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From CCH Pinpoint
A youth worker who developed pericarditis after his third COVID-19 vaccination will receive weekly compensation and medical expenses, having convinced the South Australian Employment Tribunal that his injury was work-related.
The youth worker, Mr Shepherd, worked in a residential care setting for the Department for Child Protection. A “Major Emergency” concerning the pandemic had been declared under the Emergency Management Act 2004 (EM Act), and Mr Shepherd was required under 2 directions issued under the EM Act to receive a third (booster) dose of the COVID-19 vaccine within a specified 4 month period to engage in his work and duties. A letter from his employer also required him to provide evidence of his third dose, and he and his supervisor exchanged texts about the Department’s direction.
Since developing post vaccine pericarditis after the third dose, Mr Shepherd had only worked for a few months in a part-time administrative capacity. The employer admitted the pericarditis was caused by the third booster vaccination. However, it denied liability for workers compensation, arguing that it was the lawful State Government vaccination directive that relevantly caused the injury rather than his employment. Alternatively, it argued that liability was excluded under the EM Act (s 32A).
The Tribunal rejected the employer’s causation argument, that his injury arose as a result of both the vaccination mandate and his employment. A compensable injury need only be “a significant contributing cause” to his injury rather than its only or most significant cause (Return to Work Act 2014 (SA), s 7). The Tribunal also rejected the legislative exclusion defence, because the EM Act (s 32A) does not unmistakably and unambiguously defeat an otherwise valid workers compensation claim, which would be required to override provisions of another Act which are well known and understood.
The second reading speech of the EM Bill suggested the liabilities s 32A sought to avoid were unforeseen and novel rather than a well-known and established liability like workers compensation.
The Tribunal concluded that the rejection of Mr Shepherd’s claim should be set aside and the employer be ordered to pay weekly compensation and medical expenses, with the parties to submit draft orders to that effect.
Source: Shepherd v The State of South Australia (in right of the Department for Child Protection)  SAET 2, 15 January 2024.