Kiely v Minister for Social Welfare

• Jurisdiction: Ireland
• Judge: Henchy J.
• Judgment Date: 16 February 1977
• Neutral Citation: [1977] IESC 2
• Court: Supreme Court
• Docket Number: 1972 No. 113 Sp.,[1972 No. 113 Sp.]
• Date: 16 February 1977

Between

Louisa Kiely

Plaintiff

v.

Minister for Social Welfare

Respondent

[1977] IESC 2

Henchy J.

1972 No. 113 Sp.

The Supreme Court

Henchy J.

1 The appellant is a widow in her seventies. During the eight years since her husband died in October, 1968, she has been pursuing a claim under the Social Welfare (Occupational Injuries) Act, 1966. That claim is for death benefit (in the form of widow's pension and funeral expenses) which she maintains is payable to her on his death. It is common case that her husband, who was a blacksmith working for Córas Iompair Éireann, sustained an accident on the 12th June, 1968. In the course of his work; that the accident caused burns to his hands; that the accident arose out of and in the course of his insurable (occupational injuries) employment; that, following the accident. He was incapacitated from work first by the physical injuries and then by depression; and that he died suddenly of a coronary thrombosis on the 13th October. 1968. In those circumstances the appellant became entitled to death benefit if she could establish that his death resulted from the accident.

2 The appellant made her claim for death benefit in December, 1968. In January, 1969, she was notified by the Minister for Social Welfare that a deciding officer had rejected her claim. She then exercised her right of appeal to an appeals officer. An appeals officer and a medical assessor were duly nominated for the hearing of the appeal. The appeal was heard on the 9th July, 1969. As a result of which the appellant's claim was rejected. Being dissatisfied with the way the appeal had been heard, the appellant brought proceedings in the High Court to have the decision of the appeals officer quashed. She was successful. As appears from the report of the High Court decision in Kiely v. The Minister for Social Welfare [1971] IR 21, it was held that the proceedings before the appeals officer were invalidated because the appellant had not been given an adequate opportunity of controverting evidence adverse to her case which was contained in a written report made by Dr. Mulcahy, a cardiac specialist.

3 Accordingly, the matter was referred back to the appeals officer with an indication that a different appeals officer and a different medical assessor might act in the new hearing of the appeal. That suggestion was adopted. For the new hearing Mr. Moroney of the Department of Social Welfare acted as appeals officer, and Dr. W. D. Linehan as medical assessor. The hearing took place on the 12th January, 1972. The result was again adverse to the appellant's claim. Once again the appellant brought proceedings in the High Court to have the adverse decision of the appeals officer set aside. This time, however, she was unsuccessful. The judge rejected all the grounds she put forward in support of her contention that the appeals officer conducted the hearing of the appeal in excess of his jurisdiction and in breach of natural justice. This appeal is taken from that decision.

4 The appeal to this Court has been argued on two main grounds. First, it was submitted that the appeals officer breached natural justice in requiring the appellant's witnesses to give evidence on oath and to submit themselves to cross-examination, while receiving Dr. Mulcahy's evidence in the form of a letter and denying the appellant's legal adviser an opportunity of cross-examining him. Secondly, it was contended that the part played by the medical assessor in the hearing invalidated the decision.

5 Before dealing with either of those grounds of appeal, I find it necessary to advert to the statutory provisions on which the hearing rested. The main statutory provisions are contained in s. 44 of the Social Welfare Act, 1952. Sub-section 1 of that section requires that, when any person dissatisfied with the decision given by a deciding officer gives notice of appeal to the Minister within the prescribed time, the question shall be referred to an appeals officer. Sub-section 3 of s. 44, coupled with s. 3, allows the Minister to make regulations for the procedure to be followed on appeals. The appeals officer may go outside the grounds on which the deciding officer made his decision and may decide the question as if it were being decided for the first time: see sub-section 4. The appeals officer is given power to take evidence on oath and to require the attendance of notified witnesses, who are made liable to a fine if they disobey a notice 10 attend: sub-sections 6-9.

6 The statutory intention, therefore, was that the appeals officer would be armed with the necessary jurisdiction to conduct a full and effective oral hearing de novo.

