Yes, if the injury is a recognised psychiatric illness, such as PTSD or major depression, and it was caused by care that fell below a reasonable standard. That is true for the patient and, within narrower limits, for a family member. A patient whose psychiatric illness follows a physical injury claims for consequential mental harm under section 74 of the Wrongs Act 1958 (Vic). A family member claims for pure mental harm, and where it came from shock, section 73 lets them recover only if they witnessed the patient being killed, injured or put in danger at the scene, or are in a close relationship with the patient. Grief alone is not enough. Section 75 bars damages for lost earnings and treatment costs unless the harm is a recognised psychiatric illness. For pain and suffering, an approved medical practitioner must also assess the psychiatric impairment at 10 per cent or more, and symptoms that are secondary to a physical injury are left out of that assessment.
If something happened in a hospital that you cannot stop seeing, to you or to someone you love, it is reasonable to want to know where you stand. You do not have to decide anything today. The sections below explain what Victorian law asks, so that you know what the questions are when you are ready.
| The patient, after a physical injury | The patient, with no physical injury | A family member who was not the patient | |
|---|---|---|---|
| What the Act calls it | Consequential mental harm | Pure mental harm | Pure mental harm |
| The foreseeability test | Section 74: a person of normal fortitude might suffer a recognised psychiatric illness, or the provider knew you were more vulnerable | Section 72: a person of normal fortitude might suffer a recognised psychiatric illness | Section 72, and where the harm came from shock, section 73: present at the scene, or in a close relationship with the patient |
| Lost earnings and treatment costs | Only if the harm is a recognised psychiatric illness (section 75) | ||
| Pain and suffering | A significant injury, usually through the physical injury. Psychiatric symptoms secondary to it are not counted (section 28LJ) | Psychiatric impairment of 10 per cent or more (sections 28LB and 28LF(2)) | Psychiatric impairment of 10 per cent or more, unless the injury arises from the loss of a child around birth (section 28LF(1)(ca)) |
Section references are to the Wrongs Act 1958 (Vic), authorised version 130, incorporating amendments as at 25 February 2026, checked on 26 September 2026.
What counts as a psychiatric injury in law?
Part XI of the Wrongs Act uses the term "mental harm", which section 67 defines as psychological or psychiatric injury. The injuries it has in mind are conditions a psychiatrist would diagnose, such as post-traumatic stress disorder, major depression or an anxiety disorder. Section 67 also says that an injury includes the aggravation, acceleration or recurrence of an injury, so a condition you already had, made worse by the events, is not excluded.
The phrase that matters most is "recognised psychiatric illness". It appears in sections 72, 74 and 75, and the Act does not define it. What it rules out is distress that falls short of an illness. Sadness, anger, sleeplessness for a time and grief after a death are ordinary human responses, and the law does not compensate them on their own. That is not a judgment about how much you are hurting. It is the limit the law sets.
Whether a condition is a recognised psychiatric illness is a question of evidence. A diagnosis from your own treating practitioner helps, and a claim will usually also need an independent report from a psychiatrist.
Can the patient claim for PTSD or depression after negligent treatment?
Yes, and this is the more common claim. Where negligent surgery, a missed diagnosis or a medication error causes you a physical injury, and you then develop a psychiatric illness because of it, section 67 calls that consequential mental harm: mental harm that is a consequence of an injury of any other kind.
Section 74 sets the test. You can recover damages for consequential mental harm only if the provider foresaw, or ought to have foreseen, that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care were not taken. Section 74(2) says the circumstances include the physical injury itself, so a serious injury makes that step easier. The alternative in section 74(1)(b) matters if you already had a mental-health condition. It applies where the provider knew, or ought to have known, that you were a person of less than normal fortitude, and foresaw or ought to have foreseen that you might suffer a psychiatric illness.
A patient can also suffer pure mental harm, with no physical injury at all. A frightening event during treatment, or a diagnosis given wrongly or in the wrong way, may leave a psychiatric illness without any bodily injury. Section 72 then decides whether a duty was owed, and section 72(2)(d) makes a pre-existing relationship between you and the provider one of the circumstances to consider. A treating relationship is one.
Negligence itself still has to be shown in either case. The care must have fallen below the standard of a competent practitioner, and it must have caused the injury. How to prove medical negligence in Victoria sets out those tests.
Can a family member claim for their own psychiatric injury?
Yes. A partner, parent or child who develops a psychiatric illness because of what happened to the patient may have a claim of their own. It is separate from anything the patient, or the patient's estate, may claim. The duty owed to the family member comes from section 72: the provider must have foreseen, or ought to have foreseen, that a person of normal fortitude in the family member's position might suffer a recognised psychiatric illness if reasonable care were not taken.
Section 72(2) lists circumstances the court takes into account, including whether the harm came from a sudden shock, whether the family member witnessed a person being killed, injured or put in danger at the scene, and the nature of their relationship with that person. The Act lists these as circumstances to consider rather than as conditions that must each be met.
Does it matter whether you witnessed it?
Section 73 applies where the family member's harm arose wholly or partly from mental or nervous shock in connection with the patient being killed, injured or put in danger. In that case the family member can recover damages for pure mental harm only if one of two things is true:
- they witnessed, at the scene, the patient being killed, injured or put in danger; or
- they are, or were, in a close relationship with the patient.
Those are alternatives. A close relationship is enough without having been in the room, and being at the scene is enough without a close relationship. The Victorian Act does not define "close relationship" or say whether arriving shortly after the event counts as being at the scene, so those are questions the court decides on the facts. For a partner, parent or child, the close-relationship limb is usually the one that matters.
Section 73(3) adds a condition that is easy to miss. The family member cannot recover if the patient's own claim against the provider would be barred by any law. So a family member's claim usually depends on the patient having a claim the law allows.
Where the patient died, the family's claim for lost financial support is a different claim, explained in compensation when medical negligence causes a death. Where the loss was of a baby around the time of birth, Stillbirth or neonatal death: can parents claim in Victoria? explains a rule that applies only to parents.
What does the 10 per cent psychiatric threshold mean?
Section 28LE of the Wrongs Act says damages for non-economic loss, meaning pain and suffering and loss of enjoyment of life, cannot be recovered unless the injured person has a significant injury. For a psychiatric injury, section 28LF(2) says it is significant if the degree of impairment has been assessed as satisfying the threshold level. Section 28LB sets that threshold for psychiatric injury at impairment of 10 per cent or more. For comparison, a physical injury needs more than 5 per cent, and a spinal injury 5 per cent or more.
Three rules decide how that assessment works:
- Who assesses. Section 28LG requires an approved medical practitioner. Section 28LB defines that as a medical practitioner who has completed a training course approved under the workplace-injury legislation, or any medical practitioner if no course has been approved. A psychologist can diagnose a condition, but cannot be the assessor for this purpose.
- Which method. Section 28LI(1) applies the American Medical Association's Guides, fourth edition, with the psychiatric chapter replaced by The Guide to the Evaluation of Psychiatric Impairment for Clinicians. Under section 28LI(5), the Minister may publish a later edition in the Government Gazette. This guide has not confirmed which edition is currently in force.
- What is left out. Section 28LJ says that in assessing impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.
That last rule surprises many patients. If your depression or PTSD grew out of a physical injury, it cannot be counted to get you over the threshold. The physical injury has to do that on its own. If it does, the psychiatric illness is still part of what you have suffered, and it still counts towards lost earnings and treatment costs whatever the percentage. Whether a psychiatric injury is secondary to a physical one, or is a separate injury in its own right, is sometimes the contested question. It is one for the expert evidence.
The practitioner gives you a certificate of assessment. Under section 28LN(2) it says whether the threshold is met, but not the percentage. The provider can accept the certificate, or refer the question to a Medical Panel, generally within 60 days, under section 28LWE. Section 28LO also lets you ask the provider, in writing, to waive the assessment altogether. How much compensation for medical negligence in Victoria? covers what the threshold does and does not decide about the amount.
