Birth trauma and compensation claims

Birth trauma · Your legal rights in NSW

Most births go well. But when something goes wrong during pregnancy, labour or delivery, the consequences for a mother, a baby and a whole family can last a lifetime. This guide explains when birth trauma may give rise to a compensation claim in New South Wales, what the law requires you to prove, what compensation can cover, the time limits that apply, and where to find support along the way.

What is birth trauma?

"Birth trauma" is a broad term. It can describe physical injury to a mother or baby during pregnancy, labour or birth, and the psychological harm that can follow a frightening, painful or disempowering birth experience. Partners and family members who witness a traumatic birth can be affected too.

The issue has received sustained public attention in NSW. In 2023 the NSW Parliament established a Select Committee on Birth Trauma, which received more than 4,000 submissions. Its final report, tabled on 29 May 2024, made 5 findings and 43 recommendations, including on informed consent, postnatal care for pelvic floor injuries, and how maternity complaints are handled. We have written more about why these injuries need to be discussed openly in Maternal birth injuries: what we must talk about.

Birth trauma is not always negligence

This is the most important distinction in any birth injury claim. Childbirth carries inherent risks, and some injuries happen even when care is excellent. A traumatic outcome does not, on its own, mean anyone was at fault.

A compensation claim arises where the injury was caused by care that fell below the standard reasonably expected of the midwives, doctors or hospital involved. That might be a single serious error, or, more often, a series of smaller failures across a long labour: warning signs that were missed, escalation that came too late, or a decision that was delayed. Our birth trauma and obstetric negligence page explains why obstetric cases often turn on patterns across labour rather than one moment.

Injuries that can lead to a claim

Every case is different, but claims commonly involve the following kinds of harm.

Many women also describe feeling unheard when they raised concerns during or after birth. Being dismissed is not, by itself, a legal claim, but it can be part of how an injury was missed. We explore this in when being gaslit by a doctor becomes a legal issue.

What you must prove

In NSW, medical negligence claims are governed by the Civil Liability Act 2002 (NSW) and the common law. In broad terms, you need to establish four things.

Birth injury claims usually depend on independent expert evidence, for example from an obstetrician, a midwife, a neonatologist or a paediatric neurologist, and on a detailed analysis of the medical records, including the CTG trace and the labour timeline.

Consent during labour and birth

You have the right to be given the information you need to make decisions about your care, including the material risks of a procedure and the reasonable alternatives. That right does not disappear in the birth suite. The Medical Board of Australia’s Good medical practice code of conduct sets out what doctors must do to obtain informed consent, and NSW public health services follow the NSW Health Consent to Medical and Healthcare Treatment Manual.

A failure to warn of a material risk can found a claim if, properly informed, you would have chosen differently and the injury would have been avoided. The peer professional opinion defence in section 5O does not apply to a failure to give a warning or advice. Consent was a major theme of the parliamentary inquiry, which recommended informed consent training for maternity clinicians and a review of the law on informed consent.

Who can claim?

• The mother, for her own physical and psychological injuries.
• The child, for injuries suffered before or during birth. Because a child cannot run a claim themselves, a parent or other adult conducts the case on their behalf, and any settlement for a child must be approved by the court to make sure it is in the child’s best interests.
• Partners and close family members, in some circumstances, for psychiatric injury. Under section 30 of the Civil Liability Act, a person can generally only claim for pure mental harm caused by shock if they witnessed the victim being killed, injured or put in peril at the scene, or are a close member of the victim’s family.
• Families, where a mother or baby has died, may have a claim for the financial loss caused by the death, as well as their own psychiatric injury.

What compensation can cover

Compensation (called "damages") aims to put you, as far as money can, in the position you would have been in if the negligence had not occurred. Depending on the case, it can include:

• Pain, suffering and loss of enjoyment of life (non-economic loss). In NSW, these damages are only available where the harm is at least 15% of a most extreme case, and they are capped.
• Past and future loss of earnings, including where a mother cannot return to work, or a child’s injury will affect their ability to work in adult life.
• Medical and treatment expenses, such as surgery, pelvic floor physiotherapy, psychology and medication.
• Care and assistance, whether paid or provided free of charge by family (subject to thresholds in the Act).
• Lifelong needs for a child with a serious injury, such as therapy, equipment, home and vehicle modifications, accommodation and support, and the cost of managing a large award of damages.

