Since this article was published on 2 July 2021, the Hon Greg Hunt MP (Minister for Health and Aged Care) issued a media release providing greater detail on the scope of the proposed COVID-19 vaccine indemnity scheme (see https://www.health.gov.au/ministers/the-hon-greg-hunt-mp/media/covid-19-indemnity-scheme-to-protect-health-professionals-and-patients).

The Australian Government has now clarified the proposed COVID-19 vaccine indemnity scheme will operate as “a no fault claims process scheme” to provide compensation where patients suffer “a significant adverse reaction, causing injury and economic loss because of vaccination”. What constitutes “a significant adverse reaction” has not yet been defined.

Furthermore, the COVID-19 vaccine indemnity scheme will “be backdated to the start of the national vaccine rollout”. Meaning, patients who suffer COVID-19 vaccine-related injuries prior to the scheme’s implementation will be entitled to claim compensation under the scheme.

Whilst the COVID-19 vaccine indemnity scheme will likely provide a simpler process for COVID-19 vaccine related injuries, injured persons are still entitled to pursue common law medical negligence claim compensation for adverse reactions to the COVID-19 in the interim and even after the scheme’s implementation.

National Indemnity Scheme

In late June 2021, the Federal government announced its intention to establish a professional indemnity scheme for medical practitioners who are “providing advice to people in relation to COVID-19 vaccination.”[1] 

Few details have been released about how the scheme will operate, and the scope of the scheme is unclear. However, the statement by the Federal Government seems to indicate the scheme will indemnify healthcare practitioners, not patients, from potential adverse reactions from the COVID-19 vaccine. 

Accordingly, it seems Australia will continue to lag behind other countries, such as New Zealand and the United States of America, who have established no-fault compensation schemes for vaccine-related injuries.[2] 

Medical Negligence Claims and the COVID-19 Vaccine

Interestingly, in the absence of a no-fault compensation scheme, injured persons may still be entitled to claim compensation for an adverse reaction to the COVID-19 vaccine by way of a medical negligence claim.  

Given that the Therapeutic Goods Administration has approved various COVID-19 vaccines as safe,[3] injured persons will most likely need to prove negligence by the medical practitioner who administered the COVID-19 vaccine in order to claim compensation.

An action in medical negligence requires an injured person to prove a medical practitioner failed to provide care to the standard of a competent medical practitioner at the time, and this failure caused them to suffer loss/damage as a result.[4]

Negligence in administering the COVID-19 vaccine might arise where a medical practitioner failed to warn the injured person of the potential risks or harmful side effects of a COVID-19 vaccine,[5] or incorrectly administered the COVID-19 vaccine (for example, injected the vaccine into the injured person’s nerve/bloodstream, rather than their muscle). 

Negligence might also arise if a medical practitioner administered a COVID-19 vaccine against the advice/recommendations of the Australia Government or the manufacturer. For example, the Queensland Government has advised that persons with a history of blood clotting disorders (such as Heparin-induced thrombocytopenia (HIT) or Central venous sinus thrombosis (CVST)) should not receive the AstraZeneca vaccine.[6] Accordingly, administering the AstraZeneca vaccine to a patient with a history of blood clotting who then suffers blood clots may give rise to liability in negligence. 

Similarly, persons with severe allergies to any of the ingredients in the COVID-19 vaccines have been advised not to have the COVID-19 vaccine.[7] Accordingly, where a patient suffers a severe allergic reaction to the COVID-19 vaccine, and the administering medical practitioner failed to take a relevant medical history,[8] this may also give rise to liability in negligence.

For a claim in medical negligence for an adverse reaction to a COVID-19 vaccine to be financially viable, an injured person will need to have suffered serious and prolonged symptoms/injuries following vaccination. Accordingly, where a patient merely suffers the known and common side-effects to the COVID-19 vaccine, which tend to only last a couple of days [9], they are unlikely to be entitled to any/much compensation. 

Compensation from Statutory Schemes

Where an injured person needs to take time off work to recover from a COVID-19 vaccine, even for known and common side-effects, they may be entitled to Workers’ Compensation.[10] An entitlement to Workers’ Compensation may particularly arise where an injured person is vaccinated against COVID-19 at the direction of their employer.[11]

Similarly, funding from the National Disability Insurance Scheme (NDIS) may be available where an injured person suffers “a permanent and significant disability” as a result of receiving a COVID-19 vaccine but will not be available for temporary symptoms/injuries following vaccination.[12] 

  [1] Prime Minister Scott Morrison, ‘National Cabinet Statement’ (media statement, 28 June 202) <https://www.pm.gov.au/media/national-cabinet-statement-5>

[2] See generally Wood et al, ‘Australia needs a vaccine injury compensation scheme: Upcoming COVID-19 vaccines make its introduction urgent,’ Australian Journal of General Practice (online, 9 September 2020) Table 1 <https://www1.racgp.org.au/ajgp/coronavirus/australia-needs-a-vaccine-injury-compensation-sche>

[3] Therapeutic Goods Administration, ‘COVID-19 vaccine: Provisional registrations,’ COVID-19 Vaccines (webpage, 25 June 2021) <https://www.tga.gov.au/covid-19-vaccine-provisional-registrations>

[4] Civil Liability Act 2003 (Qld) s 22; see generally Rogers v Whitaker (1992) 175 CLR 479.

