Covid vaccine injury claims and the case for a vaccine compensation scheme in Ireland
21st September, 2021
Currently the only option for redress open to those who suffer vaccine injuries in Ireland is to issue court proceedings against the vaccine manufacturer and against Ireland, as the ultimate payor of compensation. This a not a decision to be taken lightly as it presents the challenges of proving not only that the vaccine caused the injury in question but also that the injury was due to an act of negligence for which the vaccine manufacturer is liable.
Although the Irish Government has actively encouraged vaccination for the public good and has done a deal to indemnify four Covid 19 vaccine manufacturers from claims for vaccine injuries, it has not to date assumed responsibility to compensate those who suffer vaccine injuries in serving the public good.
The Irish Government’s decision to enter into Advance Purchase Agreements1 and provide indemnities to four Covid 19 vaccine manufacturers2 was a reasonable one as ithas ensured affordable access to vaccines.These are blanket indemnities protecting the vaccine manufacturers from claims for vaccine injuries subject to a limitedexclusion in the case of a delay in notification of claims which “materially prejudices the defence” of same.
Arguably a logical corollary of the government’s approach to vaccination would be the setting up of a no fault vaccine compensation scheme. Unfortunately this has yet to happen.
This is in spite of the fact that since January 2020 the government has been in possession of a report (“the Meenan report”) which recommended the establishment of a vaccine compensation scheme outside of the adversarial court process “as a matter of urgency”.
The Meenan report was commissioned by the government to review among other matters, the manner in which vaccine damage claims are dealt with. The report prepared by an expert group chaired by Mr Justice Charles Meenanproposed that a vaccine compensation scheme should be established to make “ex gratia” payments meaning they would be paid from a sense of moral or social obligation, without any admission of legal liability. The report recommended that the scheme should possess the following key components:
Provide cover for specific vaccines.
Require medical evidence to establish that a vaccine caused/ contributed to an injury
Be administered by a panel empowered to instruct their own experts.
Assess claims in private and publish its decisions anonymously.
Take account of guidelines for awards in personal injury actions.
Provide that the making of a claim or receiving an award under the scheme would not prohibit bringing court proceedings althoughdamages awarded under the scheme would be deducted from any damages awarded by the court.
Prescribe time limits for claims.
Entitle claimants’ to be paid their reasonable costs and expenses to include legal expenses.
Guidance is also available to the government in the form of a review paper carried out by the Health Research Board on vaccine injury compensation programmes.3
The pandemic has shown us all that it is possible to effect change at a rapid rate where there is a will. We can only hope that the government will prioritise the establishment of a vaccine compensation scheme motivated by the desire to demonstrate that it will take care ofindividuals who suffer vaccine injuries.