Gawthrop v Bendigo Health: What this Landmark Birth Trauma Case Means for Expectant Mothers About Consent

For many expectant mothers, creating a birth plan is an important part of preparing for labour. It is an opportunity to think about personal preferences, communicate concerns, and discuss the type of care they hope to receive during one of life’s most significant events.


A recent Victorian Supreme Court decision has highlighted just how significant those conversations regarding consent can be.


In Gawthrop v Bendigo Health [2026] VSC 157, the Court found in favour of a mother who was pressured into undergoing a vaginal examination during labour despite having repeatedly stated that she did not want one performed unless there was an urgent medical reason. The Court ultimately found that her consent was not freely and voluntarily given and as a consequence of the hospital’s actions, the plaintiff suffered a psychological injury. The hospital was liable in both battery and negligence.


More Than a Legal Case


The decision has become an important reference point in discussions surrounding birth trauma, informed consent and maternity care in Australia. However, its broader significance lies in what it says about communication, consent and patient-centred maternity care.


The plaintiff had spent months preparing for the birth of her first child. She had participated in antenatal education programs, carefully considered her birth preferences, and created a written birth plan that expressly stated she declined vaginal examinations unless there was an urgent medical reason. The Court found that throughout her pregnancy she had discussed these concerns with members of her care team and had been reassured that her preferences were achievable.


When she arrived at hospital in labour, however, she was told that a vaginal examination was required before she could be admitted, receive pain relief, or have her chosen midwife called to attend. Over a period of approximately two hours, she repeatedly declined the examination before ultimately agreeing after becoming distressed and believing she had no other option. The Court found there was no urgent medical reason requiring the examination at that time.

The Importance of Consent in Maternity Care

One of the most important aspects of the judgment is its emphasis on consent.


Consent in healthcare is not simply about whether a patient eventually says “yes”. The Court examined whether the plaintiff’s agreement was genuinely voluntary or whether it amounted to submission to pressure. It concluded that the circumstances left her feeling defeated, trapped and without a meaningful choice, and that her apparent agreement was not true consent.


This is a critical reminder that pregnant women do not surrender their right to make decisions about their own bodies when labour begins.


Healthcare professionals may recommend examinations, treatments or interventions. They may explain why they believe a particular course of action is advisable. However, informed consent requires more than obtaining agreement. It requires that patients be provided with genuine choices, adequate information, and the opportunity to make decisions free from coercion or undue pressure. The Court found those principles were not met in this case.


How Expectations Around Maternity Care Have Changed

Cases like this also reflect a broader shift in maternity care over recent decades.


There is a now much greater emphasis on shared decision-making, informed consent, trauma-informed care and respect for patient autonomy


Modern maternity care increasingly recognises that a positive birth experience is not measured solely by the physical outcome. The way a woman is treated during labour, the extent to which she feels heard and respected, and her ability to participate in decisions about her care can have lasting consequences for her wellbeing. The Court acknowledged this reality, accepting that the plaintiff suffered significant psychiatric injuries arising from her experience.


Importantly, the Court did not suggest that vaginal examinations are inappropriate or unnecessary. In fact, the plaintiff later consented to several vaginal examinations during labour when their medical purpose was explained and she understood why they were being recommended. The issue was not the procedure itself. The issue was consent.


Birth Trauma Can Be Real Even When Mother and Baby Are Physically Well


A particularly significant aspect of the decision was the Court’s acceptance that the plaintiff suffered a genuine psychological injury.


The Court accepted expert evidence that she experienced anxiety, flashbacks, nightmares, impairment in intimate relationships, effects on family planning, and aggravation of pre-existing trauma. A Medical Panel had also determined that she had a permanent psychiatric impairment. The Court awarded substantial damages for her pain and suffering.


The case serves as a fundamental reminder that birth trauma is not always linked to a physical injury or a poor clinical outcome. A healthy baby does not always mean a positive birth experience. Even where there is no physical injury to mother or child, a traumatic experience during labour can have significant and lasting psychological consequences.


