Knapp v NSW

NSW v Ibett 9(2005) NSWCA 445 McCracken v Melbourne Storm RLFC & ors (2005) NSWSC 107 Cole v Turner (1704) Holt KB 108, 90 ER 958 CASES CITED: Campbell v Samuels 23 SASR 389 Collins v Wilcock (1984) 1WLR 1172 Tuberville v Savage (1669) 1 MOD R 683 Tame v NSW (2002) 211 CLR 317 Jaensch v Coffey (1984) 155 CLR 549

PARTIES: Sheree Knapp State of NSW

COUNSEL: Ms Phillips Mr Menary

The plaintiff was a 15 year old schoolgirl attending the Hoxton Park High School. On the 8th February 2000 she, along with 15 or so other girls was attending a basketball try out on a court within the school. The try out was being conducted by Mr Mendez, a maths teacher.

Ms Knapp alleges that Mr Mendez threw a basketball at her without warning and it struck her on the right breast and she sustained injury. The cause of action is framed in assault in order to avoid the provisions of the Civil Liability Act but however there is also an alternate count in negligence.

Ms Knapp is now aged 21. The claim for past and future economic loss and lost superannuation has been abandoned in light of the fact that she has been and remains in constant employment.

The claim thus reduces to general damages and special damages.

At this point of time there is no evidence other than Ms Knapp's, that she is suffering anything untoward as a result of the injury she sustained on the 8th of February 2000. That injury consisted of bruising and swelling to the right breast. She consulted her family doctor who treated her with Hirudoid cream After the swelling had subsided an ultrasound revealed a 1 cm cyst adjacent to the right nipple, although that finding has been challenged by later investigations that could not detect anything other than normal breast tissue. Dr Seeto was unable to say if the cyst was caused by the injury or preceded the injury and was traumatised by the incident.

A further breast ultrasound on the 1st of May 2001 was normal. A mammogram and ultrasound of the 22nd of May 2005 detected no suspicious findings. There is no evidence of any pathological problems relative to the remnants of this injury and a plastic surgeon, Dr Teston, on the 9th of March 2005 was unable to say if her breast asymmetry was as a result of her injury or something that has just naturally occurred. Dr Teston described the right breast as being slightly larger than the left with the right areola and nipple being 0.5 of a centimetre wider on the right than the left.

Ms Knapp is still of the view that she has residual tissue scarring in that breast although Dr Teston and the mammogram and ultrasound indicate that what is there is normal breast tissue. Ms Knapp, not unnaturally, had concerns as to the question of breast cancer following the injury but has been re-assured a number of times, that is not a likely consequence. Whilst Dr Teston mentions the possibility of treatment, presumably surgical, for the breast asymmetry, that is in the context of it being impossible to say that the asymmetry was related to the injury Ms Knapp sustained.

Ms Knapp was examined by a surgeon for the defence on the 4th of August 2005. He could detect no specific lump other than mild lumpiness due to glandular tissue in both breasts. He was of the view that there was no breast asymmetry and having looked at the photos Exhibit C I would agree with Dr Porter's observations in that regard.

Since the date of accident Ms Knapp has had a breast ultrasound on the 15th February 2000, the 1st of May 2001 and 22nd of February 2005 together with a mammogram on that same date. None of the procedures has detected any abnormality. Ms Knapp often referred to the continued existence of scar tissue at the site of injury but there is no medical evidence in support of that or indeed of anything other than normal breast tissue. However Ms Knapp continues to hold the belief that something is there and both that and the reported disparity in her breast, is a result of the minor injury she received on the 8th of February 2000.

Apart from concerns as to the injury resulting in cancer, Ms Knapp's other concerns have been that she felt she had an obviously different breast which caused her social embarrassment and teasing by her peers. She had to wear padding in her bras. She avoided revealing dresses. She lost confidence and became self-conscious. I am prepared to accept that she had these personal feelings about which she has given in evidence, supported as they are by other members of the family, and the reports of her psychologist Mr Glancy.

