The Tort of Forced Vaccination?

As the federal and provincial governments rolled out their vaccination programs for H1N1 flu last week, health ministers, doctors, and other government representatives have all been answering questions about the vaccine’s safety and efficacy. There has recently been much debate about the wisdom and effectiveness of population-wide vaccination: for example, see this month’s cover story in The Atlantic Monthly. In Canada, one of the general concerns has been about the safety of the adjuvant (a compound that acts to increase immune response, and therefore makes the vaccine more effective) present in the vaccine, which has not been used before in Canada (though has been in use for years in Europe).

Years of experience with flu vaccines generally suggest that this one is safe, and while there are always risks of complications and side effects, these risks are tiny. Nevertheless, would it be possible for someone who has received the shot during the largest vaccination campaign in Canadian history and has been harmed by any of the (unlikely) side effects of the H1N1 flu vaccine to sue the government for compensation?

A case from the Supreme Court of Canada, as well as the general principles underpinning governmental liability in tort, suggest that the answer to this question is “no.”

In Lapierre v AG (Quebec), [1985] 1 SCR 241 [Lapierre], the plaintiff’s daughter received the measles vaccine as part of the Quebec government’s program to vaccinate almost 85,000 children every year against the illness. Days after receiving the shot, she contracted acute viral encephalitis, which resulted in her hospitalization for several months and left her almost totally (and permanently) disabled. As a result, her father sued the government; the Attorney General brought the vaccine manufacturer into the suit as well.

The Superior Court judge found that, “In such a case it can be said that the vaccination is deemed to be necessary and that the moral suasion exercised on the public to have it done is the equivalent of a vaccination compulsorily imposed.” Furthermore, the judge found that in the type of program undertaken by the government, there was an unavoidable risk that roughly one in every one-million people would suffer an allergic reaction resulting in death or serious injury. The “unavoidable” nature of the risk was enough to relieve the drug company of liability; however, the Superior Court found Quebec liable based on a “risk theory” of liability. The Attorney General appealed the judgment to the Quebec Court of Appeal, which allowed the appeal and dismissed the action.

At the Supreme Court of Canada, the father argued that “damages suffered or costs incurred by an individual for the benefit of the community must be borne by the latter.” This, essentially, is the risk theory of governmental liability that some scholars argue should replace the current private-law one. Chouinard J., for the Court, did not engage in any of the policy questions surrounding the issue, and did not determine whether the vaccine had indeed been compulsory. Instead, he reviewed the authorities and found that “the theory of risk is … not accepted in Quebec law.” The father’s appeal was dismissed.

The facts in Lapierre present a strong argument for those in favour of a separate public law of tort. Professor Harry Street, in Governmental Liability argues that “where the functioning of the administrative machine inflicts on an individual an exceptional loss,” the government should be liable. In his new book, Towards a Public Law of Tort, Tom Cornford, a lecturer in law at the University of Essex, makes a similar argument, suggesting (in part) that since public actors are involved in many activities that private persons are not (such as distributing welfare benefits, raising taxes, issuing licenses, and enforcing regulatory standards) it is difficult to apply tort principles that were developed in the context of relationships between private individuals.

Of course, this approach has been rejected by common law courts, where judges have stuck to Dicey’s “idea of equality”. That theory suggests that governments and government actors should be subject to the same law as everyone else. Historically, courts never had to deal with the tort-law implications of this theory, since the Crown was immune to tort actions. But as this immunity was stripped away by statute (in Canada, the Crown Liability and Proceedings Act, RSC 1985, c C-50, and its various provincial counterparts) courts had to develop principles to adapt the private law of negligence to the world of government actors. The “policy/operational” distinction is what the common law came up with, which is known in Canada as “the Just test,” after Just v British Columbia, [1989] 2 SCR 1228. In that case, the driver of a car travelling on the Sea to Sky Highway connecting Vancouver and Whistler was seriously injured, and his daughter was killed, when the car was struck by a rock slide. The driver sued the British Columbian government for failing to maintain a rock face next to a part of the roadway. Dickson C.J., for the 6-1 majority, held that

The duty of care should apply to a public authority unless there is a valid basis for its exclusion. A true policy decision undertaken by a government agency constitutes such a valid basis for exclusion. What constitutes a policy decision may vary infinitely and may be made at different levels although usually at a high level.

Were a case like Lapierre to be decided today, and in the common law (rather than civil law) context, it seems likely that a court would hold that the government does not owe a duty of care to an individual as a consequence of the broad (and high-level) policy decisions to make the H1N1 vaccine available to everyone and to encourage everyone to get vaccinated. Anyone bringing such a suit would likely fail.

However, that does not mean that the government should be able to get out of compensating anyone who is unfortunate enough to experience the serious side effects of the vaccine. In the aftermath of the Lapierre decision, Quebec enacted a no-fault compensation program for anyone who suffered injury as a result of a public immunization program, and made it apply retroactively to Lapierre. If the federal and provincial governments are going to encourage everyone to get vaccinated (and make vaccine available to everyone who wants it), they should be sure to plan for the small number of cases where that vaccine will do more harm than good.