Lessons for Expectant Mothers


This case reinforces the importance of open communication between healthcare providers and patients before labour begins and throughout the birthing process.


Women should feel empowered to discuss their preferences, ask questions, seek clarification about hospital policies, and understand when and why particular interventions may be recommended. Equally, healthcare providers should ensure that those discussions occur early and clearly, so that expectations are aligned before difficult decisions need to be made during labour.


At its core, this decision is a reminder that respect, communication and consent remain fundamental elements of safe and compassionate maternity care.


Concerned About Birth Trauma or Maternity Care?


If you have experienced birth trauma or have concerns about whether appropriate consent was obtained during your maternity care, seeking early legal advice may help you better understand your rights and options.


The team at Commins Hendriks is available to provide confidential, obligation-free advice regarding potential medical negligence claims.


ACT Workers Compensation Claims: Your rights After a Workplace Injury

A workplace injury can affect your income, health and ability to work. Depending on your circumstances, the ACT workers compensation scheme may provide weekly income support, cover medical and treatment expenses, and assist with rehabilitation and return-to-work arrangements.


Understanding your rights can be difficult, particularly where liability is disputed, weekly payments are reduced, or an insurer questions whether your injury is connected to your employment.


Who Can Claim Workers Compensation in the ACT?


You may be entitled to workers compensation if you suffer an injury arising out of, or in the course of, your employment.


Workplace injuries can include physical injuries sustained at work, injuries that develop gradually because of work duties, as well as psychological injuries arising from bullying, harassment or workplace stress. Compensation for psychological injuries may be limited where the condition arises solely from reasonable management action, such as disciplinary processes, performance management or termination of employment.


What Compensation Can You Claim?


Depending on the nature of your injury, your capacity for work and the available medical evidence, you may be entitled to:


  • weekly payments for lost income;
  • medical, hospital and treatment expenses;
  • rehabilitation and return-to-work support;
  • travel expenses associated with treatment;
  • a lump sum payment for qualifying permanent impairment.

The extent of your entitlements will depend on your individual circumstances and the evidence supporting your claim.


What Should You Do After a Workplace Injury?


Taking early steps can make a significant difference to your claim.


If you are injured at work, you should:


  • report the injury to your employer as soon as possible;
  • seek medical treatment and obtain appropriate medical certificates;
  • lodge the required workers compensation claim forms;
  • keep copies of medical records, correspondence, payslips and receipts relating to your injury.

Time limits may apply to certain claims and disputes. Delays in reporting an injury or lodging a claim may affect your ability to access benefits, particularly where liability is contested or symptoms worsen over time.


What Happens If Your Workers Compensation Claim Is Rejected?


It is not uncommon for insurers to dispute workers compensation claims.


Insurers may dispute whether an injury is work-related, whether treatment is reasonable, or whether a worker remains incapacitated. If a decision is made against you, it may be possible to challenge it with the supportive medical evidence.


Obtaining legal advice early can help you understand your rights and the options available to dispute an adverse decision.


Can You Make a Common Law Claim after a Workplace Injury?


Workers compensation benefits and common law damages are separate legal rights.


While workers compensation provides statutory benefits regardless of fault, a common law claim generally requires proof that an employer or another party was negligent and that the negligence caused your injury and resulting loss.


If your employer’s negligence contributed to your injury, you may be entitled to additional compensation, including damages for pain and suffering and past and future economic loss.


Whether a common law claim is available will depend on the specific circumstances of your case.


How Can Commins Hendriks Help?


Our personal injury team advises workers at all stages of the ACT workers compensation process, from lodging a claim through to challenging insurer decisions and pursuing common law rights where appropriate.


We regularly assist clients with disputed claims, weekly payment issues, psychological injury claims and workplace injury negligence claims.


Need advice about an ACT workers compensation claim? Contact Commins Hendriks for a confidential discussion about your rights and next steps.


