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Editorial: Statutory Damages for Injuries from Vaccinations - Aidan Ellis, Temple Garden Chambers

23/02/17. An interesting recent case involving narcolepsy and the swine flu vaccine, Secretary of State for Work and Pensions v FG (on behalf of John) [2017] EWCA Civ 61, drew my attention to the Vaccine Damage Payments Act 1979. Provided certain conditions are met, that statute allows an individual who sustains a sufficiently severe injury following a vaccination to claim a lump sum payment from the government.

The conditions are, of course, not easily satisfied. First, the vaccination must be against a specified disease (listed in the Act or designated by the Secretary of State). At the relevant time, that included the swine flu vaccine. But most of the listed vaccinations are the standard childhood vaccinations. Second, the applicant must be “severely disabled” as a result of the vaccine. Causation is one difficulty. But even if causation can be overcome, the threshold is clearly set high. “Severely disabled” is defined by reference to a 60% disablement as described by the Social Security Contribution and Benefits Act 1992. Schedule 2 to that Act suggests that 60% disablement is equivalent to the loss of one hand or the amputation of a leg at around knee level, though quite how that can be applied to the sorts of complex conditions – such as narcolepsy itself - which might be caused by a vaccination is a difficult issue.

Nevertheless, the statutory payment scheme may provide a valuable additional remedy available to those injured as a result of a vaccination. Valuable, because reflecting the seriousness of the disablement, the lump sum payment is fixed at £120,000. Moreover, the existence of the statutory scheme does not prevent access to more familiar claims, including in negligence. In appropriate cases, the claimant could pursue a statutory payment from the government whilst simultaneously launching civil proceedings against the manufacturer or supplier of the vaccine.

Aidan Ellis
Temple Garden Chambers

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