Baby R's Home Birth Coronial Finding: Can You Sue a Private Midwife in Victoria?

By Joel Curran, Paralegal · 8 min · Medical negligence · Published 26 Sep 2026

Yes. A privately practising midwife owes a duty of care, and a family in Victoria can bring a negligence claim against one after a home birth death or injury, as they could against a doctor or a hospital. The coronial finding into the death of Baby R, delivered on 29 May 2026, found that his death from perinatal hypoxia would have been avoided had he been transferred to hospital at or around 3:30pm, and that the midwifery care during labour was deficient. That finding is strong evidence, but it does not decide civil liability. A claim still has to prove that the care fell below the standard expected of a midwife and that this caused the loss. Two things are different for home births. Until 31 December 2026, a privately practising midwife may attend a home birth without professional indemnity insurance for the birth itself, if the mother gave written consent. And the time limits for a claim keep running while a coroner investigates.

Baby R was six days old when he died. The coroner described him as much-loved, and his family's loss sits behind every paragraph of the finding. This guide is written with that in mind.

	Coronial finding	Regulator (Ahpra and the Nursing and Midwifery Board)	Civil negligence claim
What it decides	Identity, cause of death and the circumstances, with comments and recommendations	Whether a practitioner's health, conduct or performance needs action on their registration	Whether care fell below the legal standard and caused the loss claimed
Blame and liability	Not its role to determine civil liability, and it must not say anyone is guilty of an offence	Can restrict or place conditions on practice	Decided on the balance of probabilities
Can it pay compensation?	No	No	Yes, where the claim succeeds
Time limit	An appeal against a finding after an inquest must be made within 6 months	Separate from a claim, and it does not stop a claim's time limit	Generally 3 years from discoverability, with a 12-year long-stop

These three processes run separately. One does not wait for another, and the outcome of one does not decide the others. Sources: Coroners Act 2008 (Vic) ss 67, 69 and 83; Health Practitioner Regulation National Law s 129; Limitation of Actions Act 1958 (Vic) s 27D.

What did the coroner find about Baby R's death?

Coroner Dimitra Dubrow held an inquest over six hearing days between July and September 2025 and delivered the finding into the death of Baby R (COR 2022 004878) on 29 May 2026. Baby R is a pseudonym. The coroner made a pseudonym and non-publication order under section 55(2)(e) of the Coroners Act, so his family is referred to only by their relationship to him. This guide follows that order, and refers to the two midwives by their roles.

Baby R's mother had planned a home birth with two privately practising midwives in attendance. She had had an emergency caesarean section in her first labour. On 19 August 2022, after many hours of labour at home, she was transferred to Bendigo Health, where Baby R was born by emergency caesarean at 39 weeks and 6 days. He was born in poor condition, was transferred to the Royal Women's Hospital, and died there on 25 August 2022. The cause of death was perinatal hypoxia.

The coroner's main findings were these:

The pregnancy was not suitable for home birth, because of the previous caesarean section and because it was not a low-risk pregnancy.
Baby R's mother was not sufficiently advised about her obstetric risks to make a fully informed decision about a home birth.
The primary midwife did not act in accordance with the Australian College of Midwives' consultation and referral guidelines. In particular, she did not recommend a consultation with a specialist obstetrician.
Meconium in the waters was noticed at 3:10pm. The coroner found that this should have prompted a full assessment, a consultation with the hospital and a recommendation to transfer.
The care both midwives provided during labour was deficient and did not accord with reasonable midwifery care, including in monitoring the baby's heart rate.
Had the birth been in hospital, or had transfer occurred at or around 3:30pm, Baby R's death would have been avoided.

The finding also examined the care given by a general practitioner and by Bendigo Health, and records that Baby R's mother twice declined an appointment with an obstetrician. It recommended that the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, Safer Care Victoria and the Australian College of Midwives make maternity guidance more consistent, and that the College of Midwives clarify when a midwife must consult a doctor.

