A mediator in the High Court action of a 16-year-old boy who sued claiming he developed a rare sleep disorder after receiving a swine flu jab has recommended a €990,000 award in his case.
Last November Benjamin Blackwell’s action was resolved in a groundbreaking settlement which is set to pave the way for the resolution of 80 cases over the Pandemrix vaccine which were due before the High Court.
The case had been put back so the amount of the settlement could be brought before the court. The teenager it was agreed under the terms of settlement is to get 50 per cent of the settlement figure which the High Court has heard in his case comes to €990,000.
The Blackwell settlement was without an admission of liability.
Landmark action
Benjamin Blackwell claimed he contracted narcolepsy and cataplexy — an associated muscle weakness — after he received the Pandemrix vaccine at national school when he was five years old.
The landmark action was a test case for 80 other legal actions over the vaccine developed in response to the swine flu pandemic of 2009 and 2010.
In the High Court this week Mr Justice Kevin Cross ruled the mediators award did not fall outside the range of what was reasonably open to him and should not be interfered with.
However, the judge noted the mediator’s decision ca,n under the settlement ,be appealed to a retired judge who will then decide on the matter.
“Without in any way interfering with the jurisdiction of a retired judge on appeal from the mediator and without in any way wishing to fetter his or her discretion to set aside the award if he or she believes that it did indeed fall outside the range it follows from the above that in my view the award did not fall outside the range and should not be interfered with,” Mr Justice Cross said.
Submissions
The judge will at a later date hear submissions from counsel as to how the parties want to proceed in relation to the mediator’s decision.
Mr Justice Cross said the seriousness of Benjamin’s condition is not in doubt, and he fully accepted the details as to his condition as set out in the determination of the mediator and in submissions on his behalf.
The judge said the parties had entered into mediation as specified by the agreement and the mediator awarded a gross figure of €1.98 million, which netted down to a figure of €990,000.
The judge said Benjamin’s advisors are not satisfied with this award and applied to the court for a direction whether the offer should be accepted.
Mr Justice Cross said the group settlement of these such cases by parties under mediation as approved by the court is something to be warmly welcomed.
Savings of court time
He said it a settlement represents an enormous saving of court time and the costs on all sides would have been prohibitive if cases had to go ahead. The settlement the judge said means the cases do not have to be litigated and the resulting trauma to the individual plaintiffs and their families is avoided.
The court previously heard there are extensive benefits in the settlement for Benjamin Blackwell, which includes educational supports, accommodation costs in relation to third-level education, a “gold” medical card as well as childcare costs.
The settlement will not be taken into account when assessing future disability benefit.
Benjamin Blackwell, of Fairyhouse Road, Ratoath, Co Meath, had, through his mother Natalie Blackwell, sued the Minister for Health, the HSE, and Glaxosmithkline Biologicals SA (GSK) — the producer of Pandemrix.
State indemnity
GSK was previously given an indemnity by the State concerning any adverse reactions to the vaccine.
In his action, the teenager claimed he was administered the Pandemrix vaccine on February 22nd, 2010.
It was claimed he complained of occasional headaches and a high-pitched loud squealing in his head soon after, and his parents noted changes in his behaviour, including dramatic mood swings, and that he started falling asleep at odd times during the day, including at school.
He had ongoing problems with fatigue, and narcolepsy was diagnosed in 2012.
It was claimed neither he nor his parents would have consented to the vaccination if various matters were made clear to them, including that Pandemrix had allegedly never been, or never been adequately, tested, on children of his age.
The claims were denied.
