B v W

B v W (1989) 6 SR (WA) 79

Dimitrovska v The State of Western Australia [2015] WASCA 162; (2015) 253 A Crim Reports 407

DNA v Britten (1995) 14 SR (WA) 325, 327

DR v CD [2018] WADC 148

J v J (Unreported, WASC, Library No 920598, 19 November 1992).

R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174

R v Peisley (1990) 54 A Crim R 42

R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369

Re Branch [2024] WADC 41

Re Dunne [2014] WADC 131

Re Hojetzki [2009] WADC 77

Re Richards [2022] WADC 100

S v Neumann (1995) 14 WAR 452

Savic v Duric [2021] WADC 53

Underwood v Underwood [2018] WADC 13

Woodward v Davies [2021] WADC 73

1. On 30 January 2020 at approximately 1.30pm the applicant, Ms Rebecka Phipps, was on duty as a police constable in the Perth CBD. Alyssa Walker (the offender) was detained, secured in handcuffs and subjected to a basic search, during which open containers of alcohol were seized by police officers and poured out, while another officer wrote out a move on notice. Shortly after, the offender spat at Ms Phipps from a distance of approximately 1.5 metres away (the offence).
2. The offender pleaded guilty to one charge of assault public officer and I am satisfied a proved offence occurred. Therefore the application is brought under s 12 of the Criminal Injuries Compensation Act 2003 (WA) (the Act). Under s 12(3) of the Act I must not make a compensation award unless satisfied on the balance of probabilities the claimed injury and claimed loss has occurred and did so as a consequence of the commission of the proved offence.
3. Ms Phipps submitted an application for compensation on 2 December 2021, accompanied by a statement of events and a victim impact statement.
4. On 6 December 2021 Case Manager 1 wrote to Ms Phipps explaining her application could not be processed as it was submitted incomplete and asking her to provide copies of her blood test results.
5. On 22 November 2023 Ms Phipps's solicitors, Stephen Browne Lawyers (SBL), re-submitted the application. The application included claims for:

(a) Injury - Post-Traumatic Stress Disorder (PTSD), Depression, Anxiety;

(c) Treatment expenses - $2,817.50 for 12 sessions with Clear Health Psychology;

(d) Travel expenses - 207km in relation to attendance at Professor Hardisty's rooms, Wanneroo Physiotherapy, and Dr Ng's rooms;

(e) Loss of income - $10,000 for 'past and future loss of earning capacity and employment benefits lost'; and

(f) Future treatment expenses - $7,860 for medication and trauma specific psychotherapy.

(a) Ms Phipps's police statement dated 31 January 2020;

(c) Victim impact statement dated 15 November 2023;

(d) Royal Perth Hospital (RPH) records dated 30 January 2020;

(e) WorkCover WA Certificate of Capacity dated 30 January 2020;

(f) WA Police brief capacity report signed by Dr Helena Piirto dated 1 December 2020;

(i) Letter from SBL to WA Police Health & Welfare dated 1 August 2022;

(j) Email from SBL to WA Police dated 6 December 2022;

(k) Email from WA Police to SBL dated 7 December 2022;

(l) WA Police List of Absences from 20 August 2020 to 11 February 2021 re ankle injury;

(m) WA Police List of Expenses in relation to an ankle injury;

(n) WA Police Medical Certificate dated 9 August 2020 in relation to an ankle injury;

(o) Certificate of Professor Hardisty dated 18 August 2020 in relation to an ankle injury;

(p) Report of Mr Brendan Aitkins dated 24 September 2020 in relation to an ankle injury;

(q) Report of Professor Hardisty dated 29 September 2020 in relation to an ankle injury;

(r) WorkCover WA Certificate of Capacity dated 12 October 2020 in relation to an ankle injury;

(s) Schedule of report expenses with supporting tax invoices;

(v) Schedule of past and future loss of earnings; and

(w) Payslips for the period of 29 November 2019 to 3 September 2020.

1. Many of these documents concerned an unrelated ankle injury that occurred prior to the offence the subject of Ms Phipps's application.
2. Ms Phipps did not provide her blood test results as requested.

1. In her impact statement dated 15 November 2023 Ms Phipps states her injuries were: Post-Traumatic Stress Disorder, Depression and Anxiety.[1]
2. Under the heading 'Treatment' she states: 'I had to have blood tests for six months before getting the all clear. I had many sessions of psychotherapy and was prescribed antidepressant medication.'[2]
3. Under the heading 'Effects of the incident' Ms Phipps states prior to the incident, she was sociable and happy, generally confident and optimistic. She then describes the impact of the offence as follows:

(a) She was barely able to sleep the night of the offence because she felt stressed and anxious.

