How the no-fault Compensation Fund for vaccine injury will work

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Cover for vaccine injury is vital and the mooted Compensation Fund, although still in the process of finalisation, outlines how this will take place, writes Michael Bagraim, attorney and Democratic Alliance Shadow Minister for Labour, in his Labour Watch column.

Bagraim writes:

The Minister of Health, Dr Zweli Mkhize on behalf of the National Department of Health has published draft regulations for the establishment of the No-fault Compensation Fund for injuries caused by the COVID-19 vaccination. The vaccine injury Compensation Fund will be established in terms of the regulations as an amendment to the regulations of the Disaster Management Act of 2002.

It must be specifically stated that this No-fault Compensation Fund for vaccine injury has not been formed yet, and the various ministries involved are still taking into account the commentary from the public and will be getting legal advice from the parliamentary legal advisors.

As the vaccine roll out is slowly starting to reach the non-medical public, it is vital to have some cover for injury caused by the vaccine roll out. There have been reports worldwide of reaction to the vaccine, and possible injury due to the vaccination. This scheme is an essential part of the COVID-19 vaccination roll out which is the most critical component of the national plan and response to alleviate, contain and minimise the effects of the disaster, and ultimately to end the State of National Disaster.

The establishment of the COVID-19 vaccine injury no fault compensation scheme is vital and will be dealt with under the auspices of the National Department of Health. The purpose of the scheme is to provide expeditious and easy access to compensation for persons who suffer vaccine injury. In terms of the amendment, this compensation fund is going to be established as soon as approved by the Department of Health. The cabinet member responsible for health in consultation with the cabinet member responsible for finance must designate the account for the fund. The Minister of Finance will issue directions in handling the finance of the fund and the oversight of the scheme. The director-general of the National Department of Health will appoint a service provider to perform the administration.

For the fund to be effective and efficient, there must be a proper structure for the reporting of vaccine injuries and a solid system for the claims. The Department of Health will appoint an adjudication panel and appeal panel to deal with the adjudication of appeals in respect of claims. This panel will have suitably qualified medical personnel to assess the claims under the scheme.

Any person who has suffered a vaccine injury as described by the regulations is eligible for compensation. The regulations very carefully outline what vaccine will be covered and approved. Severe injuries resulting in permanent or significant injury or serious harm to a person’s health will be covered. Even resultant death will be covered. The injury must be causal related to a vaccination of a COVID-19 vaccine contemplated in terms of the regulations. The cabinet member responsible for health in consultation with the cabinet member responsible for finance must issue directions in terms of the regulations specifying the amounts and structure of compensation that will be provided under the scheme.

Any person who claims to have suffered harm, loss or damage arising from the vaccine and who elects to institute a claim, may not institute a claim through the court process against National government or any Provincial government until the claim has been adjudicated by the relevant panel. If the person is dissatisfied with the outcome of the adjudication or the amount awarded, then that person must lodge an appeal and the appeal must be determined by the relevant decision maker. Only after pursuing a claim with the scheme, can the person then look to the courts if the person is still dissatisfied.

A claim for damages through the court process arising from vaccine injury may not be brought against the vaccine manufacturer and may only be brought against the National government. The National government has granted an indemnity to the manufacturer of the vaccine under the Vaccine Procurement Agreement. Furthermore, no claim or damages may be brought against the service provider and may only be brought against the National government or relevant Provincial government. The National government and Provincial government will be vicariously liable for the conduct of the vaccine programme.

The various entities who wish to administer the vaccine must carefully work both with National and Provincial governments to ensure that the vicarious liability is properly managed with proper oversight.

Despite the scary thoughts of a vaccine going wrong, we have seen very little injury internationally. It appears from all the reports across the globe that the vaccines are effectively safe and are fully tested and reliable. Governments across the globe are encouraging everyone to take the vaccine as this appears to be the only suitable way in which we can fight the pandemic and bring some sort of normalcy back to our lives. Once the population has reached herd immunity, our economy should start to revive and enter the long journey back to where we were in 2019. The destructive lockdowns will be uplifted, and government interference in the economy will be lessened.

This article was first published in The Argus and is republished with the author's kind permission.


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