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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