Hartfield v Calvary Healthcare ACT Ltd [2026] ACTSC 29 | Case summary | Zoe

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Hartfield v Calvary Healthcare ACT Ltd [2026] ACTSC 29 | Case summary | Zoe

On 31 July 2019, the plaintiff attended Calvary Public Hospital (the Hospital) with left sided abdominal pain and per vaginum bleeding. She had previously suffered an ectopic pregnancy in 2015, and was concerned that she may have been suffering from a further ectopic pregnancy. The plaintiff was admitted to the Hospital and assessed overnight, before being discharged on 1 August 2019 (the first admission). She returned to the hospital early on the morning of 2 August 2019 in severe pain (the second admission). Further testing at that time revealed that the plaintiff was suffering from a leaking or ruptured left ectopic pregnancy. The plaintiff was immediately admitted into emergency surgery for removal of her left fallopian tube.
The plaintiff advanced two arguments in support of her claim for damages. The plaintiff’s primary case was that the Hospital should have performed a laparoscopy (keyhole surgery of the abdomen and pelvis) and a salpingostomy (a procedure for the removal of an ectopic pregnancy from a fallopian tube which does not involve removal of the tube itself) on her first admission. The plaintiff submitted that if a salpingostomy had been performed at that time, she had a reasonable chance of retaining her natural fertility.
In the alternative, the plaintiff contended that the Hospital breached its duty of care to her by discharging her on 1 August 2019, in circumstances where an ectopic pregnancy had not been ruled out, she was still in pain, and where she had not been provided with adequate advice concerning the seriousness of her condition. The plaintiff submitted that if she had not been discharged from the Hospital at that time, she would have been in hospital when her pain noticeably increased later that evening. She contended that if she had been in hospital when her pain increased, a successful salpingostomy may have been performed; or, in the alternative, that she would not have sustained psychological injury (namely, Post Traumatic Stress Disorder), which was caused by the distress and fear which she suffered in the lead up to the emergency surgery that was performed on 2 August 2019.
In a judgment delivered on 31 October 2025, I found that the plaintiff had established her alternative case, but not her primary case: Hartfield v Calvary Healthcare Act Ltd (No 4) [2025] ACTSC 488. I delivered a verdict for the plaintiff in the sum of $118,306.00. I also made provision for the parties to be heard on costs.
The parties have filed submissions seeking different costs orders. The plaintiff seeks orders that: (i) The defendant be ordered to pay the plaintiff’s costs “reasonably incurred” under s 62 of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act); or (ii) In the alternative, that the defendant be ordered to pay the plaintiff’s costs at 100% of the Supreme Court scale under r 1725(3) of the Court Procedure Rules 2006 (ACT) (CPR) up to the date of adjournment on 15 September 2023; and (iii) That the defendant be ordered to pay the plaintiff’s costs on a solicitor/client basis from the date that the proceedings were adjourned on 15 September 2023.
The defendant submits that the costs orders sought by the plaintiff should be refused, and that instead, orders should be made for: (i) A proportionate costs order pursuant to r 1705 of the CPR, such that the plaintiff would only recover 25 percent of her total costs and disbursements as agreed or as assessed; (ii) In the alternative, pursuant to r 1725 of the CPR, the plaintiff’s costs and disbursements should be limited to 75 percent of her total costs as agreed or assessed.
Under a proportionate costs order, the defendant submitted that the plaintiff ought to recover only 25 percent of her total costs and disbursements as agreed or assessed.
For the reasons outlined below, the appropriate costs order is that the defendant pay 90 percent of the plaintiff’s costs on an ordinary basis, less the costs of, and incidental to, calling Dr Brims.

The procedural background to these proceedings is set out in my judgments in Hartfield v Calvary Healthcare ACT Ltd [2023] ACTSC 401 (Hartfield (No 1)) at [5] – [14] and Hartfield v Calvary Healthcare ACT Ltd (No 2) [2024] ACTSC 33 at [6] - [17].
The most important aspect of the procedural background for determining the question of costs concerns the circumstances in which the alternative case came to be argued.
