OZ Shut Pty Ltd v Hilton [2025] WADC 10
The District Court of Western Australia has dismissed an appeal by an employer, confirming that a sales representative injured while shopping during a work journey was entitled to workers’ compensation. The decision in OZ Shut Pty Ltd v Hilton [2025] WADC 10 serves as a helpful clarification of the principles governing work-related travel, “down-time,” and the concept of employment-related purpose under the Workers Compensation and Injury Management Act 2023 (WA).
Background
Ms Hilton was employed as a sales consultant by OZ Shut Pty Ltd. On 1 November 2022, she was directed to attend a 4:00pm sales appointment in Halls Head. After completing an earlier appointment, she travelled from Middle Swan and arrived near the appointment site at 3:40pm. She entered a shopping centre to use the restroom and then went into Kmart, where she purchased a dress. As she exited Kmart, she slipped and fell, sustaining injuries to both knees and ankles.
OZ Shut denied liability, arguing that the injury occurred outside the course of her employment. The matter was heard before an arbitrator, who determined that the injury did occur in the course of employment. OZ Shut then appealed to the District Court.
The Legal Framework
The appeal was governed by the Workers Compensation and Injury Management Act 2023 (WA) (WCIMA 2023), which commenced on 1 July 2024. Section 9 of the Act provides that injuries sustained during a “work journey” are compensable, except where the journey is substantially interrupted or deviated from for a purpose unconnected with employment.
The key question before the court was whether Ms Hilton’s decision to enter Kmart constituted such an interruption or deviation, or whether it remained within the scope of her employment.
The Court’s Findings
- No substantial interruption or deviation
Judge Staude held that entering Kmart did not amount to a “substantial interruption” or “substantial deviation” from Ms Hilton’s work journey. She was still en route to her scheduled appointment, and the stop at Kmart was brief—approximately 10 to 15 minutes. The court found that:
- The shopping centre was adjacent to her appointment location;
- The purpose of the visit (purchasing professional attire) was not wholly unconnected to her work; and
- The deviation did not delay or impact her attendance at the appointment.
The court reaffirmed that an interruption or deviation must be “substantial” to invoke the exclusion under s 9(2), which it defined as being of “real significance, weighty, or important.” On the facts, that threshold was not met.
- Shopping was connected to employment
Even if the deviation had been substantial, the court held that it was not “unconnected” with employment. Ms Hilton’s role required her to be professionally attired, and her evidence that she was purchasing a dress for work was unchallenged. Judge Staude concluded that this provided a sufficient nexus to employment.
- Down-time is still work time
In the alternative, the court accepted the arbitrator’s finding that Ms Hilton was still “at work” during her down-time between appointments. OZ Shut had expressly permitted sales staff to undertake personal errands such as shopping, provided they remained contactable and available for appointments. This practice was confirmed by Ms Hilton and her co-workers, and was not rebutted by the employer’s witness, who conceded he was not involved in supervising the sales team.
The court found that Ms Hilton’s activity fell squarely within the scope of her employment and, further, that even if it was an “interval” case, the employer had induced or encouraged her to spend her time in that way, in line with Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 and Comcare v PVYW [2013] HCA 41.
Clarifying “Work Journey” under the New Legislation
Section 9 of the WCIMA 2023 replaces the former presumption under the repealed Workers’ Compensation and Injury Management Act 1981 (which treated interruptions over one hour as “substantial”). Under the new Act, the assessment of what constitutes a “substantial interruption” or “substantial deviation” now depends entirely on the specific facts, context, and connection to employment.
In this case, a 10–15-minute stop for work-related shopping within the same shopping centre did not qualify as substantial.
The Importance of Employer Policies and Supervisory Practices
A crucial part of the arbitrator’s (and the Court’s) reasoning rested on the actual work culture and supervisory instructions. Evidence showed that Ms Hilton and other sales consultants were:
- Routinely allowed to shop or engage in personal activities between appointments;
- Required only to remain contactable and available; and
- Paid for their “down-time” between client meetings.
This lack of clear employer direction or restriction meant that such incidental activities fell within the scope of employment.
Legal Tests Applied: Substantial Deviation and Employment Connection
This decision reinforces several core legal principles under WA compensation law:
- “Substantial” deviation or interruption requires something weighty, not just minor or brief.
- “Unconnected with employment” means lacking a reasonable or foreseeable link to work duties—buying clothes for work does not meet that threshold.
- Whether someone is “in the course of employment” involves looking at objective facts, employer expectations, and any implied permissions.
Practical Implications for Employers and Employees
This case carries practical takeaways for both employers and employees:
- Employers: Should ensure that their policies about permissible activities during “down-time” or travel are clear, consistent, and documented. If certain actions (e.g., shopping) are discouraged or prohibited, that should be explicitly communicated.
- Employees: Should understand that work-related activities—even outside an office—can still fall within the scope of employment if they are reasonably connected and not expressly forbidden.
- HR & Compliance: Consider training managers to avoid mixed signals about permitted conduct and document informal permissions or workplace norms.
Conclusion
The court dismissed all six grounds of appeal, finding that:
- Ms Hilton was on a work journey at the time of the injury;
- There was no substantial deviation or interruption;
- The purpose of entering Kmart was not unconnected with employment; and
- She was effectively still at work, or at minimum, engaging in an employer-approved interval activity.
The appeal was accordingly dismissed.
Key Takeaway
OZ Shut v Hilton reinforces the principle that brief personal activities during a work journey—especially those tied to employment obligations—will not necessarily break the chain of employment for compensation purposes. Where an employer allows flexibility during “down-time,” the scope of employment may extend to incidental activities such as shopping, particularly when such conduct is common and known to be permitted.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.