OZ SHUT PTY LTD -v- HILTON [2025] WADC 10

[2025] WADC 10
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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
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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
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STAUDE DCJ
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STAUDE DCJ:
1
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.
2
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).
3
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.
4
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 fell to be determined according to that Act.
Primary decision
5
The learned arbitrator, Mr Pemberton, delivered a decision and written reasons (Reasons) on 27 August 2024. He found that:

1. Ms Hilton suffered a personal injury by accident as a result of which she was incapacitated for work: Reasons [11].
2. The injury was suffered during a work journey as defined in s 9(1) of WCIMA 2023, being a journey arising out of or in the course of her employment: Reasons [87].
3. There was no substantial interruption of or deviation from the work journey: Reasons [101].
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4. Alternatively, the interruption or deviation from the journey was connected with her employment as Ms Hilton had attended Kmart to purchase a dress for work: Reasons [102].
5. If Ms Hilton was not on a work journey, or was on a work journey that was substantially interrupted or deviated from, the injury nevertheless occurred in the course of her employment as she was actually working at the time of the accident: Reasons [105] – [112].
6. If the accident did not occur during a work journey, and if Ms Hilton was not actually working at the time, it occurred in an interval within a discrete period of work during which Ms Hilton was encouraged by Oz Shut to be at Kmart and to engage in shopping such that the injury was suffered in the course of her employment: Reasons [130].
   Leave to appeal
   6
   It is not disputed that the appeal is in respect of a question of law, the question of whether the appellant was injured in the course of her employment being a mixed issue of law and fact. Accordingly, Oz Shut has leave to appeal.
   7
   Leave to appeal having been granted, the court is required to conduct a ‘real review’ of the primary decision. Yet, it is for the appellant to provide a proper basis for disturbing the decision by pointing to error: Pacific Industrial Pty Co Ltd v Jakovljevic [2008] WASCA 60 [24], [26].
   The facts
   8
   The arbitration proceeded on the basis of two statements of agreed facts that are recited in the Reasons at [30]. Relevantly they are:
   (a) Ms Hilton was employed by Oz Shut as a sales consultant (interchangeably referred to as sales representative) and is a worker as defined under the 2023 Act.
   (b) On 1 November 2022, Oz Shut provided Ms Hilton with a lead to attend an appointment at 4.00pm in Halls Head.
   (c) Ms Hilton arrived at Halls Head Central Shopping Centre at approximately 3.40pm and entered the shopping centre to use the toilet facilities.
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   (d) Once Ms Hilton had finished using the toilet facilities, she then entered Kmart, selected and purchased a dress.
   (e) As Ms Hilton approached the exit to Kmart, her foot slipped, rolling her ankle and she fell (the accident).
   (f) Ms Hilton sustained an injury to her right ankle which has since recovered, and sustained a left knee subchondral fracture.
   9
   Other facts that were found to be not in dispute are set out at [31] as follows:
   (a) At the time of the incident, Ms Hilton was employed by Oz Shut on an on-going full-time basis working a 38-hour week and being paid $31.88 per hour.
   (b) Ms Hilton’s position as a sales consultant was not an office-based position, she was in the field on a daily basis and responsible for driving herself to each appointment as directed by Oz Shut.
   (c) The typical hours of work were from between 8.30am to 8.30pm Monday to Friday and 8.00am to 4.30pm on Saturdays. Oz Shut guaranteed an average of 3 confirmed appointments each day. Ms Hilton was required to be ready and available to cover all appointments throughout the day.
   (d) Ms Hilton was ‘effectively on call during the day’ and may have some down-time during the day.
   (e) Oz Shut conceded there may be occasions when there was a gap between appointments for Ms Hilton during her work day, and if so, she was expected to remain contactable and available to attend the next available appointment.
   (f) Ms Hilton was paid for her time between appointments, that is she was paid for ‘down-time’.
   (g) On 1 November 2022, Ms Hilton was in Middle Swan having completed an appointment when she received a text message at 2.27pm advising her to attend Halls Head for an appointment at 4.00pm.
   (h) On 30 August 2023, Ms Hilton was attending an appointment as directed by Oz Shut when she injured her right knee whilst alighting from her vehicle.