CONTACT US TODAY

Personal vs Company Power of Attorney: What Business Owners Need to Know

Many clients engage in business through a number of different entities, such as sole trader status, partnerships, companies, and trusts. Legally, individuals are separate entities to the companies which they control. This means that a personal power of attorney will not allow your attorney to act on behalf of your company, even if you are the sole director and shareholder.


For business owners and company directors, ensuring continuity of operations during absence or incapacity is essential.


A company power of attorney enables a company to appoint a trusted person to act on its behalf in legal, financial, and commercial matters. This is particularly important where directors are unavailable due to travel, illness, or competing commitments, as many transactions such as signing contracts, dealing with financial institutions, or completing property settlements require valid execution by or on behalf of the company.


It is especially critical for companies with a sole director, where there is otherwise no alternative authorised signatory.


A common misconception is that a personal general or enduring power of attorney can address these issues. However, a personal power of attorney operates at the level of the individual, not the company. It permits the attorney to step into the shoes of the individual in their personal capacity, for example, to exercise rights attached to shareholdings. This may include voting as a shareholder.


The key limitation is that a personal power of attorney does not confer authority to perform the functions of a director or act on behalf of the company itself. Directors hold a separate legal office with distinct duties and powers under the Corporations Act 2001 (Cth) and those powers cannot be delegated through a personal power of attorney.


As a result, an attorney under a personal power may be able to control shareholder decisions but cannot validly execute contracts, approve transactions, or otherwise manage the company’s affairs as a director.


Accordingly, relying solely on a personal power of attorney creates a critical gap. To ensure full operational continuity, clients should implement a company power of attorney (or appropriate governance arrangements) in addition to personal estate planning instruments.


Contact our office today to discuss putting the right structures in place to protect your business and ensure it can continue operating seamlessly when you are unavailable.


Winona Page is a Senior Associate at Commins Hendriks and would be happy to provide tailored advice.

Property Settlements After Separation: What you need to know

When a relationship breaks down, one of the biggest practical questions is how to divide property. In family law, a ‘property settlement’ is the process of distributing property between each spouse party. This doesn’t just mean the family home – it includes savings, cars, businesses, superannuation, and debts. The goal is to reach a “just and equitable” outcome based on the individual circumstances of the relationship.


When can property settlements occur?


Property settlements can occur immediately after separation, or some time following. Parties do not need to wait for a divorce to start sorting out finances. In fact, many people begin this process long before getting divorced so they can move on with certainty.

There are strict time limits to be aware of:

  • For married couples – if they are granted a divorce before finalizing the property settlement, any application to the Court for a property settlement must be made within 12 months of the divorce becoming final.
  • For de facto relationships – any application to the Court for a property settlement must be made within 2 years of the date of separation.

If parties miss these deadlines, property settlements can still be completed by consent. Otherwise, an Application must be made to the Court to proceed out of time – of which there is no certainty.  


What factors are considered in a property settlement?


A property settlement involves looking at the full financial picture of both people in the relationship. This includes all assets (such as houses, bank accounts, investments, and superannuation) and liabilities (such as home loans, credit cards and personal loans). All property is relevant regardless of whether the item is owned in the name of one party, by the parties jointly, or in a company name or trust.  

The general principles considered when making decisions about property settlements apply similarly to couples in a de facto relationship and marriage, including:

  • What each person contributed to the relationship. Contributions include assets owned at the commencement of the relationship, income generated during the relationship, contributions through an inheritance or gift, contributions by way of caring for children, or running the household.
  • What are each party’s future needs. Relevantly, this requires an assessment of each party’s income earning capacity, age, health and whether one party or both parties have the responsibility for caring for the children going forward
  • What is the effect of any family violence during the relationship on each party’s capacity to contribute financially or non-financially to the relationship.

How can property settlements be resolved?


