A member asked over 8 years ago

Request for compensation due to duty of care not being followed through

A few years ago, I lost someone close to me in an incident in a nursing home. Person was supposed to be monitored at nurses station whilst eating at all times. Was only to meals of soft consistency. Person was served a sausage roll in bedroom there is some debate as of meal of the day as this was not on menu it is said brought in by outside visitors. This has not been proven.

Firstly was served meal in bedroom

Secondly given meal uncut and of not right consistency

Person choked causing blocked airway hypoxia then heart attack lack of oxygen to brain thus making brain dead passed away few days later passed

i want to put action against nursing home for negligence can i?

Law Advisor Research Team
Researchers at LawAdvisor

Hi there. We are sorry to hear about your loss.


The aged care system in Victoria is governed by the Aged Care Act 1997 (Cth), which is a national law.The Aged Care Act states that the standard of care provided in a nursing home must be in accordance with the Quality of Care Principles 2014. These principles can be found online, and provide relevantly that meals should be provided with any special dietary requirements in mind. This includes having regard to medical need (Schedule 1, Part 1, 1.10). However, there are no specific penalties provided for the breach of these principles. Instead, the general criminal law and common law will apply to any breaches of the act.


The action you are probably referring to in your question is a negligent breach of duty of care. This is a common law action, and can result in damages being awarded. Duty of care is a requirement that a reasonable level of care is exercised by a caregiver in order to ensure the provision of a safe environment for people who are vulnerable. If this duty is breached, and someone suffers an injury as a direct result, the person who has suffered may be eligible for damages. However, this is a complex cause of action, because many things need to be shown in court. This includes what the specific standard of care should have been, and if and how it was breached. Your case will likely be more complex because deaths are dealt with differently to injury (since technically there is no one to compensate for the breach). You will have to show that you have the right to take action against the home concerned (if you are only an acquaintance this may be hard) and also that there is some lasting damage to be compensated. This does not mean that you do not have a cause of action, but it does mean that it might be difficult to prove.

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Suggested way forward

Since this is a complex area of law, it is advisable that you speak to a lawyer who is experienced in this area of law. Alternatively you can lodge a complaint about your concerns. All complaints about residential aged care services are handled by the Commonwealth Department of Social Services, so visit their website for more information.

If you do wish to speak with a lawyer, by pressing the "Take Action" button through LawAdvisor - which opens mid August - we can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services

Answered over 8 years ago   Legal disclaimer

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