   (footnotes omitted)
   10
   None of those facts is challenged.
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   11
   Evidence adduced by the parties at the arbitration is summarised at Reasons [33] – [57].
   Grounds
   12
   The grounds of appeal are as follows:
   The Arbitrator was wrong in law:
7. In finding that the Respondent was injured in the course of her employment;
8. When in considering the issue of the content of her employment having regard to the beliefs of the Respondent and her co-workers as to what they were permitted to do rather than objectively looking to what the [Respondent’s] employment duties actually were.
9. In finding that the [Respondent’s] purchase of a dress at Kmart for the purpose of an employment requirement to be professionally attired was sufficient reason to conclude that the excursion in to Kmart was connected to her employment for the purposes of Section 9(2)(b) and (c).
10. In finding that the Respondent was actually working at the time of the incident in concluding, this was an interval case [sic] because in so doing the finding ignores the requirement that there be a connection to actual employment.
11. In finding that the injury occurred during a discrete episode or period of employment on the basis that the Appellant encouraged the Respondent to be both at Kmart and to engage in shopping when there was no evidence of that at all.
12. In finding that the Appellant bore the onus of proof in terms of the issue of the Kmart excursion being a substantial interruption or substantial deviation as defined in Section 9.
    13
    The grounds as pleaded, it must be said, lack cogency and are disorganised and difficult to understand. They do not conform to the requirements of r 51(3) of the District Court Rules 2005 (WA). Yet, no issue was taken with them by Ms Hilton, presumably because, as counsel has submitted, the pleaded grounds do not challenge the correctness of the learned arbitrator’s conclusion that Ms Hilton was injured during a work journey. This is the primary basis of liability. Unless it is incorrect, it is strictly unnecessary to consider the appeal against the alternative bases of liability found by the learned arbitrator. I will, however, deal with all of Oz Shut’s contentions in the interests of conducting a real review of the decision.
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    14
    Section 9 of WCIMA 2023 provides:
13. Journeys
    (1) In this section –
    work journey means a journey arising out of or in the course of a worker’s employment.
    (2) A personal injury by accident suffered by a worker must not be regarded as arising out of or in the course of the worker’s employment if the injury is suffered –
    (a) during a journey to or from a place at which the worker resides, whether or not temporarily; or
    (b) while a work journey is substantially interrupted for a purpose unconnected with the worker’s employment, or after an interruption of that kind; or
    (c) during a substantial deviation from a work journey for a purpose unconnected with the worker’s employment, or after a deviation of that kind.
    15
    Plainly, for s 9(2)(b) or s 9(2)(c) to apply, the interruption or deviation must be substantial and unconnected with employment.
    16
    Apart from contending that the learned arbitrator erred in holding that the onus of proving any of the disqualifying circumstances provided in s 9(2) was on Oz Shut, there is no express challenge to the correctness of the learned arbitrator’s finding that going into Kmart did not amount to a substantial interruption of or deviation from that journey that was unconnected with Ms Hilton’s employment.
    17
    Indeed, in its Outline of Submissions at par 2 Oz Shut submits:
    The issue in this case is whether the fact of the Respondent’s deviation from her duties to enter Kmart where she shopped and then slipped and fell when exiting, was an incident which occurred in the course of her employment.
    18
    While the syntax is problematic, framed in this way Oz Shut’s contention seems to be that notwithstanding the learned arbitrator’s conclusion that Ms Hilton was injured during a work journey to which
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    s
    9(2) did not apply, by going into Kmart Ms Hilton deviated ‘from her duties’ to such an extent that her fall was not in the course of her employment. That contention cannot be sustained if the learned arbitrator’s s 9 findings are correct.
    19
    Essentially, the position of Oz Shut is that while she was in Kmart Ms Hilton was on a ‘frolic of her own’, that is, engaged in an activity unrelated to her employment. Having conceded that Ms Hilton was on a work journey, however, as she undoubtedly was, the only defence of Oz Shut arises under s 9(2).
