This case, Shepherd v The State of South Australia [2024] SAET 2, involves an employee, Mr. Daniel Shepherd, who sought a review of a decision to reject his compensation claim for pericarditis which he claimed was caused by having a third dose of the COVID-19 vaccine. The respondent, the State of South Australia, admitted that the vaccine caused pericarditis but argued that the injection did not arise from employment but from a lawful State Government vaccination directive. The respondent also contended that any liability for any injury is excluded by legislation. The case was heard in the South Australian Employment Tribunal.
FACTS
The case in question is Shepherd v The State of South Australia (in right of the Department for Child Protection) [2024] SAET 2. The applicant, Daniel Shepherd, was a child and youth support worker employed by the Department for Child Protection (DCP). In line with a directive under the Emergency Management Act 2004 (SA), Shepherd was required to have a third dose of the COVID-19 vaccine to continue working.
After receiving this third dose on 24 February 2022, Shepherd experienced severe chest pain which was later diagnosed as post-vaccine pericarditis, an inflammation of the membrane surrounding the heart. As a result, he made a claim for weekly payments of income support and medical expenses which was rejected by the State of South Australia.
The state initially did not accept that the vaccine had caused the injury but later admitted that it had resulted in Shepherd's incapacity for work. However, they continued to defend against his claim on two grounds: 1) that the injury did not arise from employment within the meaning of s 7 of the Return to Work Act 2014 (SA), but rather from a direction given under the Emergency Management Act 2004 (SA), and 2) if s 7 of the RTW Act was satisfied, s 32A of the EM Act excludes any liability arising from a direction given under the EM Act or any act or omission by the state in relation to its management of COVID-19.
ISSUES
- Whether the applicant's pericarditis, which occurred following a third dose of the COVID-19 vaccine, arose from his employment or from a lawful State Government vaccination directive.
- Whether the respondent can avoid liability for any injury caused by the vaccination under Section 32A of the Emergency Management Act 2004 (SA) (EM Act).
- Whether the applicant's employment was a significant contributing cause of his work injury as per Section 7 of the Return to Work Act 2014.
ANALYSIS
Issue: The primary issue in this case was whether the pericarditis suffered by Mr. Shepherd following his third dose of COVID-19 vaccine was an injury arising out of employment, making him eligible for compensation under the Return to Work Act 2014 (RTW Act). Additionally, it was to be determined whether Section 32A of the Emergency Management Act 2004 (EM Act) could exclude any liability for the injury.
Rule: Under Section 7 of the RTW Act, employment must be a significant contributing cause of a work injury, but not necessarily its only or most significant cause. In contrast, Section 32A of the EM Act potentially excludes any liability arising from a direction given under the act or any act or omission of the state in managing the COVID-19 pandemic.
Application: Judge Calligeros ruled that Mr. Shepherd's injury resulted from both the vaccination mandate and his employment with DCP. While it was agreed that he had received the third dose due to a lawful State Government vaccination directive, his employment was still considered a significant contributing cause. This satisfied Section 7 of the RTW Act. As for Section 32A of the EM Act, it did not prohibit Mr. Shepherd's claim as it did not clearly and unambiguously lead to that conclusion. Rejecting his claim would not achieve the objectives of the EM Act.
Conclusion: The court held that Mr. Shepherd's injury arose from both a vaccination mandate and his employment, satisfying Section 7 of the RTW Act and thus making him eligible for compensation. Furthermore, it concluded that Section 32A of the EM Act did not exclude any liability for his injury.
Take Home Lesson: This case highlights that when determining compensation eligibility for injuries resulting from mandatory vaccinations under workplace law in Australia, both the circumstances leading to vaccination and legislative requirements need careful consideration. Employment does not need to be the sole or most significant cause of injury for compensation to be awarded, but a significant contributing factor. Furthermore, legislation that may potentially exclude liability needs to be unambiguous and clear in its intent.
