Class Action Commenced Over Covid-19 Vaccine Injuries

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Covid-19 Vaccine

A class action against the Australian Government over Covid-19 vaccination injuries has been filed in the Federal Court. 

More than 500 people are part of the class action, filed against (at least) the Australian Government, the Department of Health and Aged Care Secretary Dr Brendan Murphy and the Deputy Secretary of Health Products Regulation Group Adjunct Professor John Skerrit (“the Respondents”) in the Federal Court of Australia to recover compensation for injuries obtained as a result of taking one or more Covid-19 vaccines.

Court documents claim the Respondents’ actions to advance the acceptance and use of the various approved Covid-19 vaccines constitutes negligence and/or misfeasance. 

They further claim such negligence and/or misfeasance caused class members to suffer loss or damage, including but not limited to:

  • personal injury;
  • health care expenses;
  • additional out-of-pocket expenses;
  • economic loss;
  • the need for gratuitous care and, additionally or alternatively, commercial care; and/or
  • non-economic loss.

Common law claim

Both negligence and misfeasance in public office are considered to be common law torts, meaning they are part of the law developed by courts over time rather than enacted in legislation – although there is legislation that also enacts specific forms of both negligence and misconduct in public office relating to discrete acts in both civil and criminal law.

Civil negligence

Negligence in the civil law is where:

  1. A duty of care exists between one party – whether a person, business, organisation or other body – and another,
  2. The other party breaches that duty by failing to exercise reasonable care and/or skill, and
  3. The duty of care to which the party is owed suffers damage and/or injury as a result of the breach.

The present claim asserts that:

  1. A duty of care was owed by the Government to the public,
  2. That duty was breached through failing to exercise reasonable care by not properly advising of the risks of vaccines and/or not fully researching the impact of such vaccines and/or creating a situation whereby those who did not take a vaccine faced repercussions, and
  3. The breach/es resulted in injury.

Civil misfeasance in public office

Civil misfeasance in public office is where those in public office – such as politicians and employees of Government departments and/or agencies – “deliberately or intentionally… inflict[ed]… injury” or did so “with knowledge that there… [was] no power to engage in that coduct and that that conduct… [was] calculated to produce injury”; Northern Territory v Mengel [1995] HCA 65

The test is clearly a high one in the context of inflicting injury, while the question of whether there was a power for the Government to act will, perhaps, be the focus of this part of the claim.

No Government response

There has been no formal response from the Government to the filing of the civil action, however a TGA safety report published in April determined that adverse risks to the Covid-19 vaccinations are extremely low.

The document stated that there were 138,307 total adverse event reports from nearly 66 million vaccine doses administered – a rate of just 0.2 per cent.

‘The protective benefits of vaccination far outweigh the potential risks,’ the report states. 

The class action lawsuit is spearheaded by Queensland GP Melissa McCann who raised more than $100,000 through crowd funding to get it started. 

Serious adverse reaction to the Covid-19 vaccine 

Three representatives are named in the suit – one of whom alleges he suffered severe myopericarditis shortly after receiving the Pfizer Covid-19 jab. As a consequence he had to have open heart surgery.

Another is alleged to have suffered a neural disorder and chronic fatigue-type reaction which has no name and no treatment – yet it has been completely debilitating. 

A third is alleged to have suffered severe inflammation of the spinal cord and despite lengthy rehabilitation remains unable to walk unassisted.  

Even now, there’s still a considerable degree of reticence to discuss Covid-19 vaccination injury. 

Some of this reluctance on the part of doctors could relate to the fact that doctors were essentially silenced throughout the pandemic, and threatened by The Medical Board of Australia and the Australian Health Practitioner Regulatory Agency (AHPRA) with disciplinary action for providing ‘false or deceptive’ advice or information that could undermine the national vaccination program.

Prior to, and during the vaccine rollout, information about the vaccines was tightly held, and even though possible side effects were published, the seriousness of them was somewhat diminished with assurances from the Federal Government at the time that ‘vaccine safety’ was heavily monitored. 

Vaccine injuries did appear early on in 2021 but the majority of these stories were circulated via personal social media posts, and were not given much consideration or airtime by most mainstream media.

In the meantime, state and territory governments continued to push the Covid-19 vaccine despite the fact that it was never intended to stop transmission, and then introduced vaccine mandates across many industries. Medical exemptions were almost impossible to get. 

Those who were asking questions, or suggesting that they didn’t have enough information to provide ‘fully informed consent’ around vaccines were marginalised and ostracised – not just here, globally. 

It’s time to acknowledge the damage 

The subject of vaccines was particularly polarising during the pandemic and now unfortunately, the subject of Covid-19 vaccine injury seems to elicit a similar reaction. 

It has only been in recent months since Dr Kerry Phelps spoke publicly about her own, and her partner’s respective Covid-19 vaccine injuries, and now that a class action has been launched by alleged victims of injuries, that the code of silence has been cracked open. 

What about the compensation scheme 

The Australian Federal Government set up a compensation scheme for claims of this nature, however it’s been heavily criticized as ‘not fit for purpose,’ with those trying to access the scheme run by Services Australia saying response to claims is slow. Others say they have been left further out of pocket after having to pay for additional medical tests to support their claims and still don’t have a definitive answer and others simply don’t qualify. 

There are also criticisms around the complexity of the scheme and the fact that claims need to be signed off by a medical professional, certifying that a person’s condition can be linked to an adverse reaction to the vaccine. Furthermore, only a small number of officially recognised side-effects are listed as being covered. 

Published figures show that as of April 12, Services Australia had received 3501 applications and paid 137 claims totalling more than $7.3 million. Another 2263 claims are still in progress, while 405 have been withdrawn and 696 deemed not payable.

Under tier one, people who have suffered an eligible clinical condition or injury can claim losses of between $1000 and $19,999.

Tier two pays out $20,000 for more severe illness and financial loss. 

Tier three covers vaccine recipients who died if the vaccine was proved to have caused or materially contributed to the death, and can include funeral costs.

Last year it was estimated that claims could reach as high as $77 million. The scheme will end – that is it will no longer allow applicants to make claims after April 24, 2024. 

Can victims sue Big Pharma? 

In the United States, legislation protects the vaccine manufacturers giving them indemnity from liability for Covid-19 vaccine-related injuries. Similar legislation protects the Food and Drug Administration (FDA) which is the equivalent of the TGA, for authorizing a vaccine for emergency use, nor can you hold your employer accountable if they mandate inoculation as a condition of employment.

Originally, the Australian Government set up compensation for two vaccine manufacturers named as: AstraZeneca, and the University of Queensland vaccine from Seqirus (part of CSL). 

The AstraZeneca vaccine was withdrawn from Australia in March this year and is no longer available. 

However, it’s not clear whether the other manufacturers – Pfizer, Moderna, or Novavax COVID-19 have been granted the same or similar compensation by the Australian Government. 

Joining the class action

The class action has been filed by N.R. Barbi solicitor and those interested in joining can click this link.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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