    Grounds of appeal, par 6
    20
    Oz Shut contends that the learned arbitrator erred in holding that the employer bore the onus of proving a substantial interruption or deviation unconnected with employment. No submission was developed with respect to that contention and the court was referred to no authority. The learned arbitrator stated at Reasons [96]:
    … if the employer fails to demonstrate that Ms Hilton’s excursion into Kmart was not a ‘substantial interruption’ or ‘substantial deviation’ then that is the end of the matter and defence fails. If it is a ‘substantial interruption’ or ‘substantial deviation’, the employer also needs to show that it was for a purpose unconnected with the worker’s employment.
    21
    Section 6(1) of WCIMA 2023 defines ‘injury’ to mean an injury from employment that is, relevantly, a personal injury by accident and s 6(2) provides:
    A personal injury by accident is an injury from employment if the injury arises out of or in the course of the employment or while the worker is acting under the employer’s instructions.
    22
    Section 17(1) renders an employer liable for compensation if a worker suffers an injury from employment with the employer.
    23
    Section 9(1) defines work journey as a journey arising out of or in the course of a worker’s employment.
    24
    Section 9(2) provides three factual circumstances in which a personal injury by accident suffered during a work journey will not be regarded as arising out of or in the course of employment. Thus s 9(2) affords a defence to a claim for compensation.
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    25
    It is for the worker to prove that they suffered an injury from employment. In the present case Ms Hilton has done so by proving that her injury was suffered by accident during a work journey that by definition is a journey arising out of or in the course of her employment.
    26
    Ms Hilton having done so, it follows that it was for Oz Shut to prove one or more of the disqualifying circumstances provided in s 9(2). In the result nothing turns on this point as it is clear from the Reasons that the arbitration was determined on primary facts that for the most part were not in issue, and otherwise open on the evidence.
    27
    The learned arbitrator made an express finding that going into Kmart did not amount to a substantial interruption of or deviation from Ms Hilton’s journey. That finding was supported by the following facts:
14. Ms Hilton was directed to attend a 4.00 pm appointment at an address in Halls Head: Reasons [30(b)].
15. On her way to that address, Ms Hilton stopped at the Halls Head Central Shopping Centre at about 3.40 pm and went inside to use the toilet: Reasons [30(c)].
16. Ms Hilton then went into Kmart and bought a dress and was leaving the store when the accident occurred at about 3.55 pm: Reasons [30(d)], [40].
    28
    ‘Substantial’ is not defined in WCIMA 2023. The corresponding work journey provisions in the Workers’ Compensation and Injury Management Act 1981 (WA) (repealed) are s 19(2) and s 19(3):
    (2) A worker shall not be treated as having suffered personal injury by accident arising out of or in the course of the worker’s employment if the worker suffers an injury –
    (a) during a journey –
    (i) between a place of residence of the worker and the worker’s place of employment; or
    (ii) between a place of residence of the worker and a place mentioned in subsection (1); or
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    (iii) if the worker has more than one place of residence, between those places;
    or
    (b) during a journey arising out of or in the course of the worker’s employment if the injury is incurred during, or after, any substantial interruption of, or substantial deviation from, the journey, made for any reason unconnected with the worker’s employment or attendance mentioned in subsection (1).
    (3) In subsection (2) –
    place of residence includes a place of temporary residence;
    substantial interruption prima facie includes any interruption of the journey for a period of more than one hour.
    29
    I was not addressed by either counsel on the significance, if any, of the absence in WCIMA 2023 of an interpretive provision. In my view it is not material that there is no longer a presumption that an interruption of a journey for more than one hour is a substantial interruption.
    30
    In Walker v Wilson (1991) 172 CLR 195, 200 – 201, Brennan J (as his Honour then was) held:
    … 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.
    31
    The relevant ordinary meaning of ‘substantial’ is ‘of real significance, weighty, important’: New Shorter Oxford English Dictionary.
    32
    Plainly, the use of substantial as a qualifying adjective signifies a legislative intention 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 a worker outside the course of their employment.
    33
    The facts demonstrate that Ms Hilton arrived at Halls Head in good time for her appointment. She stopped at the shopping centre to use the toilet. It was not suggested that this act took her outside the
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    course of
    her employment. She then went into Kmart, a store within the same shopping centre, where she bought a dress. The interruption of the journey – for some 15 minutes – was short in relation to the time it took to get from Middle Swan to Halls Head. The deviation – from the shopping centre toilet to Kmart – involved negligible distance and the time spent in Kmart before the accident was only 10 minutes. But for the accident, neither the interruption nor the deviation would have delayed the appointment that Ms Hilton was directed to attend.