As outlined in Hartfield (No 2) at [13], the plaintiff amended her Statement of Claim to more clearly articulate her alternative case on 20 December 2023, in accordance with leave that was granted by me on 19 December 2023. Following that amendment, further evidence was adduced on behalf of the defendant, and further submissions (both written and oral) were made on behalf of both parties.
In Hartfield (No 2) at [29], I observed that the plaintiff’s amendment was “arguably unnecessary”. I found that it was “always the plaintiff’s case that she should not have been discharged”, albeit that “the plaintiff could have made its alternative case clearer on the pleadings as originally filed”. In particular, I explained (at [30]): Most importantly, as outlined in Hartfield (No 1), any uncertainty on the part of the defendant as to the plaintiff’s alternative case could not have continued after 14 September 2023, when I raised my understanding of the plaintiff’s alternative case with the defendant’s counsel. At that time (and on the following day), the defendant’s counsel expressly acknowledged that she was not taken by surprise by the plaintiff’s alternative case. After the issue was raised with the parties by the Court on 14 September 2023, there was no reason for the plaintiff to seek leave to amend its pleadings to make her alternative case clearer until the defendant took a pleadings objection in the 20 November 2023 submissions. Although clearly on notice of the plaintiff’s alternative case, the defendant failed to raise any issue with the sufficiency of the pleadings for more than two months, until it filed its written submissions in reply on 20 November 2023. Further, the defendant actively opposed the plaintiff’s application to amend, causing further costs to be incurred by the plaintiff. In these circumstances, a considerable component of the extreme delay and further costs that have been occasioned by the amendment is attributable to the defendant.
I ordered that the costs of and incidental to the amendment of the pleadings were to be costs in the cause. Neither party appealed this decision. Although both parties made submissions in connection with the present application that traversed these findings in part, neither party sought that I revisit the costs order that I have made. For completeness, I record that I remain of the views expressed in Hartfield (No 1) and Hartfield (No 2).

The present proceedings are governed by Chapter 5 of the Wrongs Act. Chapter 5 requires a person bringing a claim for damages for personal injury and the respondent to such a claim to complete specified pre-trial procedures before commencing legal proceedings, including requirements for the parties to exchange certain documents and information and requirements and that the respondent to the claim take certain steps to investigate, assess and attempt to resolve the claim: Ruspandini v Summernats Pty Ltd (No 2) [2025] ACTSC 171 at [3] and Jaiswal v Jamieson [2022] ACTSC 278 at [18]–[35].
The duties of a respondent upon receipt of a complying Notice of Claim relevantly include the following (s 61 of the Wrongs Act): Respondent must attempt to resolve claim (1) A respondent must, within the period prescribed by regulation (or, if no period is prescribed, within 6 months after the day the respondent receives a complying notice of claim)— (a) take any reasonable steps necessary to find out about the accident claimed to have given rise to the personal injury to which the claim relates; and (b) give the claimant written notice stating— (i) whether liability is admitted or denied; and (ii) if contributory negligence is claimed—the degree of the contributory negligence expressed as a percentage; and (c) if the claimant made an offer of settlement in the notice of claim—tell the claimant whether the respondent accepts or rejects the offer; and (d) if the claimant did not make an offer of settlement in the notice of claim— invite the claimant to make a written offer of settlement; and (e) make a fair and reasonable estimate of the damages to which the claimant would be entitled in a proceeding against the respondent; and (f) either— (i) make a written offer, or counteroffer, of settlement to the claimant setting out in detail the basis on which the offer is made; or (ii) settle the claim by accepting an offer made by the claimant. (2) If a notice of claim is not a complying notice of claim, a respondent is taken to have been given a complying notice of claim when— (a) the respondent gives the claimant written notice that the respondent waives compliance with the requirement that has not been complied with or is satisfied the claimant has taken reasonable action to remedy the noncompliance; or (b) the court makes a declaration that the claimant has remedied the noncompliance, or authorises the claimant to proceed further with the claim despite the noncompliance. (3) An offer, or counteroffer, of settlement must be accompanied by a copy of medical reports, assessments of cognitive, functional or vocational capacity and all other material, including documents relevant to assessing economic loss, in the offerer’s possession or control that may help the person to whom the offer is made make a proper assessment of the offer. (4) A respondent or claimant to whom a written offer, or counteroffer, of settlement is made must, unless a response to the offer is to be made under subsection (1) (c), respond in writing to the offer within the period prescribed by regulation after the day the respondent or claimant receives it (or, if no period is prescribed, within 3 months), indicating acceptance or rejection of the offer. (5) An admission of liability by a respondent under this section— (a) is not binding on the respondent in relation to any other claim; and (b) is not binding on the respondent at all if it later appears the admission was induced by fraud.
