By Gaby Grammeno Contributor

When a woman on a work journey stopped and bought a dress in a shop where she fell and was injured, her employer baulked at her compo claim. Find out why the court said her journey interruption was not ‘substantial’.

The worker was employed as a sales representative with a large retailer of roller shutters. She was not based in the office – rather, she was effectively on call throughout her working hours and it was accepted that she may have some down-time during the day. She was paid for her 'down-time' – the time between appointments in her working hours. 

In November 2022 she had met with a client in Perth in the morning and was directed to attend a sales appointment with another prospective customer more than an hour’s drive away at 4pm. Arriving early in the locality, she stopped at a shopping centre to use the toilet. Before going back to the car, she went into a shop and bought a dress, but as she was leaving she tripped and fell, injuring her left knee and right ankle and aggravating a pre-existing injury to her right knee.

As she was Incapacitated by the injuries, she put in a claim for weekly payments and health and medical expenses, but her employer denied liability on the basis that the injury did not arise out of or in the course of her employment.

The dispute was heard by an arbitrator in July 2024, and the arbitrator concluded that going into the shop did not amount to a substantial interruption of, or deviation from, the worker’s journey, and that journey was connected with her employment.

The arbitrator ordered the employer to pay her workers' compensation for incapacity resulting from an injury in the course of her employment.

The employer appealed that decision, and the case was heard in the District Court of Western Australia.

 

In court

The question to be decided was whether the worker had been injured in the course of her employment. In particular, whether going into a shop to buy a dress on her way to a sales appointment amounted to a substantial interruption of or deviation from a work journey.

The arbitrator had accepted that the worker was expected to be ‘professionally attired’, so going into the shop to buy a dress was connected to her employment for the purposes of the Workers Compensation and Injury Management Act 2023 (s 9(2)(b) and (c)). 

The employer submitted that the arbitrator was wrong in law, claiming there was no evidence that the employer had instructed or encouraged the worker to go into the shop and buy a dress.

Their position was essentially that while she was in the shop, the worker was on a 'frolic of her own', that is, engaged in an activity unrelated to her employment.

The employer also asserted that the arbitrator erred in holding that the employer bore the onus of proving that the circumstances of the injury amounted to a substantial interruption or deviation unconnected with employment.  

 

Meaning of ‘substantial’

Judge John Staude considered how a deviation or interruption to a work journey should be assessed as to whether it was ‘substantial’ or not.

He cited a previous case in which the judge held that ‘... substantiality is to be assessed by reference to the circumstances of each case which include not only the terms and conditions of the worker's employment, but also the exigencies of the journey and the personal circumstances of the worker’.

He also noted that in the previous workers compensation legislation, ‘substantial’ referred to an interruption of an hour or more.

He said that the intention of the law is plainly that an interruption or deviation ‘that is not substantial … will not take a worker outside the course of their employment’.

The facts demonstrated that the worker arrived at the location in good time for her appointment, that using the toilet at the shopping centre did not take her outside the course of her employment, that the deviation into the dress shop involved negligible distance, took only about 10 minutes and would not have delayed her from attending her appointment on time. 

‘The evidence of [the worker] and her co-workers was that they were expressly permitted to engage in personal activities during down-time. That evidence was not challenged and was not able to be contradicted by [the employer’s witness in court].’

The employer did not dispute that the worker was injured during a work journey. But for the scheduled appointment with the client, she would not have been there.

Judge Staude was not satisfied that any of the grounds of appeal had been made out. He found that the arbitrator did not err in finding that going into the shop did not amount to a substantial interruption of or deviation from the worker’s journey.

He also upheld the arbitrator's alternative findings that the sales rep was working when she was injured, or that her employer's supervisors encouraged, permitted or authorised her to engage in activities like shopping in her ‘down-time’ as long as she remained contactable and available for work. This meant her injuries would have been compensable under the interval test set out by the High Court in an earlier case, even if her workers comp claim had failed.

The employer’s appeal was dismissed.

 

What it means for employers

Though an employer may consider a worker should not be entitled to compensation if they’re injured on a slight deviation from business requirements while on a work-related journey, it’s in employers’ best interests to understand how an injury sustained on an interruption to – or deviation from – a work journey may be viewed by a court. 

 

Read the decision

OZ SHUT PTY LTD -v- HILTON [2025] WADC 10 (6 March 2025)