    34
    On these facts it was open to the learned arbitrator, who found that the distinction between interruption and deviation in the circumstances of the case was immaterial, to find as a matter of fact that there was no substantial interruption of or deviation from the work journey. The only authority cited by Oz Shut, Humphrey Earl Ltd v Speechley (1951) 84 CLR 126, was rightly distinguished on its facts. No error is disclosed.
    Grounds of appeal, par 3
    35
    The learned arbitrator went on to find that if he were wrong in that regard the interruption or deviation was connected with Ms Hilton’s employment for the purpose of s 9(2) because she went into Kmart to buy a dress for work: Reasons [102]. Ms Hilton’s unchallenged evidence was that her job description required her to be professionally attired: Reasons [94]. Oz Shut contends that buying a dress for work as a sales consultant is an insufficient basis for a finding that going to Kmart to do so was unconnected with her employment.
    36
    The submission is that she was not acting in the course of employment or under her employer’s instructions when she did so. Neither of those requirements is imposed by the words of s 9(2)(b) or s 9(2)(c) which speak of a purpose unconnected with the employment. The authorities relied upon by Oz Shut deal with the meaning of ‘arising out of or in the course of employment’. No authority was cited and no submissions made as to the construction of ‘a purpose unconnected with the worker’s employment’. In my view the word ‘unconnected’ in this context bears its natural and ordinary meanings of ‘not associated’ and ‘unrelated’. I find no support in Oz Shut’s submission for a more narrow construction.
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    37
    Ms Hilton was required to be professionally attired for the purpose of carrying out her work as a sales consultant. I am not persuaded as a matter of law or fact that in circumstances that permitted an opportunity between sales appointments to do so, buying a new dress for work was a purpose unconnected with her employment.
    Grounds of appeal, pars 2, 4 and 5
    38
    The learned arbitrator considered whether, if s 9 did not apply, Ms Hilton was actually working when she was injured. He found that her work as a sales consultant required her to attend three appointments per day. Each appointment would take 45 minutes to one hour. An average day, therefore, would include four hours of ‘down-time’, some of this time being taken up by driving between appointments: Reasons [106].
    39
    The learned arbitrator referred to his finding that Oz Shut by its supervisors encouraged, permitted or authorised its sales consultants to engage in activities during ‘down-time’, including but not limited to shopping: Reasons [108]. He said:
    In my view, it is not surprising that workers who travel to appointments and may have significant periods of ‘down-time’ between appointments would be permitted by their employers to engage in certain activities to fill their time.
    40
    The finding was based on the evidence of Ms Hilton and her co-workers, Ms Browning and Ms Huddleston of the work practices of sales consultants for Oz Shut. The evidence is summarised at Reasons [36] – [50]. The evidence was unchallenged, though there was evidence on behalf of Oz Shut by Mr Sanderson, the general manager, summarised at Reasons [54] – [57] to the effect that Oz Shut did not encourage or endorse activities such as shopping. Mr Sanderson conceded that he did not attend sales meetings and could not say what instructions may have been given by sales managers to Ms Hilton and others. He also said that it did not matter how the sales consultants got to their appointments or what route they took, provided they were on time.
    41
    At Reasons [58] – [71] the learned arbitrator dealt with the nature of Ms Hilton’s employment. In doing so he addressed the employer’s submissions that the evidence of Ms Hilton, Ms Browning and Ms Huddleston as to what they were permitted to do was irrelevant.
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    The authorities relied upon were
    Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324 (Pioneer No 1) and Pioneer Studios Pty Ltd v Hills [2015] NSWCA 222 (Pioneer No 2). The learned arbitrator found they were not authority for the proposition that the evidence of a worker of what they believed they were permitted to do was irrelevant, but rather that such evidence was not determinative. He held at [62] that determining what was in the course of employment required an assessment of the evidence of Ms Hilton, her co-workers and Mr Sanderson, and the employment contract and position description. The arbitrator noted that none of the sales managers at Oz Shut was called to give evidence and that there was no challenge to the evidence of Ms Hilton, Ms Browning and Ms Huddleston as to what they were told by their managers.
