Dear Jason,

Few thoughts: The first couple of cases which came to my mind are Perl v Camden and Smith v Littlewoods. In Perl, the defendant was not liable for a break into the claimant’s property after gaining access from the unlocked defendant’s house. The court (Goff LJ) refused to impose liability.  A similar decision was reached in Smith. It is difficult to impose liability in this type of cases since they involve omission.

From a theoretical perspective, with respect to the standard of care, we deal with behaviour which involves (also) self-risk. Robert Cooter and  Ariel Porat have argued that in deciding whether the D was negligent, self-risk should be taken into account ((2000) 29 JLS 19).

A possible argument for liability for failure to vaccinate is that the decision whether to vaccinate or not might be similar (although probably not identical) to a prisoner dilemma. It might be better for the D not to vaccinate herself, provided that enough people do so. If enough people would think the same, all those who do not vaccinate (and perhaps others) will be worse off so perhaps there should be a duty to vaccinate and it could be enforced by the tort of negligence.  But then, of course, we get back to the question whether the test for negligence in the context whether to vaccinate or not is based on general cost benefit analysis, on cost benefit to the individual herself, or whether the defendant’s autonomy should be respected so she should not be considered negligent if she decides not to be vaccinated.

I’m not sure where I stand on the issue whether there should be liability for failure to vaccinate. I wouldn’t rule out the possibility that there should be liability in appropriate cases but I think more details are needed to answer this question one way or another.

There is an Israeli Supreme Court decision (CA 470/87 Altoury v State, P.D. 47(4)146) in which an infant’s claim that the failure to provide her parents with information about the risk from vaccination decision was negligent (when arguably she became ill due to the vaccination). Strictly speaking, the decision was based on lack of proof of factual causation. In obiter, however, the court mentioned, among other things, that the benefits from vaccination by far exceed the risk and the parents are not well positioned to make an individual decision whether to avoid vaccination or not, therefore, such information does not need to be brought to the parent’s attention. (There are conflicting indications whether this risk-benefit analysis should be done at the level of the specific child or in general). This reasoning might support liability, but there are differences between the two situations, and it is by no means clear that the Altoury court would have imposed liability for failure to vaccinate.

I tend to think that a decision not to get vaccinated is not a simple D v S one, since it involves: omission, self risk, autonomy with respect to bodily integrity, and possible problems of free riding.

Tsachi  

Dr. Tsachi Keren-Paz
School of Law
Keele University
Staffordshire ST5 5BG
England
Office: CBC 2.015
Phone: 01782 734358
Email: t.kerenpaz@law.keele.ac.uk
http://www.keele.ac.uk/depts/la/staff/tkerenpaz.htm
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