(b) She felt disgusted at the thought of the offender's saliva touching her lips and probably getting in her mouth;

(d) It was tremendously difficult not being affectionate with her partner whilst awaiting the final blood results and it put a huge strain on her relationship;

(e) It caused grief to her loved ones and she was reluctant to see her family because she felt insecure and embarrassed;

(f) Her partner wanted her to resign as she was worried about the [COVID-19] pandemic and the risk of contracting contagious diseases;

(g) They were under financial pressure as her partner had lost her job and Ms Phipps lost all her shift penalties and overtime because she was moved into a non-operation role;

(h) She was withdrawn and began to go into a deep depression;

(k) She developed panic attacks and had flashbacks of the offence;

(l) She had nightmares about the offence and became anxious;

(o) She avoided working night shift and wanted to work away from the CBD;

(p) Her ordeal continued for an extended period of time before the prosecution and subsequent appeal was finalised;

(q) She became severely depressed and contemplated suicide;

(r) She felt completely defeated and unsupported by the justice system; the actions of the offender completely destroyed her life.

1. On 22 February 2024 I wrote to Ms Phipps's solicitors stating the documents from Professor Hardisty and Wanneroo Physiotherapy and the travel claimed in relation to this treatment did not appear to be relevant to Ms Phipps's current application and seeking clarification as to which of Ms Phipps's injuries were caused by the offence on 30 January 2020, particularly in relation to Ms Phipps's claim for mental and nervous shock, loss of earnings and future medical expenses.
2. On 26 February 2024 Ms Phipps's solicitors responded clarifying the following documents:

(a) WA Police Medical Certificate dated 9 August 2020;

(b) Certificate of Professor Hardisty dated 18 August 2020;

(c) Report of Mr Brendan Aitkins dated 24 September 2020;

(d) Report of Professor Hardisty dated 29 September 2020;

(e) WorkCover WA Certificate of Capacity dated 12 October 2020;

were for an unrelated incident for which their client was in receipt of compensation from WA Police and stating 'Our client does not wish to claim for any injuries to her ankle, and confirm these were included only to highlight which incident she received compensation for.'[3]

1. On 3 May 2024 I wrote to Ms Phipps's solicitors stating the injury to her ankle as a result of her doing a 'u-turn' in her driveway on her motorcycle occurred (according to her medical records) on 14 January 2020, two weeks before the offence, therefore there appeared to be some significant inaccuracies in the chronology and conflation in relation to the psychological effects of the offence, the ankle incident on 14 January 2020 and other factors in Ms Phipps's life. I also provided my preliminary view Dr Ng's report was factually inaccurate and I would not place any weight on it. Consequently, I was not satisfied I could make an award for the report expense nor travel expense.
2. Pursuant to s 19 of the Act I obtained the WA Police prosecution brief and Body-Worn Camera (BWC) footage.
3. On 4 December 2024 I held a hearing to allow Ms Phipps and her lawyers to view the BWC footage.
4. On 22 May 2025 I held a hearing during which Ms Phipps gave evidence and I heard oral submissions from her counsel. The BWC footage was played during Ms Phipps's evidence.
5. The central issue in this matter is whether Ms Phipps suffered the claimed injury in the form of mental and nervous shock, namely PTSD, Depression and Anxiety, as a consequence of the offence.
6. This requires consideration of the following factors:

(a) Whether Ms Phipps was anxious about contracting a contagious disease;

(b) The actual risk of contracting a contagious disease;

(c) Whether there was an actual psychological impact on Ms Phipps as a consequence of the offence.

Was Ms Phipps anxious about contracting a contagious disease from the offence?

Were there scabs or blisters on the offender's face?

1. In her statement dated 31 January 2020[4] Ms Phipps states the offender 'had severe blistering around her lips that were bleeding'.
2. Ms Phipps's solicitors provided me with a statement from Megan Cleary, the other officer present at the time of the offence, dated 19 December 2024. Ms Cleary recalls the offender's 'face having scabs on it'.[5] However Ms Cleary cannot recall where the scabs were or what they looked like.[6]
3. In her oral evidence Ms Phipps stated the blisters were not actively or profusely bleeding but if they were touched with a tissue, you would be able to see the blood on the contact.[7]
4. I accept there were scabs or blisters on the offender's face.

1. As above, Ms Phipps states the offender 'had severe blistering around her lips that were bleeding'.[8]
2. In her evidence before me, Ms Phipps said she would not be able to say whether or not there was blood in the spittle but her belief is that there was a likelihood of blood being in the spit.
3. The Statement of Material Facts refers only to 'an amount of saliva' landing on her face.
4. No blood can be seen in the BWC footage whether on the offender, in the spittle as it is in the air or on Ms Phipps.
5. I am not satisfied there was blood in the spittle.

1. In her statement dated 31 January 2020 Ms Phipps states the saliva landed on the right side of her nose, cheek area, lips, sunglasses and on the front of her high-visibility vest.[9]
2. On the BWC footage Ms Phipps can be heard saying 'she spat on my face'.
3. Ms Cleary states she did not see the offender spit and she did not see the spit go on Ms Phipps.[10] She does not recall being able to see anything on Ms Phipps's glasses. She told Ms Phipps she would hold the offender so Ms Phipps could try cleaning her face.
4. In her statement dated 15 November 2023 Ms Phipps states she felt disgusted at the thought of the offender's saliva touching her lips and probably getting in her mouth as she was talking at the time.[11]
5. In her oral evidence Ms Phipps stated the spittle landed on her bottom lip and the bridge of her nose. She accepted it was a 'spray' rather than a congealed piece of phlegm.[12]
6. Ms Phipps gave evidence she believed the saliva entered her mouth.[13] During the hearing I stated my preliminary view, from watching the BWC footage, was that no saliva entered her mouth as her mouth was closed at the time of the spit and I asked for the BWC footage to be played again so I could clarify this issue with Ms Phipps. However Ms Phipps requested the footage not be played again and said 'factually, I can't agree or disagree'.[14]
7. I find the spittle 'spray droplets' landed on her nose, cheek area, lips, sunglasses and on the front of her high-visibility vest.
8. There is no objective evidence the spittle entered Ms Phipps's mouth, in her statement dated 31 January 2020 Ms Phipps does not say the spittle entered her mouth[15] and I do not accept any spittle entered Ms Phipps's mouth.

