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[2026] NSWCA 185
respondent. Appeal dismissed with costs.
The Court of Appeal upheld the finding that it was reasonably foreseeable that Soulos might recognise her former client in the documentary and understand the panel’s comments as blaming her for his death. The appeal was conducted on the basis that if those two possibilities were foreseeable, psychiatric injury was foreseeable in this case. The Court found no error in the primary judge’s conclusion and dismissed the appeal with costs.
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2,345 words · generated 08/10/2026
The respondent, Luiza Soulos, was a caseworker employed by the New South Wales Department of Communities and Justice (DCJ). In 2017, she became responsible for YP, an Aboriginal boy who was about 14 years old. She assisted him with practical needs and appointments and provided support when he was distressed. About a month or six weeks before his death, YP told her he felt he might harm himself and needed help. Soulos went to see him and checked that he was safe. YP died by accidental overdose on 18 May 2019. Soulos was upset, took a couple of days off work and later attended five psychologist sessions arranged and paid for by DCJ ([11]–[15]).
1 cited instrument linked from this judgment.
DCJ participated in a documentary, The Department, intended to show aspects of its child-protection work. A segment showed a serious case review panel discussing a young person’s case. The documentary did not name YP or Soulos. The panel members nevertheless referred to the young person’s journal and discussed failures to listen, act and respond to suicidal thoughts. One participant referred to words from “one of his suicide notes”, including “they care more about you when you’re dead” ([16]–[22]).
On 29 September 2021, Soulos received an email encouraging DCJ employees to watch the documentary, which was broadcast on 10 October 2021. No one had told her beforehand that YP’s case would be discussed. She watched the programme expecting it to highlight her colleagues’ work. She recognised the journal quotation and understood the discussion as saying that she was responsible for YP’s death ([18], [23]).
Soulos attended work the next day, discussed the documentary with supervisors, and did not return to work. It was common ground that she suffered a genuine psychiatric injury, became wholly incapacitated for work, and that watching the documentary caused the injury ([24], [5]). The District Court awarded $1,389,457.74 in damages. The Court of Appeal dismissed DCJ’s appeal with costs ([5], [54]).
The appeal was narrower than the overall negligence claim. DCJ accepted that it owed Soulos a duty to avoid reasonably foreseeable risks of harm. The case was argued on the basis that if it was foreseeable she might identify YP and might perceive the panel as blaming her, it followed that psychiatric injury was foreseeable. The appeal therefore turned on those two factual questions ([5]–[8]).
The Court applied the undisputed test from Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 at [33]: the question was whether the risk of a recognisable psychiatric illness was reasonably foreseeable, meaning the risk was “not far-fetched or fanciful” ([9]). The judgment records that the Civil Liability Act 2002 (NSW) did not apply ([10]).
On identification, the Court considered more than the fact that neither Soulos nor YP was named. The journal quotation provided a distinctive link. Soulos had read YP’s journal after his death, when she went through his belongings. The Court reasoned that it was foreseeable she would recognise the words, given her role and familiarity with the case. It also considered that other caseworkers familiar with the case might recognise the material ([26]).
The contemporaneous evidence was significant. The day after the broadcast, DCJ manager Leigh Bennett emailed Soulos and her manager, stating that YP’s case had been discussed and that managers wanted to check in. The evidence was that senior DCJ staff had “pieced together” the identity of the case without prompting by Soulos. McHugh JA treated that as evidence of what staff with direct knowledge could identify, not merely hindsight evidence based on Soulos’s later reaction ([27]–[38]). The Court concluded that it was reasonably foreseeable she might identify YP ([38]).
On perceived blame, DCJ argued that “we” and “us” referred to the Department as an institution, the system, or the senior officials at the panel, rather than caseworkers. The Court rejected that interpretation. It read the segment as referring to people, and noted that DCJ could provide its services only through people, including caseworkers. The language about not listening or doing anything directed attention to people who had been in a position to listen or act ([40]–[43]).
The panel’s statements included “we never listened or did anything about that”, “we don’t talk to him about his suicidal thoughts” and “we really failed this little boy”. The Court considered it reasonably foreseeable that Soulos, as the caseworker responsible for YP, might understand those statements to include criticism of her work. That conclusion did not depend on proof that the panel intended to blame her. The primary judge accepted that the panel members may not have intended to blame individual caseworkers, but the broadcast could objectively be understood that way ([48]–[51]).
The Court also addressed the fact that the review panel appeared to understand YP’s death as suicide, whereas the coroner had found accidental overdose. It considered this did not assist DCJ. The segment itself conveyed that the panel understood the death as suicide, and that account could reinforce an interpretation that the caseworker was being blamed for not responding to suicidal thoughts. If Soulos thought the panel was mistaken about the manner of death, that could add to her sense of injustice ([22], [44]).
