Volume 12, Issue 1

The devastating impact of the COVID-19 global pandemic has fast-tracked the development of vaccines against the SARS-CoV-2 virus, with global vaccination efforts already underway. While the introduction of large-scale or even mandatory vaccination will facilitate resumed social interaction, work and travel, such action is not without risks. Vaccination exposes recipients to the risk of rare but serious effects, leading to pertinent questions about liability and compensation for harm caused by vaccination. There have already been rare blood clotting reactions associated with two COVID-19 vaccines, some of which have been fatal. Traditional means of accessing compensation, such as liability-based litigation, product liability regimes and existing statutory schemes may be inadequate avenues of accessing compensation for individuals who sustain vaccine-related harm. Despite a significant number of countries worldwide introducing vaccine injury compensation schemes, many European countries and Australia have been hesitant to develop a no-fault scheme to respond to potential vaccine-related injuries. This article critically analyses whether existing compensation mechanisms, including liability-based tort claims, operating in common law and civil jurisdictions, are adequate avenues of accessing compensation by injured individuals. Australia and Europe are compared because of the close similarities in their existing liability-exemption approach to vaccine injury compensation, rather than no-fault. This stands in stark contrast to the use of no-fault schemes in other major jurisdictions, and the COVAX vaccine injury compensation scheme available in 92 low- and medium-income countries. The authors conclude that the introduction of a no-fault vaccine injury compensation scheme is a desirable mechanism to compensate vaccine-related injuries, by offering a more efficient and easily accessible method of accessing compensation when compared with liability-based causes of action. With the commencement of vaccination, urgent introduction of no-fault vaccination injury compensation schemes ought to be at the forefront of lawmakers’ reform agenda.

This theoretical article identifies the asymmetry between the producer and the consumer as the key to understanding product liability law. In an attempt to resolve the endless scholarly and jurisprudential debates on the proper criterion for defectiveness in European law, it first tracks the ways in which the commonly opposed consumer expectations and risk-utility test each fail to address the typical asymmetries between producers and consumers in a satisfying manner. Building upon the concept of ‘behavioural asymmetry’, it then develops a new criterion for defectiveness under European law: the behavioural risk-utility test. Under a behavioural risk-utility test, the producer is liable if the product is not reasonably safe for average users suffering from cognitive biases and other behavioural shortcomings. This test aptly combines the systemic point of view of risk-utility balancing with an evidence-based conception of asymmetry, and therefore provides a meaningful criterion for adjudicating product liability disputes.

Lately, the value of many products on foreign financial markets has dropped considerably. As a result, affected investors regularly strive to hold the issuers of these products liable before domestic courts. In the following, the relevant European rules of international civil procedural law and the related case law of the Court of Justice of the European Union will be examined. Thereafter, a fresh methodological approach to the questions at hand will be presented.