Was Ms Phipps anxious about contracting a blood-borne virus (BBV)?

1. Ms Phipps attended Royal Perth Hospital at 2.50pm on 30 January 2020 and had blood collected. The RPH notes state 'GP follow up for results.'
2. Ms Phipps attended her General Practitioner (GP) at Wembley Family Medical Practice on 11 March 2020. The notes record: L ankle still playing up and a bit painful.
3. Ms Phipps agreed she did not seek any medical attention after leaving RPH until 11 March 2020, nearly six weeks later. She did not provide an explanation for the delay.
4. There is no mention of the offence in the GP's notes but the blood test results record they were printed and faxed on 11 March 2020 so I infer the GP requested the results during this consultation.
5. The results of the blood tests record:

Herpes Simplex Type 1 Probable past or recent herpes

1. The results of these blood tests show Ms Phipps was immune to Hepatitis A and B. Therefore, she knew she was immune to Hepatitis A and B from 11 March 2020. Ms Phipps confirmed this in her evidence.[16]
2. Ms Phipps attended her GP on 18 March 2020 and 27 March 2020 for unrelated matters. There is no reference to the offence in the notes and Ms Phipps confirmed she did not discuss the offence with her GP in her evidence.[17]
3. Ms Phipps next attended her GP on 26 May 2020. A referral to Professor Hardisty was made in relation to concerns about her left ankle and a blood test request form was printed for Hepatitis A; B & C; HIV Serology (checkup).
4. On 23 June 2020 Ms Phipps had blood collected.
5. The results of the blood tests record:

Hepatitis C No evidence of recent or past infection

1. Ms Phipps's solicitors have submitted she attended her GP on 26 June 2020 to obtain the results[18] but there is no record of this in the GP notes.
2. Ms Phipps gave evidence she was told the results were 'negative' and 'nothing further was needed' when she attended the GP on 22 July 2020, one month after the blood was collected.[19]
3. The GP notes for this attendance record: Post surgery L ankle - doing well.
4. I find Ms Phipps attended the GP on 22 July 2020 for the primary reason of following up her ankle surgery and was told the blood test results were 'negative'.
5. There is no other reference to the blood tests nor any discussion about the risks of Ms Phipps contracting a BBV or other infectious disease in the GP records.

1. Research shows the occupational risk of contracting a BBV whilst on operational duties is extremely low for all frontline workers, including police officers.[20] No transmission of HIV through biting or spitting has ever been documented in Australia.[21] I refer to the Department of Health 'Guideline for the Mandatory Testing of a Suspected Transferor for an Infectious Disease (Blood-borne Viruses) Guideline' 0012 / August 2022:[22]

[P]olice officers have a risk of an occupational exposure to direct contact with another person's body fluids or blood. Transmission of HIV, HBV and HCV may occur via parenteral or non-parenteral exposure to blood. These viruses are not spread in saliva. Generally, a police officer who sustains an occupational exposure has a low risk of contracting a BBV. The presence of blood in the mouth increases the risk of BBV transmission through biting or spitting. However, research has shown if no blood is present in each of these scenarios:

• there is no risk of transmitting HIV through spitting, and the risk through biting is negligible

• the risk of HCV transmission through spitting is negligible, and very low for biting

• the risk of HBV transmission through biting or spitting is very low. (footnotes omitted)

1. As the below table shows, the risk to Ms Phipps of developing a BBV from saliva landing on her face is zero.

1. Even if I accepted there was blood in the saliva (which I do not), the risk to Ms Phipps developing a BBV from blood and saliva landing on her face is zero.
2. Even if I accepted there was blood in the saliva and it entered her mouth (which I do not), the risk to Ms Phipps developing Hepatitis C (HCV) or HIV is low. The general risk of developing Hepatitis B (HCB) is moderate but given Ms Phipps had immunity to Hepatitis B her risk was zero (which she was aware of from 11 March 2020).

1. On the date of the incident, 30 January 2020, there were no confirmed cases nor any suspected cases of COVID-19 in Western Australia.[23] There is no evidence the offender had been exposed to COVID-19. Ms Phipps did not seek any medical advice or testing in relation to her risk of contracting COVID-19. Therefore, Ms Phipps's actions at the time do not demonstrate she was concerned about contracting COVID-19 and in any event, I do not accept any concern was reasonable in the circumstances.
2. COVID-19 symptoms would have appeared between 1 and 14 days after exposure[24] and therefore even if I did accept Ms Phipps had a concern about contracting COVID-19 (which I do not), any concern should have been alleviated by 13 February 2020.
3. I have considered publicly available information pursuant to s 29 of the Act to determine the objective risk of Ms Phipps contracting a BBV or COVID-19 when assessing the evidence in relation to Ms Phipps's subjective perception of risk, in order to make a finding as to whether she suffered mental and nervous shock.

