Compensation for medical negligence in Victoria is not a single figure. It is the sum of what you have lost, and one component of it is conditional on a medical assessment. Treatment costs, care and lost income are recoverable on your evidence alone.
Damages for pain and suffering are different. Under the Wrongs Act 1958 (Vic) you cannot recover them unless your permanent impairment is assessed above more than 5 per cent for a physical injury, or 10 per cent for a psychiatric injury.
Above that threshold two statutory caps apply — damages for pain and suffering are capped at an amount re-indexed each 1 July, and damages for lost earnings at three times average weekly earnings. Both amounts change from year to year. What determines your figure is the evidence of your own loss, not an average drawn from other people’s cases.
Why can't a calculator tell you what your claim is worth?
Because the two numbers that matter most are not knowable in advance.
The threshold is a medical assessment. An approved medical practitioner assesses your degree of permanent impairment, and that assessment either satisfies the threshold level or it does not. Nobody can predict the percentage from a description of what happened.
The cap moves. The non-economic loss maximum is indexed on 1 July each year under sections 28G and 28H, so a figure published in one financial year is wrong in the next. The earnings cap moves too, because section 28F ties it to average weekly earnings as at the date damages are awarded — a date that may be years away.
A calculator that asks you a few questions and returns a dollar figure is treating a medical assessment and two moving statutory amounts as if they were fixed. That is why you will not find one on this site.
| The threshold | The cap | |
|---|---|---|
| What it is | A minimum level of impairment you must reach | A maximum the court may award |
| Where it comes from | Wrongs Act 1958 (Vic) ss 28LE, 28LF, 28LB | Wrongs Act 1958 (Vic) ss 28F, 28G, 28H |
| What it applies to | Non-economic loss (pain and suffering) only | Non-economic loss, and lost earnings |
| What it does | Below it, you recover nothing for pain and suffering | Above it, the excess is not awarded |
| Does it move? | No — the percentages are fixed in the Act | Yes — indexed each 1 July, and earnings tied to average weekly earnings |
Threshold percentages are those set by the Wrongs Act 1958 (Vic). The non-economic loss cap is indexed on 1 July each year.
What is the "significant injury" threshold?
Section 28LE restricts recovery of damages for non-economic loss to people who have suffered a significant injury. Section 28LF defines that by reference to an assessment: the degree of impairment resulting from the injury must satisfy the threshold level, either as assessed by an approved medical practitioner or as determined by a Medical Panel.
The threshold levels are more than 5 per cent impairment for a physical injury other than a spinal injury, 5 per cent or more for a spinal injury, and 10 per cent or more for a psychiatric injury.
This threshold applies only to pain and suffering. It does not affect your ability to claim treatment costs, care, or lost income.
What is the cap on pain and suffering?
Section 28G fixes a maximum amount of damages for non-economic loss, and section 28H indexes that amount on 1 July each year. Because it changes annually, we do not publish the current figure here — it would be out of date within months. The in-force version of the Act on the Victorian legislation site carries the current amount.
In practice the cap is seldom the operative limit. It applies to the most severe cases. For most people the threshold is the more significant constraint, because it determines whether this head of damage is available at all.
Is there a cap on lost earnings?
Yes. Section 28F limits damages for past or future economic loss to three times average weekly earnings for each week of the loss claimed, measured as at the date damages are awarded.
For most people this cap has no practical effect, because their earnings were below three times the average. It is significant for high earners, whose actual loss may exceed what the section permits.
What actually decides the amount?
Your evidence. Once the threshold is met, the amount reflects your individual loss, which is why two people with the same diagnosis can recover very different amounts.
What tends to move the number: the permanence of the injury, whether you can return to the work you did before, the cost of treatment and care you may need, and your age at the time of the injury. What does not move it: how upset you are, how badly the hospital behaved, or what someone else received for something that sounds similar.
Our guide on what compensation you can claim sets out the categories of loss in more detail.
What if your impairment is below the threshold?
You may still have a claim. The threshold closes off pain and suffering, not the economic heads of damage. Treatment costs, care and lost income do not depend on an impairment percentage.
Whether that claim is worth running is a separate question, because the cost of proving medical negligence is substantial. We cover that in what it costs to investigate a claim.
Working out where you sit takes a look at your records, not a form that returns a number. If you want that done, start a free assessment and we will tell you what we would need to see.
Common questions
Is there an average payout for medical negligence in Victoria?
No figure published as an average is meaningful. Settlements are confidential, the reported cases are the unusual ones that did not settle, and the mix of injuries behind any average tells you nothing about your own. An average is not a prediction.
What is the significant injury threshold in Victoria?
Section 28LE of the Wrongs Act 1958 (Vic) restricts damages for non-economic loss to people who have suffered a significant injury. The threshold levels are more than 5 per cent impairment for a physical injury other than a spinal injury, 5 per cent or more for a spinal injury, and 10 per cent or more for a psychiatric injury.
Is there a cap on damages for lost earnings in Victoria?
Yes. Section 28F limits damages for past or future economic loss to three times average weekly earnings for each week of the loss claimed, measured as at the date damages are awarded.
Does the cap apply to every medical negligence claim?
The Wrongs Act caps and thresholds apply to claims for personal injury in Victoria. Different rules apply to some claims, including those covered by the Transport Accident Commission or WorkSafe schemes. If your injury arose in one of those contexts, the framework may not be the one described here.
When will I know what my claim is worth?
Not at the start. A realistic range usually only becomes clear after your records have been reviewed, an independent expert has given an opinion on the standard of care, and your impairment has been assessed. That is months of work, not a form.
Sources
- Wrongs Act 1958 (Vic) — in force version, Victorian Legislation
- Wrongs Act 1958 (Vic) s 28LE — Restriction on recovery of damages for non-economic loss, AustLII
- Wrongs Act 1958 (Vic) s 28LF — What is significant injury?, AustLII
- Wrongs Act 1958 (Vic) s 28G — Fixing damages for non-economic loss, AustLII
- Wrongs Act 1958 (Vic) s 28F — Damages for past or future economic loss, AustLII
- Understanding thresholds and caps in personal injury litigation, Victorian Government Solicitor's Office, 26 July 2022