A birth injury claim is a civil claim for compensation. It generally requires showing that care fell below the accepted standard and that this caused an injury and measurable loss. A poor outcome alone is not enough. Eligibility depends on the facts and the state or territory involved.
Who may be able to claim
The person most often at the centre of a birth injury claim is the child, whose claim usually concerns lifelong needs such as care, therapy, equipment and lost earning capacity. A birthing parent may have a separate claim for their own physical or psychological injury. In some circumstances other family members may have limited claims, but this is not automatic and depends on the law of the relevant jurisdiction.
Because a young child cannot run legal proceedings, an adult usually acts on their behalf. Who can claim, and for what, is one of the first questions a solicitor will work through.
What negligence requires
Negligence is not the same as an unexpected or distressing result. In general terms, a claimant needs to establish four connected elements, and each is assessed separately.
- Injury: a physical or recognised psychological harm that can be identified and described.
- Standard of care: what reasonable practitioners in that setting would have done at the time, and whether the care fell short.
- Causation: whether the shortfall actually caused or materially contributed to the injury, rather than an underlying condition or unavoidable complication.
- Recoverable loss: the financial and non-financial consequences the law allows to be compensated.
Evidence needed
Most claims depend on records made at the time, including antenatal notes, labour and birth records, monitoring traces, neonatal records and later diagnostic reports. Families may be able to request health information directly; the OAIC explains rights of access and how they differ between private providers and public hospitals.
Records are usually assessed by independent experts in fields such as obstetrics, midwifery, neonatology or paediatric neurology. Their opinions on standard of care and causation tend to determine whether a claim is viable. Evidence of loss, such as therapy invoices, care arrangements and income changes, is gathered alongside.
Time limits
Every state and territory sets its own limitation rules, and these can differ for children, for people with impaired capacity and for claims involving delayed discovery. Some procedures also involve notice steps before proceedings. There is no single national deadline, so a solicitor needs to check the current law that applies to the specific facts.
Next steps
A sensible starting point is to collect what you already hold, write a dated timeline while memories are fresh, and seek an initial review from a solicitor who practises in medical negligence in the relevant jurisdiction. If a claim proceeds, government recovery rules, such as Medicare compensation recovery and NDIS compensation provisions, may later affect how any compensation is treated.
For your next conversation
- Have you requested the full maternity, labour, birth and neonatal records, including monitoring traces?
- Do you know which state or territory the care took place in, and whether the provider was public or private?
- Have you written a dated timeline of pregnancy, labour, birth and the first weeks?
- Do you hold diagnosis letters and therapy or specialist reports for the child?
- Have you kept receipts for care, travel, equipment and therapy costs?
- Has anyone received Medicare-funded services or NDIS supports connected to the injury?
Common questions
If our baby needed resuscitation at birth, does that mean we have a claim?
Not necessarily. The need for resuscitation describes what happened, not why. A claim depends on whether care before or during birth fell below the accepted standard and whether that shortfall caused lasting harm. Independent expert review of the records is usually needed to answer those questions.
Does it cost anything to find out whether a claim is possible?
Arrangements vary between solicitors. Some offer an initial discussion without charge or work on conditional terms, while others charge for early investigation. Ask any solicitor to explain in writing how fees, expert report costs and disbursements are handled before you agree to proceed.
Sources & further reading
- NSW Limitation Act 1969 (opens in a new tab)
- OAIC: access health information (opens in a new tab)
- NDIS: compensation calculator (opens in a new tab)
- Services Australia: Medicare compensation recovery (opens in a new tab)
These references support the topic’s starting points. They do not determine the facts, standard of care or law applicable to an individual matter.