The Court of Appeal has dismissed an appeal by Alan O’Leary, a minor represented by his sister and next friend, against the dismissal of his claim over disabilities he alleged were caused by a measles vaccination in 1988.
The judgment, delivered on 10 February 2016, upheld the High Court’s decision to dismiss the case at the close of the plaintiff’s evidence. The appeal court said the trial judge had applied the correct test and was entitled to conclude that the evidence, taken at its highest, did not establish a prima facie case against the defendants.
The claim alleged that Dr Martin Healy, who administered the vaccine, was negligent for failing to obtain the mother’s informed consent. It also alleged that the injection amounted to battery without valid consent. The case against the Health Service Executive, Ireland, and the Attorney General included claims that the State had made assurances about the vaccine and was obliged to compensate people injured through its vaccination programme.
The appeal court said the absence of a note recording consent or a warning did not establish that neither had been given. To rely on the missing note as a basis for an inference, the plaintiff would also have needed to prove an obligation or accepted practice to make such a record. The court further held that a claim based on inadequate warning required evidence that a proper warning would have led the mother to decline the vaccination. There was no evidence of how she would have responded.
The court also rejected the argument that the defendants lost the right to seek dismissal because their lawyers had put their anticipated evidence to the plaintiff’s expert witnesses during cross-examination. That was normal trial practice and did not oblige the defendants to call evidence before seeking a direction that there was no case to answer.
The appeal judgment noted that medical records disclosed in the proceedings had not been admitted as proof of their contents, and that the Vaccine Damage Steering Group report relied on by the plaintiff likewise had no evidential status without proof or agreement between the parties. The court did not decide whether the vaccine caused the plaintiff’s disabilities: the causation issue remained moot after the finding that no cause of action had been established.
The appeal was dismissed. The court did not make a finding on whether the vaccine caused the alleged injury or determine the claim on its medical merits.