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District Court 18 August 2006

Knapp v NSW

[2006] NSWDC 84

Assault & violence
ASSAULT AND BATTERY NEGLIGENCE SCHOOL BASKETBALL PRACTICE MINOR INJURY REFUSAL TO ACCEPT MEDICAL REASSURANCE DELAY

Citation: Knapp v NSW [2006] NSWDC 84
Court: District Court of New South Wales
Date: 18 August 2006
Judge(s): Williams DCJ

Background

A 15-year-old student at a Sydney high school attended a basketball tryout conducted by a mathematics teacher. She alleged that the teacher threw a basketball at her without warning, striking her on the right breast and causing bruising and swelling. A subsequent ultrasound identified a small cyst near the nipple, though later investigations detected only normal breast tissue.

The plaintiff, by the time of hearing aged 21, framed her primary cause of action in assault and battery rather than negligence. This framing was deliberate: intentional torts fall outside the Civil Liability Act, which would otherwise have limited her damages recovery. An alternative claim in negligence was also pleaded. Claims for past and future economic loss had been abandoned, as the plaintiff had remained in continuous employment.

The remaining claims covered general damages and agreed special damages of $532. The plaintiff also reported ongoing psychological distress, social embarrassment, concerns about breast cancer, and beliefs about residual scarring, all of which she attributed to the 2000 incident.

  • Whether the teacher's act of throwing the basketball constituted an assault or battery, and specifically whether it was intentional and done with intent to cause injury
  • Whether, if the act was intentional, it fell outside the Civil Liability Act under section 3B
  • Whether, in the alternative, the teacher's conduct constituted negligence
  • Whether any recoverable damages flowed from the incident, including for psychological harm
  • Whether the plaintiff's ongoing distress met the threshold for recognisable psychiatric illness required for psychological damage claims

Decision

The court approached liability by constructing the factual scenario most favourable to the plaintiff at each point, given that six years had elapsed and witnesses struggled to recall the unremarkable event with precision. Even on that approach, the court was not satisfied that the plaintiff had established, on the balance of probabilities, that the teacher acted with intent to cause injury. The court noted that the most likely explanation was that the teacher tossed the ball in the plaintiff's direction to attract her attention, a common occurrence during a group sporting tryout.

On the battery claim, the court reviewed the relevant principles including those from Cole v Turner and Collins v Wilcock, noting that a battery requires a hostile or unlawful touching and that not every physical contact is actionable. On the assault framing, the court found the evidence did not support the conclusion that the teacher intended to cause harm. The plaintiff herself had told her psychologist there was no malice in the teacher's behaviour, even though she later agreed in cross-examination that throwing a ball to get someone's attention could be described as malicious.

On the negligence alternative, the court found the teacher's conduct did not fall below the standard of reasonable care expected in that sporting context. The ball was not thrown with unusual force, and the contact was of the kind that could occur in the ordinary conduct of a basketball tryout.

Regarding damages, the court found that the plaintiff's ongoing concerns were not supported by the medical evidence. Multiple ultrasounds and a mammogram had returned normal findings. No surgeon found meaningful asymmetry. No recognisable psychiatric illness was diagnosed. The court held that, absent a recognisable psychiatric illness, a defendant cannot be held liable for harm arising from a plaintiff's unfounded beliefs about her own condition. The court noted that any general damages, had they been recoverable, would have struggled to reach $10,000.

Orders Made

  • Verdict for the defendant
  • The plaintiff to pay the defendant's costs on an indemnity basis

Key Takeaways

  • The District Court confirmed that intentional torts are not automatically outside the Civil Liability Act solely because they are criminal: section 3B applies to intentional acts done with intent to cause injury, but the conduct in question did not meet that threshold on the evidence.
  • A battery claim requires conduct that is hostile or goes beyond the ordinary physical contacts of daily life. Throwing a ball to attract a student's attention during a sports tryout, without evidence of intent to injure, was not treated as satisfying that requirement.
  • Liability for psychological harm requires a recognised psychiatric illness. The court applied the principles from Tame v NSW and Jaensch v Coffey, finding that ongoing subjective distress, unaccompanied by diagnosed psychiatric illness and unsupported by medical evidence of physical injury, was insufficient.
  • Where a plaintiff's continuing concerns are inconsistent with multiple normal medical investigations over several years, the court may decline to attribute ongoing harm to the defendant's conduct.
  • Proceedings concerning minor injuries that resolve medically should, the court observed, be brought promptly and in an appropriate jurisdiction. The delay of six years and the elevation of the matter to the District Court drew direct criticism, reflected in the indemnity costs order.

Legislation and Cases Referenced

Legislation
- Civil Liability Act (NSW), section 3B

Cases
- NSW v Ibett [2005] NSWCA 445
- McCracken v Melbourne Storm RLFC & Ors [2005] NSWSC 107
- Cole v Turner (1704) Holt KB 108; 90 ER 958
- Campbell v Samuels 23 SASR 389
- Collins v Wilcock [1984] 1 WLR 1172
- Tuberville v Savage (1669) 1 Mod R 683
- Tame v NSW (2002) 211 CLR 317
- Jaensch v Coffey (1984) 155 CLR 549