The outcome also depended on the way the appeal was conducted. DCJ did not pursue an independent challenge to the proposition that foreseeable identification and perceived blame made psychiatric injury foreseeable in these circumstances. McHugh JA therefore decided the questions the parties had chosen to litigate, rather than treating the appeal as a fresh determination of every element of negligence ([5]–[8], [52]–[53]).
The judgment did not purport to alter the governing test for reasonable foreseeability. It applied the test in Koehler: a risk is foreseeable for this purpose if it is not far-fetched or fanciful. The Court noted that the parties did not dispute that test ([9]). Its contribution, on the material provided, is an application of that test to a particular workplace and communications context.
Before this appeal, the District Court had found foreseeability on the facts. The appeal tested two supporting matters: whether Soulos might identify YP from the material and whether she might interpret the panel’s words as blaming her. The Court of Appeal upheld both findings, relying on the distinctive journal quotation, Soulos’s prior knowledge, managers’ contemporaneous identification and the ordinary meaning of the panel’s collective language ([25]–[38], [39]–[51]).
The judgment’s reasoning is fact-sensitive. It does not state that an employer will generally owe damages whenever an employee watches workplace material that causes psychiatric injury. Nor does it decide a general rule about documentaries, internal reviews or criticism of public-sector systems. The Court expressly noted that the result followed from the issues litigated and the concessions made. Ward P described the forensic position taken by the State at first instance as consequential, while emphasising that the Court’s function was to determine the contested issues ([1]).
The appeal also records that the Civil Liability Act 2002 (NSW) did not apply, referring to s 3B(1)(f) ([10]). The supplied judgment does not provide a broader analysis of that provision. It would therefore go beyond the stated reasons to infer how the Act would apply in other proceedings or to different facts.
At [9], the judgment adopts Koehler’s formulation: the risk must not be “far-fetched or fanciful”. In plain English, the question was not whether harm was certain or more likely than not. It was whether the possibility of the relevant harm was sufficiently real, in the circumstances, to be foreseeable.
At [26], McHugh JA focuses on the journal quotation. Soulos had read YP’s journal, and the words were distinctive. The plain-English point is that the absence of names did not end the inquiry. Material that a person with relevant prior knowledge could recognise might make identification foreseeable.
At [37], the Court explains why managers’ identification mattered. Their ability to identify YP without Soulos prompting them supported an inference about what people familiar with the case might recognise. The Court distinguished this evidence from reasoning based only on hindsight after Soulos had suffered harm.
At [42], the Court explains why the panel’s “we” language could include caseworkers. A department provides services through people, and the comments about not listening or acting could be understood as referring to those responsible for the young person’s care. In plain English, a general statement about institutional failure can still be heard as criticism of individuals who performed the relevant work.
At [48]–[50], the Court separates intention from foreseeable interpretation. The panel members may not have intended to blame Soulos, but the question was how the broadcast could objectively be understood. The Court accepted the primary judge’s view that the words had a “strong flavour of blame” and that the panel’s subjective purpose did not remove the possibility of that interpretation.
At [53], McHugh JA states that, given the issues and the way the case was run, there was no error in the primary judge’s ultimate finding. The qualification matters: the conclusion was reached in the context of the parties’ agreed position about what followed if the two disputed foreseeability matters were established.
The reasoning is most directly relevant to fact patterns with features like those identified in this judgment:
Those features describe the reasoning in Soulos. The judgment does not establish that all anonymised material will be identifiable, that any criticism of an organisation is personal blame, or that psychiatric harm from workplace communications is always foreseeable. The Court assessed the words and evidence in the particular circumstances.
The case also illustrates the evidentiary value of records made at the time. Bennett’s email, Soulos’s reply and evidence about managers’ prior identification provided a contemporaneous sequence relevant to whether identification was foreseeable. The judgment did not set out a general evidence rule, but it treated this material as probative of what DCJ staff could recognise before any later reconstruction of events ([27]–[38]).
The supplied judgment does not cite any later cases applying, distinguishing or criticising Secretary, Department of Communities and Justice v Soulos. It was decided on 7 September 2026, and the provided material contains no subsequent judicial treatment. No account of later treatment can therefore be given on this source alone.
The judgment does apply Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 at [33]. It uses the “not far-fetched or fanciful” test as the agreed standard and applies it to the two foreseeability issues. The judgment also refers to the District Court decision, Soulos v Secretary, Department of Communities and Justice (Family and Community Service) [2025] NSWDC 548, as the decision under appeal. The Court of Appeal’s reasons describe and assess the primary judge’s findings; it does not treat the District Court decision as a separate precedent.
The judgment’s explicit dependence on the appeal’s forensic framing is relevant to any account of its authority. McHugh JA records that DCJ accepted that foreseeable identification and foreseeable perception of blame would make psychiatric injury foreseeable in the circumstances, and that the appeal was argued consistently with that position ([5]–[8], [52]–[53]). A later court considering a case without the same concession, or with a separately contested psychiatric-injury foreseeability issue, would be addressing a different question. The judgment itself does not decide how that different question should be resolved.
