Brain Injury Caused by a Hospital or Anaesthetic in Victoria: Can Your Family Claim?

Adult brain injuries from a lack of oxygen in hospital usually trace back to one of three things: an airway or anaesthetic problem, a patient not watched closely enough after surgery, or a stroke, sepsis or other deterioration that was not recognised and escalated in time. Each needs independent expert evidence about the care and about what it changed. If the person cannot manage the claim, a litigation guardian, or an administrator appointed by VCAT with power to sue, brings it, and any settlement needs the court's approval. The time limit is generally three years from discoverability, but it can be suspended while the person cannot manage their affairs. An NDIS plan does not stop a claim, though past NDIS funding may have to be repaid from it.

If someone you love went into hospital and came out unable to speak, walk or recognise you, you may be the one making every decision now. Asking whether it could have gone differently is not an accusation against the people who treated them. It is a fair question, and the law has a structured way of answering it.

Summarised from ANZCA's PG18 Guideline on monitoring during anaesthesia (current document July 2025), ANZCA's PS04(A) Position statement on the post-anaesthesia care unit (current document April 2020) and the Australian Commission on Safety and Quality in Health Care's Recognising and Responding to Acute Deterioration Standard, as published at 16 October 2026. This describes what the standards ask of clinicians and hospitals. It is not medical advice.

Is a brain injury after surgery or a cardiac arrest always negligence?

No, and it helps to be clear about that first.

A hypoxic brain injury is damage caused by too little oxygen reaching the brain. An anoxic injury is the same thing when the supply stops altogether, as it can during a cardiac arrest. Both can happen to a patient who received careful, competent treatment. Some patients are very unwell before anything is done. Some complications cannot be avoided by any amount of care.

The law reflects that. Section 55 of the Wrongs Act 1958 (Vic) says a person is not liable in negligence for the materialisation of an inherent risk, meaning a risk that cannot be avoided by reasonable care. Section 49 adds that the fact a risk could have been avoided by doing something differently does not, by itself, make anyone liable.

The claimable cases are the ones where there was a window to act and the care missed it. That is what the rest of this guide is about. If the injury happened to a baby around birth, a different set of standards applies, and HIE at birth covers it.

Related guide HIE at Birth: Was It Preventable, and Can You Claim? 11 min · 29 Sep 2026

What can go wrong with an anaesthetic or the airway?

An anaesthetic takes over a patient's breathing and protective reflexes. The professional standards are built around catching a problem with oxygen or ventilation within moments.

ANZCA's PG18 Guideline on monitoring during anaesthesia sets out the expectations an independent anaesthetist will usually be asked about:

• Someone whose only job is the anaesthetic. A medical practitioner whose sole responsibility is the anaesthesia care of that patient must be constantly present from induction until safe handover to recovery or intensive care staff.
• Oxygen measured continuously. A pulse oximeter should be in use for every patient having a general anaesthetic or sedation, with its tone and low-level alarm audible to the practitioner.
• Breathing measured continuously. A quantitative carbon dioxide monitor with a continuous waveform should be in use for every general anaesthetic, and immediately available for sedation.
• Alarms on. Visual and audible alarms should be enabled at the start of the anaesthetic and disabled only in exceptional circumstances.
• A record. Regular recordings should be documented in the anaesthesia record, by hand or electronically.

The questions in this category are usually about the airway and the monitors. Was a breathing tube in the right place, and was a misplaced one noticed? When the airway became difficult, was it secured in time? Was a falling oxygen level seen and acted on? Sedation outside the operating theatre, for example for a scope or a scan, is covered by the same guideline.

The standard is the one that applied on the day. Section 58 of the Wrongs Act measures a practitioner against what could reasonably be expected of someone with that skill, in the circumstances as at the date of the alleged negligence. The current edition of PG18 dates from July 2025, so earlier care is judged against the edition in force at the time.

What if no one was watching closely enough after surgery?

Many of these injuries happen after the operation has finished. Pain medicines, sedatives and the lingering effects of the anaesthetic can slow breathing in the hours that follow.