However given the medical evidence it is difficult to see that the whole of Ms Knapp's concerns can be sheeted home to any fault on the part of the defence, as it would appear that at least since the beginning of 2005 and probably for some considerable time before that, any sequelae of the injury she sustained, as far as responsibility of the defendant is concerned, had long since come to an end. Absent a recognisable psychiatric illness, a defendant can hardly be liable for something that arises out of a plaintiff's imagination and which has no substance in reality.

The defendant's psychiatrist, after seeing Ms Knapp earlier this year on two occasions, has diagnosed no recognisable psychiatric illness at all let alone one attributable to the 2000 incident.

Mr Glancy feels Ms Knapp's ongoing stress is due to the continuance of these proceedings and that a bout of depression she suffered over the last ten months was due to factors unrelated to this matter and was resolving satisfactorily. Otherwise she was unchanged in her attitude since his first consultation in August 2005 and he expected that her attitude in regard to herself would improve with age. Incidentally, Ms Knapp is in a relationship of quite long standing and her boyfriend, who did not give evidence, is apparently unconcerned regarding any difference in her breasts, if indeed a difference is visible.

ASSAULT/BATTERY 14. Ms Knapp's claim against the defendant is in regard to assault and alternatively in negligence. As far as any claim in negligence is concerned, the plaintiff's injuries and disabilities would not reach 15% of a most extreme case under the Civil Liability Act. However, assessment of Ms Knapp's damages is to some extent tied up with a determination as to liability. The most favourable outcome for Ms Knapp in that regard would be if she could establish on the balance of probabilities that Mr Mendez's act was intentional and was done with intent to cause injury. Such acts are exempted from the operation of the Civil Liability Act by section 3B.

Assault or trespass to the person is actionable per se and the damages that may be recovered are not confined to damages for personal injury. If claimed, a court can award aggravated damages and exemplary damages. Neither have been claimed in the present case and with good reason, because the assault here, is not in the same category as the assaults that were considered in NSW v Ibett [2005] NSWCA 445. By the same token, the exemption contained in s3B of the Civil Liability Act in regard to intentional torts is not limited to conduct which is criminal (McCracken v Melbourne Storm RLFC & Ors [2005] NSWSC 107 at par 41).

However the most favourable view of the facts for Ms Knapp in this matter, would hardly warrant the awarding of any substantial sum by way of damages for the assault in question as opposed to any personal injury sustained as a result. This is not a case like Ibett where the assault was both unlawful and frightening and committed by police officers who should have known better.

Ms Knapp told her psychologist that there was no malice associated with Mr Mendez's behaviour although in cross-examination she agreed that Mr Mendez's action, if it was for the purpose of getting her attention, was a very malicious thing to do.

As may be expected, given the 6 years that have elapsed since this minor event occurred, recollections differ as to what exactly happened. Ms Knapp was aged 15 at the time. She is now 21. She went to the sick bay on the 8th of February 2000 but it was closed. She went home. The next day she went to her family doctor, Dr Seeto, who recorded that she was "hit in that area by a basketball thrown by a teacher at school. Apparently she was not looking when the teacher threw the ball at her to get her attention."

On the 10th February 2000 she filled out a report of the accident on an incident form at school. In that form she stated "we were trying out for the basketball team and Mr Mendez threw the ball and I missed the ball and it hit me in the breast." (exhibit D)

Another student and a friend of Ms Knapp's at the time, Maxine Grant also completed a report form. She said, "Basketball practising. Mr Mendez threw the ball to Sheree Knapp and it hit her in the breast. Sheree missed the ball and it hit her breast."(Exhibit 2).

Mr Mendez was also asked to fill out a report which he did a few days after the incident. He also did a diagram of what occurred. Mr Mendez states, " We were practicing some way to get the ball. I pass the ball to Sheree, she missed it and the ball hit her on the breast." (Exhibit 4)

From these documents there can be little doubt that Mr Mendez's action in throwing the ball was a deliberate and intentional act. All three of these persons gave evidence, although Ms Grant's memory of how the incident occurred is so substantially different to both Ms Knapp's and Mr Mendez's that it must be regarded as unreliable at this point in time and I have had little regard to it.