Several matters were not decided or were outside the issues pursued on appeal. First, the Court did not separately determine whether psychiatric injury would have been reasonably foreseeable if identification of YP or perceived blame had not been established. The parties’ agreed position made those two questions dispositive in this appeal ([5]–[8], [52]).
Second, the judgment does not set out a general test for when anonymised material becomes identifiable to a particular employee. Its conclusion rested on the specific journal quotation, Soulos’s prior access to the journal, her familiarity with YP’s case, and evidence that managers independently identified him ([26]–[38]). How different or less distinctive material would be assessed is not answered.
Third, the Court did not decide whether a review panel’s actual process was generally blame-oriented. It acknowledged evidence that DCJ’s review process was intended to focus on systems and avoid blaming individuals, and that caseworkers could participate in review processes. It concluded that the documentary segment concerning YP had to be assessed on its own terms ([46]–[50]).
Fourth, the judgment does not determine the significance of the documentary’s editing beyond this case. The primary judge accepted that panel comments might have been taken out of context or clarified in portions not broadcast. The Court nevertheless assessed the material that viewers saw and concluded that the risk of perceived blame was foreseeable ([48]–[51]). The judgment does not establish a broad rule about editing or context in other communications.
Finally, the reasons state that other grounds, including concerns about adequacy of reasons, were not pursued in argument, and that some grounds could not be pursued independently because of the way the case had been conducted ([7]). The judgment therefore does not decide those unargued matters.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Secretary Department of Communities and Justice v Soulos [2026] NSWCA 185
Hearing dates: 10 August 2026
Date of orders: 07 September 2026
Decision date: 07 September 2026
Before: Ward P at [1]
Kirk JA at [2]
McHugh JA at [3]
Decision: Appeal dismissed with costs.
Catchwords: NEGLIGENCE — Duty of care — Reasonable foreseeability — Foreseeability of harm — whether reasonably foreseeable that respondent would suffer psychiatric injury from watching documentary
Legislation Cited: Nil
Cases Cited: Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15
Soulos v Secretary, Department of Communities and Justice (Family and Community Service) [2025] NSWDC 548
Texts Cited: Nil
Category: Principal judgment
Parties: Secretary, Department of Communities and Justice (Appellant)
Luiza Soulos (Respondent)
Representation: Counsel:
B Dooley SC; K Balendra (Appellant)
R Sheldon SC; W Lidden (Respondent)
Solicitors:
Turks Legal (Appellant)
Brydens Lawyers (Respondent)
File Number(s): 2026/00020973
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
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 she watched 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:
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**:**
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].
WARD P: I agree with McHugh JA. I would add only that I consider his Honour to be understated (perhaps charitably so) in describing the outcome of the proceedings at first instance (from which the appeal is to be dismissed) as surprising. For my own part, I consider the result (the direct product of the concession effectively made by the State as to the issue of reasonable foreseeability and the way the matter was conducted at first instance) to be extraordinary. The psychiatric injury sustained was from viewing a two minute segment of a relatively innocuous documentary (the entirety of which I viewed on the appellant’s urging) in which neither the caseworker nor her client was publicly identified. However, the result followed, as McHugh JA explains, from the acceptance by the State at first instance that, if it was reasonably foreseeable that the caseworker might identify that segment as referring to her client and might perceive herself as the subject of criticism or blame for his death, then it was reasonably foreseeable that she would suffer psychiatric injury. The State is bound by the consequences of that forensic decision and the Court’s role is simply to adjudicate the issues contested by the parties.
KIRK JA: I agree with McHugh JA.
McH****UGH JA: On the face of it, the result in this fact appeal may be somewhat surprising. The respondent, a caseworker employed by the Department of Communities and Justice (the DCJ), watches a documentary broadcast on television about the work of her employer and its staff. The documentary is about 1½ hours long. One segment, occupying about 2 minutes, concerns discussion at a departmental review panel about the case of a young person (YP) who had been the respondent’s client at the time of his death aged 17, some 2½ years before the broadcast. Neither YP nor the respondent is named in the documentary or intended to be identifiable. As a result of watching the documentary the respondent suffers a psychiatric injury and is wholly incapacitated for work, resulting in an award of damages at trial of about $1.4m for negligence.
Surprising as that outcome may be, in light of the issues the parties chose to litigate and the undemanding test of reasonable foreseeability in the tort of negligence, the appeal must be dismissed.
Central to the disposition of the appeal is a series of propositions which were not disputed in this Court (and many were not disputed at trial):
The DCJ owed its employee the respondent a duty of care to avoid reasonably foreseeable risks of harm.
