Vaccine injury lawyer welcomes “common-sense” approach on injury compensation by European court

One of the UK’s leading lawyers for people injured after being vaccinated, has welcomed this week’s decision in the European Court of Justice (“ECJ”) in W and others v Sanofi Pasteur.

The ECJ had been asked to rule whether a French court’s decision breached the EU Product Liability Directive, which was given effect under UK law by the Consumer Protection Act 1987.

French courts had previously found the manufacturer of a Hepatitis B vaccine, Sanofi Pasteur, liable to the claimant (W) for causing his multiple sclerosis. Sanofi argued that Article 4 of the Directive provides: “The injured person shall be required to prove the damage, the defect and the causal relationship between defect and damage”, and that the court was wrong to find causation to have been established because there was insufficient scientific and medical evidence of causality.”

In this case, the medical and scientific evidence neither established nor ruled out the existence of a link between the vaccine and the onset of the disease. Sanofi argued that the circumstantial evidence alone of the vaccination and the onset of the disease was insufficient to satisfy the claimant’s burden of proof.

In paragraph 30 of the judgment, the ECJ held that the Directive must not be frustrated by courts requiring categorical scientific proof of causality, and that circumstantial evidence alone is sufficient.

Peter Todd, solicitor and partner at London law firm, Hodge Jones & Allen welcomed this decision, he said:

“Proving causation in vaccine injury claims in the UK has always been difficult. A claimant has been required to prove causation to a level of proof which is often impossible to achieve. If epidemiological evidence is required to prove causation and no epidemiological evidence exists either for or against an association with a vaccination, then a claimant may be prevented from obtaining compensation, even where common sense indicates the vaccine likely triggered the onset of the illness.

“The ECJ’s decision makes clear that a common-sense approach should be applied by a court and that the claimant should not face impossible hurdles to establish a right to compensation.

“Mainstream science accepts that vaccines are generally extremely safe and effective and the incidence of severe permanent disablement caused by vaccination is very rare indeed.

“It is only fair and reasonable to support those being vaccinated so that in the very rare occasion of serious permanent disablement being triggered by a vaccine, the burden of that loss can be placed on the manufacturer and redistributed across society through the costs of vaccines.

“The uptake of vaccines is likely to increase where consumers can be confident that not only is disablement exceedingly rare but. in the extremely unlikely event that it occurs, that there is a safety net.”

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For further information, please contact Kerry Jack on 020 3567 1208 or at kerry.jack@blacklettercommunications.co.uk

Notes for Editors

About Peter Todd

Peter Todd is the UK’s leading claimant public law lawyer fighting cases on behalf of sick people against the state and pharmaceutical companies. He is the lead lawyer in the largest multi-party product liability claim in the UK since Thalidomide – against GSK for serious neurological injury. Peter currently acts for over 90 claimants, many of them children, who have developed narcolepsy after receiving the Pandemrix swine flu vaccine in 2009/10.

Currently in talks with the government and the manufacturer, GSK, Peter was recently successful in getting NHS England’s refusal to supply the narcolepsy treatment drug, Xyrem, to one 17-year-old claimant overturned in the High Court (R (S) v NHS England, June 2016).

Peter is also acting for potential eye-surgery claimants following the urgent field safety notification and voluntary recall by German manufacturer Oculentis of its LENTIS HydroSmart Intraocular lenses following reports of cloudiness after surgical implantation causing loss of sight.

Alongside this, Peter continues to attract a range of cases on behalf of families whose children have been refused life-saving or life-enhancing drugs or treatment on the NHS, including.

Hodge Jones and Allen

• Hodge Jones and Allen is one of the UK’s most progressive law firms, renowned for doing things differently and fighting injustice. Its managing partner is Patrick Allen, recently awarded a lifetime achievement award by Solicitors Journal.
• For 40 years’ the firm has been at the centre of many of the UK’s landmark legal cases that have changed the lives and rights of many people.
• The firm’s team of specialists have been operating across: Personal Injury, Medical Negligence, Industrial Disease, Civil Liberties, Criminal Defence, Court of Protection, Dispute Resolution, Employment, Family Law, Military Claims, Serious Fraud, Social Housing, Wills & Probate and Property Disputes.
• In 2016, the firm launched Hearing their voices – a campaign to raise awareness and build conversations around the issues and the injustices we might all face.