ANZCA's position statement on the post-anaesthesia care unit, known as PS04(A), says every patient should be observed one-to-one by an anaesthetist or trained recovery nurse until they have regained control of their airway, have stable observations within acceptable limits, and are awake and able to communicate purposefully. Patients with a breathing tube in place should be monitored with capnography, pulse oximetry and an ECG. It says observations should be recorded at clinically indicated intervals and include level of consciousness, oxygen saturation, respiratory rate, pulse and blood pressure, and that the anaesthetist's orders for the ward may increase how often a patient is monitored.

So the questions in a post-operative case are practical ones. Was your family member discharged from recovery before meeting the criteria? Were the ordered observations actually done on the ward? When the numbers changed, did anyone escalate? The observation chart usually answers them.

What if a stroke, sepsis or other deterioration was missed?

Some brain injuries in hospital come from a condition that was developing in front of the treating team, such as a stroke, an infection spreading to the blood or brain, or bleeding after surgery.

The National Safety and Quality Health Service Standards include a Recognising and Responding to Acute Deterioration Standard. The Australian Commission on Safety and Quality in Health Care says it aims to ensure that a person's acute deterioration is recognised promptly and appropriate action is taken. It says acute deterioration includes physiological changes, as well as acute changes in cognition and mental state. Confusion or drowsiness that was charted and not acted on can be important evidence.

These cases are often delayed-diagnosis claims at heart. Misdiagnosis and delayed diagnosis explains how they work, and meningitis missed in emergency covers one common example.

How is a hospital brain injury claim proved in Victoria?

Part X of the Wrongs Act 1958 (Vic) sets the test. There are two main questions, and both need independent expert evidence.

Was the care below accepted practice? Under section 59, a professional is not negligent if they acted in a way that was widely accepted in Australia by a significant number of respected practitioners in the field as competent professional practice. A court can reject that opinion only if it finds it unreasonable. In practice, that usually means an independent anaesthetist, intensive care specialist or nursing expert reads the records against the standards above.

Did it cause the injury? Section 51 requires that the negligence was a necessary condition of the harm, and section 52 puts the burden of proving causation on the injured person, on the balance of probabilities. That is often the harder question. Your family member's experts have to show that proper care would probably have avoided some or all of the injury. In Tabet v Gett [2010] HCA 12, the High Court held that losing a less than even chance of a better outcome is not damage the law compensates.

There is also a threshold for damages for pain and suffering. Under sections 28LE and 28LF, they are available only for a significant injury, which for a physical injury means whole-person impairment of more than 5 per cent, assessed by an approved medical practitioner. How to prove medical negligence explains each element in more detail.

Who brings the claim when the injured person cannot?

The claim belongs to the person who was injured. If they recover enough to manage their own affairs, they can bring it themselves. Often, after a serious brain injury, they cannot, and the law has two routes for someone else to act for them.

A litigation guardian. Rule 15.01 defines a person under disability to include someone who is incapable, by reason of injury, disease or illness, of managing their affairs in relation to the proceeding. Under rule 15.02, that person starts a proceeding through a litigation guardian, who must act through a solicitor and is not personally liable for costs unless the court orders otherwise. Rule 15.03 says the litigation guardian must not have an interest in the proceeding adverse to the injured person.

A VCAT guardian or administrator. Under section 30 of the Guardianship and Administration Act 2019 (Vic), VCAT can appoint a guardian for personal matters or an administrator for financial matters, if it is satisfied that the person lacks decision-making capacity because of their disability and needs one. VCAT can specify that a guardian (section 40) or an administrator (section 51) has power to bring legal proceedings in the person's name. The Act treats a legal matter about a person's financial affairs as a financial matter, so for a compensation claim the power is likely to sit with an administrator.

The court must approve any settlement. Rule 15.08 says no compromise of a claim by a person under disability in a proceeding is valid without the court's approval. That rule protects your family member, and it means a settlement reached at mediation is not final until a judge has looked at it.

You may also have a claim of your own. Part XI of the Wrongs Act allows a claim for a recognised psychiatric illness by someone in a close relationship with the injured person. Psychiatric injury claims explains the limits. If your family member died, compensation after a death covers what the family can claim.

How long does the family have to claim?

For an adult injured in hospital, the general rule in section 27D of the Limitation of Actions Act 1958 (Vic) usually applies. It is three years from the date the claim is discoverable, or twelve years from the act or omission, whichever ends first. Section 27F says a claim is discoverable when a person knows, or ought to know, that the injury occurred, that it was caused by someone's fault, and that it is serious enough to justify a claim.

