Health Minister Dr Zweli Mkhize has published draft regulations for the establishment of the No-fault Compensation Fund for injuries caused by the Covid-19 vaccination. The fund will be established in terms of the regulations as an amendment to the regulations of the Disaster Management Act of 2002.
As the vaccine roll-out slowly reaches the non-medical public, it is vital to have some cover for injury caused by the vaccine. 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 and ultimately end the State of National Disaster.
The scheme will be dealt with under the auspices of the National Department of Health. The scheme’s purpose is to provide expeditious access to compensation for people who suffer vaccine injury. This fund is to be established as soon as the Department of Health approves it. The Cabinet member responsible for health in consultation with the Cabinet member for finance must designate the account for the fund. The Finance minister will issue directions in handling the fund’s finance and the scheme’s oversight. The department’s director-general will appoint a service provider to perform the administration.
For the fund to be effective, 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 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 using a Covid-19 vaccine 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.
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. 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.
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.
* Michael Bagraim is a labour lawyer. He can be contacted at michael@bagraims.co.za.
** The views expressed here are not necessarily those of Independent Media.
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