The consequences of non-compliance with these provisions are set out in s 62 of the Wrongs Act, which provides as follows: Consequences of noncompliance with pt 5.2 (1) If a claimant does not comply with the requirements of this part, a court in which the claimant begins a proceeding based on the claim— (a) may, on a respondent’s application in the proceeding, award in the respondent’s favour costs (including legal and investigation costs) reasonably incurred by the respondent because of the claimant’s noncompliance; and (b) may only award interest in the claimant’s favour for a period for which the claimant was in noncompliance if the court is satisfied there is a reasonable excuse for the noncompliance. (2) If a respondent does not comply with the requirements of this part, a court in which the respondent defends a proceeding based on the claim may, on a claimant’s application in the proceeding, award in the claimant’s favour costs (including legal and investigation costs) reasonably incurred by the claimant because of the respondent’s noncompliance.
The plaintiff submits that an order should be made against the defendant under s 62(2) because: (i) The defendant failed to take reasonable steps “to find out” what gave rise to the plaintiff’s injuries, or chose to ignore those findings, in contravention of s 61 of the Wrongs Act; and (ii) The defendant denied liability and failed to “attempt to resolve the plaintiff’s claim”, in contravention of s 61 of the Wrongs Act.
In response, the defendant contended that: (i) The plaintiff had herself failed to comply with Part 5.2 because the plaintiff’s Notice of Claim did not contain details of the particular negligence upon which she ultimately succeeded; and (ii) The plaintiff did not specify the basis upon which the defendant contravened s 61, other than a general allegation that the defendant failed to “find out” what gave rise to the plaintiff’s injuries, and that the defendant failed to “attempt to resolve the plaintiff’s claim”.

In support of its submissions, the defendant read an affidavit which annexed the Notice of Claim and other correspondence between the parties prior to the filing of the Statement of Claim. The plaintiff was granted leave to rely on a further affidavit which contained additional correspondence between the parties prior to the commencement of the present proceedings. The correspondence between the parties in the period prior to the commencement of the present proceedings included the following communications.
In the Notice of Claim, which was served on the defendant on 7 May 2020, the plaintiff makes the following allegations: [The Hospital] Failed to diagnose and treat ectopic pregnancy, resulting in rupture and loss of fallopian tube. … The hospital failed to advise me of my treatment options for an ectopic pregnancy. Had they given me methotrexate, my fallopian tube would not have ruptured and I would not have lost the tube.
The defendant sought further particulars by way of letter dated 25 June 2020. In answer to a request that the plaintiff “[d]escribe precisely the circumstances, including any acts or omissions on the part of the respondent, giving rise to the allegation that it is liable to the claimant”, the plaintiff’s legal representative responded: This is a question for expert evidence and we rely on the report of Associate Professor Louis Izzo dated 1 October 2020 which was served by way of letter dated 8 October 2020. In summary, on 31 July 2019, our client presented to Calvary Public Hospital Bruce with an ectopic pregnancy that was not diagnosed and/or properly treated within a reasonable timeframe. Our client alleges that had she received diagnosis and treatment within a reasonable timeframe (see the report of Associate Professor Izzo dated 1 October 2020) she would not have suffered rupture and subsequent removal of her only fallopian tube.
In answer to a request for details of “any other claim including the amount claimed and the basis and evidence supporting such a claim”, which was contained in the letter of 25 June 2020, the plaintiff’s legal representative responded: Our client does not presently make any other claim. We reserve her right to do so.
The plaintiff served an expert report of Dr Stephen Allnutt on 22 February 2021, which diagnosed the plaintiff as suffering from a “constellation of symptoms consistent with a persistent depressive disorder, with post-traumatic stress symptoms”. The report further stated that the “index injury” was a “significant event” and that the plaintiff’s current mental state was “substantially contributed to by the index injury”.
