Duty of Care in Immunisation Against Biological Warfare Agents

Abstract

In peacetime, the Crown owes a duty of care to members of the Armed Forces to provide adequate medical support. This includes the provision of safe and effective vaccines. A Serviceman who considers himself harmed by immunisation against biological warfare (BW) agents would have access to legal action in the tort of negligence. However, the outcome would be uncertain because of the absence of clear precedent in respect of the Crown's duty of care in the period of transition between peace and war and the statutory right of the Government to bar proceedings against the Crown for alleged negligence during time of war. Moreover, no claimant has yet succeeded in any common law action in the United Kingdom for vaccine damage because of the difficulty of proving causation. The Serviceman would not be covered by the Criminal Injuries Compensation (Overseas) Scheme. Likewise, he would not be eligible for payment under the Vaccine Damage Payments Act 1979 unless the Act was amended. The Serviceman would therefore have to rely on the current pension system that is accessible, relatively generous and, until recently, independent of the Ministry of Defence.