If:
(a) 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 (b) it was reasonably foreseeable that the respondent might perceive the participants at the review panel as blaming her for YP’s death (Issue 2),
then it was reasonably foreseeable that the respondent would suffer psychiatric injury.
In that event, the appellant breached its duty of care to the respondent.
Viewing the documentary caused the respondent to suffer the psychiatric injury of which she complained.
The respondent was for that reason wholly incapacitated for work.
Damages should be quantified in the sum of $1,389,457.74: J[140], [145].
It follows that the appeal turns on the two factual matters of reasonable foreseeability identified as Issues 1 and 2 above. It is true that Ground 1 in the amended notice of appeal was directed to the ultimate conclusion said to flow from those two matters: “The primary Judge erred in finding that the risk of psychiatric harm to the Respondent was foreseeable in the circumstances”. But crucially, Senior Counsel for the DCJ accepted at the hearing of the appeal that the case had been run at trial on the basis that if the matters of reasonable foreseeability in Issues 1 and 2 were established, the conclusion followed in the circumstances of this case that it was reasonably foreseeable that the respondent would suffer psychiatric injury: see Tcpt 10/8/2026, 3.40-4.3, 4.30; J[103]. Rightly, there was no attempt to depart from that position on appeal.
That being so, all of the appellant’s submissions (including under Ground 1) were directed to overturning the primary judge’s findings with respect to the matters of reasonable foreseeability in Issues 1 and 2. To the extent that some of the grounds of appeal (such as some of the subparagraphs to Ground 2) raised matters apparently going directly to the ultimate issue (i.e., the reasonable foreseeability of psychiatric injury), those grounds cannot be independently pursued (and I did not understand them to be pursued) in light of the way the case was conducted, as explained above. To the extent that some of the grounds of appeal raised other issues (such as the adequacy of reasons in Ground 3), those issues were not taken up in argument.
Accordingly, these reasons will be organised by reference to the two questions of reasonable foreseeability identified above as Issues 1 and 2.
It is not in dispute that the test for determining reasonable foreseeability for these purposes is that stated in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 at [33]:
“… whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.”
The respondent commenced work as a caseworker employed by the DCJ in 2017. This saw her managing cases involving young people living under adversity. She would make sure that they had appropriate care and day-to-day necessities of clothing and food. She would also assist some of her clients to obtain employment or to go back to school.
YP came under the respondent’s responsibility in 2017. He was an Aboriginal boy who was around 14 years old when the respondent first met him. The respondent described YP as troubled and needing a lot of support and guidance. She helped him buy clothes and food and taught him how to do day-to-day things such as going to the shops and buying groceries. She took him to doctor’s appointments and Centrelink appointments and also to a restaurant to let him “just have fun”: Tcpt 3/2/2025, 14.45.
At one point YP reduced his physical contact with the respondent but remained in touch via mobile phone. The respondent gave evidence of an occasion one Friday afternoon, about a month or six weeks before YP died on 18 May 2019, on which he called her and said “I feel like I’m going to harm myself. I need some help”. The respondent drove to see YP, gave him a hug and made sure that he was all right. The respondent had been aware before that Friday meeting that YP had been self-harming.
The respondent and YP had arranged to meet to discuss his accommodation, but about a week before they were to meet, one of the respondent’s managers at the DCJ told her that YP had died by an accidental overdose.
The respondent was upset when she learned of YP’s death. She was told to take a couple of days off work, which she did. When asked whether she had seen anybody “for treatment of any sort”, she said that she had seen a psychologist, whom the DCJ organised and paid for, five times over a period of about six months. When asked in cross-examination at trial whether she coped with the return to full duties, the respondent said “I did, fine, yes.”
“We wanted to show the best of our work. We wanted it to be a tool that would make people want to join up and work for us. We wanted to show intelligent, driven, ethical people, but we also wanted the community to see the reality of the lives of the families we work with, and we wanted people to see that, but we wanted them to see it in a compassionate way and to be genuinely respectful of the people on the screen.”
The DCJ commendably went to considerable lengths to attempt to ensure the safety of the persons who participated in the documentary, whether the clients and their families or the caseworkers. One important point was that the DCJ ensured that all participants were free to withdraw their consent to being involved in the documentary at any time, including after filming. This was described as having a right of veto.
On 29 September 2021, the respondent received an email on behalf of a Deputy Secretary of the DCJ, encouraging all employees to watch the documentary, which was to be broadcast on the television station SBS at 8:30pm on 10 October 2021. It was common ground that before the respondent watched the documentary that night, no one from the DCJ had informed her that YP’s case was discussed in the documentary. The respondent said she watched the documentary believing it would highlight the great work her colleagues performed.
