Dismissal of case over man’s brain injury confirmed by court

The dismissal of an action alleging a man’s serious brain injury and other disabilities were caused by the measles vaccine has been confirmed by the Court of Appeal.

The High Court was correct in finding no case had been made out to support the claims made on behalf of Alan O’Leary, now aged 29, of Ballyphehane, Cork, the three judge appeal court ruled.

It said the High Court was entitled, after hearing the plaintiff’s case over 11 days, to grant applications on behalf of the State, HSE and a doctor who administered the vaccine in February 1988 to the then 15-month-old plaintiff, to strike out the claims against them.

Mr Justice Seán Ryan, president of the appeal court, said this case concerned claims that Mr O’Leary, who cannot live independently and is looked after by his sister, suffers from hyperactivity and mental retardation arising from a measles vaccine.

All three defendants denied the various claims against them, he noted. Among those claims, it was alleged the State disregarded the manufacturers recommendation the measles vaccine should not be administered to persons such as himself with a family history of epilepsy.

Duty of care

The High Court had correctly held no evidence whatever had been adduced from which the court could possibly infer any negligence on the part of the State or any breach of the State’s duty of care, the judge said.

He said the plaintiff had relied on a 2009 report of the Vaccine Damage Steering Group of the Department of Health, which recommended the State, because it “actively encourages” participation in a national immunisation programme, should look sympathetically at the “very rare” number of cases where children suffer serious adverse reactions because of their participation. That report, and other documents upon which the plaintiff relied, were not evidence in the case and the High Court could not have made findings based on their contents, he said.

While it was argued Mr O’Leary had a legitimate expectation of compensation from the State, it had made no representation or promise to that effect. The State had not enacted any compensation scheme and the High Court could not legislate for a scheme of compensation exclusively within the provision of the Oireachtas, he said.

Valid consent

Mr Justice Ryan also noted Mr O’Leary’s case was initiated in 2002 on his behalf by his mother, who died in 2007. Among the claims advanced were claims that no, or no valid consent, was obtained from the late Mrs O’Leary for administration of the vaccine, he noted. His mother’s death had left Mr O’Leary, whose case was then pursued on his behalf by his sister Charlene, with a “severe evidential deficit”, the judge said.

There was also no evidence about the consent issue one way or the other as the doctor’s record merely stated “measles vaccine” and did not address the consent issue. There was no evidence adduced upon which negligence on the part of the GP could be inferred, the judge said.

The court also upheld the High Court findings no evidence was adduced to support claims against the HSE as administrator of the vaccination programme.