Dear Colleagues;
Better late than never, I suppose! A decision not to vaccinate oneself (or, let us assume, the morally equivalent decision not to have one's child vaccinated when one does not have realistic fears about side-effects) could be seen to be similar to a decision to have sex when one knows that one has a sexually transmitted disease (ie a foreseeable risk of infection to others). There are of course some important differences, though. One is that it is not always highly likely that failure to vaccinate will lead to disease, though this will depend on the circumstances (how active the disease is, how infectious, etc.) Another is that vaccination involves one choosing to allow what would otherwise be a battery by the provider, which means that there is something of a clash between my right to bodily integrity and the variable possibility of harm to others. Whereas in the STD case I know I am already infectious and so there is no such threshold of my existing rights to overcome.
The other comment is that in practice a tort action would face the twin problems of causation (how do we know your disease was caused by my failure to vaccinate?) and economics (actions against private individuals often not worth the shot). But of course if there was a doctor who knew that the carrier was infectious or possibly so and failed to advise vaccination...
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931
>>> Jason Neyers <jneyers@uwo.ca> 6/01/09 5:58 >>>
Dear Colleagues:
On an American list-serve that I am also a member of, a colleague posed an interesting question of whether there was tort liability for a person who fails to vaccinate if their failure causes physical injury to others through infection with the communicable disease. Two questions:
1) Are there any Commonwealth cases dealing with this issue?
2) Would you think that this is just a standard D v S negligence case?
Interested in your thoughts as always.
Sincerely,
--
Jason Neyers
Associate Professor of Law &
Cassels Brock LLP Faculty Fellow in Contract Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435