A Court of Appeal has dismissed a parent’s claim against a GP who carried out a polio vaccination of their child with an abscess on the right buttock, and who developed a vaccine strain of polio a few weeks later.
The parents had expressed their concern over whether the vaccination should go ahead on the day but the GP advised that there was no reason for the polio vaccination not to proceed. The parent claimants argued that if they had been advised correctly they would not have proceeded with the vaccination at that time and their child would not have contracted polio.
At the initial hearing, the Judge agreed that the GP gave insufficient advice about the significance of the abscess and accepted that if correct advice had been given, the vaccination would have been postponed. Consequently, the claimant’s child would not have developed polio.
The Judge also held that the polio had been contracted through the abscess although “no doctor could have foreseen that the lancing of the boil might have increased the potential risk for the child to develop polio than would have been the case if a baby was to be vaccinated.
Judge criticised for not applying the test of “foreseeability”
However, the Court of Appeal criticised the initial hearing Judge for not applying the test of “foreseeability” and correctly asking whether the breach of duty was “relevant to the loss” and if a “foreseeable risk” of the claimant contracting polio was involved.
The three judges at the Appeal concluded that any inadequacies in advice over the abscess related to “treatment for that condition” and not to its “significance to the vaccination”. They agreed that it was “not reasonably foreseeable” that the existence of the abscess would increase the risk of an adverse reaction to the polio vaccine.
The Appeal Court also questioned whether the parents “would in fact have postponed the vaccination” or that “polio was contracted via the wound left by the lancing of the boil”. The Appeal Judge also challenged the judge's finding that any "fault" found would be a cause of the damage suffered.
Consequently, the Court of Appeal said that it would be unfair to find the GP liable for the consequences of postponing the polio vaccination.