It’s a long way to the shop, if you rock and roll (and hurt your knee and ankle)

Introduction

The recent case, Oz Shut Pty Ltd v Hilton [2025] WADC 10 offers guidance on how injuries occurring during work-related journeys can be considered as arising in the course of employment, specifically when those injuries arise during a minor deviation from the journey. The case considers whether personal activities undertaken during downtime fall within the scope of employment, providing clarity on the implications of such activities on workers’ compensation claims.

Facts

The case involves Alison Hilton, a sales consultant employed by Oz Shut Pty Ltd, who was injured whilst shopping between work appointments. Ms Hilton’s role required her to attend client appointments, with periods of down time between appointments. Oz Shut allowed employees to use these periods of down-time for personal activities on the condition that employees remain available and contactable for any future appointments. Essentially, Ms Hilton was “on call” from 8.30am until 8.30pm. 

On the day of the injury, Ms Hilton was scheduled to meet a client at 4:00pm. Prior to attending this appointment, she made a stop at a shopping centre to use the toilet at 3:40pm. She then went into Kmart and purchased a dress for work. As she was leaving Kmart at 3:55pm, she tripped and injured her left knee and right ankle. 

The central issue considered by the District Court was whether her deviation – taking a short break to purchase an item for work – constituted a “substantial interruption” or “deviation” pursuant to section 9(2) of the Workers’ Compensation and Injury Management 2023 (the Act). The Court also considered whether the trip was unconnected with the worker’s employment.  Importantly, the parties agreed that Ms Hilton was broadly on a “work journey” when she was injured (or at least this finding by the arbitrator was not contested on appeal) which narrowed the issues for the Court to consider. 

The Court agreed with the arbitrator’s original decision that a deviation lasting approximately 15 minutes was not one that met the threshold for being “substantial” in terms of distance or time, as per the Act.  Hence reaching the conclusion that Ms Hilton was injured during the course of her employment.

The Court also commented that in any event it did not consider that the deviation was “unconnected” with the worker’s employment. While Oz Shut argued that buying a dress for work is not an activity sufficiently connected with employment, the Court disagreed – at least for the purpose of applying the test in section 9(2) of the Act. 

Legislative Provisions

The key section of the Act which was central to the Court’s findings was section 9(2):

A personal injury by accident suffered by a worker must not be regarded as arising out of or in the course of the worker’s employment if the injury is suffered -

(C) during a substantial deviation from a work journey for a purpose unconnected with the worker’s employment, or after a deviation of that kind.

The arbitrator found that the minimal interruption, the fact that the dress was for work purposes and the context of employment (employees being allowed to attend to personal activities) didn’t amount to a substantial deviation.

Key Takeaways

1. The case underscores the importance of context when evaluating injuries during work-related travel. While Section 9(2) of the Act does not define "substantial," the arbitrator applied established principles to assess whether the deviation was significant enough to take Ms. Hilton outside the course of her employment. A 15-minute break for personal shopping, particularly when the item purchased (a dress for work) was relevant to her employment, was not deemed a substantial deviation.
2. The case highlights that the nature of the deviation, its duration, and its purpose are all critical factors.
3. The "course of employment" test is not based on the worker's subjective belief about whether an activity is work-related, but rather on an objective evaluation of the employer’s expectations, practices, and instructions.
4. Finally, it shows how each case is very fact specific.  When assessing whether an injury occurs within the course of employment, it is important to consider the whole of the employment relationship including:
   1. What the employer expects, permits, authorises or allows the worker to do.
   2. The usual hours of employment.
   3. The nature of the worker’s remuneration and how it is linked to their work hours or activities.
   4. The activities the worker was engaged in and the place the worker was at when they were injured.

Conclusion

The case provides crucial guidance on how personal activities undertaken during work journeys are evaluated under the Act. When determining whether an injury arises out of or in the course of employment, it is essential to assess both the time and significance of any deviation from the journey and whether the activity is connected to the worker’s duties. The case highlights those minor deviations, especially those that align with the worker’s employment requirements, may not be deemed "substantial," and thus, the injury could still be compensable under workers' compensation law.

If you want to read more about “journey” cases, read our latest edition of The CompAct here.  Sign up for future editions to keep on top of workers compensation news in WA.

Article written by Isha Nagar, Law Graduate