Law: A shot
in the dark; The complications
from vaccine damage seem to
multiply in the courtroom, writes
Grania Langdon-Down
The
Independent (Law, Page 25)
November 27 1996
Rosemary Kessick has
watched her son William
deteriorate from a bright, active
toddler to a destructive
eight-year-old who cannot talk,
play or feed himself and who
lives in a frantic, rushed world
of his own. She blames the MMR
(measles, mumps and rubella)
vaccine for the devastating
changes in William, now diagnosed
as autistic and suffering from a
debilitating inflammatory bowel
disorder which can leave him
screaming with pain.
William is one of 10
children taking part in a pilot
study at the Royal Free Hospital
in London, which is investigating
possible links between the
measles vaccine with the bowel
disorder Crohn’s Disease,
and with autism. The study is
being organised by Norfolk
solicitors Dawbarns, one of two
firms awarded a contract in 1994
to co-ordinate claims resulting
from the MMR vaccine.
Mrs Kessick, 42, had
to give up her job as a business
manager to look after William,
the middle of her three children.
William joined the other 300-plus
children bringing claims through
Dawbarns only in February,
because the doctors she saw
during her traumatic search for
answers dismissed her fears about
the vaccine out of hand.
“Within weeks
of the vaccination, his
development slowed down, then it
stopped and then he regressed.
Seeing what has happened to him
has broken our hearts. It means
so much to finally be listened to
and to find people to stand up
and say the safety of these
vaccines must be
investigated,” she says.
Concern about
vaccination has resurfaced with
the Government’s campaign to
introduce a new MMR booster for
all four-year-olds. Most of those
children will have had their
first MMR at about 15 months.
The Department of
Health dismisses suggested links
with autism and Crohn’s
disease as the work of just one
researcher, and argues that
children are at far greater risk
from measles than from the
vaccine. The latest campaign,
launched on the advice of an
independent committee of doctors,
was needed to stop the build-up
of unvaccinated children, which
would inevitably lead to new
outbreaks of measles.
Dawbarns partner
Richard Barr is co-ordinating the
families’ claims. Depending
on the results of the scientific
study and counsel’s advice,
he intends taking on the vaccine
manufacturers using the Consumer
Protection Act, 1987.
The Act was
introduced to offer a system for
dealing with no-fault liability
without the need to prove
negligence, and was intended to
help cases such as those
involving vaccine damage.
However, critics
argue that it has not been widely
used because of the extensive
defences offered to
manufacturers. These include the
“development risks”
defence which says manufacturers
will not be liable if, with
reasonably diligent research,
they would not have been able to
find the fault that is now
causing the problem.
The development
risks defence is being challenged
in the European Court as being
outside the terms of the European
Directive on consumer protection
legislation, because it
effectively incorporates
negligence back into the strict
liability provision.
Mr Barr also intends
to pursue the medical negligence
aspect but, to date, there has
never been a successful
compensation claim for vaccine
damage under negligence laws.
Mr Barr said:
“The whole field of vaccine
litigation was brought to a
shuddering halt by the High Court
judgement in Loveday and Renton
in 1988, which involved the
whooping cough vaccine.
“The case
centres on whether the vaccine
caused brain damage, but it went
horribly wrong and the outcome
was the judge concluded it did
not. The case was based mainly on
expert opinion rather than
scientific evidence and the
manufacturers were able to
marshal massive resources to
defeat the plaintiff’s
experts. We will have to try to
make sure we do not fall into the
same traps.”
One result of the
Loveday case was that the Legal
Aid Board applied the result to
all vaccine damage cases and
generally refused to grant aid.
Mr Barr said:
“For a year, we were without
legal aid but we battled on until
we were eventually granted it to
pursue the possibility of
bringing cases under the Consumer
Protection Act.
“The benefit is
you do not have to prove
negligence - you simply have to
prove the vaccine caused the
damage and that it is an unsafe
product. We will also have a
strong argument that parents were
given no, or insufficient,
information or warnings about the
possible risks of the vaccine to
be able to give informed consent
to its use.
“I am sure the
manufacturers will try to
discount any causal link between
the vaccine and the damage
suffered by the children. They
will also argue that the benefits
of being immunised far outweigh
the risks from the vaccine. But
we will argue that the dangers of
these childhood disease have been
exaggerated to terrorise parents
into vaccinating their children.
“I also do not
think the ‘development
risk’ defence is a runner,
because we would argue the
mechanisms of how the damage is
caused have been known since the
Sixties when the measles vaccine
was first being tested.”
He said another line
of attack would be to focus on
clusters of similar side-effects
associated with particular
batches of vaccine, although the
main thrust remained against the
vaccine as a whole.
Mr Barr, who refused
to let his children be
vaccinated, said their research
was being helped by having an
in-house scientist working on the
cases. Kirsten Limb initially
came to them as a client after
her daughter was left severely
disabled through medical
negligence.
Jack Rabinowicz, a
partner at Teacher Stern Selby,
has been involved in vaccine
damage cases for a decade and is
chairman of the solicitors’
steering group dealing with
whooping cough claims.
He was pessimistic
about the likely success of cases
brought against the vaccine
rather than a specific “bad
batch”.
“My view is
that you have to show a child was
damaged by vaccine from a bad
batch, as happened in a case in
Ireland in 1994 which resulted in
more than pounds 2m compensation.
The court found in favour of the
claimant after hearing that the
vaccine had failed internal
toxicity tests but was still put
on the market.
“A full frontal
attack against the vaccine itself
is much more difficult. The
steering group is waiting for
advice from counsel and, if it is
reasonably optimistic, will issue
writs early next year. They will
involve product liability claims
against manufacturers over
specific ‘hot lots’ of
the vaccine and medical
negligence claims against
individual doctors who ignored
the contraindicational warnings
about having the
vaccinations.”
He said the cases
were at the frontiers of medicine
and law and the Legal Aid Board
was rightly worried about
committing public money unwisely.
“There have been a number of
disastrous product liability
cases and these will be David
against Goliath because the
manufacturers and doctors have
unlimited resources to fight
their corner.
“I think the
only thing that will change the
situation is if Richard Barr and
I get our cases off the ground
and the manufacturers and doctors
scream merry hell at the prospect
of paying millions in
compensation and put pressure on
the government of whatever hue to
provide state aid.”
The only help
currently offered by the
government is through the Vaccine
Damage Pay Unit. Since it was set
up in 1979, it has received 3,749
claims and made 883 awards.
However, these have been capped
at pounds 30,000 since 1991, and
apply only if a child is 60 per
cent disabled.
Mr Rabinowicz said:
“If these children were
birth victims they would receive
about 2m each. These
vaccine-damaged children would be
looking probably for upwards of
pounds 1m.”
