The potential delictual liability of non-vaccinating parents in South Africa

Abstract

This thesis explores the potential delictual liability of non-vaccinating parents in South Africa for the harm caused to another by failing to have their child vaccinated. The South African common-law delict is explored with specific reference to the five common-law delictual elements, as well as the three historic actions: the actio iniuriarum; the Germanic action for pain and suffering; and the actio legis Aquiliae. In Chapter 1, the reader is introduced to the research topic, and specifically the issue of non-vaccination, what it entails for purposes of this thesis, and why the non-vaccination of a child may potentially attract delictual liability. Chapter 2 explores non-vaccination in greater detail, including the importance of vaccination, a short overview of the history of non-vaccination, and why non-vaccination is still regarded as a global health threat. Non-vaccination is considered against a constitutional backdrop in Chapter 3 to establish whether children have an express or implied constitutional right to vaccination and whether or not parents have a corresponding duty to vaccinate their children. Chapter 3 also considers the common-law rights of parents as well as the role of the Children’s Act in the constitutional conundrum. Foreign-law considerations regarding the potential civil liability of non-vaccinating parents are considered in Chapter 4 with reference to foreign case law and legislation. The South African common-law delict is explored in Chapter 5 and each delictual element is considered in detail to establish whether non-vaccinating parents could possibly face delictual liability for the harm caused to others by their failure to have their child vaccinated. In Chapter 6 recommendations for statutory reform are made with reference to the consequences of imposing delictual liability and to assist litigants in a delictual suit. Chapter 7 concludes the thesis with a short summary of the chapters and concluding remarks.

Keywords: non-vaccination; anti-vax; delictual liability; children’s rights; negligence; torts; duties; breach; best interests; common-law delict; wrongfulness; harm; conduct; causation; fault.