This appeal in the Supreme Court of New South Wales concerned a respondent who was employed as a case worker for the Department of Communities and Justice (the appellant). The central issue was whether the appellant was negligent in exposing the respondent to a documentary where details of a deceased child formerly under her care were shared. The question for the court’s consideration was whether it was reasonably foreseeable that the respondent would suffer psychological injury from watching the documentary. The plaintiff, Luiza Soulos, was awarded $1,389,457.74 in damages by the District Court of NSW for negligence.
Factual background
The respondent had care over a 14 year old Aboriginal boy from 2017-2019. They had a close relationship and she supported him day-to-day. After a period of limited contact, the respondent was made aware that the boy was self-harming, and not long after, was informed by her managers at the DCJ that the boy had died of an accidental overdose. At this point, the respondent took a few days leave from work and later saw a psychologist five times over a six-month period. While the circumstances had been upsetting, the respondent continued to work at the DCJ and had no issues.
In late 2021, the respondent was recommended by her employer to watch a documentary put together by SBS which featured a review panel commenting on the child protection work of the DCJ. All caseworkers were encouraged to view the documentary which included anonymous case studies. Upon watching, the respondent recognised a two-minute section which she correctly identified as referencing her work with the deceased child. The segment included one of his suicide attempt notes, which the respondent remembered reading from his journal after he died.
This was deeply distressing to the respondent, who had not been informed that her case was anonymously featured. She attended work the next day, spoke with her supervisors, and was unable to return to work from then on.
The respondent was awarded $1,389,457.74 in damages from the District Court of NSW for negligence, upon the finding that it was reasonably foreseeable that the respondent might both have identified herself in the case study and felt that she was being blamed, resulting in psychological injury.
The Court of Appeal established that the DCJ did have a duty of care towards the respondent. Resultingly, they had two questions to consider:
Issue 1: Was it reasonably foreseeable that the respondent might identify herself in the documentary?
While the program maintained anonymity, the specificity of the presented facts and the personal note of the deceased child were plain indicators the respondent used to identify that her case was being discussed. These particulars discussed with little vagueness meant it was foreseeable that the respondent would be able to easily recognise the subject matter.
The respondent’s mention was also identifiable by her colleagues. Contemporaneous evidence of internal email chains revealed that a manager from another branch within the DCJ contacted the respondent’s manger shortly after viewing the program to ask to “check in” with the respondent about the specific two-minute part. The respondent’s manager shared a similar concern. Neither had been contacted yet by the respondent to discuss. Thus, it was reasonably foreseeable that the respondent would have identified herself, when her colleagues did also.
Issue 2: Was it reasonably foreseeable that the respondent perceive that she was being blamed?
Throughout the documentary, the collective words “we” and “us” were used when reflecting on the cases and circumstances. There was a lack of impersonality to the documentary that appeared to be placing heavy emphasis on caseworkers, rather than the system itself.
The words “we really failed this little boy”, and “we never listened or did anything about that” (when discussing his suicidal thoughts), were an implicit reflection on the conduct of the caseworker and those in a position of care for the child. Despite the anonymous framing, the words had the effect of blaming the case worker. This remained true even though the panel did not intend to accuse individuals but reflected on the failings of the general system. Thus, it was reasonably foreseeable that the respondent would have perceived the blame as personal.
While the appellant argued that the child died of an accidental overdose and not by suicide, and so any perception of blame was misplaced, the court found that the effect of reinforcing the point of suicide could have reasonably been perceived as blaming the caseworker. While no explicit blame for the suicide was placed by the panel, and in fact the actual cause of death was not even mentioned, there was reasonable foreseeability of that impression being felt by the respondent, amounting to a psychological harm.
The court thus upheld the primary judgement, that it was foreseeable that the respondent would suffer psychiatric injury from exposure to the documentary. The appeal was dismissed with costs.
The case can be read in full here: Secretary Department of Communities and Justice v Soulos – NSW Caselaw
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.