Compensation for a death caused by medical negligence in Victoria is the financial loss the death causes the family: the income, support and care the person who died would have provided to the people who depended on them, plus funeral expenses. It is not a sum placed on the value of the life. Under Part III of the Wrongs Act 1958 (Vic), anyone who was wholly, mainly or partly dependent on the person who died can recover the support they have lost. Separately, the estate can recover funeral expenses and the losses the person suffered before they died, but not their pain and suffering. Grief is not compensated as such, although a family member who develops a recognised psychiatric illness may have a claim of their own. The amount turns on the person's earnings and working life, who depended on them and for how long, and the care they gave at home. Life insurance and superannuation payouts are not deducted.
If someone close to you has died, none of this has to be worked out today. The sections below explain how the law approaches the question, so that you know what is being asked when the time comes.
| Dependants' claim | Estate's claim | A family member's own injury | |
|---|---|---|---|
| Whose claim it is | Anyone wholly, mainly or partly dependent on the person who died | The estate, through the executor or administrator | The family member who developed a psychiatric illness |
| What it covers | Lost financial support, and the value of care the person gave at home | Funeral expenses, and losses between the negligence and the death, such as treatment costs and lost wages | Their own treatment, lost earnings and, above a threshold, pain and suffering |
| What it does not cover | Grief or loss of companionship | The person's pain and suffering, or their earnings after death | Grief that is not a recognised psychiatric illness |
| Where the rule sits | Wrongs Act 1958 (Vic) Part III, ss 16–19B | Administration and Probate Act 1958 (Vic) s 29 | Wrongs Act 1958 (Vic) Part XI, ss 72–75, and s 28LE |
| Time limit | 3 years from discoverability, and no later than 12 years after the death | Depends on what the person knew before they died and when the executor was appointed | 3 years from discoverability, 12-year long-stop |
Section references are to the authorised versions in force at 24 September 2026: Wrongs Act 1958 (Vic) version 130, Administration and Probate Act 1958 (Vic) version 130, Limitation of Actions Act 1958 (Vic) version 112 and Coroners Act 2008 (Vic) version 044.
Who can claim when someone dies because of medical negligence?
Section 16 of the Wrongs Act 1958 (Vic) keeps a claim alive after a death. Where the person who died could have sued for the negligence had they survived, whoever would have been liable is still liable, despite the death.
Section 17 says who that claim is for: the dependants of the person who died. It defines them as people who were wholly, mainly or in part dependent on the person at the time of death, or who would have been but for the incapacity caused by the injury that led to the death. Victoria does not work from a list of relatives. A partner and children are the usual dependants, but a parent, a sibling or anyone else who relied on the person may qualify. An adult child who was financially independent is generally not a dependant, although they may have a claim of their own for a psychiatric injury.
The claim is brought in the name of the executor or administrator. Under section 18, if there is no executor or administrator, or none has brought the claim within six months of the death, any dependant may bring it on behalf of all of them. Either way it is one claim brought for all the dependants together, and under section 17 the court decides how the amount is shared between them.
Where the person who died was a baby, the position is different, because a newborn has no dependants. Stillbirth or neonatal death: can parents claim in Victoria? explains how those claims run through the parents instead.
What decides how much the family receives?
The court awards damages "proportioned to the injury resulting from such death" to the dependants, in the words of section 17. In practice that is the value of what the dependants have lost, worked out from evidence about the person who died and the people who relied on them. These are the things that move the amount:
- What the person earned, and was likely to earn. Section 21 requires the claim to set out the person's employers and their net earnings for the twelve months before the injury that caused the death. Promotion prospects and likely retirement age also matter.
- How much of that income supported others. The dependants lose the part of the income that would have been spent on them and on the household, not the part the person would have spent on themselves.
- How long the support would have lasted. The ages of the person and of each dependant matter. Support for a young child is usually expected to end in early adulthood; support for a partner may run for decades.
- The care the person gave at home. Cooking, cleaning, childcare and looking after a family member have a value. Under section 19A, damages for the loss of that care are available only where it was, or would have been, given for at least 6 hours a week over at least 6 consecutive months. Section 19B limits the hourly value by reference to average weekly earnings in Victoria.
- The statutory cap. Section 28F caps damages for the loss of expectation of financial support at three times average weekly earnings for each week of loss. It mainly affects families where the person who died was a high earner.
