Medical Negligence in Victoria: Time Limits, the Significant Injury Threshold and Damages

By James Stevens, Director and Solicitor, Go To Court Lawyers. Last reviewed 20 April 2026.

In Victoria, a medical negligence claim must be brought within 3 years of when it became discoverable and no more than 12 years after the act or omission, unless a court extends that; damages for pain and suffering need a "significant injury" (more than 5% whole person impairment for most physical injuries) and are capped at $783,000 from 1 July 2026.

Checked on 23 October 2026 against the Wrongs Act 1958, the Limitation of Actions Act 1958, the Health Complaints Act 2016, the Victoria Government Gazette of 30 June 2026, the Legal Profession Uniform Law, the Health Complaints Commissioner and Victoria Legal Aid.

What has to be proved

• A breach: a person is not negligent unless the risk was foreseeable, was not insignificant, and a reasonable person in their position would have taken precautions. A professional is judged by what could reasonably be expected of a person with that skill, at the time.
• Peer professional opinion: a professional is not negligent if they acted in a way widely accepted in Australia by a significant number of respected practitioners in the field as competent professional practice, unless the court decides that opinion is unreasonable.
• Warnings: that defence does not apply to warnings or information about risk. A duty to warn is met by taking reasonable care in giving the warning, and in a claim about a failure to warn in a health service, you must prove you were not aware of the risk.
• Inherent risks: there is no liability when a risk that reasonable care cannot avoid comes about, but this does not remove liability for failing to warn of it.
• Causation: the negligence must have been a necessary condition of the harm, and you must prove causation on the balance of probabilities. What you would have done if warned is decided on your own circumstances.
• Apologies: an expression of sorrow, regret or sympathy that does not clearly acknowledge fault is not an admission of liability.

Time limits

The significant injury threshold

• Significant injury: you can recover damages for pain and suffering only for a "significant injury": an impairment of more than 5% of the whole person for a physical injury, 10% or more for a psychiatric injury, or 5% or more for a spinal injury, assessed under the American Medical Association's Guides (4th edition, as modified). Loss of a foetus, loss of a breast, and psychological or psychiatric injury from the loss of a child around birth also count.
• The certificate: an approved medical practitioner assesses your impairment, and you serve the certificate on the person you are claiming against. They must respond in writing within 60 days.
• A Medical Panel's decision binds the court, and there is no appeal on the merits.
• The threshold applies to pain and suffering only; other losses, such as lost earnings, do not depend on it.

Compensation

• Maximum for pain and suffering: the Wrongs Act sets $577,050, indexed each year, and says it is equivalent to the workers' compensation maximum for pain and suffering. The Government Gazette sets that maximum at $783,000 from 1 July 2026 ($759,510 before).
• Lost earnings: capped at 3 times average weekly earnings for each week.
• Care from family or friends: nothing is awarded if the care is for less than 6 hours a week and less than 6 months.
• These limits do not apply where the injury came from an intentional act meant to cause injury, or from sexual assault or other sexual misconduct.

Legal costs

• No win, no fee: any uplift fee in a conditional costs agreement is allowed only if success is reasonably likely, is capped at 25% of the legal costs (excluding disbursements) in a court matter, and fees calculated as a share of the award or settlement are banned.

Complaints are not compensation

• The Health Complaints Commissioner takes complaints about health services. It is free and confidential. A complaint should be made within 12 months after the service was completed, but the Commissioner may accept a later one.
• Outcomes are agreed, not ordered: through its voluntary process, outcomes can include an explanation, an apology, access to treatment or records, or a refund or compensation.
• Protection: you are protected from legal action such as defamation for making a complaint.
• Ahpra: the Commissioner may refer professional conduct issues to Ahpra, which can act only on a practitioner's registration and cannot arrange compensation.

Free help in Victoria

Victoria Legal Aid does not give legal advice about personal injury, including medical negligence, but can refer you to other services.

How Go To Court Lawyers can help

Our free line, 1800 577 015, answers at any hour. Jen, our AI legal information assistant, gives general legal information and takes your details; Jen is not a lawyer and does not give advice about your case. A 60-minute consultation with a lawyer who practises in Victoria is a fixed $295, by phone, video or in person where the lawyer offers it. The lawyer can advise on the time limit, the impairment assessment and certificate, and what a claim may be worth. Requests are taken at any hour; how soon a lawyer can see you depends on who is available. Request a $295 consultation.

General information only, not legal advice. Updated 23 October 2026. Checked against the Wrongs Act 1958 (Authorised Version 130), the Limitation of Actions Act 1958 (Authorised Version 113), the Health Complaints Act 2016 (Authorised Version 011), the Victoria Government Gazette S 363 of 30 June 2026, the Legal Profession Uniform Law, the Health Complaints Commissioner, Ahpra and Victoria Legal Aid, on 23 October 2026.