Most people resolve property settlements without going to Court. Settlements outside of Court are usually achieved quicker, for less cost, and are less stressful than Court proceedings. Some couples can reach an agreement themselves and consult lawyers to formalize the agreement. Other parties use lawyers to negotiate on their behalf or attend mediation where an independent person helps find an agreed pathway forward.

If parties reach an agreement, it is important that agreement is legally binding and enforceable. This can be done in two ways:


  1. Consent Orders – when parties reach an agreement about property matters, they can file an Application for Consent Orders with the Court to request the Court make the orders that reflect the property settlement by consent. The Court will only make the orders if the effect of the settlement is just and equitable in all the circumstances. Whilst parties are encouraged to seek independent legal advice, it is not mandatory that the parties have a solicitor acting on their behalf.
  2. Binding Financial Agreement – parities can enter into a Financial Agreement to formalize the settlement which does not need to approved by a Court. Both parties to a Financial Agreement are required to obtain independent legal advice regarding the Agreement before it can be finalised.  

Where parties cannot reach an agreement about a property settlement, Court proceedings can be commenced. The process of Court proceedings can be around 12 months and involve multiple Court appearance. There are numerous options during the proceedings for the matter to be resolved by consent – and most matters do. If not, at a final hearing a Judge will review all the evidence and determine the division of property between the parties.


What is meant by the term just and equitable?


The Court will not make an order unless it is satisfied it is just and equitable to do so. This essentially means the outcome must be fair in all the circumstances – not necessarily equal. A common misunderstanding is that property is split 50/50 – that is not what the law requires. The Court will review all relevant factors and review the nature of the property and the effect of the proposed distribution of property on the circumstances of the parties.   


How can Commins Hendriks assist?


We have a team of lawyers in our family law department, and we are well equipped to provide advice at any stage of the property settlement. We recommend a party who has separated obtain independent legal advice at the earliest opportunity following separation to gain insight into how the relevant factors described above may apply to their circumstances, what information they should start gathering, and any particular issues to be mindful of with their property settlement.  Following the first appointment, we are guided by the client as to what level of involvement or assistance we provide.

Our aim is to ensure our clients make informed decisions at each step of the way.  We provide practical and realistic advice regarding potential outcomes, in an empathetic manner.


By Sienna Casanelia and Tara Freeburn


Parenting After Separation: Understanding the process and your options

Separation often requires parents to make new arrangements for the care of their children. Whilst every family is different, with varying dynamics, routines, and needs – the legal framework in Australia is centred on one key principle: promoting outcomes that are in the best interests of the child.


Navigating parenting arrangements


Parenting arrangements can be discussed and agreed upon at any stage following separation. Some families are able to reach agreement quickly, while others need time or assistance to work through more complex issues.

Parenting arrangements can cover a range of issues, including:

  • Who the children live with
  • Where the children live
  • How much time they spend with each parent
  • How parents communicate about major decisions such as health, education and religion
  • Arrangements for holidays, special occasions, and travel

There is no one-size-fits-all model. Arrangements should be tailored to suit the needs of each child and the circumstances of the parents.


Formalising parenting arrangements


Some parents reach a verbal agreement only regarding the arrangements for their children, and they do not require any formality.

Other parents may choose to formalise their arrangements to provide certainty moving forward. This can be done through:

  • Consent Orders – legally binding orders approved by the Court.
  • Parenting Plans – written agreements that are flexible but not legally enforceable

The appropriate option will depend on the level of formality and certainty the parents are seeking.


What if agreement cannot be reached?


Family Dispute Resolution / Mediation


If agreement cannot be reached, parents are generally required to attempt family dispute resolution before applying to the Court for parenting orders. This process provides an opportunity to resolve matters in a structured setting with the assistance of an independent mediator.

If mediation does not result in an agreement, Court proceedings may be commenced.

However, if there is urgency attached to the situation or in some other specific limited circumstances, Court proceedings can be commenced regardless of whether mediation has been attempted or not.