Included within the documentary was footage of a serious case review panel meeting. In her evidence at trial, Ms Alexander, who was chair of the panel, explained that the panel convenes four times a year and that the reviews selected to go to the panel are cases that are likely to be the subject of an inquest. More will be said below about the purpose of a review panel meeting. It suffices for present purposes to refer to Ms Alexander’s evidence in chief of a “very strongly held belief of mine … that the panel has been established for senior people to look at opportunities to improve the system, and we work very hard to write reviews that do not focus on individuals, do not blame individuals … So we never name caseworkers in panel. We never name caseworkers in reports.” Importantly, caseworkers such as the respondent did not attend review panel meetings.
The primary judge, Catsanos SC DCJ, set out a transcript of the review panel segment of the documentary: Soulos v Secretary, Department of Communities and Justice (Family and Community Service) [2025] NSWDC 548 at [23]:
“KATE ALEXANDER:
As we all know, Aboriginal children are overrepresented in all areas of disadvantage, and sadly, that includes coming before this panel, and today is no exception. Our first story um about [redacted] is terribly sad and an incredibly powerful reminder to all of us that we have to do better. So just really wanting to open with people’s initial reactions and responses to [redacted]’s story.
SIMONE CZECH:
It was heart wrenching, and you could see the missed opportunities. And I think the whole way through the report you can see [redacted] talking about how he was feeling, but we never listened or did anything about that.
SIMONE WALKER:
We’ve seen it in lots of other cases, sort of demonization of boys at a certain point, that sort of 10 to 12, that they cease to be a victim of their experience, their trauma, their circumstances, and either, you know, are framed as a perpetrator, are demonized for their behaviour.
CHERIE SMITH:
There’s so many things that [redacted] does to demonstrate how unhappy he is, even from a really young age, continual voice of, I want to, I want to kill myself, and real actions to show that he was serious, and then we don’t talk to him about his suicidal thoughts.
ELAINE THOMSON:
We are not set up to believe that an eight year old knows what suicide is, knows how to make a plan and is willing to follow through with it.
JILL HERBERTE:
I think we really failed this little boy. And I think we can’t say we’ve got a system and it’s working when we get cases like this. We’ve got to be able to interrogate a bit more.
KATE ALEXANDER:
[Redacted] wrote in one of his suicide notes about they care more about you when you’re dead. And they’re words that will stick with us.
- CUT –
MICHAEL COUTTS-TROTTER:
Stories where things go wrong and children get hurt or children die, you appreciate what’s at stake. Think it’s so much better for us to take a honest and searching look at what we didn’t do well.
KATE ALEXANDER:
The number of inquests that are coming our way is enormous at the moment.”
(Emphasis supplied.)
It is common ground that the person whose case was being discussed was YP. The irresistible implication conveyed by the segment, including the reference to “his suicide notes”, is that the review panel was discussing a case of death by suicide. That that was the impression conveyed appears to have been accepted by the appellant. Ms Alexander agreed in cross-examination with the proposition that “a person seeing this portion of the broadcast would be left with the impression that the boy being spoken about had committed suicide”.
A departmental report had been prepared for the review panel before the meeting. That report was not in evidence and it is unknown what it said about the manner of YP’s death. The respondent did not participate in the preparation of the report. Nor does there appear to have been any report (at least in evidence) of the outcome of the review panel meeting. It should be noted that at the time of that meeting, the coroner had not yet provided his reasons for dispensing with an inquest. Those reasons, dated 21 June 2021, referred to YP’s “history of numerous self-harm attempts”, but said there was no evidence that YP “had displayed any suicidal ideation or attempted self-harm proximate to the time of death”. On balance, the coroner found that the manner of death was “Misadventure (unintentional drug overdose)”.
The respondent gave evidence at trial of her reaction when she watched the documentary:
“Q. When you watched it, what happened?
A. I was shocked, dumbfounded. I couldn't believe that I had heard parts of his journal being read, and then basically I felt like I was crucified ‑ sorry, I was crucified, and that I was responsible for killing him.
Q. Could I ask you to just repeat what you said, I'm sorry.
A. That I was responsible for killing him.
Q. Why did you get that from the documentary?
A. When there was a roundtable discussion about the child death review, they had mentioned the young person’s death and they read parts of his journal, which I had previously read because when he passed, we had to go through all his belongings, and his journal was part of that. We had to read what was in there, and the roundtable discussion was talking about how we failed him, we didn't listen to him. We should have done more to help him, that it was my case.”
The respondent attended work the day after she watched the documentary, discussed the documentary with her supervisors in the circumstances explained below, and never returned to work again. As the primary judge noted at J[2]: “It is not controversial that the plaintiff suffered a genuine psychiatric injury … which has totally incapacitated her to date.”
That is the background against which the two questions of reasonable foreseeability identified above fall to be determined.
“[YP] wrote in one of his suicide notes about they care more about you when you’re dead. And they’re words that will stick with us.”
(Emphasis supplied.)