In the period from April 2021 to August 2021, the plaintiff served various documents including invoices for expenses incurred, and reports relating to the plaintiff’s claim for IVF.
By way of letter dated 25 November 2021, the plaintiff offered to settle the matter for $252,980 plus costs as agreed or assessed. Following correspondence indicating that there had been Covid-related delays, the defendant responded on 22 February 2022, declining to accept the offer. The defendant advised that, following its investigations, the defendant considered that the plaintiff had been “provided with management, treatment and care that was within (and even above) the standard of care that could be expected of a reasonably competent hospital during both her admission on 31 July 2019 and her admission on 2 August 2019”. The defendant accordingly declined to make a counter offer. On 22 February 2022, the defendant also served a report of Dr Lamaro, and formally advised that it denied liability in accordance with s 61 of the Wrongs Act. Determination
I accept the defendant’s contention that compliance with s 61 of the Wrongs Act can only be judged by reference to the particular Notice of Claim that has been served by a plaintiff.
As can be seen from the above extract, the Notice of Claim issued by the plaintiff in the present case was directed at the failure of the Hospital to administer methotrexate, and the resulting loss of the plaintiff’s fallopian tube. The Notice of Claim made no reference to the psychiatric harm that had been sustained by the plaintiff, nor the decision to discharge her. Although a psychiatric report was served on the defendant, there was no amendment, and no broadening of the plaintiff’s particularisation of the negligence alleged. In this way, the Notice of Claim differed from the original Statement of Claim, which included a broader allegation that the defendant failed to “appropriately assess, diagnose and treat” the plaintiff, and that, as a result of its negligence, the plaintiff suffered both physical and psychological injuries: Hartfield (No 1) at [5].
Section 61(1)(a) of the Wrongs Act requires that a respondent to a claim “take any reasonable steps necessary to find out about the accident claimed to have given rise to the personal injury to which the claim relates”. This duty does not require a respondent to engage in a wide-ranging cross-examination of its witnesses to determine other possible causes of action.
The evidence before me indicates that the defendant carefully considered the allegations in the Notice of Claim, and obtained its own expert report responding to the allegations contained therein. I do not accept that the defendant breached s 61(1)(a) of the Wrongs Act.
The remainder of the plaintiff’s submissions concerning the alleged breaches of Part 5.2 of the Wrongs Act were predicated on the defendant knowing (either actually or constructively) that Dr Menakaya was not aware that the plaintiff had complained of 6 out of 10 pain shortly before her discharge. As I have not accepted that the defendant was under any duty to explore bases of liability for damages that had not been particularised in the Notice of Claim, I also reject these submissions.
The plaintiff has not established that there has been any breach of Part 5.2 of the Wrongs Act. It follows that there is no basis to make an order under s 62 of the Wrongs Act.

Rule 1705 of the CPR provides as follows: Costs—for issue or part of proceeding (1) The court may make an order for costs in relation to a particular issue in, or a particular part of, a proceeding. Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule. (2) For subrule (1), the court may declare what percentage of the costs of the proceeding is attributable to the issue or part of the proceeding to which the order relates.
The principles to be applied when considering questions of apportionment were recently set out by McWilliam J in Walker v Walker (No 3) [2025] ACTSC 91 at [9]–[16] (citations omitted) as follows: The starting point is always that costs are in the discretion of the Court: see r 1721(1) of the Court Procedures Rules 2006 (ACT). Rule 1705(1) confirms that the Court has power to make an order for costs in relation to a particular issue in a proceeding. The principles guiding the exercise of the Court’s discretionary power to award costs in a private law context and where there were multiple issues involved have been recently set out in Wu v Wu (No 3) at [8]. The discretion is wide, although must be exercised in accordance with established principle and statutory context. The purpose behind an order for costs is compensatory not punitive. A substantially successful party is entitled to recover its costs from the opposing party, because it is just and reasonable that the party who has caused the other party to incur costs should reimburse that party for the liability incurred. That principle has been described as the “ordinary rule” that “costs follow the event”. The relevant ‘event’ is primarily to be determined “by reference to the outcome of the litigation and whether or not the plaintiff has obtained judgment in his favour”. That is so, “even if the defendant has defeated some claims and has succeeded on others, or has succeeded on some issues”. In Waters v P C Henderson (Aust) Pty Ltd the following guiding principle was accepted at 330-331: Where there are multiple issues in proceedings, the Court generally does not differentiate between those on which the party succeeded or failed ... unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed. … Unless a particular issue or group of issues is clearly dominant or separable, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed … “where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory”. As stated in Wu (No 3) at [8], fairness is the touchstone, taking into account the particular facts and circumstances of the proceeding. The question is what is “the appropriate order in the interests of justice”.
