Keywords
Worker’s compensation – Substantial interruption or deviation from journey – in the course of employment – arising out of or in the course of employment – connection with employment – interval within a period of work.
Facts
On 1 November 2022, Ms Hilton drove to Halls Head to attend a sales appointment with a prospective customer in the course of her employment with Oz Shut. She arrived at the shopping centre and went inside to use the toilet. While she was there, she went into Kmart and purchased a dress. As she left Kmart, Ms Hilton was injured when she tripped and fell.
Ms Hilton’s workers’ compensation claim was accepted on the basis that:
- The injury was suffered during a work journey;
- There was no substantial interruption or deviation from the work journey;
- Alternatively, the interruption or deviation from the journey was connected with her employment because she had attended Kmart to purchase a dress for work;
- Alternatively, the injury occurred in the course of her employment because she was actually working at the time of the accident;
- Alternatively, the injury occurred during an interval within a discrete period of work during which Miss Hilton was encouraged by her employer to be at Kmart and to engage in shopping.
The employer appealed the arbitrator’s decision on the basis that it was wrong at law.
Decision
Staude DCJ delivered on 6 March 2025. Appeal dismissed.
Ratio
His Honour rejected the employer’s contention that it was for Ms Hilton to prove that her injury did not occur during a substantial interruption or deviation from employment. Rather, having proved that the injury was suffered in connection with employment, it followed that the employer bore the onus of proof with respect to one or more of the disqualifying circumstances.
Ultimately, His Honour held that it was clear on the evidence that Ms Hilton’s journey into Kmart for some 15 minutes was a negligible interruption from the work journey. His Honour otherwise accepted that buying a new dress for work in circumstances where Ms Hilton was required to be professionally attired for her role established a sufficient connection with her employment.
Further, his Honour rejected the employer’s submission that the injury did not occur in the course of Ms Hilton’s employment because she was expressly permitted to engage in personal activities during down time by her employer.
On the same basis, His Honour was satisfied that the injury occurred during an interval between periods of actual work and in circumstances where the employer encouraged, authorised or permitted Ms Hilton to engage in personal shopping during down time.
