in the Adelaide Hills that Sunday, and he was initially reluctant to agree to go. After some persistence from the employer, the worker agreed to drive himself to Mount Gambier in his own car from his daughter's place, to be ready for work the following morning, and that someone else would pick up his wife and drive her home. Tragically, the worker was killed in a car accident on his way to Mount Gambier.
2. In rejecting the claim by his widow, the majority noted that although the worker was entitled to travel allowances when travelling to Mount Gambier, it was his choice to use his own car rather than use the transport provided by the employer, and that the employer could have had no cause for complaint had the worker chosen some other means of transport. The fact that the journey was a long one, it had it be completed in time for the worker to be ready for work at Mount Gamber the next morning, and that the worker was using his own time over the weekend to drive to Mount Gambier, were factors not considered sufficient to bring the case within the concept of arising out of or in the course of employment.
3. The Corporation (The City Swim School) v Jeanette Anne Rowberry[25] concerned a worker who was a qualified swimming instructor who worked two jobs, one of which was for City Swim School. Because she worked as a casual, she was not readily available to receive messages and the like that might pertain to her employment with City Swim School. As a result, her supervisor there would use the worker's home as a base at which he would leave messages, money, programs, rosters, and equipment for her to use in her upcoming shift. This meant that every time the worker had to go to work for City Swim School, had she been out, she needed to go back to her home to check what, if anything, had been left for her.
4. On the day of her accident, the worker had been working for the other entity before commencing a shift for City Swim School. Before commencing that shift, as was her custom, she went home first to check whether any messages or other material had been left for her. During the course of the journey from her home to City Swim School, she was involved in a car accident and suffered injuries in respect of which she sought compensation.
5. In upholding her claim, it was held that for practical purposes, in connection with the supervisor leaving messages and the like at the worker's home, her home was her place of employment. It was held that looked at in that light, in embarking upon the journey to attend at that place, the worker was going about her employer's business. It was found that she went there, because she was obliged to do so by reason of the terms and conditions of her employment, and was carrying out the duties of her employment, namely attending at a designated place, as required by her employer.
6. The next case that warrants consideration is The State of South Australia (Department of Education and Children's Services) v Attwell‑Gill.[26] It concerned a claim for compensation by a teacher who was injured in a car accident in outback Australia.
7. The teacher was employed to teach at Amata, an aboriginal community in the APY lands, just south of the Northern Territory border. The employer encouraged, but did not direct, its employees to co-operate in providing transport as a method of support. The teacher lived in Barmera. He had been collected from his home by a work colleague. The two then travelled to Port Augusta, where he stayed overnight, and the next day they collected another teacher and the School Principal. The four then drove to Coober Pedy, to collect yet another colleague and the now five proceeded to travel to their place of employment in Amata. The teacher was injured when the driver lost control of the vehicle on an unsealed section of road. Had they not deviated to collect passengers a more direct route would have be taken, and it would not have been necessary for the car to be driven on the unsealed road.
8. Under the terms of his appointment, the teacher was entitled to a "Lands Incentive Package", that provided that employees working in remote locations were given four days to travel to and from their place of employment to their residential address. This entitlement was given in the form of two days for travelling from and two days for travelling to the work site. Thus, whilst the teacher was travelling between Barmera and his place of employment, he was paid two days full pay.
9. In finding that at the time of the accident the teacher was performing duties of employment, Parsons DPJ concluded that the extreme remoteness of the locality of the school at which the teacher was employed to teach resulted in special conditions applying to his contract of employment. Having noted that the teacher was paid for the two days to drive to Amata as duty days, she found that this was a recognition that travelling to such a remote location was necessarily incidental to his carrying out the duties of employment as a teacher at Amata. The claim for compensation therefore succeeded.
10. That outcome is to be contrasted with the result in State of South Australia v Brophy (Brophy).[27] That case concerned a police officer who was injured whist riding his police issued motor cycle home from work. At the time of his accident, he was in police uniform, had with him a police issued radio, and was expected to perform policing duties if the need arose.
11. Doyle CJ, speaking on behalf of the Full Supreme Court, rejected the worker's claim, stating:

