Shepherd v The State of South Australia (in right of the Department for Child Protection) (SAET 2024)

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Key Takeaways

In a decision that could have ramifications for workers compensation schemes nationally, the South Australia Employment Tribunal (SAET) recently handed down a decision ordering the state government to pay a former employee workers compensation after he suffered from pericarditis following a COVID-19 booster shot. The key takeaways from this case include:

• The SAET ruled that a former youth support worker is entitled to weekly income support and payment of medical expenses as a result of an injury following a mandatory COVID-19 booster.
• The claimed injury was deemed to be a direct consequence of work.
• South Australian compensation laws apply to government employees who suffer injury in complying with vaccination directives.
• The decision may pave the way for workers in other states who have been injured as a result of a mandated (or encouraged) vaccination to seek compensation under the relevant state’s scheme.

Brief Facts

The worker was employed by Baptist Care SA, which had a contract with the Department for Child Protection (DCP), when he received his first two vaccine shots in August and September 2021. At the time, Baptist Care encouraged, but did not require, COVID-19 vaccinations. He suffered significant physical symptoms for several weeks following these shots, including chest pains.

In October 2021 the worker switched employment to the DCP, as a child and youth worker. Directions made under the Emergency Management Act 2004 (EM Act) in January 2022 required certain employees, including the worker, to have a booster shot of a COVID-19 vaccine in order to continue working. He complied with the mandate, and on 24 February 2022 was given a Pfizer mRNA jab. In the following days he again suffered from chest pains, which grew steadily worse. Several weeks later, on March 11, he experienced pain so “unbearable” he thought he was having a heart attack.

The worker was rushed to hospital, and subsequently diagnosed with pericarditis, a swelling of the tissues surrounding the heart. Medical experts who were consulted in this case largely agreed that the vaccine caused the condition.

The worker has continued to experience symptoms of pericarditis for the past two years, despite the condition typically clearing up within a few months. He has also been unable to work in that time, aside from 2 months in a part-time administrative role in late 2022.

The worker made a claim for workers compensation, seeking weekly income support and medical expenses. That claim was initially rejected on the basis that the vaccine did not cause his pericarditis. However the State subsequently acknowledged that the worker’s third vaccine dose did in fact cause the injury, and his subsequent incapacity for work. Nevertheless, they continued to contest the claim on alternative grounds, arguing that:

1. the injury did not arise from employment, but rather, as a result of a direction under the EM Act; and
2. even if an employment relationship were established, the EM Act exempted the State from any liability that would otherwise arise from the law, in the course of managing the COVID-19 pandemic generally.

Judgment

The SAET ultimately sided with the worker. Tribunal Deputy President Judge Mark Calligeros rejected the employer’s arguments, and ruled that the vaccination mandate and the worker’s employment were “both significant contributing causes” of the injury.

“[The worker] was required to have a third dose of the vaccine to continue performing duties and be paid,” he said. “The connection between employment and the injury is a strong one given I have found that [the worker] would not have had a third dose of the vaccine if he had not been required to in order to continue working.”

He went on to say that it was not surprising that some people who received a COVID-19 vaccine sustained injury as a result, and that he did not believe that parliament intended to deny compensation to employees of the State injured by heeding a vaccination mandate designed to protect its citizens’ welfare.

Accordingly, the Judge held that the worker was entitled to receive weekly income support and medical payments from the SA government.

Implications

A spokesperson for the SA government confirmed that this decision means government employees will be covered by compensation laws if they suffer injury in seeking to comply with vaccination mandates. Previously, affected workers may have thought their only recourse was to make a claim under the Commonwealth’s COVID-19 Vaccine Claims Scheme. However that scheme, despite a small number of claims, has been plagued by reports of delays and accessibility issues. It also has a claim cut-off date of 30 September 2024. Accordingly, access to payments under the various state-based workers compensation schemes may be a more attractive avenue for potential claimants who have been mandated (or even encouraged) to be vaccinated by their employer, particularly after the Commonwealth scheme ceases.

Plaintiff litigators will no doubt have noted this decision, particularly in the context of recent lawsuits against British pharmaceutical company AstraZeneca, which claim that its COVID-19 vaccine was defective. Set against this background, this case may herald further compensation claims against the various state-based schemes by workers who were mandated to undergo COVID-19 vaccinations over the past four years, and suffered adverse physical side-effects as a result.