More vaccine litigation
9 February 2017
John (A Minor: Vaccine Damage Payments scheme), Re  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.
“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.
[…] The scheme also has in place appeal systems in the form of a ‘mandatory reversal’, whereby the DWP reviews the original decision, and either sends a new decision if they think it should be changed, or a ‘mandatory reversal note’ explaining why not. There is no limit on the number of mandatory reversals sought, nor the time limit in which to do so. Alternatively, the decision can be appealed to the Social Security and Child Support Tribunal and taken thereafter through the courts, as did John, a child who developed narcolepsy and cataplexy after receiving the Swine Flu vaccine in 2009 (covered by the UKHRB here). […]
Unfortunately this case is the tip of the iceberg and most applications to the Vaccine Damage Payment Scheme are turned down despite the amount of evidence that has to be gathered to make an application at all. When someone has experienced damage from a vaccine which has changed their life is it right that they should have to go through the humiliating process of proving that they are at least 60% disabled? They are a victim not a criminal. If vaccine damage is apparently so rare then surely it shouldn’t be too much to ask that those who are affected are looked after properly for taking “the hit” for the community? The current Vaccine Damage Payment Scheme is not fit for purpose and should be overhauled to ensure proper compensation for those (actually not so few) who experience life-changing illness after receiving a government recommended vaccine and all vaccines should be included such as the flu vaccine which currently isn’t. For more detail you should contact the Vaccine Victim Support Group which represents hundreds of people and their families who have experienced disability or death after receiving a vaccination. Thank you.
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