Applying to the Court for Parenting Orders


Court proceedings involve several stages and are structured to encourage parties to reach agreement wherever possible. Throughout the process, the Court continues to support and facilitate settlement discussions between the parties.

If the matter proceeds to a final hearing, a Judge will determine the outcome based on the evidence before the Court and what is considered to be in the best interests of the child/ren.


What does the Court focus on?


The Court looks at each family’s circumstances individually. The Court’s primary consideration is the safety and wellbeing of the child/ren. This includes examining:

  • The need to protect the child from harm, including exposure to conflict or family violence – this is at the forefront of any parenting matter.
  • The child’s relationship with each parent and other important people in their lives.
  • Each parent’s ability to meet the child’s day-to-day and long-term needs.
  • The practical realities of proposed arrangements, including schooling and living arrangements.
  • The child’s wishes, whilst having regard to the child’s age and level of maturity.

The Court is assisted through each parent providing evidence about all relevant matters, and also, an independent Child Court Expert providing a report to the Court with various recommendations.


How our team at Commins Hendriks can assist


Parenting matters can be challenging, both legally and emotionally. Obtaining advice early can help you understand your rights and responsibilities, consider your options, and work towards practical outcomes.

At Commins Hendriks, our family law team provides clear, practical advice tailored to the circumstances of each client. We aim to support our clients in making informed decisions while prioritising the best interests of their children.

We can assist with negotiating parenting arrangements, preparing parenting plans and applications for consent orders. We also provide guidance and representation throughout family dispute resolution, including attending mediation where required. Where Court proceedings are necessary, we assist by preparing and lodging Court documents, advising on Court processes and procedure, and representing clients at all Court events.

Stillbirth and Medical Negligence Claims

The loss of a baby to stillbirth is a grief no parent should have to bear. When that loss may have been preventable, families are often left with questions about what went wrong and who is responsible. Parents deserve compassion, support, and the opportunity to seek justice. At Commins Hendriks, we provide legal guidance to families across NSW, the ACT and VIC, helping them understand whether medical care fell below the expected standard and whether a medical negligence claim is possible. Our role is to support parents through the legal process while helping uncover the answers they deserve.

This article explains when a stillbirth may give rise to a negligence claim, how claims are brought, examples of the types of failures that commonly contribute to preventable stillbirths, and what compensation families may be able to seek.


What is “stillbirth” and when might negligence be involved?


In everyday language a stillbirth refers to the loss of a baby during pregnancy or birth after the point at which a baby would be considered viable. Not every stillbirth is due to medical error. However, if clinicians, midwives or hospitals fail to meet the accepted standard of care during pregnancy, induction or labour — and that breach causes or contributes to the baby’s death — there may be grounds for a medical negligence claim.


Common clinical failings that can lead to a preventable stillbirth


While every case is different, some clinical failures frequently feature in stillbirth claims. Examples of common failings include:

  • Failure to monitor pregnancy and fetal wellbeing, including not arranging appropriate ultrasounds, growth scans, or heart rate monitoring;
  • Failure to diagnose or manage maternal conditions, including such as gestational diabetes, pre-eclampsia, or infections that increase risk;
  • Delays in acting on warning signs during labour, including ignoring abnormal fetal heart tracings, reduced movements, or signs of fetal distress;
  • Failure to perform a timely caesarean section, including when an emergency delivery was necessary but not carried out in time;
  • Inadequate resuscitation or neonatal support after delivery;
  • Improper management of medication including prescribing errors or failure to adjust treatment for pregnancy complications.

Every case is different, and determining whether negligence occurred requires careful review by experienced lawyers and medical experts.


What Compensation Can Be Claimed?


While no amount of money can ever replace the loss of a child, compensation can help relieve some of the practical and emotional burdens families face after such a tragedy. Depending on your circumstances, you may be able to claim for:

  • Pain and suffering – recognising the emotional and psychological impact you have experienced.
  • Medical expenses – including pregnancy, labour, and postnatal care and future treatment expenses.
  • Loss of income – if time off work is required for recovery or counselling.
  • Care and support services – for assistance with daily life and mental health recovery.

