Medical negligence · Compensation explained
How Much Compensation Can You Claim for Medical Negligence in Australia?
The short answer
How much you can get depends mostly on how serious and lasting your injury is, how much income you've lost or will lose, and how much care and treatment you'll need in future. Claims range from a few thousand dollars to many millions. In NSW, the most you can receive for pain and suffering alone is $804,000. Less serious injuries receive far less, or nothing, for that part of the claim. But most of the money in a large claim comes from lost earnings and future care, which aren't capped in the same way.
Here's what that can look like. These are made-up examples, using NSW rules, to show the range. They aren't predictions for any real claim.
| Injury | Example | Pain and suffering (NSW) | Example total |
|---|---|---|---|
| Minor Full recovery within months |
A delayed diagnosis of an infection. Extra treatment, four weeks off work, then fully recovered. | $0. Below the 15% threshold. | Around $10,000 to $20,000: medical costs and lost wages only. Legal costs may make a claim not worth pursuing. |
| Moderate Lasting, but manageable |
A severe perineal tear, repaired late, with some ongoing symptoms managed by physiotherapy. Assessed at 20–25% of a most extreme case. | $28,140 to $52,260 | Around $60,000 to $150,000, with treatment costs and some time off work. |
| Serious Life-changing |
A pelvic floor injury after an unwarned forceps birth. Surgery, ongoing treatment, and dropping from full-time to part-time work. Assessed at 30%. | $184,920 | Around $800,000 to $1 million, mostly from lost future earnings (see the worked example). |
| Catastrophic Lifelong care needed |
A baby with a severe brain injury from oxygen deprivation at birth, needing care for life. | $804,000, the maximum | Often several million dollars or more, mostly for lifetime care, equipment, therapy and lost earning capacity. |
Other states use different caps. The current maximum for pain and suffering is $850,000 in the Northern Territory, $494,150 in Queensland, and $444,340 in South Australia, and there's no cap in the ACT. The rest of this guide explains each part of a claim, so you can see where the numbers come from. Only a proper review of your records and expert evidence can tell you what your own claim might be worth.
Why this question matters
When people first get in touch with me, they often apologise for asking about money. As if wanting to know is somehow greedy, or disrespectful to what they've been through.
It isn't. Compensation is how the law tries to put you back, as far as money can, in the position you'd have been in if you hadn't been harmed.
That might mean paying for the surgery you now need, the income you can't earn, or the care your child will need for the rest of their life. It might mean recognising, in the only way the law can, what you've been through. Understanding what's available is part of making a good decision about whether to bring a claim at all.
How compensation works
A few basics first, because they shape everything else.
You have to prove negligence first.
Compensation is only available if the care fell below the standard expected and that failure caused your injury, or made it worse. A bad outcome on its own isn't enough. Independent medical experts review your records to answer both questions.
It's usually paid as one lump sum.
Australian compensation is generally paid "once and for all". You can't come back later for more if things get worse. That's why the future matters so much in a claim, and why it's important not to settle too early, before the long-term picture is clear.
Each state and territory has its own rules.
After a national review of negligence law in the early 2000s, every state and territory introduced its own caps and thresholds. In NSW it's the Civil Liability Act 2002, and the other states have their own equivalents. The types of compensation are broadly the same everywhere. The limits are not. Which rules apply usually depends on where the treatment happened.
Compensation is made up of different "heads".
Lawyers call each category of compensation a "head of damage". A claim adds up each head separately. The main ones are below.
Pain, suffering and loss of enjoyment of life
Non-economic loss (also called general damages)
Compensation for the human cost of an injury: physical pain, emotional suffering, disfigurement, loss of enjoyment of life, and loss of life expectancy. It's not tied to any receipt or wage.
In plain terms: this is the part of a claim that recognises what the injury has done to your life, rather than to your bank account.
