Paying for risky decisions : civil liability of non-vaccinators

Since their widespread introduction in the early 20th century, vaccinations have saved millions of lives worldwide and have near to eradicated some diseases in several countries. Vaccination in Australia, although not mandatory, is strongly and actively encouraged through pervasive education campaigns, financial incentives and administrative requirements. Despite this, approximately 10% of children in Australia are not fully vaccinated against vaccine preventable diseases and every year thousands of Australians are infected with one of these diseases. This article considers the liability in negligence of parents whose unvaccinated children infect and cause harm to others. It argues that policy considerations will ultimately determine decisions about liability in a given case and, in particular, that courts should take into account the reasons for failure to vaccinate in making their determination on liability. The article further argues that if reasons for failure to vaccinate are not regarded as appropriate matters of differentiation for the purposes of tort law, all unreasonable non-vaccinators should nonetheless be liable for physical harm that their failure to vaccinate causes.