What happened to the midwives' registration?

The finding records that both midwives were registered midwives at the time of the birth and are now registered nurses. If you need to know a practitioner's current status, the Ahpra register of practitioners shows registration and any conditions that are in force.

Can you sue a privately practising midwife after a home birth?

Yes. A midwife in private practice is a health professional who owes a duty of care to the woman and baby in her care, and the ordinary law of negligence applies. Under section 58 of the Wrongs Act 1958 (Vic), the standard is what could reasonably be expected of a person with that skill, judged at the date of the care and not with hindsight. Under section 59, a professional is not negligent if they acted in a way widely accepted in Australia by a significant number of respected practitioners as competent practice, unless a court finds that opinion unreasonable.

In a home birth, that means the questions are usually about advice and escalation. Was the pregnancy assessed against the guidelines that applied? Was the mother told what the risks were, and offered a consultation with an obstetrician where the guidelines called for one? Were warning signs in labour recognised, and was transfer recommended in time? Where more than one practitioner or service was involved, the care each one gave is assessed on its own.

Causation is a separate step. Section 51 of the Wrongs Act asks whether the negligence was a necessary condition of the harm. In Baby R's case the coroner accepted expert evidence on that question, but a civil court decides it again on the evidence before it. A parent's own decisions, and the advice she was given before making them, would also be examined. The general tests are set out in How to establish a medical negligence claim.

Do private midwives have insurance for home births?

Not always, and this is the part of a home birth claim that is most different from a hospital claim. Section 129 of the Health Practitioner Regulation National Law says a registered health practitioner must not practise without appropriate professional indemnity insurance arrangements in force. Section 284 makes a transitional exception. A midwife practising private midwifery does not breach section 129 merely by attending a home birth without insurance, provided the woman has given informed consent and the midwife complies with the Nursing and Midwifery Board's safety and quality guidelines for privately practising midwives.

Two details matter. First, informed consent under section 284 means written consent, given after the midwife provides a written statement that insurance will not be in force for her private midwifery. If you had a home birth with a private midwife, that statement may be among your papers. Second, the exception covers practising midwifery in the course of attending the home birth. It does not cover the rest of a private midwife's practice.

The exception is ending. As at 26 September 2026, the Nursing and Midwifery Board says the exemption for privately practising midwives providing intrapartum care at a home birth will end on 31 December 2026. From 1 January 2027, all privately practising midwives must hold insurance for all of their practice, including care during a home birth.

Why this matters to a family: insurance is usually what pays compensation when a claim against a health practitioner succeeds. Where a birth happened under the exemption, whether any compensation can actually be recovered, and from whom, is a question to have looked at early. We do not know, and the finding does not say, what insurance was in place for the care given to Baby R's mother.

Is a coronial finding a finding of negligence?

No. Under section 67 of the Coroners Act 2008 (Vic), a coroner must find, if possible, the identity of the person who died, the cause of death and the circumstances. Section 67(3) lets a coroner comment on any matter connected with the death. Section 69 says a finding or comment must not include a statement that a person is, or may be, guilty of an offence. The Act does not use the words civil liability, but the Baby R finding states the boundary plainly at paragraph 6: it is not the coroner's role to determine criminal or civil liability, or disciplinary matters.

What a finding does give a family is a detailed, tested account of what happened. The Baby R finding runs to 112 pages. It draws on the medical records, the autopsy and neuropathology reports, statements, independent obstetric and midwifery expert opinions and the evidence of eight witnesses. That material can shape a claim, even though the claim must be proved again under the civil tests. The Baby Malakai coronial finding guide looks at the same distinction in a hospital birth.

Who can claim after a baby dies following a home birth?

The claim usually belongs to the parents. The mother was the patient, so the midwife's duty was owed directly to her, and she may claim for her own physical or psychiatric injury. A father or partner who was not the patient may claim for a recognised psychiatric illness, and section 73 of the Wrongs Act requires either that they witnessed the baby being injured or put in danger at the scene, or that they were in a close relationship with the baby. A parent is in a close relationship with their child.