Section 30(5)(a) requires that the journey be undertaken in the course of carrying out duties of employment. To my mind it is unclear whether that means that the journey must begin or be initiated in the course of carrying out duties of employment, or whether it is a reference to the character of the journey as it unfolds. In the present case, in my opinion, the journey was not undertaken in the sense of begun or commenced in the course of carrying out duties of employment. It was a journey that commenced for a private purpose, travelling from the place of employment to the worker's home.[28]

1. That is not to say that a journey that was of benefit to an employer, is an irrelevant consideration. In Curran v Wills Industries Pty Ltd[29] the worker was involved in a car accident when on a journey between her place of residence at Kalbeeba, on the outskirts of Gawler, and her place of employment, at Greenfields. Her employer maintained a post office box in the Parabanks Shopping Centre about five kilometres from its Greenfields premises and on the worker's direct route between her residence and her place of employment. Following a request from an authorised officer of the employer, it became the worker's practice to collect the employer's mail from the Post Office on her way to work. To enable her to access the Post Office box the employer gave her a key to the mail box. Having collected the mail, she would proceed to work, and either leave the mail in the reception area of the employer's premises or place it in the pigeon holes of the addressees. The accident on the day in question occurred after she left home but prior to her reaching the Post Office.
2. Cawthorne DPJ considered that there could be no argument that the collection of mail by the worker on her journey to work was part of her duties of her employment. Having so found, he thought that it would be artificial to reduce the journey to component parts as was suggested, by holding that work related journey only commenced after she had collected the mail. It was his view that the journey from her home had a dual purpose, namely delivery of the worker to her workplace and the collection by her of the employer's mail for delivery at that same destination. He held that the whole of the journey to work was rightly regarded as being undertaken as part of the worker's duties of employment.
3. As similar outcome was reached in Owen v Department of Education Training and Employment.[30] That case concerned a claim for compensation by an assistant principal of a suburban high school who had injured herself when she had an accident whilst riding her bicycle home after school had finished for the day.
4. The assistant principal's duties primarily involved administration, and it was accepted that her work was not confined to formal school hours and that she did a considerable amount of out of hours work at both school and home. The week in which she was injured was the first teaching week of the year and was especially busy. During that week, on most nights she rode her bicycle home and returned to the school by car, to pick up materials in order that she might work on them at home. She did so because the materials were too heavy for her to carry on her bicycle, which was her normal means of transport between home and the school. On occasions when she returned to the school at night, she would often attend to outstanding work matters there, and then ensure that the building which contained her office was locked and generally saw to the security of the school. The school principal was aware of her practice of commuting to and from work by bicycle and returning to school by car in the evenings to work and pick up materials. She was also of the view that the assistant principal's work at home was a normal part of her employment.
5. On the day of her accident the assistant principal finished her last class at about 3.15 pm, and subsequently left the school to ride her bike home by a route which was reasonably direct. Her plan at the commencement of the journey was to pick up her motor car at home and drive back to the school to pick up folders and files which she had already prepared, and which were too bulky and heavy to carry on her bike. She needed these materials in order that she could work on them at home over the weekend. Unfortunately, at about 4.15 pm, whilst riding her bicycle home, she was involved in an accident which resulted in the disability that was the subject of her claim.
6. In upholding the claim, Cawthorne DPJ considered that it was significant that out of hours work at home was a normal part of the assistant principal's job and she planned to work at home during the evening of the day on which she was injured. This led him to find that the journey undertaken by her was not one for a private purpose, namely merely a journey between her place of work and place of abode, but rather was one step in a sequence of actions which would enable her to complete tasks at home on the evening in question and over the weekend that were directly work related. He concluded that in undertaking the journey, she was doing something reasonably incidental to the performance of her job.
7. Mason v State of SA (Department of Education, Training & Employment)[31] concerned a claim by a school bus driver who drove buses in rural South Australia. At the end of the school day, after the school bus had been completed, the bus driver was required to leave the school bus at a nominated terminus at a remote location. The location of that terminus varied from time to time an at the relevant time it was on a farming property.
8. The bus driver needed access to two private vehicles to be able to complete the run. In the mornings, she drove her car to the terminus and left it there before commencing her bus-driving duties which ended when she arrived at the school. She would leave another car at the school so that she could then drive home. As the end of the school day approached, she would drive back to the school, collect the school bus, leave her car at the school and then would drive the school bus back to the terminus, dropping students off along the way. She would then go to the car that she had left at the terminus to drive home. She had to do this because she was not allowed to drive the bus home. She suffered the injury that was the subject of her claim after she had left the school bus at the terminal and was driving home in her car.
9. The bus driver was paid fortnightly upon production of a log return: the method of payment being calculated upon the route distance travelled on a daily basis, in accordance with prescribed rates. In addition to this she was paid an allowance for use of her cars, albeit that it was quite meagre.
10. The trial judge, McCusker DPJ, recognised that the outcome was a close thing. But in deciding that the injury was compensable he considered that a significant factors were the extraordinary remoteness and distances on the Eyre Peninsula, and the economics and efficiencies which were varied from time to time; the fact that the employer reserved the right to direct where the bus was to be left; the fact that the employer paid an amount towards the cost of the out of pocket expenses of the travel; that the terms of the contract implicitly dictated the route that the bus drivers had to take between her home and the terminus; and that this trip was commenced at a point dictated by the contract (i.e. the nominated terminus).
11. This decision was upheld on appeal.[32] In the majority appeal judgment, Cawthorne and Parsons DPJ said:

The facts as found by the learned Deputy President establish that it was a condition of the contract of employment that the worker commence and end the bus route each day at a place remote from the school and local towns, and at a place not served by public transport. In recognition of this imposition it was a term of her contract of employment that she be paid an allowance for the use of her private vehicle based on the distance between the school and the terminus. Such payment, combined with the geographical circumstances in which the worker was obliged to start and finish the bus route, establish that both driving to Evans' farm to locate the bus in the mornings and returning from Evans' farm after depositing the bus there in the afternoons, were part of the duties of her employment in the sense of being reasonably incidental to compliance with an instruction from the employer as to the location of terminus. The return journey from Evans' farm was reasonably incidental to placing the bus at that location regardless of whether the worker was travelling back to the school or to her nearby home at Rudall.[33]

1. Jellicoe v R P & LJ Robertson[34] concerned a deceased worker who was employed by the employer as a general handyman. He worked full‑time working from approximately 7.00 am until 4.00 pm each weekday. He could be requested to return to work in the evenings or on the weekends. He never refused those requests. He was not paid any extra if he did so and was paid the same wages regardless of the amount of hours he worked. His duties included farm work, fencing, watering, general maintenance, driving his employer to appointments, and performing some domestic work. The house that Mr Jellicoe lived in was on the same road and approximately three kilometres west of the farm where he worked. There was a finding that on the evening of February 2004, after hours contact was made with Mr Jellicoe for him to attend at his employer's house to attend to flooding on his employer's laundry floor and that after he did so, he was involved in a fatal accident when struck by a car whilst walking home.
2. In upholding the claim, Farrell DPJ accepted that Mr Jellicoe had been recalled to duty and that this distinguished the facts from a typical journey accident whilst travelling home from work. She also considered that there were similarities with Blee,[35] in that the arrangement that Mr Jellicoe had with his employer was that if an emergency arose at his employer's house outside of his normal working hours, he was expected to respond. The decision was upheld on appeal.[36]
3. Wright v Department of Education and Children's Services[37] concerned a claim by a school teacher who was involved in a car accident when driving home from work. The teacher taught mathematics and worked most school nights at home in an office that was set aside for work. His school principal was aware of and expected him to do after-hours work at home. On the night of the accident the teacher intended to spend part of the night at home marking mathematics tests and preparing for classes the next day. He therefore took home from work material in connection with this, that included a tub of school‑work. That tub included assignments and tests for year 12 students, that called for the inference that the teacher was not only transporting a large volume of school work, but that the nature and importance of the material was such that he was under a strong obligation to ensure its security whilst in transit and away from the school premises.
4. Farrell DPJ found that the teacher's principal had placed him under an obligation to continue his work at home by instructing him that, for safety and security reasons, he could not stay at school to complete his work. She held that he was carrying out the duties of his employment as he drove to his home because he was required to undertake after hours work at some place other than school for security reasons and he was transporting the tub of schoolwork with the intention of working on it that evening when he had his car accident. This decision was upheld on appeal.[38]
5. Lillicrap v Forestry SA[39] concerned a worker who was as a supervisor of forestry operations. She was required by the terms of her contract of employment to drive a ute that was owned and supplied by her employer, Forestry SA. The ute was equipped with items of firefighting equipment that comprised of two pressurised fire extinguishers, a rake, a hoe, a tank of water, and personal protective equipment, GRN and UHF radios and a dedicated work mobile phone.
6. The worker's duties made her responsible for the Mount Burr District, which comprised about one third of the total South East forests under the Forestry SA's management covering about 85,000 hectares.