Both Ms Knapp and Mr Mendez agree that the activity that was being conducted at the time was for the girls to form a line in front of the basket, for Mr Mendez to pass the ball to the girl at the top of the line, and for that girl to then try for a goal.

In a statement made to an investigator on the 6th of June 2005, Mr Mendez said "I cannot recall much about the subject incident. I recall that the claimant at one point came to the front of the line and it was her turn to perform the practice drill. I believe that it was her first attempt. I cannot recall the claimant being ready to receive the ball from me as I threw it to her. She would have been facing at me or else I would not have throw the ball. I may have said her name as I threw the ball. I recall that I threw the ball at the claimant's chest. It was a normal basketball throw. The claimant flinched as the ball came to her. She may have closed her eyes. She failed to catch the ball. The ball impacted her chest around the breast area. The ball bounced off her chest and landed on the ground. I asked the claimant if she was OK. She said she was fine. I believe that the claimant continued training. I believe that the training session would have ended at 2.30pm. The claimant made no complaint to me at any time about any injury during the training session or at the end of the training session."

In evidence, Mr Mendez said that apart from the accident report, this was the first time he had been asked to remember the detail of what occurred.

In evidence Mr Mendez said that he looked at Ms Knapp, he called her name and threw the ball. He described Ms Knapp as having her hands positioned in front of her chest in order to receive the ball. The next thing he remembers is the ball being on the ground and he asking if she was alright. Mr Mendez said he would never throw the ball at someone just to get his or her attention and would not pass the ball unless the person was looking at him. He denied saying to Ms Knapp that if she dropped the ball like that in a game it could cost the team a goal. He denied that Ms Knapp was one metre to the side of the front of the line and to the right and that he was on the same side of the line as was Ms Knapp. He could not remember if Ms Knapp answered to her name when he called.

For what it is worth, Ms Grant's evidence in respect of Mr Mendez's throwing the ball to Ms Knapp, did not indicate that he called out her name.

As can be seen from the above, Mr Mendez's version of events in evidence is somewhat more detailed than when he made his statement.

Apart from her family doctor and the school accident report, the next history anyone obtained from Ms Knapp was on the 15th of November 2004 Exhibit F where a clinical note indicates that back in 2000 the teacher threw the basketball at her to get her attention. A history obtained by Dr Teston on the 22nd of February 2005 was just to the effect that she was hit in the chest by a basketball and sustained "an Easter egg size swelling." This description should be contrasted with Dr Seeto's findings on the 9th of February 2000 that said Ms Knapp had a 2.5cm tender mobile lump behind the right nipple with an impression of mild bruising around the area.

On the 4th of August 2005 she saw Dr Parker for the defence and gave this history "On February 9, 2000 Miss Knapp told me that she was not listening to her teacher and so he threw the basketball at her hitting her on the right breast."

On the 18th Of August she saw Mr Glancy the psychologist and gave this history "On 9/2/00 she was trialling for a position in the school representative basketball team. She wasn't paying attention to the teacher who was conducting the trials. The teacher threw a basketball at her she believes to gain her attention. The ball struck her right breast. She reported significant pain associated with the incident. She reacted with anger and emotional disturbance. The teacher spoke to her of his actions. She recognises that there was no malice associated with his behaviour."

On the 13th of January 2006 Ms Knapp gave Dr Lewin, a psychologist for the defendant this history " Ms Knapp reported that she was aged fifteen, a student in Year 10 and that the episode occurred whilst she was trying out for the basketball team. Ms Knapp was standing in a line of girls as part of the weekly school sports activities. She recalled "I was chatting away…chatterbox that I am." Ms Knapp reported "It accidentally hit me on the right breast. At the time, I screamed and I probably swore as well…I remember I did not get into trouble swearing." Ms Knapp recalled an interchange with the teacher. She asked him why he had acted this way. He replied that he had thrown the ball because she was talking. There was then some discussion about whether she would talk repeatedly if she were a member of the basketball team."

