Our Prime Minister Scott Morrison, of course, has recently maintained that vaccinations must remain “voluntary and free” and he has pointed to advice from the Solicitor-General that employers can only make vaccinations compulsory through a “lawful and reasonable direction”. It seems that Mr Morrison thinks that these decisions need to be left to individual businesses that must make a sagely decision after taking into account their particular circumstances and their obligations at law. That is fine in theory!

The difficulty that businesses face, however, is that vaccination issues are going to mean that employers are damned if they do and damned if they don’t. The reality is that minds will differ as to what is appropriate in the circumstances of an individual business, organisation or enterprise. Circumstances differ from industry to industry. By creating a grey area bigger than a solar system and is open to subjective interpretation, diversions of opinion will open the door for regrettable litigation.

You will be sued

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Without legislated certainty, it seems inevitable that in time, businesses are going to be sued by three different groups – their staff, their customers, and their neighbours.

By this time next year, any Australian citizen who wants to have a vaccination will have had an opportunity to do so. It will of course remain reasonably foreseeable that COVID-19 could be contracted in the workplace and as a result, it is a risk that employers will have a legal obligation to manage. Every state and territory will require the employer to take “reasonable care” to manage the risk – as defined by their state-based workplace health and safety laws.

Employees

In workplaces where social distancing is not necessarily possible, the risk of COVID-19 infection is real. Imagine a sad situation in which a worker who was a mother of three young children and the family breadwinner was vaccinated but nonetheless contracted COVID-19 that was gnomically linked to an unvaccinated co-worker who occupied the adjoining cubicle. If in one of those rare cases the breadwinning worker died, the family would suffer enormous emotional, personal and financial loss. One would have to expect that it wouldn’t take long for them to make an appointment to see a compensation lawyer about exercising their rights to pursue damages. Although the probability of the risk manifesting may not have been high, the gravity, if it occurred, could be high and as a result, it is conceivable that a duty of care would be found to have been owed.

Customers

The next group of litigations, of course, will be clients and customers of an organisation. Once again, you can imagine a customer or client coming into contact with an unvaccinated employee who unwittingly hands on their highly virulent variant. If the COVID-19 infection suffered by the visitor were sufficiently severe (either through serious complication or death) then the proverbial finger would be pointed at the employer that failed to take reasonable care to manage the risk of COVID-19 infection. After all, no employer could argue that they weren’t aware of the risk of an unvaccinated employee contracting and then passing on coronavirus disease in 2019!

Your neighbours

But by far the greatest risk to businesses will be the risk of being sued by another business that suffers significant loss as a result of a COVID-19-related shutdown. At present, everyone knows it is difficult, if not impossible to control when and where COVID-19 will show up. However, by this time next year, it will be assumed employers have far greater control over the risk of spreading the disease. If vaccines have been widely available for some time and policies could have been put in place to manage the risk but weren’t, the potential for large damages claims is enormous.

The law relating to claims for damages for what is termed “pure economic loss” is complex but a duty of care can be owed to prevent pure economic loss in some circumstances – particularly where the risk is plainly foreseeable and the “neighbour” is considered vulnerable.

It isn’t difficult to imagine a situation where one business in a small block of shops decides to promote its anti-vaccine stance. When the inevitable occurs and the business becomes an exposure site, it wouldn’t be unusual for that entire shopping centre to be shut down for some time or shunned by other consumers for quite a period of time. If the adjoining retailers suffered revenue losses of hundreds of thousands, or even millions of dollars over the following weeks, you’d have to expect they’d pretty quickly be seeking legal advice as to whether they had the potential to seek compensation against their “reckless” co-tenant.

Whilst such a cause of action, of course, isn’t yet recognised as an established area in which a duty of care would be owed, if the losses are great enough, surely it would only be a matter of time before someone would test the boundaries of our common law with a claim of this type. Who wants to be the test case?

The solution

If this issue were solely one about the relationship between employers and employees then it could potentially be dealt with in any number of ways – such as contractual arrangements, amendments to industrial instruments or agreements with staff and their unions. However, it’s not that simple. It’s all well and good for politicians to sit on the fence lest they risk offending a particular cohort of voters – but when it comes to the mandatory vaccination issue, fence-sitting will mean the politicians get splinters and businesses will have to suffer the consequences.

Travis Schultz is the managing partner of Travis Schultz & Partners.