1. As above, in her impact statement[25] Ms Phipps states her injuries were PTSD, Depression and Anxiety. She states she had to have blood tests for six months, had many sessions of psychotherapy and was prescribed antidepressant medication. In her impact statement she describes the effect of the offence as set out at paragraph 10 above.
2. Ms Phipps has described the impact of the offence on her in very general terms. She has not provided any specific examples and she has not included the relevant fact that she was experiencing other significant personal and mental health issues at the time. When an applicant describes the impact of an offence on them in a very generic way, only limited weight can be placed on it.
3. Ms Phipps gave evidence the offence affected her quite badly; she had trouble sleeping, flashbacks, she isolated herself, she struggled with trust issues, she felt let down by the justice system, she felt betrayed and defeated. She said it felt like her whole character had been destroyed. She said she had suicidal thoughts, struggled with alcohol abuse, struggled to maintain friendships and had memory issues. She said she became a shell of her former self and it still impacts her.[26]
4. Ms Phipps gave evidence she had mental health treatment in relation to the offence through her GP and psychologist.[27]
5. As I will explain below, I do not accept Ms Phipps's evidence in relation to the impact of the offence on her.

1. In the months following the offence, Ms Phipps saw her GP at Wembley Family Medical Practice. I have considered the records and they are summarised below:

11 March 2020 L ankle still playing up and a bit painful

18 March 2020 Letter written to physio re. specialist referral

27 March 2020 Sophie at home. Medical Certificate given

Request printed: Hepatitis A; B & C; HIV Serology (checkup)

10 June 2020 Tearful here. Needs referral. Not suicidal.

Wants top [sic] deal with drinking and emotional issues. No recreational drugs. For review next week.

8 August 2022 Anxiety / depression has come back a bit

1. The letter from GP, Dr Lin Arias to psychiatrist, Dr Murray Chapman dated 10 June 2020 states:

Thank you for seeing Rebecka for her ADHD. She is going through a relationship break up and is needing some time off. Have been living together for about 18 month and her partner just left without giving saying [sic] anything, 3 days ago.

She concerned about perhaps having anxiety and depression and needs to be assessted [sic] for such. She also says she is drinking daily to the extent of "writing herself off". She used to drink very rarely.

Past Medical History

ADHD

PTSD - childhood

Hayfever

1. There is no reference to the offence in any of the GP records including the referral to Dr Chapman.
2. Ms Phipps gave evidence that she did tell her GP, Dr McCorkill, informally about the offence and that she was not enjoying work as much since the incident, when he asked her how work was going on a few different occasions.[28]
3. However in her statement dated 9 January 2025 she states:

I recall being so ashamed and embarrassed about the incident, and the outstanding results that I did not want to discuss it with anyone, including my GP.[29]

1. When I asked her about this inconsistency, she said she only spoke about not enjoying work in a very vague way with Dr McCorkill and agreed she did not discuss the impact of the offence, including trouble sleeping because of the offence or flashbacks about the incident, with Dr McCorkill or any other GP.[30]

1. In the months following the offence, Ms Phipps saw Dr Chapman about the management of her ADHD and medications.
2. She did not discuss the offence with him.[31]

1. Dr Chapman wrote to psychologist Joanne Lee on 11 June 2020. The letter refers to her long-term relationship ending, an extensive childhood history of trauma, self-medicating with alcohol, being depressed and anxious.
2. There is no reference to work stress nor the offence in the referral letter.
3. Ms Phipps first saw Ms Lee on 11 June 2020. Ms Lee's notes record:

Referral reason: ADHD inattentive. PTSD. Depression. ETOH Use.

Presenting problem: Recent breakup with fiancé ... ETOH use ... Depression - long history, worse since breakup.

Psychiatric history: Psychologist: 2.5 yrs ago - PTSD - only 3 sessions

Personal history: Family issues

What are your goals for therapy: Relationship breakdown, ETOH use reduced

1. Ms Phipps continued to see Ms Lee and I have considered Ms Lee's notes from sessions on:

22 June 2020 (relationship and family issues, ankle reconstruction)

24 July 2020 (ankle reconstruction, ETOH ceased, sleep improving, relationship)

24 August 2020 (relationship, ETOH, surgeon cleared to go back to work, sleep issues)

17 November 2020 (moved house, stressful, work issues with new Sergeant - got in trouble for being late ... feels burnt out - taking sick leave for rest of week - requested supporting letter)

