The injured child usually holds the main claim, brought through an adult representative. A birthing parent may have their own claim for physical or psychological injury. Other family members may claim only in limited circumstances defined by state or territory law. Each claim covers separate losses.
Child claims
Where a baby suffers injury during pregnancy, labour or birth, the child is usually the claimant in their own right. Their claim may cover lifetime care, therapy, medical treatment, equipment, accommodation changes and lost future earning capacity, as well as pain and loss of enjoyment of life. Because the full effect of an injury may not be clear for years, timing and the extent of loss often need careful assessment.
Maternal claims
A birthing parent may have a separate claim for injuries to their own body, such as complications following a delivery or surgery, if those injuries are linked to care that fell below the accepted standard. A recognised psychiatric injury connected to the birth may also be relevant. This claim stands apart from the child's and has its own evidence and potentially its own time considerations.
Family claims
Partners, siblings and grandparents are often deeply affected, but being affected is not the same as having a claim. Some jurisdictions allow certain relatives to claim for a recognised psychiatric injury, or allow compensation for care provided by family to be included in the injured person's claim. The rules differ and frequently include conditions about relationship and circumstances.
- Gratuitous care given by family may be claimable within the child's claim, subject to local rules.
- A partner's psychiatric injury claim, where available, usually requires a diagnosed condition.
- Financial dependency claims generally arise only after a death.
Representatives
A child cannot manage legal proceedings, so an adult, often a parent, acts as their representative. The representative makes decisions in the child's interests and may carry certain responsibilities, including for costs. An adult who lacks capacity may also need a representative.
Separate losses
Keeping each person's losses distinct matters. A parent's reduced working hours to care for a child may be considered differently from the parent's own injury. Clear records help a solicitor allocate losses to the correct claim and avoid gaps or double counting.
For your next conversation
- Whose injuries are being considered: the child, the birthing parent, or both?
- Do you have the birthing parent's own postnatal and follow-up records, not only the baby's?
- Has a treating practitioner diagnosed any psychological condition in a parent or partner?
- Are you keeping a care diary recording hours of family care provided?
- Has anyone reduced work hours, and do you hold payslips showing the change?
Common questions
Can grandparents who help care for our child claim for their time?
Grandparents usually do not have their own claim, but the value of care they provide may sometimes be included in the child's claim, subject to rules in the relevant jurisdiction. Keeping a diary of hours and tasks helps a solicitor assess whether this is possible.
Do the child and mother have to bring their claims together?
Not necessarily. They are separate claims and may have different evidence and time considerations. They are often investigated together because the same records and events are involved, but a solicitor will consider each person's position individually.
Sources & further reading
- OAIC: access health information (opens in a new tab)
- Pregnancy, Birth and Baby: traumatic childbirth (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.