In evidence Ms Knapp said that she was standing about one metre away from the head of the line with a group of other girls just chatting. She drew a diagram which places her to the left of the line and Mr Mendez farther to her left and some 5 metres in front. (Exhibit B). She had already had a number of times at the head of the line and was finished. She was with Carla Didmato, Mel Kopra and Lorella Cantero. She was unaware of the basketball being thrown at her until it hit. She screamed loudly in pain. Mr Mendez came up to her and said words to the effect of "If you were to make it on the team you would have lost the shot." She asked if she could go to the sick bay and he allowed her to go.

Later, in further evidence in chief, she said that Mr Mendez said to her "If I select you on the team and you were to drop the ball and not see the ball we could lose a goal."

She told her parents that Mr Mendez had thrown the ball at her. Shortly after she told her sister that Mr Mendez had thrown the ball during a try out and she wasn't aware he was going to throw it.

In yet further evidence in chief, Ms Frazer elicited that Ms Knapp asked Mr Mendez why he did throw the ball to which he replied, "To get your attention. If we were away from school playing another team you would have lost the ball and that could mean a goal."

In response to a request for particulars as to conversations between Ms Knapp and Mr Mendez Exhibit 1 the only conversation provided was Mr Mendez saying to Ms Knapp "If you weren't looking, like you weren't on this occasion, you will lose the ball during the game. You would have lost the ball for the school."

As can be seen there are subtle shifts in the version of events given by the plaintiff between "I wasn't looking and didn't hear my name called" to the ball was being thrown at her deliberately to get her attention.

Whilst Mr Mendez was not the most reliable witness, I accept that he would not have thrown the ball at her if he had realised she wasn't looking, simply for the purpose of attracting her attention. It is certainly the case that he had no intention of causing her any harm.

He was a teacher. Ms Knapp was under his charge but was there voluntarily.

The statement of claim initially frames the cause of action in assault. The facts however reveal a trespass to the person known as battery. The law in respect of battery is somewhat of a miasma.

There is no doubt that for the purpose of battery, Mr Mendez's action was a deliberate action. In very old English cases, the courts felt that there was no reason why the criminality of battery should not be regarded as relevant to assessing its tortious nature (cf: Law of Torts 3rd Ed. Balkin and Davis at par 3.3)

A defendants motive or maliciousness is irrelevant to determining whether or not battery has been established, although the presence of such factors will affect the amount of damages, for example in regard to aggravated and exemplary damages.

Many of the cases refer to unpermitted, unwanted and/or unwelcome contacts as constituting battery even if no or minor physical harm results. Holt CJ in Cole-v- Turner, a 1704 case, said that "the least touching of another in anger constitutes battery." Zelling J in Campbell-v- Samuels 23 SASR 389 reiterated this philosophy when he said "the least touching, if intentional and done in a hostile manner is an assault. Of course battery is actionable without the need to prove any damage either physical or mental."

That type of battery is to be contrasted to other types of battery that occur in every day life such as jostling in a crowd. It would appear this type of contact is regarded as an exception because these contacts constitute unavoidable harmless incidents of every day life. In Collins-v- Wilcock (1984) 1WLR 1172 Goff LJ said that the test of whether an actionable battery had occurred was whether the contact went beyond the generally acceptable standards of conduct of every day life.

What is clear is that the motivation of the person committing the battery is not relevant to determining if the battery is actionable.

Whilst the pleadings refer to assault, in fact what has occurred is a battery because there is no evidence that prior to the alleged assault, there was any causing of Ms Knapp to immediately apprehend a contact with her person. I am not satisfied that what occurred here constituted an assault.

It certainly constituted a battery, but was the battery actionable? I would agree that if I could be satisfied on the balance of probabilities that Mr Mendez threw the ball at Ms Knapp while she was not looking to get her attention, then that would constitute an actionable battery.

But the evidence in support of such a proposition is weak. Unfortunately the three people, who may have thrown further light on the factual quandary, were not called by Ms Knapp because of a major falling out some years ago. They were the three girls Ms Knapp was talking to at the time.

As I said, I do not accept that Mr Mendez threw the ball at Ms Knapp in order to get her attention. In some respects, one wonders whether what occurred here is not unsimilar to the 1669 case of Tuberville-v-Savage (1 MOD R 683). In that case the court held that the partygoer whose hand is seized in friendship or who receives a hearty slap on the back cannot complain of a battery. The partygoer, as it were, consents to a degree of boisterousness elemental to when a party occurs.