7. The worker had her own office in the Mount Burr Forest headquarters, although she spent more than half of her time in the field supervising forestry operations. When in the field, the ute served as her mobile office.
8. The worker participated in Forestry SA's firefighting activities and was on a roster during fire season. Amongst other things, she had been supplied with the ute to ensure that she could immediately respond to protect forest assets with the ability to travel directly to an incident.
9. The worker's contract of employment did not require her to work fixed hours. In addition to her usual hours she was required to perform whatever out of hours work necessary in order to discharge her supervisory functions. She was not entitled to overtime payments because of the salary arrangements in place. The salary was not expressed to provide remuneration for travelling time to and from home.
10. Because the worker was obliged to drive the ute, she did not have the option of arranging any other way of getting to and from Mount Burr, either routinely or occasionally. For example, she could not ride a bicycle, use her private vehicle, or get a lift with a colleague or her husband, who at the time also worked for Forestry SA.
11. One morning in January 2011, the worker was driving the ute to work when it left the road and rolled over. The accident occurred on the Princes Highway, inside the Mount Gambier Forest, about 15 kilometres from the Mount Burr headquarters.
12. Lieschke DP accepted that it was a duty of the worker's employment to convey the employer's ute, with its full complement of firefighting equipment to the Mount Burr Forest headquarters from her home. He found that it was a duty of her employment to keep an active look out for fire related activity in the forest and forest related areas, whilst driving to Mount Burr. This led him to conclude that at the time of the accident and for the whole journey until then, the worker was "complying with an instruction from the employer given by the employer in the exercise of its control as employer" to drive this particular vehicle with its equipment from her home, through the forests and to the Mount Burr headquarters.
13. Buckett v Department of Health and Ageing[40] concerned a neurological registrar who worked as part of a team of doctors in the Neurology Departments of the Flinders Medical Centre (FMC) and the Women's and Children's Hospital. He was a full-time employee and he would regularly participate in on call rosters on weekday nights and weekends. When on call, he was required to be ready to deal with telephone calls about patients and to be recalled to attend either hospital within 30 minutes of being summonsed, if it was necessary to do so to treat patients. As such, although he was not physically at his work sites when he was on call, in a very real sense his time was not necessarily his own. When he was on a weekday "on call" roster, he was entitled to an allowance, and if recalled to duty, he was entitled to be paid wages for the time he was occupied.
14. After completing his normal working day on 5 June 2012, the doctor travelled home. That evening he was rostered on call. At about 7.30 pm, he received a telephone call from FMC. He was recalled to duty to treat a neurological patient with a significant brain injury who had quite suddenly deteriorated the day before. He travelled to FMC to examine and assess the patient and left after recommending that close monitoring was required. He resolved to neurologically re-examine and reassess the patient in the morning and then, if required, to discuss surgical options with his senior colleagues then. This was the accepted practice. He left FMC at approximately 11.00 pm and returned home. He was still on call.
15. As he estimated that he would need 15 minutes to re-examine and reassess the patient the next morning, the doctor planned to arrive at FMC earlier than he usually would, so that he could undertake a detailed examination of the patient's neurological symptoms, before he was due to start his shift so as to be able to consider and discuss possible surgical options immediately upon his shift starting. In the course of that journey, he was involved in an accident in respect of which he sought compensation under the repealed Act.
16. In dismissing an appeal that upheld the doctor's claim, after acknowledging that in some respects this was a routine journey from home to work, the Full Bench said:

On the other hand there were a number of distinguishing features. This was not a case involving a clerical officer who had resolved to get to work earlier than usual to get organised for the working day ahead.

