Background
Luiza Soulos was a Department of Communities and Justice caseworker responsible for YP, an Aboriginal boy who died from an accidental drug overdose in 2019. She was distressed by his death, took brief leave and later attended psychologist sessions arranged by the Department, but returned to full duties.
In 2021, the Department encouraged employees to watch The Department, a documentary about its child-protection work. A two-minute segment showed a serious case review panel discussing YP’s case without naming him or Soulos. The segment quoted a distinctive passage from YP’s journal and used language suggesting that “we” had failed him. Soulos identified YP and understood the discussion as blaming her for his death. She suffered psychiatric injury, did not return to work, and obtained negligence damages of $1,389,457.74 in the District Court.
The Court’s Holding
The Court of Appeal dismissed the Department’s appeal with costs. The appeal was conducted on the accepted basis that, if it was reasonably foreseeable that Soulos might identify YP and perceive the review panel as blaming her, psychiatric injury was reasonably foreseeable and the Department had breached its duty.
Both matters were reasonably foreseeable. The quotation from YP’s journal was distinctive and known to Soulos as his caseworker; contemporaneous evidence showed other Department staff independently recognised the case as YP’s. The panel’s references to “we” and “us,” to not listening to YP or addressing his suicidal thoughts, and to having “failed” him could reasonably be understood by Soulos as criticism of caseworkers, including her. Applying Koehler v Cerebos (Australia) Ltd, that risk was not far-fetched or fanciful.
Key Takeaways
- Foreseeability is assessed objectively: intended systemic criticism may still reasonably be understood as personal blame.
- A person need not be named for identification to be reasonably foreseeable where distinctive case details are disclosed.
- The Department was bound on appeal by the way it had framed and conceded the foreseeability issue at trial.
Why It Matters
The decision illustrates the breadth of the “not far-fetched or fanciful” test for foreseeable psychiatric injury in negligence claims. Employers and public bodies should consider whether material disseminated to staff may enable employees to identify sensitive cases and reasonably perceive criticism as directed to them.
The Court also stressed that the result followed from the parties’ forensic choices. It did not decide, independently of those concessions, whether psychiatric injury itself would ordinarily have been foreseeable from viewing the documentary.