In the present case, whilst not necessarily welcoming it, Ms Knapp would have consented to the general rough and tumble of a basketball training session, which could have resulted in a similar in-advertent injury caused by a ball or by contact with another person.

If Ms Knapp was simply unable to catch the ball thrown to her, she would have no cause of action in either trespass or negligence. If Mr Mendez threw the ball to her without checking to see if she was ready and was looking, he may have acted negligently. However while Ms Knapp undoubtedly suffered a minor harm that would have been reasonably foreseeable, I doubt whether the effect Ms Knapp says that this injury had on her life could have been foreseeable as arising out of the circumstances. If Mr Mendez threw the ball at Ms Knapp to get her attention he would have committed the tort of trespass to the person in the form of battery.

The lack of evidence from otherwise available witnesses makes it difficult to resolve the factual issues. Having regard to the documentary exhibits, the various histories and the evidence given before me, I am not satisfied that the plaintiff has established on the balance of probabilities that the ball was thrown at her to get her attention. In those circumstances I am not satisfied that a battery has occurred and so far as the statement of claim refers to damages arising out of an assault that part of the claim must fail.

Additionally, I am not satisfied that there was any intent on Mr Mendez' part to cause Ms Knapp any injury. Even if the word "intent" in section 3B of the Civil Liability Act encompasses the concept of "recklessness", it is difficult to see that he acted in any way recklessly.

There can be no dispute that the defendant owed Ms Knapp a duty of care. The question is whether what Mr Mendez did, breached that duty of care. In that regard what was the duty of care owed by the defendant to Ms Knapp? In the circumstances it would have been the duty to run the practice session in an orderly and competent manner so as to minimise the risk of injury to the participants.

If I assume, at worst, that in the course of this practice Mr Mendez inadvertently did not check to see if the girl he was throwing the ball to was not looking and/or he didn't call out her name, but went ahead and threw the ball, does that constitute an act of negligence on his part? Was he acting unreasonably in the circumstances of a practice session with fifteen or so young girls participating? In my view I do not think he was. It is difficult to characterise such an action as a departure from the reasonable standard of care Ms Knapp might have expected, as a reasonable person, from Mr Mendez.

I do not accept that the ball was thrown more violently than normal, although I would concede that a person being hit unexpectedly may think that way. However there is no foundation in fact for supposing that the throwing of the ball on this occasion was substantially different to any other throw out of the many made that day.

This is a case that should have been commenced and concluded in the Local Court and a long time ago at that. There does not appear to be any valid reason why it took so long to commence proceedings arising out of such a minor incident with the result that all the witnesses of fact have been placed in the difficult position of trying to remember a quite unremarkable event that happened six years ago.

The variations in the histories given by Ms Knapp and the differing verbal accounts make it impossible at this stage to be confident as to what is likely to have been the fact on the balance of probabilities, especially as tow of the witnesses were quite young at the time when this event happened.

I have approached the problem by considering a factual situation that most favours the plaintiff in each instance and then determining the relevant legal issues so arising.

It is probably apparent from the foregoing that in my view, any damages Ms Knapp could recover are likely to be minimal.

The out of pocket expenses are agreed at a mathematical figure of $532 although the defendant does not concede the relationship of all that amount to any injury sustained.

Ms Knapp has not sought any active treatment in respect to either the alleged problem with her breast or any psychological difficulties. In that regard she does not suffer from any recognisable psychiatric and psychological illness. In the terms of decided cases such as Tame v NSW (2002) 211 CLR 317 and Jaensch v Coffey (1984) 155 CLR 549, what Ms Knapp is said to have suffered from is, in my view, well beyond what may have been expected from a person of ordinary resilience.

If the plaintiff is entitled to any general damages, those damages would struggle to reach $10,000.

Most regrettably in the circumstances of these proceedings, there will be a verdict for the defendant and I order the plaintiff to pay the defendant's costs.13

07/11/2006 - Add numbers to prargraphs - Paragraph(s) 1 - 65

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