The six-year rule in section 27E applies only to someone who was already under a disability on the date of the care, such as a child. A person who was well enough to manage their affairs before an operation is generally covered by section 27D instead.

Section 27J then deals with what happens when the injury itself takes away capacity:

• A person who is incapable of, or substantially impeded in, managing their affairs in relation to the claim, because of disease or an impairment, for a continuous period of 28 days or more, is under a legal incapacity.
• While a person is under a legal incapacity, the running of the limitation period is suspended.
• The suspension does not apply while the person has a VCAT guardian or administrator who is authorised by law to bring actions in their name.
• For a represented person who is not under a legal incapacity, what their guardian or administrator knows, or ought to know, counts as what the person knows.

That means a VCAT order with power to sue can start the clock running again, measured by the knowledge of the person appointed. Whether a suspension applies in a particular case can be contested, so it is safer to treat the three years as running from the injury than to rely on it. A court may extend a limitation period under section 27K where it is just and reasonable, but that is a weaker position than being in time. Time limits for medical negligence claims covers the general rules.

How does the NDIS fit with a compensation claim?

This is one of the first questions families ask, because NDIS funding is often what is keeping care in place. The National Disability Insurance Scheme Act 2013 (Cth) deals with it in Chapter 5, and the short version is that the NDIS expects a compensation claim to be made, and expects to be repaid from it.

• What counts as compensation. Section 11 defines compensation as a payment for personal injury, including a settlement and with or without an admission of liability, that is wholly or partly for the cost of supports for a participant, whether or not it says so.
• The NDIA can require you to claim. Under section 104, if a participant may be entitled to compensation and has taken no reasonable action to claim it, the NDIA's CEO can give written notice requiring reasonable action within at least 28 days. The CEO must first be satisfied that the claim has reasonable prospects of success. Section 105 sets out what happens if the notice is not followed.
• Past NDIS funding is repaid. Sections 106 and 107 apply when compensation is fixed by a judgment or settlement for an injury that caused the participant's impairment. An amount equal to the past NDIS amounts paid for supports for that impairment becomes payable to the NDIA, reduced for any contributory negligence and capped by the rules in those sections.
• The hospital's insurer can be told. Under sections 109 to 115, the NDIA can give notice to the party paying compensation, or its insurer, and that notice affects how and when the compensation can be paid.
• Future plans can change. Sections 32K(4) and 35(4) allow the NDIS rules to set how a compensation payment that includes the cost of supports is taken into account in a participant's plan.

The practical point is that a claim should be built on a full picture of future care needs, not on an assumption that the NDIS will keep funding them. Medicare and Centrelink can also have repayment rights from a compensation payment, which sections 106 and 107 take into account. Each of these interacts with the others, and they are worked out before a settlement is agreed, not after. Compensation is not a figure anyone can give you from a website, and what compensation can cover sets out the categories instead.

How is this different from a brain injury at birth?

A brain injury to a baby around birth is judged against obstetric and neonatal standards, such as fetal heart rate monitoring and cooling within six hours, and the child's time limit runs under section 27E. An adult injury in hospital is judged against anaesthetic, nursing and ward standards, and the adult time limit usually applies. If your question is about a baby, hypoxic-ischaemic encephalopathy at birth is the guide to read.

Will the hospital tell you what happened?

It should. Since 30 November 2022, Victorian health services have had a statutory duty of candour when a patient suffers a serious adverse patient safety event. Safer Care Victoria says it entitles the patient and family to an apology, the facts of what happened and why, the health service's response, and the steps being taken to prevent it happening again.

An explanation from the hospital is not a finding about negligence, in either direction. It can still be a useful starting point, and you are entitled to ask for one.

What records show what happened?

The timeline decides these claims, and the timeline lives in the records. The documents that usually carry the answer are:

• the pre-anaesthetic assessment and the consent documents
• the anaesthetic record, including the monitor readings and the times of each drug given
• the operation report
• the recovery room chart and the discharge-from-recovery criteria that were applied
• ward observation charts, including any early warning scores, and the nursing notes
• medication charts, especially for pain relief and sedatives
• any rapid response or code blue call records, and the resuscitation record
• intensive care notes, CT and MRI reports, and the neurology opinions

If your family member cannot ask for their own records, the person authorised to act for them usually can. How to get your medical records in Victoria sets out the process. Where the care was in a public hospital, suing a Victorian public hospital explains who a claim is made against.

