Oz Shut Pty Ltd v Hilton - [2025] WADC 10

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   OZ SHUT PTY LTD -v- HILTON [2025] WADC 10
CORAM:   STAUDE DCJ
HEARD:   19 DECEMBER 2024
DELIVERED          :   6 MARCH 2025
FILE NO/S:   APP 63 of 2024
BETWEEN:   OZ SHUT PTY LTD
Appellant
AND
ALISON HILTON
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE
Coram:   ARBITRATOR PEMBERTON
File Number            :   A119293

Catchwords:

Workers' compensation - Appeal from arbitrator - Respondent working as a sales representative - Respondent injured while shopping during a work journey - Whether respondent injured in the course of her employment - Whether going into Kmart to buy a dress on her way to a sales appointment amounted to a substantial interruption of or deviation from a work journey

Legislation:

Workers Compensation and Injury Management Act 2023 (WA), s 9

Result:

Leave to appeal granted
Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr D R Clyne
Respondent	:	Mr A A Nolan

Solicitors:

Appellant	:	Moray & Agnew
Respondent	:	Trewin Norman & Co

Case(s) referred to in decision(s):

Comcare v PVYW [2013] HCA 41
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Henderson v The Commissioner of Railways (Western Australia) (1937) 58 CLR 281
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126
Mercer v ANZ Banking Group Ltd [2000] NSWCA 138
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324
Pioneer Studios Pty Ltd v Hills [2015] NSWCA 222
Walker v Wilson (1991) 172 CLR 195
Whittingham v The Commissioner of Railways (WA) (1931) 46 CLR 22

STAUDE DCJ:

This is an appeal from a decision of an arbitrator ordering that the appellant (Oz Shut) pay workers' compensation to the respondent (Ms Hilton) for incapacity resulting from an injury in the course of her employment by Oz Shut on 1 November 2022.
On that date Ms Hilton was working for Oz Shut as a sales consultant and had driven to Halls Head to attend a sales appointment with a prospective customer. The appointment was scheduled for 4.00 pm. Ms Hilton arrived at a shopping centre in Halls Head near her destination and went inside to use the toilet. While she was in the shopping centre she went into Kmart and purchased a dress. As she was leaving Kmart she tripped and fell injuring her left knee and right ankle and aggravating a pre-existing injury to her right knee (the injury).
Incapacitated by the injury, Ms Hilton claimed weekly payments and health and medical expenses. Liability was denied by Oz Shut on the basis that the injury did not arise out of or in the course of Ms Hilton's employment.
The dispute was heard by an arbitrator on 16 ‑ 17 July 2024. The Workers Compensation and Injury Management Act 2023 (WA) (WCIMA 2023) came into operation on 1 July 2024. As Ms Hilton's claim was pending at that date, by virtue of s 546(1) and s 575(1) of WCIMA 2023 her claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Oz Shut Pty Ltd v Hilton and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] WADC 10
Decision Date: 6 MARCH 2025

CaseChat Overview and Summary

Oz Shut Pty Ltd, the appellant, brought an appeal against a decision by an arbitrator who had ruled in favour of Ms Hilton, the respondent, for compensation under the workers' compensation legislation. Ms Hilton, a sales representative for Oz Shut, was injured while shopping at Kmart during her commute to a sales appointment. The primary issue before the court was whether Ms Hilton's injury occurred in the course of her employment. This required the court to determine whether her detour to shop at Kmart constituted a substantial interruption or deviation from her work journey.

The court found that the principles articulated in previous cases did not conflict with the facts of this case. The learned arbitrator's conclusion that Ms Hilton was in the course of her employment at the time of her injury was based on objective evidence rather than her subjective belief. The court noted that Ms Hilton and her co-workers were permitted to engage in personal activities during downtime, a fact that was not challenged by Oz Shut. Given that Ms Hilton was required to be on-call and available for sales appointments during the specified hours, she was effectively at work at the time of her injury. The court further considered whether the injury could be considered to have occurred in the course of employment even if Ms Hilton was not actually on a work journey, applying the principles from Hatzimanolis and Comcare v PVYW. The court concluded that the injury occurred in a manner encouraged by Oz Shut, as Ms Hilton was permitted to engage in personal activities as long as she remained contactable and available for work.

The court upheld the arbitrator's decision, finding that Ms Hilton's injury occurred in the course of her employment. The appeal was dismissed with costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In my view those statements of principle do not conflict with the authorities relied upon or indeed with the decisions of the High Court in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 (Hatzimanolis) or Comcare v PVYW [2013] HCA 41. The learned arbitrator did not err in his application of the relevant principles. The learned arbitrator's conclusion that Ms Hilton was in the course of her employment when she was injured was not based upon her belief, but rather upon an objective determination of the circumstances of her employment. The evidence of Ms Hilton 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 Mr Sanderson who was the only witness called by Oz Shut. That such permission was given is consistent with the fundamental requirement of her employment as a sales consultant being that during the hours between which Ms Hilton was expected to be on‑call, she had to be contactable and available to attend sales appointments at the direction of her employer: Reasons [109]. As previously noted, it was not in dispute that although Ms Hilton was paid for 38 hours per week at an hourly rate, she was required to be on‑call to attend appointments made by Oz Shut between 8.30 am and 8.30 pm Monday to Friday and between 8.30 am and 4.00 pm on Saturdays, those periods totalling 68.5 hours. Between appointments Ms Hilton was expected to remain contactable and available to attend appointments. On this basis, at the time she was injured - between appointments - Ms Hilton was effectively at work. In the event that his findings that Ms Hilton was injured during a work journey and was actually working were wrong, the learned arbitrator, considered whether on the evidence the injury was suffered in the course of employment on the basis that the accident occurred in a non‑working interval in an overall period of work between two discrete periods of work such that the principles stated in Hatzimanolis applied. (It is a hypothetical situation in this case as Ms Hilton was unquestionably on a work journey.) Hatzimanolis, as explained in Comcare v PVYW, is authority for the proposition that an injury may be regarded as having occurred in the course of employment if it occurs during an interval between periods of actual work in circumstances where the worker is expressly or impliedly induced or encouraged to spend the interval at a particular place or in a particular way: Hatzimanolis (484); Comcare v PVYW [34] - [39]. The test, as the learned arbitrator stated it at Reasons [127], was whether the worker was injured at a particular place where the employer encouraged the worker to be at the time, or whether the injury was suffered during a particular activity in which the employer encouraged the worker to be engaged. On the facts as found the test was satisfied. Oz Shut encouraged, authorised, or permitted Ms Hilton to engage in personal shopping during down-time, provided she remained contactable and available to attend appointments.