By Rebecca Roberts, Partner and Bronte Tanna, Graduate

The District Court of Western Australia dismissed an appeal by an employer (Oz Shut), upholding the decision of the Arbitrator that a sales representative (Ms Hilton), who had sustained an injury while shopping during her journey to a sales appointment, was injured ‘in the course of her employment’.

Ms Hilton was scheduled to attend a sales appointment in Halls Head. She arrived at Halls Head Central Shopping Centre approximately 20 minutes prior to the sales appointment and went inside to use the toilet. Ms Hilton then went into Kmart to buy a dress. As she left Kmart, she tripped and fell, injuring her left knee and right ankle and aggravating a pre-existing injury to her right knee (the injury).

The deviation of the worker’s journey, from the shopping centre toilet to Kmart, involved negligible distance from the sales appointment and was estimated to have taken Ms Hilton less than 15 minutes.

Ms Hilton was employed by Oz Shut on an ongoing full-time basis, working 38-hour weeks. She would drive herself to sales appointments as directed by Oz Shut, attending on average 3 sales appointments per day. Ms Hilton was stated to have been ‘effectively on call during the day’ and had down-time between appointments from time to time. She was paid for this ‘down-time’ between appointments.

Oz Shut did not dispute that Ms Hilton was injured during a work journey, but argued that she ‘deviated from her duties’ to such an extent that the fall was not in the course of her employment.

On appeal, the Court considered the following key issues:

• whether Ms Hilton had substantially deviated or substantially interrupted her work journey as required by section 9(2) of WCIMA 2023;
• whether the purchase of the dress for work purposes was sufficient reason to conclude Ms Hilton going to Kmart and buying a dress was connected to her employment for the purposes of section 9(2) of WCIMA 2023; and
• whether the injury was sustained in the course of her employment.

Determination

The Court upheld the decision of the Arbitrator, that section 9(2)(b) or 9(2)(c) of the Workers Compensation Injuries Management Act 2023 (WA) (“WCIMA”) did not exclude the injury from arising in the course of Ms Hilton’s employment because there was no ‘substantial interruption’ or ‘substantial deviation’ from her work journey. The Court referred to the duration of Ms Hilton’s attendance at Kmart and her proximity to the sales appointment in reaching this conclusion.

The Court disagreed with Oz Shut’s contention that Ms Hilton’s purchase of a dress for work was ‘unconnected with employment’ for the purpose of applying the provisions of section 9(2) of the Act.

During these periods of ‘down time’ Ms Hilton was paid by Oz Shut and was expected to be contactable and available to attend sales appointments as directed. On this basis, the Court agreed with the decision of the Arbitrator, that, at the time Ms Hilton was injured, she was effectively at work.

Key Principles

Meaning of ‘substantial’ for the purposes of section 9(2)

This decision highlights that an assessment of what constitutes a ‘substantial interruption’ or ‘substantial deviation’ for the purposes of section 9(2) of WCIMA 2023, is dependent on the circumstances of the case. The inclusion of the adjective ‘substantial’ was said to indicate that an interruption or deviation from a work journey that is not substantial, even if it is unconnected with the worker’s employment, will not take the worker outside of the course of their employment.

A purpose unconnected with the worker’s employment’ under section 9(2)

‘Unconnected’ in the context of section 9(2) of WCIMA 2023 was considered to bear its ordinary meanings of ‘not associated’ and ‘unrelated’.

Personal Activities and the meaning of ‘in the course of a worker’s employment’

This decision highlights that the test for determining what is considered ‘in the course of a worker’s employment’ includes a consideration of the nature and terms of employment; the circumstances in which the activity is done and as a result, what the worker is reasonably required, expected or authorised to do in carrying out their duties.

The Court upheld the Arbitrator’s finding that the worker engaging in personal activities, such as shopping, during her ‘down time’ was in the course of her employment, as supervisors had encouraged, authorised and/or permitted the sales consultants to engage in personal activities during periods of ‘down time’ between appointments.