The respondent correctly recognised this as a reference to YP’s journal, in which he had written the words italicised above. It was reasonably foreseeable that she would do so. Given that that material self-evidently was available to the DCJ, there was every reason to expect that the respondent, as YP’s caseworker, would have read those words. As the respondent said in her evidence, she had read YP’s journal following his death when she “had to go through all his belongings”. The same could be said for other caseworkers or members of the Department who were familiar with the details of YP’s case, who therefore might be able to identify him in the documentary. And Ms Alexander’s recognition at the review panel meeting that these were “words that will stick with us” suggests that what YP had written in his journal had an emotional power which made it both memorable and distinctive.
What happened the day after the broadcast shows that other members of the Department were, indeed, also able to identify YP in the documentary. Although some aspects of the evidence concerning the chronology could have been clearer, there is no doubt that at 12:10 pm on 11 October 2021, Leigh Bennett, the Manager Client Services for the relevant region, sent an email to the respondent and to Wendy Devine (the respondent’s manager) with the subject line “FW: Debrief with team re The Department screening last night”. The body of the email was as follows:
“Hi there,
We will get an invite today for 1.30 to talk to Brett and Lisa C about this as [YP’s] case was discussed as part of the documentary and we want to check in.
Kind regards,”
(“Brett” was Mr Thomas, the DCJ area Director, and Mr Bennett’s superior. Lisa C was Ms Charet, who was at the time the Executive Director, Western Sydney, Nepean and Blue Mountains, and who was Mr Thomas’ superior.)
The respondent replied to Mr Bennett’s 12:10pm email five minutes later, saying:
“Yes, Would have been nice to be told beforehand rather than watching it.”
“Hi Luiza.
I had the same thought — There is some more context that Brett/Lisa wanted to talk with us about which hopefully helps. Talk soon.
Kind regards,”
Although Ms Charet had seen the documentary before it went to air, she did not know enough about any of the cases that were discussed to have identified a particular case. It appears that none of Mr Thomas, Mr Bennett, Ms Devine or the respondent had seen the documentary before it went to air. Nor, it appears, had any other person who had had immediate involvement with YP’s case.
Mr Thomas and Mr Bennett did not give evidence. Ms Charet and Ms Devine did. Ms Charet said in cross-examination:
“Q. And did Brett discuss with you the need for a meeting before - so far as you understand it - before he contacted Leigh Bennett?
A. From memory he had spoken to Leigh, they’d pieced together that it was about [YP], and then Brett rang me and said. I was talking to all my directors anyway about different stuff, but Brett rang and said this was that.
Q. So your understanding is that Brett Thomas pieced together that the discussion in the meeting had concerned the deceased [YP].
A. Yes.
Q. And that caused him to organise the meeting, is that right?
A. Yes.”
(Tcpt 5/2/2025, 158.34-45, emphasis supplied.)
The fact that Mr Bennett and Mr Thomas had “pieced together” that the documentary was about YP without any prompting by the respondent is consistent with the following matters:
The respondent herself gave the following evidence in chief:
“Q. Who instigated the meeting to your knowledge?
A. Well, I got the email from [Leigh] Bennett who said that there was a meeting that the district manager wanted to organise to discuss what had happened on the documentary.
Q. Had you spoken to anybody before that?
A. No.”
Tcpt 3/2/2025, 20.25-31.
Mr Bennett’s email response to the respondent, “I had the same thought,” suggests that he had independently come to the same view, namely, that “it would have been nice to be told beforehand” that YP’s “case was discussed as part of the documentary”.
Ms Devine created a file note in the form of an email to herself sent at 5:17 pm on 11 October 2021. That email referred to a remote video weekly “catch up” meeting (by Microsoft Teams) that Ms Devine had had with the respondent and another caseworker, Ms French, in which they had discussed the documentary. The email recorded that at no point did the respondent discuss or raise the segment of the documentary where YP was discussed at the review panel. Ms Devine’s oral evidence was also to the effect that the respondent had not indicated during the informal catch up meeting with Ms Devine that the respondent had been upset with anything in the documentary: Tcpt 5/2/2025, 147.1-14.
On the other hand, it was put to Ms Devine that “by 12.10 pm, it was known that [the respondent] had reacted badly to what had been depicted, wasn’t it?” Tcpt 5/2/2025, 150.37. She answered, “Yes, that’s my understanding.” The basis upon which Ms Devine reached that understanding is not clear and was not explored. The reference to 12:10 pm plainly identified Mr Bennett’s email sent at that time, to which Ms Devine had been copied. The respondent’s email response at 12:15 pm, to which Ms Devine had also been copied, made clear that the respondent had reacted badly to what had been depicted in the documentary. In the circumstances, particularly when the basis upon which Ms Devine reached her understanding was not explored, and when there is no evidence of any other communication between the respondent and Mr Bennett or Mr Thomas, it may readily be inferred that Ms Devine was not distinguishing between the email sent at 12:10 pm and the respondent’s reply at 12:15 pm. That being so, it may be inferred that the basis of Ms Devine’s understanding as to how the respondent had reacted was what the respondent herself had written in her email at 12:15 pm.
