No need for compensation scheme for vaccine injuries just yet

Australia should not rush to establish a compensation scheme for vaccine injuries related to covid vaccines.

The Australian Government has already invested over $4 billion in to four vaccine agreements. Quite rightly, the establishment of a compensation scheme, whereby the Australian taxpayer indemnifies for the failure of the vaccines, does not sit well with Australians.

Unlike countries such as the US and UK, Australia does not have a no-fault vaccine compensation scheme or specific COVID-19 vaccine compensation scheme. Australia’s National Disability Insurance Scheme does not compensate individuals for temporary vaccine-related injuries.

In the 2020-21 Budget Papers, the Australian Government announced that it has provided an indemnity to Oxford University/AstraZeneca, ‘covering certain liabilities that could result from the use of the vaccine’.

Australians have observed the problems that have arisen with various vaccines being implemented around the world.

The AstraZeneca vaccine may cause a new rare clotting condition called “Suspected Vaccine Induced Prothrombotic Immune Thrombocytopenia”. VIPIT is a serious condition that presents as blood clots with low blood platelets (thrombocytopenia). The condition develops between four and 20 days after receiving the AstraZeneca vaccine, with a headache, other neurological symptoms, abdominal pain, shortness of breath or chest pain. In Australia, a 44-year-old man was hosptialised with blood clotting which was linked with the AstraZeneca vaccine.

A vaccine compensation scheme may give greater confidence to Australians to come forward and be vaccinated and confidence to medical practitioners to participate in the vaccine roll out. But should the Australian taxpayer be compensating pharmaceutical companies for deficient vaccines? When considering countries around the world with a vaccine compensation scheme, there is a lack of evidence showing a corresponding increase in vaccine intake.

A further problem with so called ‘no fault’ compensation schemes is that frequently the experience is that injured individuals are not provided with adequate compensation for their loss.

The issues above need to be balanced by government with consideration of the current legal protections.

There are already protections to individuals under the Competition and Consumer Act 2010 (‘Australian Consumer Law’) (ACL). A pharmaceutical company could be liable under the ACL for injuries caused if there are errors in the manufacturing process.

There could also be liability for suppliers for failing to ensure consumer guarantees such as that the vaccine be of acceptable quality and fitness for the disclosed purpose.

There are also protections to individuals under the Civil Liability Act 2002 (NSW) with section 5O as a compensable claim may arise as ‘negligence’ where vaccines have been improperly administered by a medical professional. Similar legislation applies in other Australian States and Territories.

Medical practitioners also have a duty to warn their patients of risks associated with treatments and procedures.

With good reason, Australia should be hesitant to establish a compensation scheme for vaccine injuries given the protection the existing legal framework provides. Any compensation scheme needs to ensure that pharmaceutical companies are the substantial funder of the scheme.

Bernard McAuley, Solicitor
McAuley Hawach Lawyers
11 Fennell Street, Parramatta NSW 2124
Telephone: (02) 9633 1826

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