Compensation is not just financial relief — it is also recognition of the harm caused and the accountability that should have been upheld.


Why Choose Commins Hendriks?


  • Compassionate support: We understand that discussing the loss of a child is incredibly difficult. Our team approaches every case with sensitivity and respect.
  • Proven expertise: With over 100 years of serving communities across NSW, ACT, and VIC, our lawyers have long standing experience in medical negligence claims.
  • No-win, no-fee: You will not pay legal fees unless your claim is successful. We also cover disbursements, so you have no upfront costs.
  • Local strength: With offices across regional NSW and in Canberra, we are accessible and connected to the communities we serve.
  • Passionate lawyers: Claims of this nature deserve a lawyer invested in your outcome and who will advocate strongly for you. Our female led team of medical negligence lawyers are experienced and passionate about birth trauma issues.

We are committed to standing by your side and ensuring your voice is heard.


Case study — KS & XT v Calvary Private Hospital (ACT)


Our medical negligence team is one of the leading teams in the country, with proven results. One of the most significant stillbirth negligence cases in the ACT was run by our team at Commins Hendriks. In KS & XT v Calvary Private Hospital in the Supreme Court of the Australian Capital Territory, induction of labour was started after the pregnancy went overdue. Within a short time, fetal heart monitoring showed abnormal heart activity and repeated bradycardic episodes. The treating team did not escalate care promptly and there was a delay in arranging an emergency caesarean. Sadly, the baby was delivered stillborn.

The Court found failures in care and concluded both the hospital and the treating obstetrician had breached their duties. Damages totalling nearly $900,000 were awarded to the parents for psychological injury and related losses, with liability apportioned between the obstetrician and the hospital. This judgment underlines the legal consequences where timely recognition and response to fetal distress do not occur and demonstrates that families can achieve justice through the Courts.


Limitation periods — act early


Time limits for bringing medical negligence claims vary across states and can be complex. As a general guide, claims must be filed within three years from the date of injury, or in some cases, from the date of discoverability. However, this can vary slightly across jurisdictions and early legal advice is vital. Missing a limitation deadline can prevent a claim proceeding.


Taking the Next Step


If you have experienced the stillbirth of your child and believe medical negligence may have been involved, you are not alone. Legal advice can help you understand your rights, the strength of your claim, and the options available to you.

At Commins Hendriks, we offer a free, confidential consultation to discuss your situation. Our compassionate lawyers will listen, provide guidance, and fight to secure the justice and answers you deserve.

Contact us today to arrange a free consultation with our experienced medical negligence team.

💙 Support services: If reading this article has caused distress, please know help is available. You can call Lifeline on 13 11 14 for free and confidential 24/7 crisis support.

How Mixed-Use Rural Land Affects Tax and Succession Planning

For many rural landowners, leasing out a cottage or running a side business is a smart way to boost income. But recent rulings, such as Wylarah Pastoral Co v NSW Revenue [2024] NSWCAT, show that mixed-use land can have far-reaching consequences, specifically with respect to Land Tax. However, mixed-use land can also impact Capital Gains Tax (CGT), stamp duty, and succession planning.

Land Tax: The Starting Point

Under NSW law, land used for primary production may qualify for a land tax exemption under s. 10AA of the Land Tax Management Act 1956 (NSW). However, if part of the property is leased for residential or commercial purposes, that exemption can be lost. In the case of Wylarah the landowner sought to challenge the Chief Commissioner of State Revenue on the basis that the dominant use of the land was farming cattle, and a rental property was a secondary business only. The Wylarah case confirmed that rental income can tip the balance against primary production being the “dominant” purpose by virtue of the income it generates, rather than the percentage or area basis of the land the second business uses.

