In a judgment in a test case handed down today, the Court of Appeal upheld tribunal judgments awarding a boy (known as “John”) £120,000 under the Vaccine Damages Payments Act 1979 (“the Act”).
It was agreed that John’s narcolepsy with cataplexy was caused by his vaccination against H1N1 flu in 2009. He has sudden attacks of day-time sleepiness and a tendency to collapse to the ground, as well as permanent severe tiredness. The uncontested evidence was that John’s condition is unlikely to improve as he grows up.
Under the Act, any person who suffers injury as a result of most types of routine vaccination is entitled to an award of £120,000 if they meet a test of “60% disablement”. The appeal dealt with various issues as to how 60% disablement was to be assessed.
The Tribunal looked at John’s disablement not just as it affected him as an 11-year old (his age at the time of the Tribunal decision) but at how it would affect him over his future life. The Tribunal took into account, in particular, the effects that narcolepsy with cataplexy would have on him as he becomes a young man, such as disruption to exams, inability to drive, and effects on his social life. The DWP said that that approach was wrong and that the Tribunal should have limited its consideration to how his condition affected John as an 11-year old.
The Court of Appeal dismissed the DWP’s appeal. It accepted John’s argument that the DWP’s interpretation was inconsistent with the fixed-sum nature of the scheme and that it “potentially turn[ed] the scheme into a litigation game” where entitlement to the award would depend on the exact timing of the claim and of appeals. The Court of Appeal also agreed with John’s case that the Tribunal had been entitled to refer, in support of its conclusion, to a statutory schedule of percentages of disablement used in industrial injury benefit cases, and noted John’s point that, under that schedule, a double leg amputee such as Oscar Pistorius would be 100% disabled.
The result is likely to affect over 100 other cases where narcolepsy with cataplexy has been caused by vaccinations in 2009-10 against H1N1 flu. The cases were the subject of a Channel 4 documentary broadcast in March 2015 (“The kids who can’t stay awake”) covered here.