More vaccine litigation

9 February 2017 by Rosalind English

John (A Minor: Vaccine Damage Payments scheme), Re [2017] EWCA Civ – read judgment

As commentators to my previous post on immunisation have pointed out, vaccinations are not cost-free. But the benefit of eliminating pathogens through herd immunity is generally agreed to outweigh the occasional risk to individuals. Acknowledging that there are such risks,  the government has run a modern compensation system since 1979 for people who are “severely disabled” as a result of vaccination (now the 2012 Vaccine Damage Payments Scheme). The initial scheme was put in place in response to side effects of the whooping cough vaccine.

The question before the Court of Appeal in the present case was whether the determination of the severity of a person’s disablement could take account of prognosis. If an individual has been assessed as having a lifelong condition, is the state obliged to compensate them for future disabilities?

Yes, said the Court of Appeal: this is not speculation, our legal system is used to it. It is the “very stuff” of personal injury litigation.

Background facts

“John” (not his real name) was given the anti-swine flu vaccination when he was aged 7.  A year later, in 2010, he was diagnosed  as suffering from narcolepsy and cataplexy. Narcolepsy involves proneness to sudden attacks of day-time sleepiness and is associated with sudden loss of muscle tone, cataplexy. This, as the court explained,  can give rise to  a range of symptoms from facial tics to a tendency to collapse to the ground with “temporary profound muscle paralysis.”

The Department of Work and Pensions rejected his claim in 2012, concluding that John’s disablement was not shown to be sufficiently severe to qualify for compensation under the scheme at the time of the assessment. By 2014 his condition had worsened; he was suffering up to five episodes of cataplexy a day and the specialist tribunal (First Instance Tribunal or FTT) decided that he was eligible for compensation. The department paid up in full; however, the claim proceeded because the DWP wanted the question as to eligibility settled. It was argued on their behalf that

the wording of the statutory scheme was such as to require the determination of disablement to be made by reference to an applicant’s condition solely at the time he/she presents at the assessment (by the Department or, on appeal, by the tribunal).

… the scheme, properly interpreted and understood, does not permit a forward – looking assessment which also takes into account likely future disablement.

Writing the judgment for the Court of Appeal, Davis LJ saw “no basis” for this argument, whether the words of the scheme were to be taken at their face value, or interpreted according to the perceived purposes of the legislation.

If an individual is assessed as having a life-long condition (as here) why should that not be taken into account in assessing the extent of the disablement? [Counsel for the DWP] suggested by way of answer that such an approach could give rise to uncertainty and could call for difficult evaluations – he suggested speculations – to be made by a tribunal. But courts and tribunals are well used to assessing loss on a balance of probabilities on present evidence by reference to future prospects.

Speculating future loss is what personal injury lawyers and judges do every day.

The Court of Appeal has now settled the question. Determination for a payout under the scheme does not have to be made by reference to an applicant’s condition solely at the time of assessment.

Related reading:

• Should courts order vaccination against parents’ wishes?
• Plague, eds Heeney and Friedemann,  CUP 2017
• I contain Multitudes, Ed Yong, Harper Collins 2016
•  On Immunity: An Inoculation, Eula Biss, 2014