Capital Gains Tax (CGT)

When selling or transferring rural property, CGT can apply. While farming businesses may access concessions such as the small business CGT concessions mixed use complicates eligibility. If a portion of the land is used for non-farming purposes, the gain may need to be apportioned, or access to concessions such as main resident exemptions may be impacted.


Stamp Duty

Succession planning often involves transferring land to family members. NSW and VIC offer stamp duty concessions for farming property transfers within families, but these rely on the land being used primarily for primary production. Mixed-use arrangements can jeopardize eligibility and trigger full stamp duty on the transfer.

What Should Landowners Do?

  • Keep detailed records: Demonstrate that farming is the dominant use, and ensure when leasing out the property the lease or licence is documented, and the ‘permitted use’ properly explains the activities on the property.
  • Seek advice before diversifying, from an accountant, financial planner, and lawyer (where applicable).

About the Author

Winona Page is a senior associate solicitor at Commins Hendriks, who has recently relocated to the Riverina and would be happy to provide tailored advice regarding your superannuation and estate plan.


Please contact Commins Hendriks to make an appointment for advice specific to your situation.


The advice provided above is general in nature and is not formal legal advice.

What to Expect When Meeting a Medical Negligence Lawyer for the First Time

Meeting a medical negligence lawyer is probably not something you ever had on your bucket list. In fact, many people try their hardest to never engage with a lawyer at all! But if you have experienced medical negligence you are going to need to talk to a lawyer and the good news is – we are here to make it as easy and stress free for you as possible. Here’s what you need to know about meeting a medical negligence lawyer for the first time.


We see our clients either in person or online and the consultation takes around an hour. It’s confidential, obligation-free and designed to give you help to understand the process and options available to you.


Before your appointment – what can help

You don’t need to have everything perfectly organised, many clients come to us with very little information apart from their story, and that’s completely okay.


However, if you do have access to your hospital or GP discharge summaries, lists of referrals, medication lists, appointment dates and timelines, receipts for expenses or any photos that can be very helpful. If you don’t have any of these documents, don’t worry, we can obtain records on your behalf. The most important thing is simply attending the appointment so we can start supporting you.


Discussion of Your Matter

Once you meet up with one of our lawyers, we’ll talk with you about the key details including what happened and when, where you received treatment, the medical care you have had and how the injury has affected your health, work and daily life. This could be your first time talking to a lawyer but its all we do, and we will gently guide you through the information we need.


Advice and Options

Once we understand your situation, we’ll explain whether you may have a claim and the strength of your case. We will talk to you about what compensation might be available and how long the process might take. We don’t use legal jargon and you’re welcome to ask as many questions as you need. Our role is to give you confidence and direction, so you can make informed decisions.


How fees work

One of the biggest questions on your mind is probably (and should be!) how legal fees work. At Commins Hendriks we operate on a no-win, no-fee basis and we cover all upfront costs. There is nothing to pay unless your medical negligence claim succeeds (not all firms do this!). We will also explain our costs agreement clearly before any work begins.  


What happens next

If you choose to proceed, we’ll outline the next steps, usually starting with obtaining your medical records and speaking with independent medical experts. You remain in control throughout (you are the client after all!) and we keep you updated at every stage.


If you or someone you care about has been injured due to medical treatment, early legal advice can make a real difference. Reach out to our experienced personal injury team today for a free, confidential, no obligation discussion today.


Case Review: Successful Stillbirth Negligence Claim Against Calvary Hospital in the ACT

Commins Hendriks acted on behalf of the Plaintiffs in KS and XT v Calvary Health Care (2018). In this case, a husband (XT) and his wife (KS) successfully argued that a Canberra hospital had breached their professional duty of care following the stillbirth of their child. 


What happened?

KS was admitted to hospital one week past her due date for a planned induction of labour. She and her husband, XT, arrived at around 4:30pm, and foetal heart monitoring commenced shortly afterwards.