This is the head people most often ask about, and it's the one most heavily limited by law. Every state except the ACT caps it. Most also set a threshold, so less serious injuries receive little or nothing for this part of the claim, even when negligence is clear.
| State or territory | How it's assessed | Current maximum |
|---|---|---|
| NSW | Your injury is compared to "a most extreme case". It must be at least 15% as severe to receive anything. | $804,000 for awards from 1 October 2025 (NSW order). Indexed each 1 October. |
| Queensland | Your injury is given an "injury scale value" from 0 to 100, which converts to a dollar amount on a sliding scale. | $494,150 at the top of the scale for 2026–27 (ISV 100). The bottom of the scale (ISV 1) is $2,010 (Qld indexation notice). |
| Victoria | You must have a "significant injury": generally more than 5% whole person impairment for a physical injury, or 10% or more for a psychiatric injury (Victorian Government Solicitor's Office). | A cap indexed each 1 July. It was $644,640 in 2021–22 and is higher now. |
| South Australia | An injury scale from 0 to 60, with minimum thresholds before anything is paid. | Up to $444,340 at the top of the scale for injuries from 1 January 2025 (Vincents litigation tables). |
| Northern Territory | A minimum impairment threshold applies. | 680,000 monetary units (NT Attorney-General's Department). At $1.25 per unit for 2026–27 (monetary units), that's $850,000. |
| WA and Tasmania | Thresholds and deductions for less serious injuries, indexed each year. | No fixed cap like NSW. Smaller claims are reduced or excluded. |
| ACT | Assessed under the general law by comparison with similar cases. | No statutory cap. |
What that looks like in practice (NSW).
The NSW system catches many people by surprise. It isn't a straight line. Injuries assessed below a third of a most extreme case receive a much smaller share of the maximum. Here's how the current $804,000 maximum translates, using the table in section 16 of the Act:
| Your injury, as a % of a most extreme case | Share of the maximum you receive | Amount (at $804,000) |
|---|---|---|
| Under 15% | Nothing | $0 |
| 15% | 1% | $8,040 |
| 20% | 3.5% | $28,140 |
| 25% | 6.5% | $52,260 |
| 30% | 23% | $184,920 |
| 33% | 33% | $265,320 |
| 50% | 50% | $402,000 |
| 75% | 75% | $603,000 |
| 100% (a most extreme case) | 100% | $804,000 |
Notice the jump between 25% and 30%. Where an injury sits on that scale makes an enormous difference, which is why careful medical evidence matters so much. "A most extreme case" means something like catastrophic brain damage or quadriplegia. Most injuries sit well below it. A serious pelvic floor injury, a severe tear with ongoing incontinence, or a significant brain injury to a child might be assessed anywhere from the 20s to much higher, depending on its effects.
Lost income and earning capacity
Economic loss
Compensation for the money you've lost, and will lose, because you can't work as you otherwise would have. It covers past loss (from the injury until the claim ends) and future loss (for the rest of your working life).
In plain terms: if the injury has cost you income, or will, you can claim it.
This head is often the largest part of a claim for someone of working age. Some things to know:
- It's based on what you would have earned, including likely promotions and career changes, not just your pay on the day you were injured.
- Very high incomes are capped. In most states, earnings above about three times average weekly earnings are ignored. In NSW, that cap is currently about $4,778 gross per week, three times $1,592.70.
- Future loss is discounted. Because you receive future earnings now as a lump sum, the law reduces it to reflect what that money could earn invested. In NSW the discount rate is 5%. Future loss is also reduced for life's "vicissitudes", the chance that illness, redundancy or other events would have affected your work anyway. That's often around 15%.
- It includes lost superannuation. You can claim the employer super contributions you would have received on the lost earnings. Compulsory employer super is currently 12% of ordinary earnings.
- You don't need to be in paid work. Students, people on parental leave, and people between jobs can still claim for lost earning capacity.
Medical and treatment costs
You can claim the reasonable cost of treatment caused by the negligence, both what you've already spent and what you'll need in future. There's no cap on this head. It can include:
- doctors, specialists and surgery, including revision or corrective surgery
- hospital stays
- medication
- physiotherapy, including pelvic health physiotherapy
- psychology, psychiatry and counselling
- speech pathology, occupational therapy and other allied health care
- continence aids, pessaries and other medical supplies
- travel to appointments, and parking
Future treatment is costed with the help of medical experts. If you'll need a revision surgery every ten years, or physiotherapy for life, those costs are calculated and included, discounted to a lump sum.