[5] See generally Rogers v Whitaker (1992) 175 CLR 479;  Civil Liability Act 2003 (Qld) s 21. 

[6] Queensland Government, ‘COVID-19 vaccination information: Patient Information,’ Queensland Government (fact sheet, June 2021) <https://www.health.qld.gov.au/__data/assets/pdf_file/0029/1029359/covid19-patient-information-sheet.pdf>

[7] Ibid. 

[8] Chin Keow v Government of Malaysia and Another [1967] 1 WLR 813

[9] Australian Government Department of Health, ‘Are COVID-19 vaccines safe?’ Australian Government Department of Health (webpage, 17 June 2021) <https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/learn-about-covid-19-vaccines/are-covid-19-vaccines-safe>

[10] See generally WorkCover Queensland, ‘COVID-19 vaccines and your workplace health and safety obligations,’ (webpage, 2 March 2021) <https://www.worksafe.qld.gov.au/news-and-events/news/2021/covid-19-vaccines-and-your-workplace-health-and-safety-obligations>

[11] See generally Megan Bowe and Emma Croskery, ‘Can employers make the COVID-19 vaccination mandatory?’, Colin, Biggers & Paisley (webpage, 1 February 2021) <https://www.cbp.com.au/insights/insights/2021/february/can-employers-make-the-covid-19-vaccination-mandat?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration>

[12] Nicholas Wood, ‘Who pays compensation if a COVID-19 vaccine has rare side-effects? Here’s the little we know about Australia’s new deal,’ The Conversation (online, 15 October 2020) <https://theconversation.com/who-pays-compensation-if-a-covid-19-vaccine-has-rare-side-effects-heres-the-little-we-know-about-australias-new-deal-147846>

Forecasting out-of-pocket expenses after medical negligence. 

As the name suggests, this head of damage covers all immediate expenses, past and into the future. These ‘immediate expenses’ generally refer to things such as:

Classified as ‘special damages,’ - or, damages possible of precise calculation – out-of-pocket expenses are fairly easy to calculate, particularly in reference to those that have happened in the past.

Since we use the past expenses to calculate the future expenses, we will be doing this slightly different from the previous heads of damage, calculating the past first.

Quantifying Your Past Out-of-Pocket Expenses

To quantify your past expenses, you simply need to list the main out-of-pocket costs you have incurred as a result of the medical negligence.

This is generally in the form of:

It’s important to remember (when listing medical costs) to factor in previous payments owed to third-parties, such as Centrelink and Medicare. This needs to be done as the amount will be required to be repaid from the settlement amount.

To calculate your costs:

The total will be your past out-of-pocket expenses, but there is one more thing to consider on this amount – the interest!

Interest on past expenses

We can’t forget that there was a potential to earn interest on the past expenses. The law in
QLD takes this into account, allowing you to be compensated for it. To work out what amount
you should be compensated for, follow these steps:

You can now add this number to your schedule on page XX.

Now that we’re finished with the past, we can move onto the final section – your future expenses.

Quantifying Your Future Out-of-Pocket Expenses

Once again, predicting the future is difficult – but here’s where we heavily rely on the experts to help us out.

Nearly all of your out-of-pocket expenses will be related to medical necessities – whether that’s appointments and medication, travel to and from, or recommended modifications from an occupational therapist.

The good news from this is that you can rely on a medical professional to identify what future costs you could incur and for how long. They will generally tell you the cost of these items, and you can note them down.

For contentious and varying items such as pain killers, where an amount can’t possibly be
prescribed for ten years down the track, a ‘global buffer’ can be applied. This is an estimated
amount for any unforeseen costs you might experience.

This is the first option but, for a more precise calculation, we’ll be basing your projected requirements off your current requirements (once your injury has stabilised).

We wait for injuries to stabilise so that we have an understanding of what the longterm might look like.

To calculate your future costs using this method:

Putting it all together.

You should now have added your figures to your schedule of damages.

It’s recommended, at this point, to add up your damages so far to see if you’ve reached the
$150,000 quantum threshold.

Below is Tom’s example.

By doing this, you can check if you can surpass the remainder of this workbook and start working out how you’re going to hold your doctor accountable.

If you haven’t passed the $150,000, don’t dispair. You might be in a position where liability is clear cut (or admitted) and you won’t need the expert reports in your situation.

You can fill in this interactive form and will get reviewed by an experienced medical negligence lawyer who will provide you with a step-by-step guide of what to do next.

Monetising the pain and suffering you've experienced.

In this section, we’re going to focus on the actual victim of medical negligence, and how the injuries have impacted their life.

We call these ‘general damages’.

In simpler terms, it refers to the impacts of medical negligence that cannot immediately be measured in monetary value. These impacts include:

To help quantify something so subjective, the courts created a generalised approached called the ‘Injury Scale Values’ (ISV). 

