More vaccine litigation

swine_flu_vaccine313John (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.

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Asbestos victims successfully challenge change in conditional fee/ATE costs rules


malignantmesothelioma1Whitston (Asbestos Victims Support Victims Support Groups Forum UK)  v Secretary of State for Justice and the Association of British Insurers (Interested Party) [2014] EWHC 3044 – read judgment

Jeremy Hyam and Kate Beattie of 1 Crown Office Row acted for the Claimant in this case. They had nothing to do with the writing of this post.

In April 2013 the rules permitting recovery of success fees under Conditional Fee Agreements (CFAs) and After The Event (ATE) insurance premiums changed in response to the Jackson proposals – with one exception, namely in respect of mesothelioma claims.

This case concerns the Lord Chancellor’s intention to bring costs rules in mesothelioma claims in line with other claims.

As many of you will know, mesothelioma is an industrial disease caused by the inhalation of asbestos. It is a rare form of cancer which  generally does not become apparent until many years after exposure to asbestos, a feature which at least in the past has led to real problems when mounting a claim against those responsible for the exposure. Once the cancer does become symptomatic its progression is rapid. Most sufferers survive for less than 12 months from the onset of symptoms. Yet the effects of the disease over the period from the onset of symptoms to death are hugely painful and debilitating. This combination of factors means that litigation in relation to mesothelioma is unusual in comparison with many other types of litigation involving personal injury or industrial disease. In almost every case in which a claim is made for damages for mesothelioma the effective defendant is an insurance company. Continue reading