30 November 2020 (new house, self-care, work stress feels new Sergeant putting pressure on her, ETOH, relationships)

14 December 2020 (IME went well - psychiatrist cleared for operation, work transfer, dog pregnant, ETOH)

15 February 2021 (work going well, friendships, family issues, relationship)

30 March 2021 (work issues - transferred to COVID team, relationship, family issues)

1. Ms Lee's update letters to Dr Chapman dated 24 July 2020, 24 July 2020 (date appears to be incorrect), 20 January 2021 refer to various personal issues but no issues in relation to work nor the offence.
2. Ms Lee wrote a letter in support of Ms Phipps taking time off work dated 18 November 2020. In that letter she states:
3. Ms Phipps diagnosis of depression and anxiety and to inform you of her recent burnout in the context of psychosocial stressors including, but not limited to the end of a long-term relationship, a recent ankle reconstruction and rehabilitation and having to independently move house.
4. In the psychology records, there is reference to a number of issues including: complex family of origin issues; childhood family violence; a history of depression and anxiety; alcohol dependence; anger issues; and struggles in both her romantic relationships and friendships.
5. There are some references to work stress (as above) but there are no references to the offence in these records.
6. In her evidence, Ms Phipps agreed she did not discuss the offence at all with her psychologist Ms Lee during the 13 sessions between 22 June 2020 and 19 August 2021.[32]

1. Ms Phipps was referred by the Welfare and Safety Division of the WA Police Force for an assessment by Consultant Psychiatrist, Dr Helena Piirto in December 2020.
2. Ms Phipps gave evidence the purpose of this assessment was to ensure she had capacity to fulfil her operational duties without restrictions. Ms Phipps agreed it was important to be truthful when speaking with Dr Piirto and that it was important to tell her if she was experiencing any work stress, including any specific incidents that were bothering her, such as the offence.[33] Despite this, Ms Phipps did not tell Dr Piirto about the offence[34] and Dr Piirto's report dated 7 December 2020 does not mention the offence nor any other work stress. Dr Piirto's report states '[Ms Phipps] denied any incidents being particularly distressing or traumatic. She has not experienced bullying and has not had any major stressors in the workplace.'[35]

1. Dr Ng assessed Ms Phipps on 28 June 2023. Ms Phipps's solicitors provided him with:

(b) WA Police brief Capacity report dated 1 December 2020;

(c) WorkCover First Certificate of Capacity dated 30 January 2020;

(d) Blood test results (Herpes Simplex Serology, Hepatitis/HIV/HTLV Serology, Treponemal Serology, dated 30 January 2020) and blood test results (urea and electrolytes, full blood picture dated 1 December 2020);

(h) Medical certificate for police officers dated 9 August 2020 signed by Professor Hardisty (in relation to the ankle injury).

1. Ms Phipps gave evidence the assessment consisted of a question-and-answer format and went for approximately one hour.[36] She gave evidence she was not sure if she told Dr Ng about her history of depression, anxiety and alcohol dependence.[37] Ms Phipps gave evidence she did not tell Dr Ng about:

(b) being assessed by Dr Piirto in December 2020.[38]

1. Ms Phipps agreed this was relevant information which she should have told Dr Ng about.[39]
2. Ms Phipps gave evidence she thought she did tell Dr Ng that she had been seeing psychologist Ms Lee from mid-2020 until Aug 2021[40] but this is not reflected in his report.
3. Dr Ng's report states Ms Phipps:

[D]enied being formally diagnosed with any psychiatric disorder arising from the childhood domestic violence that she witnessed, and she denied experiencing any nightmares as a child growing up and denied having any psychiatric treatment in her childhood or in relation to the childhood issues.[41]

1. In relation to the impact of the offence on her work, Dr Ng states:

Following the subject incident, she had 1 day off from work and then she persisted at work thereafter, however, was working in light nonoperational duties for 6 months after the subject incident, after which she had since returned to normal duties.[42]

1. I note this is consistent with Ms Phipps's statement dated 15 November 2023. There is no evidence Dr Ng discussed the impact of the offence on Ms Phipps's work at all.
2. Dr Ng diagnosed Ms Phipps with PTSD. He states:

Regarding causation, from the history elicited and the available documentation, I form the view that the most significant contributing factors in materially and directly precipitating the onset of the psychiatric disorder stated above was the emotional trauma directly arising as a consequence of the subject incident, the basis of this claim.

She may have been mildly predisposed to the onset of the psychiatric disorder stated above due to her childhood experiences of witnessing domestic violence, but she had denied being formally previously diagnosed with a psychiatric disorder arising from her childhood, except that she was diagnosed with ADHD by a paediatrician for her developmental attentional difficulties which is unrelated to the subject incident and unrelated to the childhood domestic violence.[43]

1. In relation to the motorcycle accident, in his report Dr Ng states:

[Ms Phipps's] alcohol use increased following the subject incident, she reportedly felt so stressed that she even crashed her motorcycle going to work one day. She said no other vehicles were involved, she fell off the motorcycle and now no longer rode a motorcycle.[44]

1. Dr Ng clearly refers to the motorcycle incident as occurring after the incident on 30 January 2020.
2. After I raised this discrepancy with Ms Phipps's solicitors, they made the following submission:[45]

We therefore dispute that Dr Ng's report of the motorcycle incident was incorrect, he has simply not included the element of Ms Phipps having been in her driveway, which is irrelevant in any event, except that she was behaving in a different manner following the incident.

1. On 13 May 2025 I was provided with a further supplementary statement of Ms Phipps dated 8 May 2025 in which she states:

During a medicolegal appointment with Dr Frederick Ng on 28 June 2023, which was arranged by Stephen Browne Lawyers, I reported that the motorcycle accident occurred after the assault.