The defendant contended that the plaintiff’s primary claim for damages for the loss of her remaining fallopian tube was entirely severable from her alternative claim for psychiatric injury arising from the hospital’s decision to discharge her. The defendant submitted that the costs of the alternative claim should be severed from the costs of the primary claim.
In particular, the defendant submitted that the evidence of Nurse Dansby and Dr Brims; the bulk of the evidence of Dr Bodulkar, Dr Menakaya, Associate Professor Izzo, Dr Lamaro, and Dr Hyett; and the evidence of Dr Allnutt up to his oral evidence on the secondary case “were necessary for the primary case, but not necessary for the secondary case”. The defendant submitted that costs could be apportioned either on the basis that “the case conducted up to the point of amendment” was bound to fail, or on the basis that the claim for physical injuries (which did not succeed) could be severed from the claim for psychiatric injuries (which did succeed). The defendant suggested that the Court should disallow 70 percent of the plaintiff’s costs.
I do not accept the defendant’s contention that the evidence of Nurse Dansby, or the bulk of the evidence of Dr Bodulkar, Dr Menakaya, Associate Professor Izzo, Dr Lamaro and Dr Hyett were unnecessary for the alternative case. The plaintiff’s alternative case was that she should not have been discharged on the first admission, in view of her history and symptoms. The whole of the evidence of Nurse Dansby, Dr Bodulkar and Dr Menakaya was necessary for factual findings to be made as to the plaintiff’s reported history and symptoms. Further, the whole of the evidence of the experts (Associate Professor Izzo, Dr Lamaro and Dr Hyett) was required to make findings as to the appropriateness of the decision to discharge. The only evidence that was necessary for the plaintiff’s primary case, but unnecessary for her alternative case, was the fertility evidence of Dr Brims.
There was cost, and delay, that resulted from the amendment of the pleadings. However, as explained in Hartfield (No 2), that cost and delay resulted from the conduct of both parties. The plaintiff could have made her alternative case clearer in the Statement of Claim. However, the defendant failed to raise any issue with the sufficiency of the pleadings for more than two months, until it filed its written submissions in reply on 20 November 2023, despite the plaintiff’s alternative claim having been made abundantly clear from 14 September 2023 at the latest.
The plaintiff should not be entitled to recover the costs of, and incidental to, the calling of evidence from Dr Brims. No further apportionment is appropriate.

Rule 1725 of the CPR provides as follows: Solicitors’ costs and determined fees—Supreme Court judgment within Magistrates Court jurisdiction (1) This rule applies to a proceeding in the Supreme Court if— (a) the Magistrates court— (i) would have had jurisdiction and power to hear and decide the proceeding; or (ii) would, apart from the amount claimed, have had jurisdiction and power to hear and decide the proceeding; and (b) the plaintiff is entitled to the costs of the proceeding; and (c) judgment (including judgment by consent) is entered for the plaintiff in the proceeding for an amount (excluding costs) of less than $175 000. (2) The plaintiff is entitled to the following determined fee and costs only— (a) the amount of any Magistrates Court determined fee that the plaintiff would have been entitled to recover had the proceeding been started in the Magistrates Court; (b) if the plaintiff is awarded an amount (excluding costs) of less than $50 000—50% of the disbursements that the plaintiff would have been entitled to recover in the Supreme Court had the judgment been more than $250 000; (c) if the plaintiff is awarded an amount (excluding costs) of $50 000 or more, but less than $100 000—50% of the costs and disbursements that the plaintiff would have been entitled to recover in the Supreme Court had the judgment been more than $250 000; (d) if the plaintiff is awarded an amount (excluding costs) of $100 000 or more, but less than $175 000—75% of the costs and disbursements that the plaintiff would have been entitled to recover in the Supreme Court had the judgment been more than $250 000. (3) Despite subrule (2), the court may order that the plaintiff is entitled to a different amount for the costs and disbursements (including the amount of any determined fee). Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this subrule. (4) In this rule: determined fee means the relevant determined fee under the Court Procedures Act 2004, part 3 (Court and tribunal fees) in relation to a proceeding in the Magistrates Court or the Supreme Court (and includes a fee determined under any other territory law that applied to a proceeding in that court before the commencement of that part).
