On 13 January 2011, KS was admitted to Calvary Private Hospital. She was a patient of Dr Foote, an obstetrician and gynaecologist, and was pregnant with her first child.

By 13 January 2011 the baby was one week overdue and it had been agreed that KS would be induced. After arriving at hospital at about 4:30 pm, she was attached to a foetal heart rate monitor. By 4.58 pm abnormalities were apparent in the baby’s heart activity and after that time there were further episodes of bradycardia. The midwife attending KS did not appropriately assess the significance of these events, and it was not until between 5.50 pm and 6.00 pm that Dr Foote was contacted. At 6:00 pm Dr Foote ordered a Caesarean section and at 6:35 pm KS arrived in theatre, but the baby was stillborn at 7.00 pm.

The Claim

KS and her husband XT claimed that as a result of these events they suffered psychological harm.

The particulars of negligence pleaded included failure to properly or adequately interpret the CTG; failure to carry out an urgent Caesarean section; failure to contact another obstetrician and prepare for urgent Caesarean section within a reasonable time; and failure to resuscitate the baby properly or adequately.


During the course of the hearing the hospital conceded liability, and Dr Foote made limited admissions of breach of duty without conceding liability.

Burns J found that Dr Foote breached his duty of care to KS by failing to advise her of the risk of stillbirth and the timing of induction. If Dr Foote had informed KS of the increased risk of stillbirth and had offered to arrange another doctor to perform an induction earlier, KS would have accepted that offer, in which case it is probable the baby would have been born alive and KS and XT not sustained the injuries they did [at 267].

It was also found that Dr Foote was aware of the CTG trace prior to 5:58 pm and that he should have recognised it was abnormal and called for an urgent Caesarean. His failure to arrange for an urgent procedure, and his participation in other, non-urgent procedures prior to conducting the Caesarean section at 7:00 pm constituted a very serious departure from the duty that he owed KS [at 271].

But for the breach of duty, the baby would have been born alive and KS and XT would not have sustained their injuries [at 276].

KS and XT were awarded damages of $669,518.15 and $220,373.00 respectively.

Liability was apportioned 70% to Dr Foote and 30% to the hospital.

To read the decision in KS and XT v Calvary Health Care ACT trading as Calvary Hospital and Dr Andrew Foote [2018] ACTSC 84, click here.