    42
    At Reasons [71] the learned arbitrator concluded:
    In my view, assessing all the evidence objectively and as a whole, it is clear and I find that Oz Shut supervisors encouraged, authorised and/or permitted the sales consultants to engage in activities including but not limited to shopping during periods of ‘down-time’ between appointments. The only requirement was that the sales consultants must at all times be on-call, that is, be contactable and available to take appointments at short notice.
    43
    Counsel for Oz Shut submitted that this conclusion was wrong and that the learned arbitrator misinterpreted the principles for which Pioneer No 1 and Pioneer No 2 were said to be authority. Those cases involved a claim for compensation by the respondent who was injured by accident while attending a birthday party after hours at her employer’s premises. The employer was a small business. There were two persons in authority. One asked the other if he could use the premises to host his birthday party. The respondent who was an employee of the business was invited. The issue was whether the injury arose out of or in the course of her employment.
    44
    In Pioneer No 1 Allsop P found that the deputy president of the Workers Compensation Commission, from whose decision the appeal lay, could not have concluded the injury arose out of employment or that employment was a substantial contributing factor without considering the matters to which Mason P referred in Mercer v ANZ Banking Group Ltd [2000] NSWCA 138 [13]. The case was remitted to the Commission to be dealt with according to law.
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    45
    In Pioneer No 2, it was decided that the further decision in the Workers Compensation Commission in favour of the respondent was wrong. That decision turned on a finding that the respondent had been encouraged to attend the party by her employer. On the facts of the case Basten JA held at [36] that the determination of whether an injury was suffered in the course of employment was not to be determined on the basis of the worker’s view of the conduct of the employer but rather depended upon ‘an objective characterisation of the employer’s requirements and expectations, though with no precise limitation to the contract of employment’.
    46
    In Pioneer No 1 [45], Basten JA, had held that:
    … her motives and beliefs may provide some evidential support for a conclusion that she was in fact attending in the course of her employment, but they do not form the relevant test. The course of employment is determined by the employer.
    47
    His Honour went on to say that the characterisation of the occasion would depend upon an objective assessment of the conduct of persons in authority with the employer.
    48
    In Pioneer No 2 [36], his Honour held that:
    … it depends on an objective characterisation of the employer’s requirements and expectations, though with no precise limitation to the contract of employment. It is not sufficient that this particular employee held a particular view which, on the evidence, was not shared either by the director of the company, by her immediate supervisor, nor by the only other employee who provided a statement.
    49
    In the present case, although the learned arbitrator has referred to evidence of Ms Hilton’s beliefs, his finding that she was in the course of her employment at the time when she was injured was based upon an objective assessment of the evidence of Mr Sanderson, the employment contract and position description, as well as the evidence of Ms Hilton and her co-workers as to what they had in fact been encouraged to do during down-time. Their evidence of what they had been told they were permitted to do by the sales managers is relevant to what occurred in practice.
    50
    In this respect the learned arbitrator referred to the statement of Dixon J, as his Honour then was, in Whittingham v The Commissioner of Railways (WA) (1931) 46 CLR 22, 29 that:
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    … the sufficiency of the connection between the employment and the thing done by the employee cannot but remain a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment.
    51
    Reference was also made to his Honour’s statement in Henderson v The Commissioner of Railways (Western Australia) (1937) 58 CLR 281, 294:
    … the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties.
    52
    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.
    53
    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].
    54
    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.
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    55
    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.)
    56
    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].
    57
    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.
    Conclusion
    58
    Upon a review of the decision below I am not satisfied that any of the grounds of appeal have been made out. As I pointed out at [19] Oz Shut did not dispute that Ms Hilton was injured during a work journey. I have found that the learned arbitrator did not err in finding that going into Kmart did not amount to a substantial interruption of or deviation from that journey.
    59
    That conclusion is sufficient to dispose of the appeal. I have, however, dealt with the grounds of appeal from the provisional findings of liability on other bases. No error of law or fact has been established in respect of any of them.
    60
    The appeal is dismissed.
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    I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
    DC
    Associate to Judge Staude
    4 MARCH 2025