The primary judge said at J[96]-[98]:
“96. As discussed earlier, the evidence of Ms Charet was that Mr Thomas and Mr Bennett had ‘pieced together’ the fact that it was YP being referred to in the Review Panel discussion, leading Mr Thomas to call the Management Meeting to check on the plaintiff’s wellbeing.
97. That is not hindsight evidence but demonstrates the conclusion that risks associated with the Review Panel discussion shown in the Documentary were tangible and foreseeable.
98. Similar conclusions apply to Mr Bennett’s email to the plaintiff the next morning saying he ‘had the same thought’ as the plaintiff that it would have been nice for her to have been told about the contents of the Documentary beforehand.”
Read in context, J[96] is a primary finding of fact that when Mr Thomas and Mr Bennett watched the documentary for the first time on or about 10 October 2021 they “pieced together” that the subject of the review panel segment was YP, and that they did so without any prompting by the respondent. That finding was not challenged on appeal. Even if it had been challenged, the evidence discussed above establishes that the finding was correct.
The significance of the finding is that it is contemporaneous evidence from which to infer that if, before the documentary was broadcast, it had been shown to members of the team who had had direct involvement with the client whose case was the subject of the review panel segment, those persons would (or at least might) have identified the client as YP. The primary judge was right to distinguish that from hindsight reasoning.
That being so, to the extent that his Honour’s conclusion as to reasonable foreseeability in J[97] depended on identifying YP as the subject of the review panel meeting, the conclusion was well open and correct. In particular, it was reasonably foreseeable that the respondent might identify the case discussed as that of YP, as his Honour found at J[100(3)]. The answer to the question in Issue 1 is thus Yes.
The primary judge’s findings at J[83], [84], [90] and [100(5) and (7)] were to the effect that it was reasonably foreseeable that the respondent might perceive the review panel as blaming her for YP’s death. Again, there was no error in that finding.
The appellant submits that the references to “we” and “us” in the segment of the documentary showing the review panel meeting refer either to an impersonal entity (the Department itself or “the system”), or else to the senior DCJ staff who are present at the review panel meeting, as opposed to caseworkers. That submission should be rejected.
The very first words of the segment, “As we all know,” are plainly not referring to a system. As those and the other italicised words in the transcript set out above show, the words “we” and “us” refer to people. Under cross examination, in response to the proposition that the use of the word “we” included “the caseworker or caseworkers who did not talk to the deceased about his suicidal thoughts”, Ms Alexander responded: “It is right that caseworkers were a part of that. Caseworkers have a responsibility to that.” Senior Counsel for the appellant accepted in argument in this Court that the word “we” included the respondent: Tcpt 10/8/2026, 10.28-33.
More fundamentally, when dealing with clients like YP a government department providing services of the kind provided here can act only through people — in particular, through its caseworkers. Indeed, even if the words, “we really failed this little boy,” were understood as referring to systemic failings, those failures must nevertheless also have manifested in a failing by one or more people at some level of the departmental hierarchy. In this case, the failings were effectively particularised in the review panel segment by statements such as “we never listened or did anything about that” and “we don’t talk to him about his suicidal thoughts”. Those statements directed attention to the people within the department who had been in a position to listen or to do something or to talk to YP about his suicidal thoughts. It was thus reasonably foreseeable that the respondent would interpret the segment as criticising her, as YP’s caseworker, as someone who could have listened and done something but failed to do so, and therefore “failed this little boy”. The call by Mr Coutts-Trotter, the departmental Secretary, for an “honest and searching look at what we didn’t do well” was well capable of being understood as (or as including) a criticism of failings at the caseworker level that resulted in a child “gett[ing] hurt” or dying.
In any event, to the extent that the segment referred to the “system” not working, it did not identify failures that were systemic in nature. The closest the segment came was where Ms Walker referred to other cases in which there had been a “sort of demonisation of boys at a certain point”. But even that criticism of attitudes or perspectives is one that must manifest at the individual caseworker level.
“… - what you asked me before about our case workers wouldn't understand how our panel work because they don’t go to it, I agreed with you. But on reflection the answer is more complicated because the fact that case workers so willingly talk to our team, so willingly participating review processes shows they understand how our department deals with deaths. In other states, caseworkers bring lawyers and union representatives and refuse to speak to review processes. Because ours are systems’ approaches and not blaming and caseworkers get to contribute, they get to see the reports before our minister and that’s caused me some tension above over the years because I don’t want them individually blamed. Our caseworkers know that reputation and they know the reputation of the panel and that's what we told her very quickly afterwards. It was never about her.”
Tcpt 4/2/2025, 116.8-20.