For children with serious lifelong injuries, compensation often needs to be considered alongside other supports, such as the National Disability Insurance Scheme, and organisations like Cerebral Palsy Alliance. It is also worth thinking about how an award will be protected over the long term. Our article on protecting your disabled child in your will covers some of the planning issues.

Time limits

Time limits for personal injury claims in NSW are set by the Limitation Act 1969 (NSW). They are strict, and missing them can end a claim.

• The general rule: proceedings must usually be started within three years of the date the claim becomes "discoverable", meaning when you knew or ought to have known that the injury had occurred, that it was caused by someone’s fault, and that it was serious enough to justify a claim. There is also a 12-year "long-stop" running from the date of the negligent act or omission. Whichever ends first applies.
• Claims for children: do not assume your child has until they turn 18. Under the Act, a child who is in the care of a capable parent or guardian is not treated as being under a disability, and the parent’s knowledge is treated as the child’s knowledge. That means time can start running for a child’s claim from the moment a parent knows, or ought to know, the relevant facts.
• Extensions: a court can, in some circumstances, extend the 12-year long-stop, but an extension is never guaranteed.

Complaints, open disclosure and other options

A compensation claim is not the only way to get answers or accountability, and these other processes can run alongside a claim.

Open disclosure

When a patient is harmed during their care, health services are expected to talk openly with the patient and family about what happened, why, and what is being done to prevent it happening again. This is called open disclosure. It is described in the national Australian Open Disclosure Framework, and NSW public hospitals follow the Open Disclosure Policy (PD2023_034) supported by the Clinical Excellence Commission. You are entitled to ask for an open disclosure meeting.

Complaints to the Health Care Complaints Commission

In NSW, complaints about health practitioners and health services are made to the Health Care Complaints Commission. Complaints must be in writing, and can be lodged through the Commission’s online complaints page. The parliamentary inquiry recommended that the Commission be supported to resolve complaints more quickly and in a trauma-informed way.

Concerns about an individual practitioner

Ahpra explains how to raise concerns about a registered practitioner on its notifications page, including the different arrangements that apply in NSW.

These processes focus on safety and professional standards. They do not award compensation, so if you have been injured you may need to consider a civil claim as well.

Practical steps to take now

1. Look after your health first. Get the medical and psychological care you need, and keep a record of appointments and expenses.
2. Request your medical records, including your antenatal records, the labour and birth notes, CTG traces, and your baby’s neonatal records.
3. Write down what you remember while it is fresh: times, who was present, what you were told, and any concerns you raised.
4. Ask questions. Request an open disclosure meeting or a debrief with the hospital if you have not been offered one.
5. Keep receipts for treatment, travel, care and equipment, and note any time off work.
6. Get legal advice early, so the time limits are identified and the evidence can be preserved.

Where to find support

A legal claim can be part of recovery, but it is not a substitute for support. These organisations can help:

• Birth Trauma Australia: peer support, information and free pelvic physiotherapy guidance.
• PANDA: the national perinatal mental health helpline for parents, on 1300 726 306.
• Gidget Foundation Australia: free perinatal psychological support for parents.
• Maternity Consumer Network: maternity advocacy, resources on birth trauma, and help with complaints. Dr Listing has delivered informed consent training with the Maternity Consumer Network.
• Cerebral Palsy Alliance: services and support for children and families living with cerebral palsy.

If you are in crisis or feel unsafe, call Lifeline on 13 11 14, or 000 in an emergency.

This article is general information about the law in New South Wales as at October 2026. It is not legal or medical advice, and it does not take your circumstances into account. Every case is different, and time limits apply, so please seek advice about your own situation.