Within half an hour, the baby’s heart rate showed concerning changes. Despite this, the abnormalities were not properly evaluated, and more than an hour passed before the obstetrician was contacted. When notified at approximately 6pm, the obstetrician ordered an emergency caesarean. KS was not taken to theatre for a further 30 minutes. By 7pm, their baby was delivered stillborn.


The Court’s findings

The Court accepted our submissions and found that both the hospital and the obstetrician breached their professional duty of care. As a result, KS and XT were recognised as having suffered psychological injury due to the loss of their child.


The Court awarded substantial compensation to both parents, reflecting the severity and ongoing impact of their trauma. KS received $669,518 and XT was awarded $220,373, in addition to an allowance for legal costs.


Why this outcome matters

The case is a key victory in the ACT for those who have experienced birth trauma and families affected by preventable stillbirth and delayed treatment in the ACT. It confirms that healthcare providers must respond promptly to signs of foetal distress and that failures in monitoring and escalation will not be excused.


The case also demonstrates that Commins Hendriks is a leading firm in the ACT, NSW and VIC for birth trauma matters. We are passionate about women’s health and committed to fighting for justice for those who have suffered devastating loss at the hands of medical malpractice.  


How we support families

We understand seeking legal advice can feel like a daunting process, particularly when also navigating grief and complex medical issues. But we are dedicated to helping clients through this process and providing support every step of the way, to help them get answers and justice for what they have gone through. 


We work on a no-win, no-fee basis and cover all upfront costs, ensuring clients can pursue answers without financial pressure.


If you have experienced birth trauma it’s important to know you are not alone. Our experienced and passionate team of personal injury lawyers are here to advocate for you and provide expert legal advice, helping you to obtain compensation and assist with your recovery. Speak to our team today for a free confidential chat.


Is Your Workplace Compliant with the Positive Duty on Preventing Sexual Harassment and Discrimination?

While it’s been in force for over a year, now is a good time for all businesses to check how they are meeting their obligations under the Sex Discrimination Act 1984 (Cth) to ensure ongoing compliance with the “positive duty.”


The positive duty was introduced into federal law in December 2022 through the Respect at Work legislation. It requires organisations and businesses to take proactive and meaningful steps to prevent unlawful conduct such as sexual harassment, sex-based harassment, sex discrimination, and hostile work environments from occurring—not just respond after the fact.


This reform stems from a key recommendation of the Respect@Work Report, led by former Sex Discrimination Commissioner Kate Jenkins, which called for a shift from a reactive complaints-based system to one that places responsibility on employers to create safe, inclusive and respectful workplaces.


As of 12 December 2023, the Australian Human Rights Commission (AHRC) has been given stronger powers to investigate and enforce compliance with this duty. These powers apply to all businesses and organisations in Australia—regardless of size—including sole traders, small businesses, large companies, and government bodies.


Importantly, the positive duty does not only apply to employees. It also extends to contractors, labour hire workers, volunteers, apprentices, outworkers, students on work experience, and more.


Employers and persons conducting a business or undertaking (PCBUs) must take reasonable and proportionate measures to eliminate unlawful conduct as far as possible. What is “reasonable” will depend on factors such as the size of the business, its resources, and the nature of the work being performed.


It’s important to note that the positive duty doesn’t replace the existing laws that make sexual harassment and sex discrimination unlawful—it builds on them. Employers remain vicariously liable for unlawful conduct that occurs in the workplace, but now the expectation is that steps are taken to prevent it from happening in the first place.


If you run a business or are responsible for managing staff, it is important to regularly assess whether your workplace culture, systems, training, and complaint-handling procedures align with these new expectations.  Being proactive is not just a legal requirement—it’s a vital part of creating a safe and respectful workplace for everyone and reviewing current practices to ensure ongoing compliance is important.


Reach out to the Employment Law team at Commins Hendriks if you require any guidance on any employment related matter. 



Please contact Commins Hendriks to make an appointment for advice specific to your situation.


The advice provided above is general in nature and is not formal legal advice.