Wednesday 21 March 2018

Court of Appeal upholds dismissal of case alleging man's disabilities were caused by the measles vaccine

The Four Courts in Dublin
The Four Courts in Dublin

THE COURT of Appeal has upheld the dismissal of an action alleging a man's serious brain injury and other disabilities were caused by the measles vaccine.

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 held.

It ruled the High Court was entitled, after hearing the 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 Sean 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.

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.

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.

Mr O'Leary had relied on a 2009 report of the Vaccine Damage Steering Group of the Department of Health, he said.

That 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 he 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.

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


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.

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