Two points may be made. First, as Ms Alexander herself said, the respondent had not participated in the review process, instead declining to be interviewed. Secondly, to the extent that this is to be treated as evidence from which to infer what the appellant might reasonably foresee as to its caseworkers’ expectations about what occurred at review panel meetings, it provides at most a very slim basis for drawing an inference. But whether or not the usual approach at review panels was to avoid blaming individual caseworkers, the documentary spoke for itself in relation to what had occurred at the particular review panel considering YP’s case.
Referring to his finding at J[83] that the words “we really failed this little boy” are emotive and not isolated from those who had actual responsibility to look after YP, the primary judge found at J[84]:
“… These are not observations intended to criticise the members of the Review Panel, who may well have been taken out of context and may have clarified their views in the parts of the meeting not included in the Documentary. I do not doubt, as Ms Alexander said, that the comments made were not intended to criticise or blame YP’s caseworkers.”
(Emphasis supplied.)
“… The fact the risk of psychological harm to the plaintiff was not foreseen by those who were attuned to the potential for the Documentary to cause upset is said to support the proposition that that risk was not foreseeable. As I have said, objectively the words spoken by the Review Panel members can be seen as attributing personal blame to those, such as the plaintiff, who were responsible for YP’s care. That this was not appreciated by those called in the defendant’s case does not, in my view, dilute the objective foreseeability that it could be interpreted that way. Rather, I consider the failure to appreciate the very real potential for that interpretation, and with it the risk of psychological trauma, is a product of subjective factors which caused the people involved not to see what was objectively implicit in the Review Panel discussion. In short, I think they were too close to the discussion to bring an objective mind to bear on how the Review Panel’s discussions might be interpreted.”
“… [I]n my view, the discussions of the Review Panel which were broadcast have a strong flavour of blame. Whilst they may have been subjectively intended to blame the system or organisation, objectively that intention was not apparent.”
In all the circumstances, 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. To the contrary, the risk was plainly reasonably foreseeable. It follows that the answer to the question in Issue 2 is Yes.
It is another question again whether there was a reasonably foreseeable risk that the respondent would suffer psychiatric injury from viewing the documentary. That is the ultimate issue in Ground 1, as noted above. But the appellant did not choose to litigate that issue separately. Instead, as explained above, the appellant fought the case on the basis (a) that it was not reasonably foreseeable that the respondent would perceive the participants at the review panel meeting as blaming her for YP’s death, but (b) that if that perception was reasonably foreseeable, so too was the risk of psychiatric injury. That approach was consistent with Ms Alexander’s evidence under cross-examination: see, e.g., Tcpt 4/2/2025, 114.30.
In light of the issues the parties chose to litigate and the way the case was run, there was no error in the primary judge’s ultimate finding that the risk that the respondent would suffer psychiatric injury was reasonably foreseeable.
As the correctness of that ultimate finding was the issue litigated on appeal, the order I propose is:
Appeal dismissed with costs.
**********
Counsel's name corrected.
Secretary Department of Communities and Justice
Soulos
Appeal dismissed with costs.
The appellant sought to make something of the fact that the respondent had understood at the time she viewed the documentary that YP had died of an accidental drug overdose, rather than by suicide. This issue is largely a red herring. What is conveyed by the review panel segment of the documentary is that the participants at the meeting understood that YP had died by suicide. There is certainly no suggestion of an accidental drug overdose. Rather than assisting the appellant, the references in the segment to suicide reinforce the respondent’s interpretation that the participants at the meeting were blaming YP’s caseworker for his death. Suicide is an intentional act. An available interpretation of the review panel segment is that the participants at the meeting understood that YP had died by suicide because “we” (i.e., most obviously his caseworker) never listened to, or talked to him about, or did anything to help with, his suicidal thoughts. And, to the extent that the respondent might be expected to have thought that the participants at the meeting were mistaken about the manner of death, that would only increase her sense of injustice for being blamed for the death.
As noted above, the respondent became YP’s caseworker when YP was about 14. The appellant relied on the references at the review panel to an eight-year-old knowing what suicide is, to “a really young age”, and to boys in the age range 10 to 12, as showing that whatever was being said about YP’s care, it did not concern the period in which the respondent was responsible for it. That being so, the members of the review panel could not have been blaming her for his death. But the segment makes clear that YP’s suicidal thoughts continued until the end of his life: see the references to a “continual voice of, I want to, I want to kill myself”, and to what one could see about how YP was feeling “the whole way through the report”. In those circumstances, there was a reasonably foreseeable risk that the respondent would understand the “failings” to include her time as YP’s caseworker.
Under cross-examination, Ms Alexander agreed that a person in the respondent’s position would never be present at a review panel, or know from experience how the panel operated. She also agreed that the respondent “would have seen what was broadcast as the way in which the panel operates”. Later, Ms Alexander volunteered the following, non-responsively, when answering a different question: