In Victoria, a parent can claim after a stillbirth or a neonatal death only where the care fell below a reasonable standard and the parent has suffered a recognised psychiatric injury as a result. The claim belongs to the parent. Victorian law treats the parent as the injured person, and the Wrongs Act 1958 (Vic) s 28LF(1)(ca) treats "psychological or psychiatric injury arising 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 a significant injury. That matters: no impairment assessment is needed for that injury, where most other psychiatric claims must reach 10 per cent. Grief on its own is not a psychiatric injury, and most stillbirths reviewed in Victoria are not classified as preventable. The question is narrow. Was the care reasonable, and would reasonable care have changed what happened.
If you are reading this soon after losing a baby, you do not have to decide anything today. Wanting to know whether something could have gone differently is not a betrayal of your baby, or of the people who looked after you. Most parents who ask are not looking for blame. They are looking for an explanation nobody has given them yet.
| Who is claiming | What has to be shown | Where the rule sits |
|---|---|---|
| The mother, as the patient | Negligent care, and physical or psychiatric injury to her that it caused | Part X, ss 48, 51, 59. Non-economic loss needs significant injury under Part VB, and s 28LF(1)(ca) supplies it |
| A father or partner who was not the patient | A recognised psychiatric illness, plus presence at the scene or a close relationship with the baby | Part XI, ss 72 and 73 |
| Either parent, for lost earnings | That the mental harm is a recognised psychiatric illness, not grief alone | Section 75 |
| The baby's estate, for dependants | People wholly, mainly or partly dependent on the person who died | Part III, ss 16–19. Rarely available, because a baby has no dependants |
Section references are to the Wrongs Act 1958 (Vic) as in force at 11 September 2026.
Can you claim compensation for a stillbirth in Victoria?
A claim is possible, and it is narrower than most people expect. A baby who is stillborn never acquired legal personality, so nothing is brought on the baby's behalf. Where a baby was born alive and then died, the position is technically different but the practical answer is usually the same. An action under Part III of the Wrongs Act is brought for the benefit of the dependants of the person who died, and "dependants" means people who were wholly, mainly or in part dependent on that person. A newborn has none.
So the claim runs through the parent. Two things have to be established together. First, that the care fell below the standard of a competent practitioner. Second, that the parent developed a recognised psychiatric illness because of it.
Victoria then does something unusual, and in your favour. Damages for pain and suffering normally require a "significant injury", which for a psychiatric injury means impairment of 10 per cent or more assessed under the American Medical Association guides. Section 28LF(1)(ca) removes that step for psychiatric injury arising from the loss of a child around birth. Section 28LF(1)(c) does the same for loss of a foetus.
Who can bring the claim — a mother, a father, a partner?
Both parents may have a claim, and they are assessed differently.
The mother was the patient. The duty was owed directly to her, and her claim is an ordinary medical-negligence claim for her own injury, physical or psychiatric or both.
A father or partner who was not the patient claims as a secondary victim, and section 73 of the Wrongs Act 1958 (Vic) sets an extra hurdle. Damages for pure mental harm are not recoverable unless the person witnessed the victim being killed, injured or put in danger at the scene, or was in a close relationship with the victim. A parent is in a close relationship with their baby, so the second limb is ordinarily the relevant one.
Section 72 adds a test for both parents. There is no duty to avoid causing pure mental harm unless the defendant foresaw, or ought to have foreseen, that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care were not taken. In a maternity setting that is rarely the difficult part.
Section 75 is the one to watch. A court cannot award damages for economic loss for mental harm unless the harm consists of a recognised psychiatric illness. Time off work, a career that did not resume, treatment costs — all of it depends on a diagnosis, not on how hard the loss has been.
What should the hospital have done when you reported reduced movements?
This is the single most common thread in these enquiries, and Victoria has published guidance on it. Safer Care Victoria's Decreased fetal movements clinical guidance covers singleton pregnancies from 28 weeks and sets out what a maternity service is expected to do. It is not a legal standard by itself, but it is the kind of document an independent obstetric expert will be asked about.
| Stage | What the Victorian guidance asks of the service |
|---|---|
| Before any concern arises | Written information about fetal movements at booking and again at 28 weeks, and the subject raised at every pregnancy visit |
| When you telephone | Advise you to attend for immediate assessment. The guidance says clinicians should not advise waiting until the next day, resting and monitoring movements, or eating or drinking something |
| On arrival | Confirm the fetal heart immediately, a CTG within two hours of presentation, and an urgent ultrasound if no heartbeat is confirmed |
| Assessment | Full history, baseline observations, abdominal palpation and symphysis-fundal height, and the recorded risk factors for stillbirth |
| If the trace is not normal | Escalate to a senior clinician if the CTG does not meet the criteria for a normal antenatal trace within 90 minutes |
| If concern persists | Consider ultrasound for amniotic fluid and fetal biometry within 24 hours where movements have not returned despite a normal CTG, on a second presentation, or where growth restriction is suspected |
| Afterwards | Document the assessment and the advice given, in the medical record and the hand-held record |
Summarised from Safer Care Victoria's Decreased fetal movements guidance as published at 11 September 2026. Safer Care Victoria notes its maternity and neonatal handbook guidelines have been under review since June 2023 and some may be out of date. This describes what the guidance asks of clinicians. It is not medical advice. If you have concerns about a current pregnancy, contact your maternity service now.
The related national work is the Safer Baby Bundle, developed by the Centre of Research Excellence in Stillbirth with the Perinatal Society of Australia and New Zealand. It targets stillbirth from 28 weeks and beyond, with a stated goal of reducing stillbirth in Australia by 20 per cent. Whether the service you attended had adopted it is a fair question to ask.
What standard is the care measured against?
Not hindsight, and not the best care available anywhere.
Section 58 of the Wrongs Act measures a practitioner against what could reasonably be expected of a person possessing that skill, judged as at the date of the alleged negligence and not a later date. Section 59 goes further: a professional is not negligent if they acted in a way widely accepted in Australia by a significant number of respected practitioners as competent professional practice. A court can reject a peer opinion it finds unreasonable, and section 60 takes warnings and information out of section 59 altogether.
Then causation. Section 51 requires that the negligence was a necessary condition of the harm, and that it is appropriate for liability to extend that far. In a stillbirth this is usually the hardest element. It is not enough that a CTG was late or an ultrasound was not ordered. The question is whether the baby would have survived had those things happened when they should have. That is expert territory, and the answer is sometimes no.
The general framework is in How to establish a medical negligence claim. Where the baby survived with an injury, Birth injury claims is the guide that applies.
Does the coroner investigate a stillbirth in Victoria?
Generally no, and it surprises almost every parent who asks.
Under the Coroners Act 2008 (Vic) a still-birth within the meaning of the Births, Deaths and Marriages Registration Act 1996 (Vic) is not a death, so it cannot be a reportable death and the Coroners Court has no jurisdiction. A neonatal death is different. Where a baby was born alive and then died, that is a death, and it is reportable if it appears unexpected or unnatural, or if it occurred during or following a medical procedure that a doctor would not reasonably have expected to cause it.
A still-born child is a child of at least 20 weeks' gestation, or at least 400 grams where gestation cannot be reliably established, showing no sign of life after birth.
A different review does happen. Every stillbirth at or after 20 weeks in Victoria is reported to the Consultative Council on Obstetric and Paediatric Mortality and Morbidity, which reviews cases individually, assigns a cause classification and identifies preventable harm. That is a clinical governance process, not a legal one, and its findings are not given to parents as a decision about liability.
How long do you have to bring a claim?
Three years from discoverability, with a twelve-year long stop, under section 27D of the Limitation of Actions Act 1958 (Vic).
Discoverability is the part that matters here. Under section 27F, time starts when you knew or ought to have known three things: that the injury occurred, that it was caused by the fault of the defendant, and that it was serious enough to justify bringing an action. Where the injury is your own psychiatric illness, the first of those may fall well after the birth.
A court may extend a limitation period under section 27K where it is just and reasonable, and section 27L lists what it weighs. That is a weaker position than being in time. Time limits for medical negligence claims covers the mechanics.
What records and investigations matter?
The record decides this, not recollection. The documents that usually carry the answer include the antenatal record and every growth scan with its measurements and centiles, the triage or telephone record of any call you made about movements, every CTG trace with its timing, the observation charts, the intrapartum notes, the operation record where there was a caesarean, and the placental histopathology.
The post-mortem is its own decision. Safer Care Victoria records that the Stillbirth CRE and PSANZ 2024 Care Around Stillbirth and Neonatal Death guideline says all parents should be offered the option of a post-mortem examination. About a third of perinatal deaths in Victoria in 2023 were investigated that way. If you were not offered one, that is worth raising.