- Discounting future loss. Future support is paid now as a lump sum, so section 28I requires it to be reduced to its present value using a prescribed discount rate. The Act sets that rate at 5 per cent unless regulations prescribe a different one.
Some things do not reduce the amount. Section 19(1) says a court must not take into account life insurance, superannuation, pensions or gratuities paid because of the death. Section 19(2) says no separate reduction is made because a surviving spouse or domestic partner has re-partnered, or may do so.
Some things do not increase it either. How distressing the death was, how the hospital responded, or what another family received in a case that sounds similar are not part of the calculation. That is why no honest figure can be given without the evidence. What compensation can you claim explains the categories of loss that apply when the patient survives.
What can the estate claim?
The estate has a separate claim. Under section 29(1) of the Administration and Probate Act 1958 (Vic), a claim the person had when they died survives for the benefit of their estate. Section 29(5) makes that claim additional to the dependants' claim under Part III, not a replacement for it.
Section 29(2) limits what the estate can recover where the negligence caused the death:
- a sum for funeral expenses may be included;
- losses up to the death, such as treatment costs and wages lost between the negligent care and the death, form the core of the claim;
- damages for the person's own pain and suffering, bodily or mental harm, or shortened life expectancy are excluded, except in limited cases involving dust-related disease;
- the person's likely earnings after the death are excluded, and the loss of support they would have provided is dealt with in the dependants' claim instead; and
- exemplary damages are excluded.
This is the point many families find hardest. Where a person suffered for weeks or months before dying of a negligent injury, Victorian law does not let the estate recover for that suffering once they have died.
Is grief compensated?
Not as such. Part III of the Wrongs Act contains no provision for damages for grief, sorrow or the loss of a relationship. The dependants' claim is a claim for what the death has cost them financially.
A family member may have a claim for their own mental harm, under Part XI of the Wrongs Act. It is narrower than people expect, and it depends on a diagnosis rather than on how deep the loss is:
- Section 72 requires that the health service ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care were not taken.
- Section 73 applies where the harm arose from shock connected with the person being killed or injured. The family member must have witnessed it at the scene, or have been in a close relationship with the person who died.
- Section 75 says no damages for economic loss, such as lost earnings or treatment costs, can be awarded for mental harm unless it is a recognised psychiatric illness.
Damages for pain and suffering need one more step. Section 28LE allows them only for a significant injury, and for a psychiatric injury that means impairment assessed at 10 per cent or more. There is one exception that matters for bereaved parents: section 28LF(1)(ca) treats psychiatric injury arising from the loss of a child before, during or immediately after birth as a significant injury without that assessment.
How long do you have to claim?
The time limits are in Part IIA of the Limitation of Actions Act 1958 (Vic), and section 27B confirms they apply to the dependants' claim and to the estate's claim.
The dependants' claim. Section 27D gives three years from the date the claim is discoverable, with a long-stop that section 27H says runs twelve years from the date of death. Under section 27F, a claim is discoverable when you know, or ought to have known, that the death occurred and that it was caused by the fault of the person you are claiming against. Section 27F(4) confirms that it cannot be discoverable before the death.
The estate's claim. Section 27G sets a different starting point, based on when the person who died knew or ought to have known of the claim and when the executor or administrator was appointed. If the claim was discoverable by the person more than three years before they died, time is counted from that earlier date, so the estate's claim may already be out of time.
A family member's own psychiatric injury. The ordinary rule applies: three years from discoverability, with a twelve-year long-stop.
A court can extend a limitation period under section 27K, but an application to extend is a weaker position than being in time. A coronial investigation can take a long time, and waiting for it to finish does not stop these periods running. Time limits for medical negligence claims covers the mechanics.
What does the coroner do, and does it affect a claim?
Many deaths connected with medical care are reported to the coroner. Under section 4 of the Coroners Act 2008 (Vic), a death is reportable if it appears to have been unexpected, unnatural or violent, or if it occurred during a medical procedure, or following one where the death is or may be causally related to it, and a doctor would not reasonably have expected the death immediately before the procedure. Section 10 requires a doctor who is present at or after a reportable death to report it.