In the present case, r 1725(2)(d) applies, because the plaintiff was awarded $118,306.00, which is over $100,000, but less than $175,000. The plaintiff sought an order under r 1725(3) for a “different amount” for costs and disbursements, in particular permitting recovering of 100 percent of her costs and disbursements up to the date of adjournment on 15 September 2023 (on an ordinary basis, in the event that her claim for indemnity costs was not successful). In contrast, the defendant submitted that the rule should apply so as to permit the plaintiff to recover only 25 percent of her costs and disbursements.
The principles to be applied when considering an application for a “different costs order” under r 1725(3) were helpfully set out by McWilliam J in Glover v Fuller (No 3) [2023] ACTSC 101 at [5]–[8] (citations omitted): Costs are in the discretion of the Court: r 1721(1) of the [CPR]. The discretion is a very wide one, though it must be exercised judicially, in accordance with established principle and the statutory context. The fundamental purpose of the discretion on costs is to compensate the successful party, not to punish the unsuccessful party. A substantially successful party is entitled to recover its costs from the opposing party because of the compensatory nature or the order; that is, it is just and reasonable that the party who has caused the other party to incur costs should reimburse that party for the liability incurred. The question is not what is the appropriate starting point, but what should be regarded as a fair and just outcome in ordering costs… ultimately, the Court is required to determine the appropriate order in the interests of justice. Adding to those general propositions, r 1725 is designed to provide a costs motivation for parties to commence proceedings in the Magistrates Court where that is appropriate: McLennan v Meyer Vandenberg (No 2). In that decision, the Court of Appeal went on to say (in relation to r 1725) at [24]: …The rule does not itself require special circumstances. It provides an unconstrained discretion to make a different order. That requires the court to be satisfied that a different order is appropriate. Obviously that discretion has to be exercised in the context of the rule itself, which is clearly designed to encourage parties to commence claims in the appropriate court within the judicial hierarchy. It must also be exercised in light of the requirements of s 5A of the Court Procedures Act.
As McWilliam J observed in Glover (No 3) at [13], some of the factors which are relevant to the exercise of the discretion include fairness, the complexity of the proceedings, the quantum of damages actually awarded, the conduct of the parties and proportionality.
In the present case, the quantum of damages awarded was approximately $118,000. Although the primary claim was not successful, it was not entirely lacking in merit. Associate Professor Izzo, a qualified and experienced obstetrician, did not waver in his opinion that the plaintiff should have been offered a salpingostomy. The quality of his evidence could only be assessed against the cross-examination of the other two experts. If the plaintiff had been successful in her primary claim, damages well in excess of the jurisdictional limit of the Magistrates Court would have followed. The alternative claim, upon which the plaintiff was successful, involved a similar degree of complexity (both factual and legal) to the primary claim.
Finally, both parties could have conducted the litigation with more efficiency. As explained in Hartfield (No 2) (see at [12] above), whilst the Statement of Claim could have more clearly articulated the alternative claim, the claims made within it were of sufficient breadth to encompass the alternative claim, the plaintiff’s reliance on the alternative claim was made clear at the first hearing, and counsel for the defendant expressly acknowledged that she was not taken by surprise by the plaintiff’s alternative case. The defendant should not have waited until the exchange of written submissions to object to the plaintiff’s reliance on the alternative claim.
Taking account of each of these matters, I consider that a different order is appropriate. It is in the interests of justice to allow the plaintiff to recover 90 percent of the recoverable costs on an ordinary basis.