In the District Court of Western Australia decision of Oz Shut Pty Ltd v Hilton [2025] WADC 10, the Court dismissed an employer’s appeal against an arbitrator’s decision awarding workers’ compensation to a sales consultant who slipped and fell while leaving a Kmart store on her way to a sales appointment.
This decision represents an early consideration of the new journey claims provisions in section 9 of the Workers Compensation and Injury Management Act 2023 (WA). Although it does not materially change the compensability of journey claims that already existed under the old regime, such that, the commute to and from work stays excluded and an interruption or deviation from a work journey only defeats the claim if it was substantial and for a purpose unconnected with the worker’s employment, the one-hour presumption is gone.
Under the old regime, an interruption of the journey of more than one hour was prima facie a substantial interruption. Under the new Act, substantiality is assessed on the circumstances of each case, including the terms and conditions of the worker’s employment, the exigencies of the journey and the worker’s personal circumstances.
The decision is an early consideration of the journey provisions in section 9 of the Act, and a timely reminder that a worker does not need to be at the workplace, or even performing work, to suffer an injury in the course of employment.
Ms Hilton was employed by Oz Shut as a sales consultant. She was in the field daily, driving herself to appointments as directed. She was guaranteed an average of three appointments per day, was paid for the downtime between them, and was required to remain contactable and available across a working span of some 68.5 hours per week.
On 1 November 2022, having completed an appointment in Middle Swan, she was directed by text at 2.27 pm to attend a 4.00 pm appointment in Halls Head. She arrived at Halls Head Central Shopping Centre at about 3.40 pm, went inside to use the toilet, then went into Kmart and bought a dress. As she was leaving the store at about 3.55 pm, she slipped and fell, suffering ankle and knee injuries that left her incapacitated for work.
Oz Shut denied liability on the basis that Ms Hilton was, in substance, on a frolic of her own. The arbitrator found for her and the decision was determined under the new Act. On 6 March 2025, the District Court dismissed the employer’s appeal.
The appeal failed for three reasons:
First, the onus was on the employer. Once Ms Hilton proved an injury by accident during a work journey, it was for Oz Shut to prove a substantial interruption or deviation for a purpose unconnected with her employment.
Secondly, the excursion into Kmart was not substantial. The stop lasted about 15 minutes against a lengthy drive from Middle Swan, the deviation involved negligible distance, and it would not have delayed the 4.00 pm appointment.
Thirdly, even if it had been substantial, it was not unconnected with her employment. Her job description required her to be professionally attired, and her unchallenged evidence was that she bought the dress for work.
The Court also upheld the arbitrator’s alternative findings:
- Ms Hilton was paid for her down-time and required to remain on call, so she was effectively at work when she fell.
- Her employer through its supervisors permitted its sales consultants to shop between appointments. In such circumstances where the employer encouraged the worker to spend time in that way, the interval was taken to be during an overall period of work and therefore in the course of employment.
Key takeaways:
- An injury does not need to occur at the workplace to be compensable. An injury sustained during a journey or a brief personal stop along the way may not ordinarily defeat a claim.
- A personal errand may still be in connection with the workplace.
- Paid downtime can be worktime and the workplace practice matters. This is assessed objectively by what the employer through their supervisors and/or other managers requires, expects or authorises.
- The ordinary commute remains excluded. An injury on a journey to or from the worker’s place of residence remains outside the WA Scheme.
- For businesses with field based workforces, the workplace “travels” with the worker. Every drive between jobs is a work journey and short personal stops will rarely be substantial, and the connection to employment can be established on fairly modest links. This is despite any workplace policy which may attempt to limit exposure. The workplace practice will be in the spotlight and closely examined to determine compensability in such circumstances.
By Malvinpal Khaira, Principal Lawyer