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Forwarded from COLE THE SOCIOLOGIST

Shepherd v The State of South Australia (in right of the Department for Child Protection) [2024] SAET 2.
CASE NO/S: ET-22-02574
JUDGMENT OF: His Honour Deputy President Judge Calligeros

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SAET/2024/2.html

CATCHWORDS: The applicant seeks review of a decision to reject his claim for compensation for pericarditis due to having a third dose of COVID-19 vaccine.
The respondent admits that the vaccine caused pericarditis but says that the injection did not arise from employment but from a lawful State Government vaccination directive.
In the alternative the respondent says that any liability for any injury is excluded by legislation.

HELD:
1. The injury arose as a result of both a vaccination mandate and the applicant’s employment - Section 7 of the Return to Work Act 2014 requires that employment be a significant contributing cause of a work injury, not its only or most significant cause – Section 7 is satisfied.
2. Section 32A of the Emergency Management Act 2004 (SA) (EM Act) does not prohibit the claim as the language of s 32A does not unmistakably and unambiguously lead to that conclusion.
Rejecting the claim does not achieve the objects of the EM Act.

CASE LAW:
Dawking v Secretary (Department of Education) [2022] NSWPIC 611 Secretary
Department of Education v Dawking [2023] NSWPICPD 23

1. Daniel Shepherd was required to have a third dose of COVID-19 vaccine if he wished to continue performing work as a child and youth support worker employed by the Department for Child Protection (DCP).
The following day he experienced chest pain which grew steadily worse over the next few weeks.

2. The State now admits that the third dose of the vaccine resulted in Mr Shepherd caused the injury and incapacity for work.

41. In Dawking v Secretary (Department of Education), [11] the NSW Personal Injury Commission held that an email sent to the applicant which anticipated a direction that school-teachers would need to be vaccinated against COVID-19 caused the applicant to sustain a compensable psychiatric injury. The email was inaccurate in that it included teachers who did not teach on a face-to-face basis and were not subject to the direction. The email also failed to advise that a teacher could take leave if they did not wish to be vaccinated. On appeal, Wood DP distinguished Bjekic on the basis that the applicant in that case would have breached a public health order if he had not worn a face mask whilst there would have been no breach of a public health order on the facts in Dawking.

52. In Metropolitan Water Sewerage & Drainage Board v O.K. Elliott Ltd, 29 Starke J described the following principle: [30] Statutory powers must be exercised “with reasonable regard to the rights of other people,” and if an act is done in excess of the statutory power, or carelessly or negligently, then the person injured can put in force the ordinary legal remedy by action in the Courts of law.

Cole the Sociologist
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www.austlii.edu.au

Shepherd v The State of South Australia (in right of the Department for Child Protection) [2024] SAET 2 (15 January 2024)

Australasian Legal Information Institute (AustLII), a joint facility of UTS and UNSW Faculties of Law.

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