Care and help at home
This is one of the most important, and most often underestimated, parts of a claim. It comes in a few forms.
Paid care.
The cost of professional carers, nurses, support workers, cleaners or gardeners you need because of the injury. Past costs are claimed from receipts. Future costs are estimated by care experts. For a child with a serious lifelong injury, future paid care can be the single largest part of the claim, sometimes many millions of dollars.
Unpaid care from family and friends.
Gratuitous care
Compensation for care given to you, free, by family or friends, such as a partner helping you shower or a parent doing extra care for an injured child.
In plain terms: the law recognises that care has value, even when nobody sends a bill.
In most states there's a threshold. In NSW and Victoria, for example, the care must be needed for at least 6 hours a week, for at least 6 consecutive months. The rate is also capped. In NSW it can't exceed one-fortieth of average weekly earnings per hour, currently roughly $40 an hour. Above 40 hours a week, it's capped at average weekly earnings. That's still significant. Twenty hours a week of family care, over a year, is around $40,000.
Losing your ability to care for others.
In several states, including NSW and Victoria, you can also claim if the injury stops you caring for someone else, such as your children or a dependent family member, and someone has to step in. Similar 6-hour, 6-month thresholds apply.
Other costs you can claim
- Home modifications: ramps, bathroom changes, or even moving to a more suitable home
- Vehicle modifications, or the extra cost of a suitable car
- Equipment: wheelchairs, hoists, special beds, communication devices and the cost of replacing them over a lifetime
- Fund management: where a large sum is held for a child or a person who can't manage their own affairs, the cost of professional management can be included
- Interest on some past losses, depending on the state
- Some legal costs: if your claim succeeds, the other side usually pays a large part of your legal costs, though rarely all of them
When the injured person is a child
Claims for children, such as after a birth injury like HIE (see also what cooling for HIE involves) or Erb's palsy, work a little differently.
- Lifetime care and equipment are often the biggest part of the claim, because they may be needed for decades.
- Lost earning capacity is assessed even though the child has never worked. Courts often start from average earnings, adjusted for the family's circumstances and the child's likely path.
- Timing matters. It's often wise to wait until a child's long-term needs are clearer, sometimes until they're five or older, before finalising a claim. But time limits can run while a child is young, so advice should be sought early.
- A court must approve any settlement for a child. In NSW, the money is usually managed by NSW Trustee & Guardian or a similar body until the child turns 18. This protects the child.
- The parents' own losses, such as income lost to care for the child, or their own psychological injury, may be claimed separately.
Claims by family members
Psychological injury from what you witnessed.
A parent or partner who develops a recognised psychiatric illness, such as PTSD or major depression, after witnessing a traumatic birth or a family member's injury may have their own claim. Ordinary grief and distress, however profound, isn't enough in law. There must be a diagnosed psychiatric condition. The same thresholds for pain and suffering then apply.
When someone dies.
If a person dies because of negligence, their family may be able to claim. In NSW this is under the Compensation to Relatives Act 1897, and other states have similar laws. These claims generally cover:
- the financial support the person would have provided
- the value of the household services they would have provided, such as childcare, cooking and maintenance
- funeral expenses
In most states, there's no payment simply for the grief of losing someone. South Australia and the Northern Territory allow a limited amount for this. Family members who develop a psychiatric illness can also claim in their own right, as above.
If you've lost a baby, my article on stillbirth and negligence explains how this area works.
What compensation doesn't cover
- Punishment. In negligence claims, the law generally doesn't award "punitive" or "exemplary" damages to punish a doctor or hospital. NSW expressly prohibits them. Compensation is about your losses, not the defendant's conduct.
- Losses that weren't caused by the negligence. If you'd have had some problems anyway, compensation covers only the extra harm the negligence caused.
- Injuries below the thresholds. In most states, minor or short-lived injuries receive little or nothing for pain and suffering, even if negligence is clear. Economic loss and medical costs may still be claimable.