7 In elaboration of the procedure to be followed by the appeals officer, the Minister, in exercise of the powers conferred on him by ss. 3 and 44 of the Act of 1952, made the Social Welfare (Insurance Appeals) Regulations, 1952. Article 3 of those regulations defines a ‘hearing’ in the regulations as meaning ‘oral hearing’ unless the context requires otherwise. It has not been suggested that, in any of the articles we are concerned with in this case, the context requires the word ‘hearing’ to be construed as connoting other than an oral hearing.

8 Article 8 is of importance in that it indicates the basis for an oral hearing as distinct from a summary hearing. It states:- ‘If the appeals officer is of opinion that the case is of such a nature that it can properly be determined without a hearing, he may dispense with a hearing and may determine the appeal summarily.’ The fact that power to determine the appeal summarily is given only in those terms means that an oral hearing is mandatory unless the case is of such a nature that it can be determined without an oral hearing, that is to say, summarily. An appeal is of such a nature that it can be determined summarily if a determination of the claim can be made fairly on a consideration of the documentary evidence. If, however, there are unresolved conflicts in the documentary evidence as to any matter which is essential to a ruling of the claim, the intention of the regulations is that those conflicts shall be resolved by an oral hearing. Things are regulated on the analogy of a case in the courts where the judge, finding himself unable to resolve the matter summarily because there is a conflict as to vital facts in the affidavits before him, sends the case to a plenary hearing. The regulations also envisage a plenary hearing, as distinct from a partially - oral hearing in the sense that only one side - the claimant or the deciding officer - is to give oral evidence.

9 It would be contrary to natural justice if one side were allowed to shelter behind his controverted documentary evidence while the other side had to bring his witnesses to the hearing, where they might be required to give their evidence on oath and to be subject to cross-examination. The lack of mutuality and the potential for an unjust determination inherent in such a procedure would put it in conflict with the rule of audi alteram partem.

10 Article 9 requires the appeals officer to give due notice of the oral hearing to the appellant, to the deciding officer and to any other person appearing to be concerned in the appeal. Since an oral hearing presupposes a conflict, the article provides for adversary proceedings, and article 11 (2) allows the deciding officer to appear at the hearing in person or to be represented by another officer of the Minister. Thus the oral hearing will proceed as if there were a lis between the particular appellant and the deciding officer.

11 Article 11(5) allows a limited derogation from the requirement of an oral hearing by providing:-

‘The appeals officer may, if he thinks fit, admit any duly authenticated written statement or other material as prima facie evidence of any fact or facts in any case in which he thinks it just and proper so to do.’

12 The expression ‘ prima facie evidence’ is susceptible of differing connotations depending on the context in which it is used but (as is pointed out in Cross on Evidence, 4th ed., p. 27, note 4) when used in statutes it usually bears the meaning attributed to it by Stratford I. A. in R. v. Jacobson and Levy [1961] App.D. 466 where, at p. 478 of the report, he said:-

‘“ Prima facie evidence,” in its usual sense is used to mean prima facie proof of an issue, the burden of proving which is upon the party giving that evidence. In the absence of further evidence from the other side, the prima facie proof becomes conclusive proof and the party giving it discharges his onus’

13 In my opinion, that is the correct way to construe the expression ‘ prima facie evidence’ in article 11(5) of the regulations. That provision enables the appeals officer, in ease of the appellant or the deciding officer, to relax the requirements of an oral hearing by admitting and acting on (if he thinks it proper to do so) written statements or other material, but only to the extent that such statement or other material may be treated as prima facie evidence. Once the fact sought to be proved by the statement is controverted by probative evidence to the contrary, the statement ceases to be prima facie evidence of that fact. Therefore, it ceases to be admissible and the fact requires to be proved by oral, although not necessarily by sworn, testimony. The fact that article 11(5) allows a written statement to be received in evidence in the specified limited circumstances means that it cannot be received in other circumstances: expressio unius est exclusio alterius.

14 I now turn to what happened at the hearing of the appeal before the appeals officer in this case. The appellant, Mrs. Kiely, attended with her solicitor and two medical witnesses, namely, Dr. Fennell who had attended her husband after his accident, and Dr. Blake who is an expert in cardiac medicine. Both of those doctors gave evidence...