You have a right to your own records, and you do not need a lawyer or a reason to ask. How to get your medical records in Victoria sets out which law applies. Where the care was in a public hospital, Can you sue a Victorian public hospital for negligence? explains who is responsible for what.
What the Victorian data shows
The Consultative Council on Obstetric and Paediatric Mortality and Morbidity reported 709 perinatal deaths in Victoria in 2023, compared with 706 in 2022. After congenital anomalies, the leading causes of stillbirth were unexplained antepartum fetal death, placental dysfunction, and spontaneous preterm labour or rupture of membranes before 37 weeks. For neonatal deaths, spontaneous preterm labour led, followed by neonatal death without obstetric antecedent and hypoxic peripartum death.
The preventability figures are the ones worth sitting with. Of the stillbirths the Consultative Council on Obstetric and Paediatric Mortality and Morbidity reviewed for preventability in 2023, 12 were classified as preventable and 265 were not, with a further 41 recorded as unknown or unclear. Many babies die for reasons no one could have changed. Asking the question does not mean assuming the answer, and it is not a criticism of the people who cared for you.
A case recorded as "unknown or not clear" has not been answered either way. That is the gap an independent look at the records can sometimes close.
Where to start
You do not need to know whether the care was negligent before asking. That is the thing being assessed.
Start with what happened, in your own words, and whatever records you hold. Organising and reviewing a maternity file is the expensive part of investigating a claim, and it is why claims like this are sometimes turned away before anyone reads the notes. 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. If it does not, you are told that plainly, and why. You can start a free assessment whenever you are ready, and What compensation can you claim sets out the categories.
Common questions
Can you sue a hospital for a stillbirth in Victoria?
A claim against a hospital is possible, but it is narrower than most people expect. The claim belongs to the parent, not to the baby, and it depends on two things being shown together: that the care fell below the standard of a competent practitioner, and that the parent has suffered a recognised psychiatric injury as a result. A death on its own, however devastating, is not enough. Neither is care that was imperfect but did not change the outcome.
Can a father or partner claim after a stillbirth or neonatal death?
A father or partner who was not the patient claims as a secondary victim, and section 73 of the Wrongs Act 1958 (Vic) sets an extra hurdle. Damages for pure mental harm are not recoverable unless the person witnessed the victim being killed, injured or put in danger at the scene, or was in a close relationship with the victim. A parent is in a close relationship with their baby, so the second limb is ordinarily the relevant one.
Do you need a psychiatric diagnosis to claim after losing a baby?
For the parts of a claim that matter most, yes. Section 75 of the Wrongs Act 1958 (Vic) says a court cannot award damages for economic loss for mental harm unless the harm consists of a recognised psychiatric illness. Grief, however profound, is not the same thing in law. What the law is looking for is a diagnosed condition, such as major depression, post-traumatic stress disorder or a prolonged grief disorder, assessed by a psychiatrist or psychologist.
Does the coroner investigate a stillbirth in Victoria?
Generally no. Under the Coroners Act 2008 (Vic) a still-birth within the meaning of the Births, Deaths and Marriages Registration Act 1996 (Vic) is not a death, so it cannot be a reportable death and the Coroners Court has no jurisdiction. A neonatal death is different. Where a baby was born alive and then died, that is a death, and it is reportable if it appears unexpected or unnatural, or if it occurred during or following a medical procedure that a doctor would not reasonably have expected to cause it.
Are most stillbirths caused by negligence?
No. Of the stillbirths the Consultative Council on Obstetric and Paediatric Mortality and Morbidity reviewed for preventability in 2023, 12 were classified as preventable and 265 were not, with a further 41 recorded as unknown or unclear. Many babies die for reasons no one could have changed. Asking the question does not mean assuming the answer, and it is not a criticism of the people who cared for you.
Sources
- Wrongs Act 1958 (Vic) — ss 28LB, 28LF, 48, 51, 58, 59, 60, 72–75, and Part III ss 16–19
- Limitation of Actions Act 1958 (Vic) — ss 27D, 27F, 27K, 27L
- Coroners Act 2008 (Vic) — s 3(1) definition of death, s 4 reportable death
- Births, Deaths and Marriages Registration Act 1996 (Vic) — s 4(1) definitions of still-birth and still-born child
- Safer Care Victoria — Decreased fetal movements
- Consultative Council on Obstetric and Paediatric Mortality and Morbidity — annual report 2024 (PDF)
- Centre of Research Excellence in Stillbirth — The Safer Baby Bundle