What comes out of a settlement
The headline figure isn't always what reaches your bank account. Depending on your circumstances, some amounts may need to be repaid:
- Medicare may need to be refunded for treatment it paid for that relates to the injury
- Centrelink payments may be affected, and a "preclusion period" may apply after a settlement
- The NDIS may seek to recover, or reduce future funding, to reflect compensation for the same needs
- Private health insurers may seek repayment of benefits they've paid
- Legal costs not recovered from the other side are paid under your costs agreement. Your lawyer must give you a written estimate before you start.
A good lawyer will explain these at the start, and structure a settlement with them in mind.
Putting it together: an example
To show how the heads fit together, here's a simplified, made-up example. It's not a real case, and real claims involve far more detail.
Example: a 32-year-old woman in NSW
She suffered a levator avulsion and prolapse after a forceps birth she wasn't properly warned about. She needed surgery, ongoing physiotherapy and counselling, and reduced her work from full-time to three days a week. Her claim might be built like this:
- Pain and suffering: assessed at 30% of a most extreme case = 23% of $804,000 = $184,920
- Past loss of earnings: two years at two days a week less, about $70,000, plus super
- Future loss of earning capacity: the same reduction to retirement, discounted at 5% and reduced for vicissitudes, perhaps $450,000 to $550,000, plus super
- Past and future medical costs: surgery, revision surgery, physio, psychology, aids, perhaps $80,000 to $150,000
- Care: her partner's help in the months after surgery may not meet the 6-hour, 6-month threshold. If it does, it adds a further amount.
In plain terms: a claim like this could total somewhere in the high hundreds of thousands. But every figure depends on the medical evidence, her actual income, and the strength of the negligence case.
For a child with a severe, lifelong brain injury, the same building blocks can add up to many millions, mostly because of lifetime care.
And for some people, the honest answer is that the compensation available would be modest, because of the thresholds. That's important to know too, before you decide whether to go ahead.
If this is landing for you, and you'd like to understand what your own situation might involve, I'm happy to talk it through. There's no pressure and no cost to an initial conversation.
Frequently asked questions
What's the average payout for medical negligence in Australia?
There isn't a meaningful average, because claims range from a few thousand dollars to many millions. As a rough guide: minor injuries that heal fully often total in the low tens of thousands. Lasting but manageable injuries often total tens of thousands to the low hundreds of thousands. Life-changing injuries can approach or exceed $1 million. Catastrophic injuries needing lifelong care can run to several million dollars or more. The examples at the top of this page show how.
Is compensation taxed?
Lump sum compensation for personal injury is generally not treated as income. But interest earned on it after you receive it may be. It's worth getting financial advice once you settle.
Can I claim if I already had a health condition?
Yes. You can claim for the extra harm the negligence caused, even if you were already unwell or had an existing condition.
Can I reopen my claim if things get worse?
Generally, no. Compensation is "once and for all". That's why it's so important that the claim properly accounts for the future before it settles.
Is there a time limit?
Yes. In NSW, it's generally three years from when you knew, or should have known, about the injury and its cause, with an outer limit of 12 years under the Limitation Act 1969. Other states differ, and the rules for children are complex. Please get advice early.
Do I need to know what my claim is worth before I contact a lawyer?
Not at all. Working that out is part of a lawyer's job, with the help of medical experts.
A closing thought
Money can't undo what happened. But it can pay for the surgery, the therapy, the care and the time off work that you need. It can mean you don't carry the financial cost of someone else's mistake on top of everything else.
So here's a question to sit with: if the financial pressure of this were lifted, what would you be able to focus on instead?
If you're still working out whether your care fell short, you may find the rest of our resources helpful. Start with our birth trauma and obstetric negligence page, or read about living with a pelvic floor injury. If you'd like a more technical summary of how NSW courts assess damages, the Judicial Commission's civil trials bench book on damages is the place judges look. If you mainly want answers, NSW public hospitals also have an open disclosure process. For other ways to raise concerns, see the NSW Health Care Complaints Commission.
This article is general information only and is not legal or financial advice. Figures are current as at October 2026 and change regularly. Reading it does not create a lawyer–client relationship. Every situation is different.