A coroner investigating a death must find, if possible, the identity of the person, the cause of death and the circumstances (section 67). The coroner may comment on any matter connected with the death, and may make recommendations to a Minister, a public authority or another body (section 72). Section 69 prevents a coroner from stating that a person is or may be guilty of an offence. Section 115 requires the senior next of kin to be told when medical examination reports have been given to the coroner, and that they may ask for copies.
The coroner does not award compensation, and a coronial finding is not a finding of civil negligence. It can be a valuable record of what happened. Whether the care fell below the standard required and caused the death is decided in the civil claim, on expert evidence. Baby Malakai's coronial finding works through one Victorian finding and shows where the two processes separate.
Does the family have to prove the negligence caused the death?
Yes. The dependants' claim exists only where the person who died could have sued had they survived, so the family has to establish the same things the patient would have: that the care fell below the standard of a competent practitioner, and that it caused the death. Causation is often the hardest part after a death. It is not enough that something was missed or delayed. The question is whether the person would probably have survived, or lived longer, with reasonable care. How to establish a medical negligence claim sets out the tests.
Where to start
You do not need to know whether the care was negligent before asking. That is what an assessment finds out. The records usually decide it, and the executor or administrator of the estate can generally obtain the records of the person who died. How to get your medical records in Victoria explains the process.
Organising and reviewing a hospital file is the expensive part of investigating a claim. Our technology does the organising, and our lawyers read the evidence and make every legal decision. If the evidence supports a claim, you are told so, and if it does not, you are told that plainly and why. You can start a free assessment whenever you are ready. There is no obligation and no guaranteed outcome.
Common questions
How much compensation do you get for a death caused by medical negligence in Victoria?
The amount is the financial loss the death causes, so it is worked out for each family rather than taken from a scale. The main factors are what the person who died earned and was likely to earn, how much of that went to supporting the people who depended on them, how long that support would have continued, and the care they gave at home. Life insurance, superannuation and pension payments are not deducted, and no reduction is made because a surviving partner may re-partner. Damages for lost financial support are capped at three times average weekly earnings for each week of loss. Nothing is added for grief itself.
Who can claim compensation when someone dies from medical negligence in Victoria?
The claim for lost support belongs to the dependants of the person who died, meaning anyone who was wholly, mainly or in part dependent on them at the time of death. That usually means a partner and children, but Victorian law does not limit it to a list of relatives. The executor or administrator brings the claim on the dependants' behalf. If there is none, or no claim is brought within six months of the death, any dependant can bring it for all of them. It is one claim for all the dependants, and the court divides the amount between them.
Can you claim compensation for grief after a death caused by medical negligence?
Not for grief as such. Victorian law has no head of damages for grief, sorrow or loss of companionship. A family member can claim for their own mental harm only where it is a recognised psychiatric illness, such as major depression or post-traumatic stress disorder, and they either witnessed the events at the scene or were in a close relationship with the person who died. Damages for pain and suffering then also need the psychiatric impairment to be assessed at 10 per cent or more, except for the loss of a child around birth.
What is the time limit for a claim after a death from medical negligence in Victoria?
For the dependants' claim, three years from the date it became discoverable, meaning when they knew or ought to have known of the death and that it was caused by the fault of the person they are claiming against. The claim cannot be discoverable before the death. There is also a long-stop of twelve years from the date of death. The estate's claim and a family member's own psychiatric injury claim have their own rules. A court can extend time in some cases, but that is a weaker position than being in time.
Does a coroner's finding decide whether there is a compensation claim?
No. A coroner investigating a death must find, if possible, who died, the cause of death and the circumstances, and may comment and make recommendations. A coroner does not award compensation and must not state that a person is or may be guilty of an offence. A finding can be valuable evidence of what happened, but whether the care was negligent and caused the death is decided separately, in the civil claim.
Sources
- Wrongs Act 1958 (Vic) — Part III ss 16–21, ss 28F, 28I, 28LB, 28LE, 28LF, Part XI ss 72–75. Authorised version 130 (PDF), in force from 25 February 2026
- Administration and Probate Act 1958 (Vic) — s 29. Authorised version 130 (PDF), in force from 22 October 2025
- Limitation of Actions Act 1958 (Vic) — ss 27A, 27B, 27D, 27F, 27G, 27H, 27K. Authorised version 112 (PDF), in force from 25 February 2026
- Coroners Act 2008 (Vic) — ss 4, 10, 67, 69, 72, 115. Authorised version 044 (PDF), in force from 15 April 2026