The Consumer Protection Act 1987 (“CPA”) came into force in England and Wales with effect from 1st March 1988.

The Act provides that the manufacturer of a defective product will be liable to pay compensatory damages for injury loss and damaged caused, without the need for the consumer to prove the manufacturer was negligent.

A product is defective within the meaning of the Act if it is not as safe as consumers generally are entitled to expect.

So if a consumer suffers a serious permanent injury caused by a vaccine they may have a claim under the Act. They will have to prove that the vaccine caused the injury. This is no small difficulty as the pharmaceutical manufacturer is likely to dispute this.

If they can prove causation however, the consumer will also have to show that the vaccine was “defective” within the meaning of the Act. This point has never been tested in England and Wales.

Does a consumer have the right to expect a vaccine to be absolutely safe – i.e. risk free?

Is what the consumer was warned about relevant? For example, if the consumer was told that the vaccine would only have mild temporary effects but it caused serious permanent injury, is the vaccine defective?

Or must a reasonable consumer expect there to be a small risk of very severe permanent injury even though she or he had not been advised of this and was totally unaware? These interesting issues will be decided by a court in due course – subject of course to the ability of a consumer to bring a claim.

The fact no claims at all of this nature have reached trial since the CPA came into force illustrates the lack of access to justice in England and Wales. If consumers have rights under CPA, they may effectively be unable to exercise them. The legal aid scheme has been repeatedly cut in recent years to the point where consumers are now unable to exercise their legal rights and the rule of law has been undermined.