The scale goes from 0 to 100 and, generally, the higher the ISV number, the greater the injury,
the bigger the compensation.

For example, the impact of paraplegia on your quality of life will be much greater than a stubbed toe – the ISV considers this and produces a general figure for each – $283,800 and $3,160 respectively.

So, now, let’s dig deeper and explore what ‘pain and suffering’ means in legal terms, and convert it to a dollar figure.

Quantifying Your Pain and Suffering

Despite its subjectivity, pain and suffering is quite easy to calculate because of these ISV’s.

What you need to do is not be intimidated by the number of steps – each is a bite-sized step of a larger, simpler process.

To find out the value (ISV) of your injury and what it’s worth, follow these steps:

Consideration for mental trauma.

There are a few extra steps involved when recording your mental injuries.

In the CLR, instead of noting what the injury is, such as ‘schizophrenia’, ‘PTSD’, ‘anxiety’, etc., it
instead refers to a ‘PIRS’ rating. This stands for the ‘psychiatric impairment rating scale’.

This is used because the measurement is taken by the level of impairment caused, rather than the ‘injury’ itself.

For example, it will consider in what ways PTSD has affected you, rather than what the level of
PTSD you have is.

Straightforward, we need to work out your PIRS and then convert it to an ISV. This will then be converted to a dollar figure.

You have now measured your level of mental impairment and can translate that to an ISV number. To do this:

The conversion from ISV to $

We’ve worked out some numbers... but what do they mean and how do we translate them to a dollar figure?

Putting it all together.

You should now have added your figures to your schedule of damages.

It’s recommended, at this point, to add up your damages so far to see if you’ve reached the
$150,000 quantum threshold.

Below is Karen’s example.

By doing this, you can check if you can surpass the remainder of this workbook and start working out how you’re going to hold your doctor accountable.

If you haven’t passed the threshold yet, don’t worry.

We’re about to take on our third most significant head of damage (from a quantum perspective) – monetising your future pain and suffering.

Monetising the care your family provides. 

Now that we’ve calculated the biggest head of damage, we can move onto the second biggest – care.

And don’t worry, this one’s easier.

Victims of medical negligence will often find themselves relying on relatives, partners, and other persons for care and assistance.

As opposed to commercially paid or hired help, this type of care is referred to as ‘gratuitous’ – or, free of charge.

But, the addition of this care can often have a heavy impact on the providers, taking time out of their social lives, work, and other day-to-day duties.

To compensate for this, the court offers an award for gratuitous care services.

This award is calculated with reference to the market (or commercial) cost of the services, with the extent of coverage stretching far and wide across common duties such as:

Day-to-day duties;

Personal duties;

Home and maintenance duties; 

Before we jump in, we wanted to cover off some important limitations, or criteria, that apply to gratuitous care payouts.

Now that you’ve checked your eligibility for gratuitous care, let’s
jump into calculating it.

Quantifying your Future Gratuitous Care

Future Economic Loss

To start your calculation, you will need to:

Quantifying your Past Gratuitous Care

Now that we’ve quantified your future care costs – the significant costs – we can start quantifying the care you’ve already received.

And doing that isn’t too hard.

Putting it all together.

Now you can add this to your schedule of damages.

It’s recommended, at this point, to add up your damages so far to see if you’ve reached the $150,000 quantum threshold.

Below is Jess's example:

By doing this, you can check if you can surpass the remainder of this workbook and start working out how you’re going to hold your doctor accountable.

If you haven’t passed the threshold yet, don’t worry.

We’re about to take on our third most significant head of damage (from a quantum perspective) – monetising your future pain and suffering.

Quantifying your contribution to the workforce. 

It’s not uncommon that a victim of medical negligence will experience difficulties in trying to return to work in any capacity, let alone the same job.

The strain of an injury, or the mental trauma inflicted, can often cause the victim to lose wages, now, and into the future.

The past and future economic loss head of damage aims to protect the victim from a loss of earnings. It bridges the gap between what they used to earn, what they earn now, and what they will earn 20 years into the future.

More specifically, it can cover things like:

These are the types of things not accounted for in most government and private insurance
schemes.

Schemes like the NDIS or Private Accident Insurance.

These schemes will pay the immediate out-of- pocket expenses, but not pay for loss of earnings.

The law will, as much as reasonably possible, try to put the injured person back into the position they most likely would’ve been in before the accident, which includes considering their future potential.

And just how you calculate these future losses can be a complicated exercise.

See, if you asked yourself 10, 15, 25 years ago where you’d be today, you’d probably have no idea.

But that’s precisely what this head of damage is asking you to do – predict every wage-earning movement from the date of the incident until the expected time of retirement.

It might seem impossible. But in just 15 minutes you will be able to do it.

Below we’re going to step you through the same process a lawyer would take to help you calculate your economic loss - considering your future first, and then the past.

Quantifying your Future Economic Loss

For the majority of claimants, future economic loss will be the most significant head of damage they receive. So whilst this section might seem confusing or complicated, it’s not that difficult if you follow a template.

All heads of damage after this will be an easier step towards the quantum threshold of $150,000.

Future Economic Loss