Here we are concerned with a highly qualified medical practitioner who was on call and was recalled to duty the previous evening. The patient who was the subject of that recall was in a serious condition and required monitoring. Dr Buckett's evidence demonstrates firstly, that as an employed medical practitioner he was required to exercise his clinical judgment as to the appropriate time at which to re‑examine and reassess Mr A. Secondly, it shows that as a condition of his employment he was required to continue that treatment of Mr A at an appropriate time before his shift and before his usual handover tasks. In this instance the fact that the timing of that examination was marginally before handover does not change its essential character. It was not an additional handover duty. Its timing reflected Dr Buckett's professional clinical judgment as to when that examination ought to take place.[41]

1. An application for leave to appeal that decision to the Full Court of the Supreme Court was refused.[42]
2. It will be apparent for this survey of cases that the determination as to whether a worker's journey is undertaken in the course of carrying out duties of employment involves an imprecise test.[43] This is necessarily so, because the answer turns on matters of fact and degree.
3. That said, there are some themes that emerge from cases concerning whether a journey from home to work meets the requisite test.
4. Firstly, the answer to the question requires a consideration of the factual matrix as a whole.[44]
5. Secondly, the addition or subtraction of any one or more facts might make all the difference.[45]
6. Thirdly, outward journeys are to be treated the same as inward journeys.[46]
7. Fourthly, in some cases there can be a significant connection between the journey and the worker's work, yet the test will not be met. For example, the journey to work on a train organised by the employer to facilitate the timely arrival at work, the fare of which was subsidised by the employer, fell short in St Helen's Colliery. Being asked to travel several hundred kilometres on a Sunday to be ready for work the next morning, and being paid a travel allowance having used his own car to undertake that journey, was not enough in Nogare. Riding a police issued motor cycle, in full police regalia, with the police radio on, with an instruction to exercise the power of a police officer should the need arise, and being directed to take the most direct route home, was not enough in Brophy.[47]
8. Fifthly, in cases where it has been held that the test has been met, there is typically something unique about the place of employment from where the journey commences or ends, such as a being in a remote location;[48] something unique about the nature of the journey, such as being required to drive on an unsealed road in outback Australia;[49] being subject to a degree of control by the employer as to the means by which the journey is undertaken, such as having to use an employer provided vehicle,[50] or being required to leave home and come back to work to answer an emergency;[51] or there is something unique about the nature of the employment that has resulted in the worker being on the journey at the time of the accident, such as being required to return home to collect messages or and material to be used at work,[52] being required to go to a post office on the way to work to collect the employer's mail,[53] or riding home on a bike to collect a car to go back to the place of employment to collect files,[54] or being effectively directed to take a tub of school-work home in a car to work on at home a night,[55] or having to leave home earlier than usual to be at a hospital to examine a seriously ill patient,[56] or some combination thereof.
9. Sixthly, whilst the provision or absence of some type of financial benefit to the worker in undertaking the journey is not necessarily decisive, it is an important consideration,[57] and even more so, if it is wages.[58]
10. I stress that this is not intended to be an exhaustive list or comprehensive example of the factual circumstances where the test for compensability under s 7(8)(a) of the Act will be met. The question must always be: based on the facts as found, is the journey the doing of something which the worker may be required to do by the employer, either because it is the activity for which the worker was employed, or because it is within the power of control of the employer to direct that it be done, or is the journey one which is reasonably incidental to one or other of these circumstances.
11. Returning to the facts of this case, there was nothing unique about the place of employment where Ms Wastell's journey was to end. It was a legal office in suburban Adelaide.
12. There was nothing unique about the nature of the journey that Ms Wastell was undertaking. It was conducted on bitumen roads across the suburbs of Adelaide.
13. The evidence does not permit a finding that Ms Wastell had a large volume of files with her when she undertook the journey to work on 12 October 2018. It does not permit a finding that WLSSA's role in Ms Wastell being at its Adelaide office with files, rose above an expectation that if she was to attend the Adelaide office, she would take work with her, and that if she did so and took files with her, she was expected to return the files to WLSSA's Christies Beach office the next day.
14. Ms Wastell was not being paid when she drove to work on the morning of 12 October 2018. She was driving her own car. There was no evidence to suggest that she was being paid a mileage allowance. The evidence does not support a finding that WLSSA had the right to exercise any control over how she conducted her journey to work. She was not directed to travel by a particular route. She was not asked to drive to the Christies Beach office any earlier than usual. It would have been open for her to have deviated from her usual route.
15. In Karanicos, Doyle CJ made the point that the journey must be viewed in context, which in turn means that regard must be had to "what preceded it and what was going to follow it".[59]
16. Apart from the fact that Ms Wastell was fulfilling an expectation that she would return the files to WLSSA's Christies Beach office, her journey to work that morning was the same as any other routine journey that she embarked upon to travel from her home to her workplace at Christies Beach.
17. Applying what I hope to be a practical and common sense approach to the facts of this case, as found by me in light of the further evidence, in my view, it cannot be said that in undertaking the journey from her home to WLSSA's Christies Beach office on the morning of 12 October 2018, with the files and boxes in her car,[60] Ms Wastell was performing her job, complying with an instruction from WLSSA given by it in the exercise of its control as employer, or that she doing something reasonably incidental to one of those things.
18. It follows that the Corporation's rejection of her claim must be upheld.
19. Unless the Corporation wishes to be heard on the question of costs, I am inclined to think that an order should be made in favour of Ms Wastell. If the Corporation wishes to contend otherwise it has seven days to apply.