It has been brought to my attention that medical records of Wembley Family Medical Practice show that on 11 March 2020 I reported the motorcycle accident to have occurred on 14 January 2020, which was two weeks prior to the assault.

I am aware that the date I have reported to Dr Frederick Ng doesn't coincide with what the date I have reported to Wembley Family Medical Practice in relation the when the motorcycle incident occurred.

Due to my ADHD, I don't have the same concept of time as others do.

I thought the motorcycle accident happened after the assault, because they both happened during January 2020.

I think I must have mixed up the dates with them being so close together.

I can't recall the exact date the motorcycle incident occurred; however, I confirm that I agree with the medical records of Wembley Family Medical Centre and agree that 14 January 2020 would be the accurate date of the motorcycle accident occurring.

I confirm that I agree that the motorcycle accident occurred prior to the assault.[46]

1. Ms Phipps gave evidence her recollection was that the motorcycle accident happened after the offence and accepted this was incorrect information she provided to Dr Ng.[47] Ms Phipps agreed any stress from the incident did not cause the motorcycle accident, which is how it is described by Dr Ng.[48]
2. On 19 May 2025 I was provided with a supplementary report of Dr Ng dated 14 May 2025. Dr Ng was provided with Ms Phipps's statement dated 8 May 2025 which clarifies the timing of the motorcycle accident, the Wembley Family Medical Practice records and the psychology records.
3. Dr Ng noted the references to Ms Phipps having a long history of depression, anxiety and alcohol dependence, extensive childhood history of trauma and previous PTSD. Dr Ng noted both Dr Piirto and the psychologist, Ms Lee, stated the ankle injury required surgery. Dr Ng states this was not disclosed to him when he assessed Ms Phipps in June 2023, although I note he was provided with a medical certificate dated 9 August 2020 that refers to 'post surgery' signed by Prof Hardisty. Dr Ng did not clarify the relevance of this. It is unclear why this was included in the documents for Dr Ng to consider.
4. After receiving the further documents, Dr Ng formed the view that it was appropriate to revise his original opinion. He states:

Given all of the additional information I now have at hand, and in conjunction with my assessment of your client on 28 June 2023, I am of the opinion that there was a component of psychological distress arising from the subject incident, which would have at least mildly to moderately exacerbated any pre-existing psychiatric difficulties. Regarding how to actually psychiatrically categorise the mild to moderate exacerbation of pre-existing psychiatric difficulties, following on from Dr Chapman's view that it is likely your client had previous PTSD -

"childhood related", and considering her report to me of her experiencing post trauma anxiety type symptoms following the subject incident, one could therefore in light of the additional documentation, categorise that following the subject incident she suffered from a relapse into PTSD, mild to moderate in severity, or in the alternative that she suffered from the onset of an adjustment disorder with some reported PTSD type psychiatric symptoms. The psychiatric symptoms did improve (after the subject incident) over a few months, and she was able to keep working in that time in light duties (after 1 days off from work following the subject incident) and eventually she was able to attain normal duties thereafter.[49]

1. There are several aspects of Dr Ng's reports that are troubling. Despite Dr Ng referring to the Wembley Family Medical Practice records and the psychology records, including Dr Piirto's report, he does not address the fact there is no reference to Ms Phipps discussing the offence, nor any psychological impact of the offence, in any of the medical records or reports.
2. Neither the original nor supplementary report expose any attempts by Dr Ng to critically test the information provided by Ms Phipps and it is apparent Dr Ng accepted at face value what Ms Phipps told him about the nature and severity of her symptoms, and the fact they were suffered as a consequence of the offence.
3. It is unclear what Dr Ng was told and what he understood about the motorcycle accident and subsequent ankle surgery. For example, Dr Ng states in his supplementary report:

There was also the added stress and distress arising from an ankle injury (arising from a bike accident), the ankle injury was not disclosed to me.

1. Dr Ng did not clarify the relevance of the medical certificate for police officers dated 9 August 2020 signed by Professor Hardisty in relation to Ms Phipps's ankle injury, which was provided to him before he wrote the first report.
2. Dr Ng's report does not include any information about PTSD, the diagnostic criteria that must be met and his process in making the diagnosis. There is no evidence he used psychometric test instruments such as the Depression, Anxiety, Stress Scale (DASS), Generalised Anxiety Disorder Assessment (GAD-7), Trauma Symptom Inventory-2 (TSI-2), Clinician-Administered PTSD Checklist for DSM-5 (PCL-5) or Clinician-Administered PTSD Scale for DSM-5 (CAPS-5).
3. Dr Ng's reasoning about causality is based on correlation. While Ms Phipps was experiencing psychiatric symptoms in the months after the offence, there is evidence those symptoms arose from other stressors in her life at the time.
4. Further, Dr Ng has recorded incorrectly that Ms Phipps worked in light duties (after one day off) after the offence before returning to normal duties, whereas the change in her work duties was due to the ankle injury.[50]
5. The issues I have outlined above, speak either to the applicant's reliability or to the quality of Dr Ng's consideration of the information before him or both. The result is that the confidence I have in Dr Ng's opinion is reduced. Given the deficiencies and inconsistencies in both Dr Ng's reports, I cannot place any weight on them.