Is there any psychiatric injury that does not need the 10 per cent assessment?
Yes, one. Section 28LF(1)(ca) treats psychological or psychiatric injury arising from the loss of a child due to an injury to the mother, the foetus or the child before, during or immediately after the birth as a significant injury. No impairment assessment is needed for it. Section 28LF(1)(c) does the same for the loss of a foetus. Outside those categories, every psychiatric injury, including a family member's after the death of an adult, must meet the 10 per cent threshold before pain and suffering can be claimed.
What can be claimed below the threshold?
The threshold applies only to pain and suffering. Lost earnings, the cost of treatment and counselling, and other financial losses do not depend on reaching 10 per cent. Section 75 sets a different condition for those: a court cannot award damages for economic loss for mental harm unless the harm consists of a recognised psychiatric illness. So a diagnosis matters for every part of the claim, and the percentage matters only for one part. What compensation can you claim sets out the categories of loss.
How long do you have to claim?
The ordinary rule is three years from when the claim is discoverable, with a long-stop of twelve years, under the Limitation of Actions Act 1958 (Vic). A psychiatric illness can take time to surface and to be diagnosed, and when you knew or ought to have known that you had an injury is part of the question of discoverability. A family member's own claim has its own clock. Time limits for medical negligence claims explains how it runs.
Where to start
You do not need to know whether the care was negligent before asking. That is what an assessment finds out. It helps to write down what you saw and when, while you still remember it, and to gather whatever records you hold. How to get your medical records in Victoria explains how to ask for them.
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
Can you claim compensation for PTSD after surgery in Victoria?
Yes, if the post-traumatic stress disorder is a recognised psychiatric illness and it was caused by care that fell below a reasonable standard. A bad outcome is not enough on its own, because the surgery itself has to have been negligent. Where the PTSD follows a physical injury from the surgery, section 74 of the Wrongs Act 1958 (Vic) treats it as consequential mental harm. Damages for pain and suffering then depend on the physical injury reaching the threshold, because psychiatric symptoms secondary to a physical injury are left out of the impairment assessment.
Can a family member claim for psychiatric injury after medical negligence?
Yes, if the family member has developed a recognised psychiatric illness of their own and the negligence that harmed the patient caused it. Section 73 of the Wrongs Act 1958 (Vic) adds a limit where the harm came from shock at the patient being killed, injured or put in danger. The family member must either have witnessed that at the scene or be in a close relationship with the patient. Grief, however deep, is not a psychiatric illness in law.
Can you claim if you watched a family member die in hospital?
You may be able to, if the death was caused by negligent care and you have since been diagnosed with a recognised psychiatric illness, such as post-traumatic stress disorder or major depression. Being present at the scene is one of the two ways through section 73 of the Wrongs Act 1958 (Vic). A close relationship with the person who died is the other, so a partner, parent or child who was not in the room is not excluded for that reason alone.
What is the 10 per cent psychiatric impairment threshold under the Wrongs Act?
It is the level a psychiatric injury must reach before damages for pain and suffering can be awarded. Section 28LB of the Wrongs Act 1958 (Vic) sets the threshold for psychiatric injury at impairment of 10 per cent or more, and section 28LF(2) makes that the test of a significant psychiatric injury. An approved medical practitioner makes the assessment. It does not limit claims for lost earnings or treatment costs, which need a recognised psychiatric illness but no percentage.
Sources
- Wrongs Act 1958 (Vic) — Part VBA ss 28LB, 28LE, 28LF, 28LG, 28LI, 28LJ, 28LN, 28LO, 28LWE; Part XI ss 67, 72, 73, 74, 75. Authorised version 130 (PDF), incorporating amendments as at 25 February 2026
- Limitation of Actions Act 1958 (Vic) — Part IIA