Victoria makes one rule easier for parents. Damages for pain and suffering normally need a significant injury, which for a psychiatric injury means an assessed level of impairment. Section 28LF(1)(ca) of the Wrongs Act treats psychological or psychiatric injury from the loss of a child due to an injury to the mother or the foetus or the child before, during or immediately after the birth as significant, without that assessment. Grief alone is not a psychiatric injury, and the illness has to be diagnosed.

A dependants' claim under Part III of the Wrongs Act is brought for people who depended on the person who died, so it is rarely available after the death of a newborn. Stillbirth or neonatal death: can parents claim in Victoria? explains the parents' claims in detail, and compensation when medical negligence causes a death covers the wider rules. Where a baby survives with a brain injury, the claim is the child's own, and Birth injury claims is the guide that applies.

What are the time limits after a home birth death or injury?

Under section 27D of the Limitation of Actions Act 1958 (Vic), a personal injury claim must generally be brought within 3 years of the date it becomes discoverable, or within 12 years of the care in question, whichever ends first. Different rules apply to children and to dependants' claims. A coronial investigation does not stop these periods running. Baby R died in August 2022, and the finding was delivered almost four years later. Have the time limit checked early, and see Time limits for medical negligence claims in Victoria.

An appeal against a coronial finding is a separate process. Under section 83 of the Coroners Act, an interested party may appeal to the Supreme Court against findings made after an inquest, within 6 months of the determination unless the Court extends the time.

Can you complain to the regulator as well as make a claim?

Yes, and the two do different things. You can raise a concern with Ahpra about a midwife's practice, and the Nursing and Midwifery Board can take action on registration. Section 129(4) of the National Law says practising without appropriate insurance, outside an exemption, may be behaviour for which health, conduct or performance action is taken. The Health Complaints Commissioner handles complaints about health services in Victoria. Neither body awards compensation for negligence. Some families do both. Others want only an explanation. Either is a reasonable choice.

What should you keep if you are worried about a home birth?

You do not have to decide anything straight away. If you think something went wrong, it helps to keep what you already have. That usually means the birth plan and any consent forms, including any written statement about insurance, messages with the midwives, the hospital's records of the transfer and birth, and any coronial correspondence. How to get your medical records in Victoria explains how to ask for the rest.

This guide explains what the law asks. It is not medical advice, and it does not tell you what to do about a current pregnancy. If you have concerns about a pregnancy now, contact your maternity service.

If you want us to review what happened, you can start a free assessment. There is no obligation and no guaranteed outcome.

Common questions

Can you sue a private midwife after a home birth in Victoria?

Yes. A privately practising midwife owes a duty of care, and the Wrongs Act 1958 (Vic) measures her care against what could reasonably be expected of a person with that skill at the time. A claim has to prove both that the care fell below that standard and that it caused the injury or death. Whether compensation can be recovered may also depend on the midwife's insurance position.

Do private midwives have insurance for home births?

Not necessarily before 2027. Section 284 of the Health Practitioner Regulation National Law lets a privately practising midwife attend a home birth without professional indemnity insurance if the mother gave written informed consent. The Nursing and Midwifery Board says that exemption ends on 31 December 2026, and from 1 January 2027 all privately practising midwives must hold insurance for all of their practice.

Does a coronial finding prove a midwife was negligent?

No. A coroner finds the identity of the person who died, the cause of death and the circumstances, and it is not the coroner's role to determine civil liability. A finding that care was deficient, or that a death was preventable, is important evidence, but a civil claim still has to prove the legal standard of care and causation on its own terms.

Does the coronial investigation stop the time limit running?

No. Limitation periods under the Limitation of Actions Act 1958 (Vic) run whether or not a coroner is investigating, and an inquest can take years. In the Baby R case, the finding was delivered almost four years after his death. If you are considering a claim, have the time limit checked early rather than waiting for the finding.