1. The offence of assault public officer by spitting is regarded by the courts as serious given the disgusting and degrading aspect to it. It also has the aspect of contempt shown for the authority of the police, at least in some cases.
2. When the offender was sentenced the magistrate agreed with the prosecuting sergeant's description of the offending behaviour as abhorrent.[51]
3. I agree the act of spitting in a person's face is disgusting and disrespectful. However, I must have regard solely to the injury actually suffered by the applicant as a consequence of the commission of the offence and not the seriousness of the offence. The amount of compensation is not to be fixed as punishment of the offender or as an expression of sympathy for the applicant.[52] The factual circumstances of the offence are relevant as they inform my assessment of the credibility and weight of the medical evidence and the likely severity of the injury.[53]
4. The definition of 'injury' under s 3 of the Act includes 'mental and nervous shock'. This phrase contemplates the impact of the offence on the mind or nervous system[54] and refers to 'mental or emotional harm as opposed to physical injury or bodily harm.'[55] The assessment of mental and nervous shock is a question of fact and it is necessary to draw a distinction 'between a mere emotional reaction and something of a more enduring character which may in both the legal sense and in common parlance, be described as an injury.'[56] Mental and nervous shock includes distress, horror, disgust and other similar adverse mental reactions but does not encompass mere fright, humiliation or anguish.[57]
5. The onus is on the applicant to establish on the balance of probabilities a causal relationship between the commission of the offence and the injury, in order to obtain compensation.[58]
6. Ms Phipps provided an impact statement and gave evidence the offence had a significant impact on her. In assessing the weight to attribute to Ms Phipps's oral evidence and signed statements, I am mindful of the comments expressed in Dimitrovska v The State of Western Australia that a victim cannot be expected to provide an objective and impartial account of an offence and its consequences.[59] Accordingly I attach greater weight to the independent evidence than the account given by Ms Phipps. Likewise, where the relevant expert opinion is based on, or substantially on, the applicant's own account without any supporting evidence, caution is required. [60]
7. Despite Ms Phipps having two blood tests, I do not accept Ms Phipps was anxious about contracting a contagious disease given:

(a) Ms Phipps did not seek the results of the first blood tests until 11 March 2020, nearly six weeks after the offence;

(b) Ms Phipps knew she was immune to Hepatitis A and B from 11 March 2020;

(c) Ms Phipps was told the second blood test results were 'negative' during a GP visit one month after she had the blood collected;

(d) There is no reference to the offence, nor the impact of the offence, in any of the GP notes except the request for follow up blood tests on 26 May 2020 during a visit where she was referred to Dr Hardisty in relation to her ankle issues;

(e) There is no other reference to the blood tests nor any discussion about the risks of Ms Phipps contracting a BBV, COVID-19 or other contagious disease in the GP records;

(f) Objectively, there was a very low risk of Ms Phipps contracting a contagious disease from the offence and Ms Phipps did not contract a contagious disease.

1. The records from Wembley Family Medical Practice and Clear Health Psychology Subiaco refer to a number of issues including: complex family of origin issues; childhood family violence; a history of depression and anxiety; alcohol dependence; anger issues; and struggles in both her romantic relationships and friendships. There is no reference to the impact of the offence in any of the medical records. 115 Given Ms Phipps did not discuss the offence with her GP nor her psychologist, there is no objective evidence the psychological impact on Ms Phipps was significant. If Ms Phipps was feeling anxious about the offence and if it was affecting her life, she would have spoken to her GP, psychologist, or psychiatrist about it during her sessions with them in the months after the offence.
2. If Ms Phipps was affected psychologically by the offence, she should have told Dr Piirto.
3. Ms Phipps gave evidence she conflated the impact on her from the ankle injury with the impact from the offence[61] and I find this to be the case.
4. Given the inconsistencies, confusion and conflation in Ms Phipps's evidence, I cannot rely upon Ms Phipps's recollection of the offence and its impact.
5. In Dr Ng's reports, there are significant inaccuracies in the chronology and conflation in relation to the psychological effects of the offence, the ankle incident on 14 January 2020 and other factors going on in Ms Phipps's life. As above, I cannot place any weight on Dr Ng's opinion.
6. I am not persuaded on the balance of probabilities Ms Phipps suffered mental and nervous shock of an enduring character so as to amount to an injury as a result of the proved offence.
7. I find the effects of the incident as outlined in Ms Phipps's statement and set out at paragraph 10 above, were caused by unrelated issues and were not as a consequence of the offence. I find her ongoing mental health issues were caused by other factors separate from the offence. I do not accept the offence exacerbated her pre-existing psychiatric difficulties.
8. While I accept Ms Phipps suffered an emotional reaction for a short time after the offence, I am not satisfied Ms Phipps suffered mental and nervous shock of an enduring character to the required standard and therefore I refuse her application for compensation.

