The Court of Appeal dismissed the appeal, upholding the primary judge’s finding that it was reasonably foreseeable that the caseworker would identify a child discussed in the documentary as her former client and perceive a discussion of alleged failings as implicating her role as the child’s caseworker, and therefore, that the psychiatric injury suffered was reasonably foreseeable.
Although this case may appear, on its face, to mark a shift in the law regarding reasonable foreseeability, interestingly, the outcome was the product of a concession made by the State at first instance, from which it could not depart on appeal.
Background
Ms Luiza Soulos was a caseworker employed by the Department of Communities and Justice in New South Wales (the DCJ). In 2017, a 14-year-old-boy, YP, came under her care. In May 2019, YP passed away as a result of a drug overdose. After being informed of YP’s death, Ms Soulos took some days off work, during which she attended approximately five psychologist sessions organised by the DCJ, before returning to her normal work.
Later, the DCJ agreed to be a part of an independent documentary titled “The Department” which focused on its child protection work. The documentary was broadcast on television on 10 October 2021, and the respondent viewed it. The documentary included a segment of approximately two minutes of footage from a case review panel meeting. Although neither YP or Ms Soulos were publicly identified in the segment, a panel member read an entry in YP’s journal which Ms Soulos recognised. The panel then made various comments about YP’s case, including reference to “missed opportunities” that “we never listened or did anything” and that “we really failed this little boy”.
Ms Soulos commenced proceedings against the DCJ for negligence, alleging that she suffered a psychological injury as a result of watching the documentary and had become wholly incapacitated for work.
The primary judge found that although the documentary did not identify YP or Ms Soulos, the excerpt from YP’s journal was material from which she was able to identify the case as that of YP. Given YP’s journal was available to the DCJ, there was every reason to expect that Ms Soulos would have read those words. Further, the use of terms such as “we” and “us” in the panel’s comments implied reference to failings made by people within the DCJ, and as such, it was reasonably foreseeable that such failings would be perceived to include Ms Soulos’ time as YP’s caseworker. Accordingly, the Court found that Ms Soulos’ perception that the panel was effectively blaming her for YP’s death was not far-fetched or fanciful.
Crucially, the State conceded that if it was found to be reasonably foreseeable that Ms Soulos might identify the segment as referring to her client and might perceive herself as the subject of criticism or blame for his death, it followed that it was reasonably foreseeable that she would suffer psychiatric injury. Accordingly, Ms Soulos’ claim was made out and the Court awarded her approximately $1.4 million in damages.
The Appeal
The State appealed the decision, arguing that the primary judge had erred in finding that the risk of psychiatric harm to Ms Soulos was reasonably foreseeable.
However, the Court upheld the primary judge’s finding that it was reasonably foreseeable that Ms Soulos might identify the segment as referring to her client and that she might perceive herself as the subject of criticism or blame for his death as a result of the panel’s comments. Given the concession the State had made at first instance, the Court found that there was no error in the primary judge’s finding that the risk of psychiatric injury was also reasonably foreseeable, and the appeal was dismissed.
While this finding might appear to suggest that a psychiatric injury will be reasonably foreseeable whenever a related perception is established as reasonably foreseeable, it is important to read the finding in context. Ward P, in agreeing to dismiss the appeal, described the outcome of the appeal as both a ‘direct product of…the way the matter was conducted at first instance’ and ‘extraordinary’. His Honour noted that the State was bound by the consequences of its forensic decision to plead its case in the way it had and highlighted that the Court’s role is simply to adjudicate the issues contested by the parties.
Given these comments, perhaps the case may be seen as a thinly veiled warning by the Court that while the test for reasonable foreseeability in negligence is not demanding, each step of foreseeability should be considered carefully and separately, and the making of any concession should be very closely scrutinised.
Secretary Department of Communities and Justice v Soulos [2026] NSWCA 185
