If you’ve been injured as a result of substandard medical care, you’re probably wondering what your rights are, and how much compensation you could receive. When a medical mistake causes serious harm, the effects can be life-altering. Knowing what you’re entitled to under Victorian law is a critical step toward recovery.
In Victoria, most personal injury claims relating to medical negligence are governed by the Wrongs Act 1958. This legislation sets out the types of compensation available, who qualifies, and the limits that apply.
Carbone Lawyers help people understand their legal entitlements and fight for fair outcomes. Learn what you need to know if you’ve experienced medical negligence, and want to know the limits of what you can claim.
What Does the Wrongs Act Cover?
The Wrongs Act is the main law governing personal injury claims, excluding those related to workplace injuries and transport accidents, which fall under different legislation.
Under the Wrongs Act, individuals can seek damages for injuries caused by:
- Negligence or breach of duty by healthcare professionals
- Other civil wrongs, including reckless or intentional conduct
If fault is established, the law allows the injured person (the claimant) to be compensated through a range of damages, depending on the type and severity of their injury.
Types of Compensation Available
If you’ve experienced harm due to medical negligence, you may be entitled to several categories of compensation:
Economic Loss
Covers past and future loss of income, reduced earning capacity, or the loss of financial support.
Non-Economic Loss (Pain and Suffering)
Also called general damages, this includes compensation for:
- Physical pain
- Emotional suffering
- Loss of enjoyment or quality of life
- Loss of ability to participate in normal activities
Gratuitous Attendant Care Services
Compensation for the unpaid care and support provided by friends or family, such as home help, personal care, or nursing services.
Loss of Capacity to Provide Care
Damages may also be awarded if your injury stops you from providing unpaid care to your dependants, such as children, elderly parents, or a spouse.
Who Meets Thresholds and Qualifies for a Claim?
The Wrongs Act includes thresholds, minimum requirements you must meet to be eligible for certain types of compensation.
For Pain and Suffering (Non-Economic Loss):
- You must have sustained a significant injury.
- Some injuries are automatically classified as significant, including:
- Loss of a fetus
- Loss of a breast
- Psychiatric injury due to the loss of a child in specific birth-related contexts
For all other injuries, a medical assessment is required to determine the degree of impairment:
- More than 5% for physical injuries
- 10% more than for psychiatric injuries
For Gratuitous Attendant Care:
- Care must be provided for at least 6 hours per week, for at least 6 months.
For Loss of Capacity to Provide Care:
- You must have previously been providing the care
- The dependant must not be able to care for themselves
- The care would have continued for 6+ hours per week, over 6 or more consecutive months
These thresholds help ensure only substantial and ongoing injuries qualify for damages in these specific categories.
What Are the Compensation Caps?
The Wrongs Act also sets caps, maximum amounts that can be awarded for certain types of damages. These are reviewed and adjusted annually (Victorian Government Solicitor’s Office).
Caps on Damages Include:
1. Pain and Suffering (Non-Economic Loss):
- As of the most recent update, this is capped at $644,640, indexed annually on 1 July.
2. Economic Loss:
- Weekly loss of earnings is capped at three times the average weekly earnings (AWE) at the date of award.
3. Gratuitous Care by Family or Friends:
- If more than 40 hours/week, damages are capped at average weekly earnings
- If less than 40 hours/week, the hourly rate is capped at 1/40th of the average weekly earnings
4. Loss of Capacity to Provide Care:
- Same limits apply as for gratuitous care: either capped weekly or hourly based on the number of hours
These limits are intended to balance fair compensation with public policy around damages.
Exemptions from Caps and Thresholds
Some claims are excluded from these restrictions. You may be eligible for full damages without caps or thresholds if the medical harm involved:
- An intentional act intended to cause death or injury
- Sexual assault or other sexual misconduct
In these situations, the law recognises the extraordinary nature of the harm and allows for full compensation without the usual limits.
How Carbone Lawyers Can Help
Medical negligence law in Victoria is detailed and highly technical. From proving fault to meeting impairment thresholds and understanding what damages you may be entitled to, the process can be complex and emotionally draining.
If something felt wrong about your treatment, and you’ve suffered serious consequences, you may be entitled to significant compensation under the Wrongs Act. The key is getting advice before you sign or settle.Don’t settle for less. Get Carbone on the phone.