[1] Return to Work Corporation v Wastell [2024] SASCA 98.

[5] This is plainly an error and it should read: "Jodie's office".

[9] [2007] SASC 172.

[11] [2023] SAET 32.

[13] Return to Work Corporation of South Australia v Wastell [2024] SASCA 98 at [130].

[14] [2025] SAET 69 at [7].

[15] [2009] FCA 680 at [47].

[17] (2012) 114 SASR 111.

[18] [1996] SASC 5536.

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

[20] [2002] SAWCT 22.

[21] [1965] SASR 120.

[22] [1924] AC 59.

[23] [1938] AC 126.

[25] [1996] SAWCAT 1.

[26] [1996] SAWCAT 105.

[27] (1997) 68 SASR 97.

[29] [2000] SAWCT 36.

[30] [2001] SAWCT 104.

[31] [2002] SAWCT 22.

[32] The State of South Australia (In Right of the Department of Education and Children's Services) v The Estate of Mason [2002] SAWCT 114.

[34] [2006] SAWCT 10.

[36] WorkCover/EML (RP and LJ Robertson) v Jellicoe [2007] SAWCT 59.

[37] [2006] SAWCT 65.

[38] Department of Education and Children's Services v Wright [2007] SAWCT 52.

[39] [2013] SAWCT 6.

[40] [2014] SAWCT 51.

[41] Department of Health and Ageing v Buckett [2015] SAWCT 39 at [34]- [35].

[42] Department of Health and Ageing v Buckett [2015] SASC 173.

[44] Nancollas v Insurance Officer [1985] 1 All ER 833 at 840.

[45] Nancollas v Insurance Officer Ibid at 840.

[46] Smith v Stages [1989] AC 928 at 956.

[47] It must be acknowledged that some regarded the outcome in cases such as Nogare as unsatisfactory. (See: Vickers v Jarrett Industries Pty Ltd (1977) 15 SASR 525 at 540 per Zelling J). Doubtless this resulted in the amendments to the legislation that for many years deemed injuries sustained in the course of a daily or other periodical journey between the worker's place of abode and place of employment to arise out of and in the course of employment. But as Doyle CJ observed in Karanicos (Ibid), by making further amendments, Parliament chose to take a more restrictive approach. This has essentially returned the test of compensability in respect of journey accidents relying upon s 7)8)(a) of the Act to what it previously was.

[48] Mason v State of SA (Department of Education, Training & Employment Ibid; The State of South Australia (Department of Education and Children's Services) v Attwell-Gill Ibid; Lillicrap v Forestry SA Ibid.

[49] The State of South Australia (Department of Education and Children's Services) v Attwell-Gill Ibid

[51] Blee Ibid; Jellicoe v R P & LJ Robertson Ibid.

[52] The Corporation (The City Swim School) v Jeanette Anne Rowberry Ibid.

[53] Curran v Wills Industries Pty Ltd Ibid.

[54] Owen v Department of Education Training and Employment Ibid

[55] Wright v Department of Education and Children's Services Ibid.

[56] Buckett v Department of Health and Ageing Ibid.

[57] Nancollas v Insurance Officer Ibid at 840.

[58] Smith v Stages Ibid; CSR Ltd v McCourt [1997] SASC 6417.

[60] I adopt the findings that I previously made regarding these boxes as set in in Wastell v Return to Work Corporation of South Australia [2023] SAET 4, albeit that I now approach the case from the premise that both the boxes and the files, and the circumstances leading to them being in Ms Wastell's car, must be considered.