Claim for loss of earnings and past and future treatment expenses

1. Given my finding Ms Phipps has not suffered an injury, I cannot make an award for economic loss pursuant to s 6 of the Act. Ms Phipps has conceded she is not entitled to loss of earnings nor past and future treatment expenses for her psychological and psychiatric treatment as claimed.[62] However I will briefly address these claims for completeness.
2. Ms Phipps claimed a global sum of $10,000 for past and future loss of earning capacity and employment benefits due to her moving to light non-operational duties for six months.[63] However, given the offence did not affect her work and she had full capacity to work from 30 January 2020,[64] even if she was not precluded from being awarded compensation, I am not satisfied she has a claim for loss of earnings.
3. Ms Phipps claimed $10,677.50 for past and future treatment expenses for her psychological and psychiatric treatment. Given Ms Phipps could claim this from the WA Police Force,[65] even if she was not precluded from being awarded compensation, I require Ms Phipps to pursue these expenses from her employer pursuant to s 21 of the Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Criminal Injuries Compensation Assessor of Western Australia.

A Barter, ASSESSOR Of CRIMINAL INJURIES COMPENSATION

[5] Statement of Megan Cleary dated 19 December 2024 [16].

[6] Statement of Megan Cleary dated 19 December 2024 [17].

[8] Statement of Rebecka Phipps dated 31 January 2020 [26].

[9] Statement of Rebecka Phipps dated 31 January 2020 [28]-[29].

[10] Statement of Megan Cleary dated 19 December 2024 [24]-[26].

[15] Statement of Rebecka Phipps dated 31 January 2020 [28]-[29].

[20] ASHM 'Police and Blood-Borne Viruses 2023' https://ashm.org.au/wp-content/uploads/2023/09/ASHM-Police-BBV\_v4.pdf

[21] ASHM 'Police and Blood-Borne Viruses 2023' https://ashm.org.au/wp-content/uploads/2023/09/ASHM-Police-BBV\_v4.pdf

[22] https://www.health.wa.gov.au/~/media/Corp/Documents/Health-for/Communicable-Diseases/Guidelines/Guideline-for-the-Mandatory-Testing-of-a-Suspected-Transferor-for-an-Infectious-Disease.pdf p. 8.

[23] ABC News 'Coronavirus warning to WA students returning to school next week as four cases cleared' 28 January 2020 https://www.abc.net.au/news/2020-01-28/coronavirus-cases-cleared-in-western-australia/11908178.

[24] Australian Centre for Disease Control 'COVID-19' www.cdc.gov.au/topics/covid-19; accessed on 11 June 2025; Lauer SA, Grantz KH, Bi Q, Jones FK, Zheng Q, Meredith HR, Azman AS, Reich NG, Lessler J. The Incubation Period of Coronavirus Disease 2019 (COVID-19) From Publicly Reported Confirmed Cases: Estimation and Application. Ann Intern Med. 2020 May 5;172(9):577-582. doi: 10.7326/M20-0504. Epub 2020 Mar 10. PMID: 32150748; PMCID: PMC7081172.

[25] Dated 15 November 2023 [24]-[27].

[29] Statement of Rebecka Phipps dated 9 January 2025 [14].

[35] Report of Dr Piirto dated 7 December 2020, 2.

[41] Dr Ng report dated 28 June 2023, 4.

[42] Dr Ng report dated 28 June 2023, 6.

[43] Dr Ng report dated 28 June 2023, 10.

[44] Dr Ng report dated 28 June 2023, 7.

[46] Further supplementary statement of Rebecka Phipps dated 8 May 2025, [5] - [12].

[49] Supplementary report of Dr Ng dated 14 May 2025. 3-4.

[51] Transcript of Proceedings, Western Australia Police v Alyssa Joseline Anne Walker, PE 5530-1 of 2020, Magistrates Court at Perth, 31 March 2020, Magistrate De Vries, 10.

[52] B v W (1989) 6 SR (WA) 79; Re Hojetzki [2009] WADC 77 [43] (Sleight DCJ).

[53] Re Hojetzki [44]; DNA v Britten (1995) 14 SR (WA) 325, 327.

[54] Re Richards [2022] WADC 100 [51]; Savic v Duric [2021] WADC 53 [45]; Underwood v Underwood [2018] WADC 13 [83].

[55] S v Neumann (1995) 14 WAR 452; Richards [51]; Savic [45]; Underwood [83; DR v CD [2018] WADC 148 [24].

[56] S v Neumann (461); Richards [51]; Savic [45]; Underwood [83]; DR v CD [24].

[57] Re Dunne [2014] WADC 131 [26]; J v J (Unreported, WASC, Library No 920598, 19 November 1992).

[58] Re Branch [2024] WADC 41 [17].

[59] Dimitrovska v The State of Western Australia [2015] WASCA 162; (2015) 253 A Crim Reports 407 [74]

(Martin CJ, McClure P & Hall J agreeing); Woodward v Davies [2021] WADC 73

[60] Re Branch [2024] WADC 41 [39]; R v Peisley (1990) 54 A Crim R 42 , 52; R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 , [58]-[59]; R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 , [40]-[42].

[63] Statement dated 15 November 2023 [58]-[59].

[64] Workcover certificate of capacity dated 30 January 2020.

[65] Western Australian Police Force Industrial Agreement 2021, Clause 39.