Secretary Department of Communities and Justice v Soulos [2026] NSWCA 185
The respondent was a caseworker employed by the appellant, the Department of Communities and Justice (the DCJ). In 2017, a 14-year-old boy (YP) came under the respondent’s responsibility.
In May 2019, a one of the respondent’s managers informed the respondent that YP had died by an accidental overdose. The respondent was upset by YP’s death, and was told to take a couple of days off work, which she did. She subsequently attended five sessions with a psychologist over approximately six months, arranged and paid for by the DCJ.
On 29 September 2021, the respondent received an email on behalf of a Deputy Secretary of the DCJ encouraging all employees to watch The Department, a documentary about the DCJ’s child protection work. The documentary included a segment of approximately two minutes of footage from a serious case review panel meeting. Although YP was not named in the segment, it was common ground that the panel members were discussing his case. Using the language of “we” and “us”, the segment included discussion of supposed failures in YP’s care. Among other references to suicide or suicidal thoughts, one panel member was shown quoting from “one of his suicide notes”.
The Department was broadcast on SBS television at 8:30pm on 10 October 2021. The respondent watched it that night. It was common ground that before shewatched the documentary, no one from the DCJ had informed the respondent that YP’s case was discussed in it. The respondent recognised the quotation from “one of his suicide notes” as an entry in YP’s journal, which she had read after he died.
It was common ground that as a result of watching the documentary, the respondent suffered a psychiatric injury. The respondent attended work the day after she watched the documentary, discussed the documentary with her supervisors, and never returned to work again.
In proceedings against the DCJ in the District Court of New South Wales, the respondent was awarded damages in negligence in the sum of $1,389,457.74.
The DCJ appealed. The central ground of appeal was Ground 1: “The primary Judge erred in finding that the risk of psychiatric harm to the Respondent was foreseeable in the circumstances”.
The case was conducted on the basis that if it was established:
- that it was reasonably foreseeable that the respondent might identify the case discussed at the review panel as that of her client YP (Issue 1); and
- that it was reasonably foreseeable that the respondent might perceive the participants at the review panel as blaming her for YP’s death (Issue 2).
the conclusion followed that it was reasonably foreseeable that the respondent would suffer psychiatric injury. Issues 1 and 2 were thus the dispositive issues on appeal.
The Court of Appeal (McHugh JA, Ward P and Kirk JA agreeing) dismissing the appeal, held:
- As to Issue (1), it was reasonably foreseeable that the respondent would identify YP as the young person referred to in the documentary. It was reasonably foreseeable that she would recognise the reference to YP’s journal. The contemporaneous evidence also established that other members of the DCJ had identified YP as the subject of the documentary without prompting by the respondent: [29]-[30], [40].
- As to Issue (2), the words “we” and “us” in the documentary referred to people, including caseworkers such as the respondent, not to an impersonal entity. There was a reasonably foreseeable risk that the respondent would understand the “failings” identified by the panel to include her time as YP’s caseworker. The risk that the respondent might perceive the participants at the review panel as blaming her for YP’s death was not far-fetched or fanciful: [43]-[45], [48], [54]-[55].
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15, applied.
In light of the conclusions reached as to Issues 1 and 2, there was no error in the primary judge’s ultimate finding that the risk that the respondent would suffer psychiatric injury was reasonably foreseeable: [1], [56].