Who is to Blame for Bad Covid-19 Vaccines?

Many individuals in Uganda and worldwide are wary of COVID-19 vaccines including the Astrazenaca COVID-19 vaccine that is currently being used to vaccinate the population in Uganda. This skepticism was especially awakened after reports of blood clots among some individuals that received the vaccines. To buttress the fears, there were reports of hospitals giving adulterated vaccines and in some cases water to individuals instead of the vaccine. This particular report emanated from neighboring Kenya and along with other concerns raised legal concerns.

Are vaccine manufacturers liable for harm to vaccine recipients?

Vaccine manufacturers can be liable for harm to vaccine recipients under the doctrine of product liability espoused in the case of Donoghue v Stevenson [1932] AC 562. For manufacturers of vaccines to be liable under this doctrine, it must be shown that the vaccines in question were administered to the recipient without any alteration or examination from the time it left the premises of the manufacturer up to when it was administered to the recipient. 

Additionally, it must also be shown that the elements of the Caparo test established by the United Kingdom House of Lords in the case of Caparo Industries PLC  v Dickman [1990] 2 AC 605 are satisfied. Under this test, the vaccine recipient must show that the vaccine manufacturer owed him or her a duty of care, that duty of care was breached and public policy considerations are in favor of the vaccine recipient succeeding. The test for whether one owes a duty of care to another also known as the neighbour principle was established by Lord Atkin in the renowned case of Donoghue v Stevenson. In that case, the learned law Lord stated that one owes a duty of care to their neighbour and that a neighbour in law is anyone that you reasonably foresee that your acts or omissions would harm. From the above, vaccine manufacturers owe a duty of care to vaccine recipients since they can reasonably foresee that their acts or omissions will harm them.

Whether the vaccine manufacturers breached the duty of care owed to the vaccine recipient will depend on whether the actions or omissions of the vaccine manufacturers were reasonable. For example, putting a vaccine on the market well knowing that the same has side effects like causing blood clots and not warning the recipients of the same would amount to being unreasonable.

Whether public policy considerations favour the success of the vaccine recipients’ claims will depend on whether in the Court’s view the COVID-19 pandemic is a public concern. That vaccine manufacturers are profiting off the harm to the recipients is equally an issue of public concern.

Are medical practitioners and facilities liable for harm to vaccine recipients?

Medical practitioners and facilities can be liable for harm to vaccine recipients if it’s established that their actions or omissions were unreasonable in the circumstances. This is what is known as the Montgomery test established by the United Kingdom Supreme Court in the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11. In this case, the Supreme Court observed that the duty of determining whether a medical practitioner or facility is liable for any act or omission rests with the Court and that the Court should consider whether the acts or omissions of a medical practitioner or facility were unreasonable in the circumstances. As such the act of offering an adulterated vaccine or water instead of a genuine vaccine would amount to an unreasonable act warranting liability of a medical practitioner or facility.

Even if we are to go by the Bolam test established in the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 which is no longer good law and states that medical practitioners and facilities are liable if their actions or omissions couldn’t be supported by a reasonable body of their peers in the profession, medical practitioners and facilities would still be liable for offering an adulterated vaccine or water instead of a genuine vaccine because a reasonable body of their peers in the profession would not do the same.

In conclusion, therefore, whether vaccine manufacturers are liable to vaccine recipients will depend on whether in the Court’s view public policy considerations favour the success of the vaccine recipients’ claims. For the case of the United Kingdom, the Government settled this debate by absolving the manufacturers of the Pfizer vaccine of any civil liability with regards to the vaccine.