Ian Lees, father of Katie Lees, one of the bereaved litigants, with his daughter’s story at Hyde Park after an interlocutory hearing in the Federal Court last month. Photo courtesy Alison Bevege.
Next month the Federal Court is to hear an application to strike out a class action against the Federal Government and its health authorities that seeks compensation for injury and death caused by Covid vaccines.
Let me say at the outset, I am not an anti-vaxxer – far from it. The science is sound. Vaccinations have saved millions of lives and vaccination programs should continue as sound, scientifically proven public-health measures.
That said, it is equally true and scientifically proven that very rare cases emerge of people having adverse reactions to vaccinations that cause serious injury, even death.
They are very rare. Up until the beginning of 2023 about 65 million doses of the Covid-19 vaccines were given in Australia. The Therapeutic Drugs Administration says it has identified 14 cases of death resulting from the vaccines and up to that time has reviewed about 1000 cases.
There are probably more. There will be other cases where it is difficult to prove a causal link between the vaccine and the medical condition other than that the condition came immediately after the vaccine and that there was no other cause for it – not enough to pass the legal test of causation.
But even if we trebled the incidents, they would still a very small number compared to the massive number of vaccines given. Nonetheless, they are all people, and they deserve decent treatment.
They deserve more generous treatment than the usual victim who sues for injury, say from a traffic or work accident or from ordinary medical negligence. This is because these people voluntarily joined a great public-health program which was manifestly in the greater public interest. They put their arms out because it was the only way for society to speedily defeat the pandemic menace.
Without vaccinations – and mercifully they were delivered quickly – it would have been like the Black Death. Herd immunity would only have been achieved by the grim Darwinian method of natural selection.
Of course, the speed of the delivery of the Covid vaccines suggests that, very reasonably, the immediate urgency to prevent massive death and morbidity meant that the good had to be given precedent over the perfect and the vaccines were rolled out more quickly and with less testing than most other therapeutic drugs.
Legal issues aside, a major public-policy issue is at stake. Responsible governments should be encouraging people to get vaccinated. Not only against Covid, but against the whole range of infectious diseases. This is especially true as anti-vax conspiracies proliferate and an anti-vaxxer is to head the US Department of Health come January.
In Australia, the hasty design of the initial compensation scheme was far too restrictive. Having been found to be restrictive, it was not amended to be more generous and as a result this, a lose-lose class action has been started. The government compensation scheme is now closed.
The class action is lose-lose because legally it is most likely legally doomed and when that happens it will become a weapon for the anti-vax movement – precisely the opposite of what any rational government would want.
But no, since the first vaccines became available, governments said: “Nothing to see here. The vaccines are perfect. Anyone who suggests to the contrary or that they have had a medical reaction will be hosed down.”
And they were hosed down and denied. So much so that people who have had adverse reactions felt the only recourse was to launch legal action.
There are now about 1800 applicants. They include several death cases and many of debilitating illnesses such as pericarditis and injuries to the nervous and vascular systems.
The prohibitively expensive legal system precludes – for practical purposes –individual action. So, it is ripe for class-action lawyers, who will seek as many plaintiffs as possible and in doing so might inadvertently attract the undeserving.
As a result, governments have to be wary that they are not seen to be wasting government money.
The result is now appalling – the greater the number of claimants the more the government will resist the claim. But the more the government resists the claim the more it fodder it will give to the anti-vaxxers.
The case is most likely doomed because decades of tort law cannot cope. Tort law says you have a duty of care to people in proximity and if you act negligently and injure someone within that proximity you will be liable.
This case enters a new legal realm. It is simply not negligent (under current legal principle) to knowingly recommend or even mandate vaccinations which you know will save tens or hundreds of thousands of lives and which at the same time you suspect will result in a very few adverse reactions and even deaths.
It would have been more negligent to withhold the vaccines than to mandate them. So, what else could a government do?
Further, as these vaccines were given without cost, there is probably no case in contract law, though perhaps an imaginative lawyer could construct a contract case saying that in return for submitting to a vaccine there was an implied term that that single incidence of vaccine administration would not result in injury.
Also, it might be that failure to acknowledge and treat after the event was negligent. But it is all uncertain ground.
Further, even if successful, the claimants’ damages would be assessed on present legal principles. Damages are high if you can prove loss of income and/or loss of capacity to earn income. But they do not give much, if anything, for grief, anguish, and failure to recognise injury done, and not huge amounts for pain and suffering. Certainly, common-law damages for the loss of a non-earning loved one would be a lot lower than the proverbial pub test.
So public perception will be one of meanness and cover-up – playing int the anti-vaxxers’ hands.
Though the class action has considerably legal difficulty, the case of the injured people and the families of those who were killed by the vaccine has huge moral and public-policy force.
It should never have come this far. Even now the Government should settle this case, generously and responsibly – but not open slather – on public-policy grounds. Its message to the public should be: in the face of infectious disease, get vaccinated. And in the very rare case that something goes wrong we will support you because you have put your arm out in the common interest of all.
Society is best served by truth not denial of liability. The official report on the Covid response glanced over vaccine injury. The issue should be revisited, and a new compensation scheme should be set up for all vaccines and open to anyone who can show the basic time relation between vaccine and injury with a reverse onus of proof if the government wants to withhold compensation.
That would help restore some of the trust in authority that was lost during the Covid pandemic.
Crispin Hull
This article first appeared in The Canberra Times and other Australian media on 26 November 2024.