Where to start

You do not need to know whether the care was negligent before asking. That is the thing being assessed, and you do not need to have sorted out guardianship first either.

Start with what happened, in your own words, and whatever records you hold. A hospital file for a serious brain injury is long, and reading it against the standards is the expensive part of investigating a claim. Our technology does the organising, and a lawyer reads the evidence and makes every legal decision. If the evidence supports a claim, you are told so. If it does not, you are told that plainly, and why. You can start a free assessment whenever you are ready.

Common questions

Can a family claim compensation for a brain injury caused by a hospital or anaesthetic in Victoria?

Yes, where the care fell below what was widely accepted as competent practice and proper care would probably have avoided some or all of the brain injury. Both parts need independent expert evidence. The claim belongs to the injured person. If they cannot manage it, a family member can bring it for them as litigation guardian, or an administrator appointed by VCAT can bring it if the order gives that power.

Who brings the claim if the injured person cannot make decisions?

Under Order 15 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic), a person who cannot manage their affairs in relation to the proceeding sues through a litigation guardian, who acts through a solicitor. VCAT can also appoint a guardian or administrator under the Guardianship and Administration Act 2019 (Vic) and give them power to bring legal proceedings. No settlement of the claim is valid without the court's approval.

How long do you have to claim for a brain injury caused by hospital care in Victoria?

For an adult, section 27D of the Limitation of Actions Act 1958 (Vic) allows three years from the date the claim is discoverable or twelve years from the care, whichever ends first. Under section 27J, the running of the period is suspended while the person is incapable of managing their affairs for 28 days or more. The suspension does not apply once a guardian or administrator authorised to bring actions has been appointed, and that person's knowledge then counts.

Does an NDIS plan stop you claiming compensation for a brain injury?

No. The NDIS Act 2013 (Cth) expects participants to pursue compensation, and section 104 lets the NDIA require a participant to take reasonable action to claim it. If compensation is later paid under a judgment or settlement, sections 106 and 107 generally require past NDIS amounts paid for supports for that impairment to be repaid, and a compensation payment can be taken into account in future plans.

Is a brain injury after a cardiac arrest in hospital always negligence?

No. A cardiac arrest can happen despite good care, and section 55 of the Wrongs Act 1958 (Vic) says there is no liability for an inherent risk that reasonable care could not avoid. A claim depends on whether warning signs were missed, the response was below accepted practice, and proper care would probably have prevented the arrest or reduced the injury.

Sources

Legislation was checked on 16 October 2026: the Wrongs Act 1958 (Vic) at version 130, the Limitation of Actions Act 1958 (Vic) at version 113, the Guardianship and Administration Act 2019 (Vic) at version 010 and the Supreme Court (General Civil Procedure) Rules 2025 (Vic) at version 003, all on legislation.vic.gov.au, and the National Disability Insurance Scheme Act 2013 (Cth) at compilation 28 (1 October 2026) on legislation.gov.au.

• Wrongs Act 1958 (Vic) — sections 28LE, 28LF, 49, 51, 52, 55, 58 and 59, and Part XI
• Limitation of Actions Act 1958 (Vic) — sections 3(2) and (3), 27D, 27E, 27F, 27J and 27K
• Guardianship and Administration Act 2019 (Vic) — sections 30, 40 and 51
• Supreme Court (General Civil Procedure) Rules 2025 (Vic) — rules 15.01, 15.02, 15.03 and 15.08
• National Disability Insurance Scheme Act 2013 (Cth) — sections 11, 32K, 35 and 104 to 115
• High Court of Australia, Tabet v Gett [2010] HCA 12
• ANZCA, PG18 Guideline on monitoring during anaesthesia, current document July 2025 (PDF)
• ANZCA, PS04(A) Position statement on the post-anaesthesia care unit, current document April 2020 (PDF)
• Australian Commission on Safety and Quality in Health Care, Recognising and Responding to Acute Deterioration Standard
• Safer Care Victoria, Duty of candour resources for patients, families and their carers