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Cite as: [1977] IR 267, [1977] IESC 2

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Kiely v. Minister for Social Welfare [1977] IESC 2; [1977] IR 267 (16th February, 1977)

The Supreme Court

Louisa Kiely

Minister for Social Welfare

1972 No. 113 Sp. [16 th February, 1977]

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 on oath and were cross-examined by the appeals officer and by the medical assessor. Despite cross-examination, they maintained their opinion that the coronary thrombosis resulted from the accident.

15. If the appeal were to be decided on the evidence given at the oral hearing, the appellant’s claim would have to be allowed for the medical evidence as to the causal connection between the accident and the death was all in favour of her claim. The appeals officer, however, said that he would take into account a letter from Dr. Mulcahy discounting a causal connection between the accident and the death, and that he would not require the attendance of Dr. Mulcahy. It is not contested that Dr. Mulcahy’s written opinion was used by the appeals officer in his rejection of the appellant’s claim.

16. Dr. Mulcahy’s opinion had been obtained in the following circumstances. He had never known or treated the deceased. On the 23rd December, 1968, a medical adviser to the Minister had written to Dr. Mulcahy giving him a potted version of the case history of the deceased and. asking for his opinion as to the possibility of the death having been caused by the accident. On the 7th January, 1969, Dr. Mulcahy wrote in reply, giving his opinion in the concluding sentence of his letter, as follows:- “ On careful perusal of the evidence presented to me I could find no evidence of any sort to suggest that the accident led directly or indirectly to the subsequent coronary attack and to the patient’s death .” The italics are mine. I use them to emphasise that Dr. Mulcahy was expressing an opinion only on the basis of the summarised case history which the Minister’s adviser had given to him. It was this qualified opinion that was used at this hearing three years later-without giving Dr. Mulcahy an opportunity of reviewing his conclusion or of expressing it orally-to reject the medical opinion to the contrary given under oath at the oral hearing.

17. The view was expressed in the judgment under appeal before us that the appeals officer was entitled to receive in evidence Dr. Mulcahy’s opinion and to act on it, in rejection of the sworn evidence to the contrary, if he thought fit. Support for this view was found in the judgment of Lord Denning in T. A. Miller Ltd. v. Minister of Housing and Local Government [1968] 1 W L R 992 at p. 995 of the report where he held that a tribunal which is master of its own procedure may act on unsworn hearsay evidence of this kind in rejection of sworn evidence to the contrary, provided it is logically probative and provided the party against whom it is used had an opportunity of commenting on it and contradicting it. Support for that view of the law is also to be found in other English decisions such as R. v. Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 QB 456 in which Diplock L.J. said at p. 488 of the report:- “The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above.”

18. With great respect, 1 cannot accept that those decisions or those dicta correctly represent the law in this State. I do not think it is open to judges here to adopt such a laissez-faire attitude to the vagaries or tribunals exercising quasi-judicial functions. This Court has held, in cases such as In re Haughey [1971] IR 217, that Article 40, s. 3, of the Constitution implies a guarantee to the citizen of basic fairness of procedures. The rules of natural justice must be construed accordingly. Tribunals exercising quasi-judicial functions are frequently allowed to act informally-to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like-but they may not act in such a way as to imperil a fair hearing or a fair result. I do not attempt an exposition of what they may not do for, to quote the frequently-cited dictum of Tucker L.J. in Russell v. Duke of Norfolk [1949] 1 All ER 109, 118, “There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.”

19. Of one thing I feel certain, that natural justice is not observed if the scales of justice are tilted against one side all through the proceedings. Audi alteram partem means that both sides must be fairly heard. That is not done if one party is allowed to send in his evidence in writing, free from the truth-eliciting processes of a confrontation which are inherent in an oral hearing, while his opponent is compelled to run the gauntlet of oral examination and cross-examination. The dispensation of justice, in order to achieve its ends, must be even-handed in form as well as in content. Any lawyer of experience could readily recall cases where injustice would certainly have been done if a party or a witness who had committed his evidence to writing had been allowed to stay away from the hearing, and the opposing party bad been confined to controverting him simply by adducing his own evidence. In such cases it would be cold comfort to the party who had been thus unjustly vanquished to be told that the tribunal’s conduct was beyond review because it had acted on logically probative evidence and bad not stooped to the level of spinning a coin or consulting an astrologer. Where essential facts are in controversy, a hearing which is required to be oral and confrontational for one side but which is allowed to be based on written and, therefore, effectively unquestionable evidence on the other side has neither the semblance nor the substance of a fair hearing. It is contrary to natural justice.

20. Assuming a written statement from Dr. Mulcahy to have been admissible, the acceptance in evidence of this letter and the reliance of the appeals officer on it as a ground for his rejection of the sworn evidence to the contrary was improper and unfair. Dr. Mulcahy’s written opinion was three years old. It was a hypothetical opinion given on the basis of an incomplete version of the case history. Dr. Mulcahy was given no opportunity of reconsidering his opinion in the light of a fuller version of the clinical facts or in the light of what he might have considered to be a more up-to-date and, therefore, a more reliable understanding of the aetiology of coronary thrombosis. Nor was he given an opportunity of reviewing his opinion in the light of the opposing medical opinions which his letter was used to controvert. In short, its use as a determining piece of evidence was so unfair as to invalidate the hearing.

21. Apart from all that, however, I would hold that the appeals officer acted without jurisdiction in accepting written evidence in rebuttal of the case for the appellant. The burden of proving that the death resulted from the accident rested on the appellant, and her medical witnesses had made out a prima facie case on that issue. Article 11(5) of the regulations allowed a written statement to be received as prima facie evidence of a fact in issue. It markedly did not allow a written statement to be received in evidence in rebuttal of a prima facie case. That was the purpose for which Dr. Mulcahy’s letter was received and used. I would hold that there was no jurisdiction to do so.

22. The second ground of appeal relates to the part played by the medical assessor at the hearing. It is argued that he overstepped the bounds of his functions. Undoubtedly he cross-examined the appellant’s medical witnesses, but in the High Court the complaint of impropriety in that respect was rejected. I consider the part played by the medical assessor at the hearing to have been unsatisfactory. When so sitting his functions are set out in article 10(3) which states:-

“An assessor shall not while sitting as an assessor with an appeals officer take any part in the proceedings otherwise than in his capacity as such assessor and he shall not sit as an assessor when any question in which he has a personal interest is heard.”

23. Whether Dr. Linehan was appointed medical assessor under article 10 of the regulations or under some more general power, the limits of his functions were those set out in article 10(3). He was not entitled to present, or to give the appearance of presenting (by cross-examination or otherwise) the case for the deciding officer. It ill becomes an assessor, who is an affiliate of the quasi-judicial officer, to descend into the forensic arena. The regulations envisage that there will be no necessity for him or for the appeals officer to do so, for the deciding officer, or another officer of the Minister acting on his behalf, is empowered by article 11(2) to appear at the hearing. So it is such person who should present the case against the claimant. In that way the appeals officer and the assessor will avoid the taint of partiality that will necessarily follow if they intervene to such an extent as to appear to be presenting or conducting the case against the claimant.

24. Unfortunately the complaint of undue intervention by the medical assessor does not end there. It has been clearly held by the House of Lords in Richardson v. Redpath, Brown and Co. Ltd. [1944] AC 62 and by the Supreme Court in Delaney v. Valentine [1945] IR 1 that the function of a medical assessor is to make his medical expertise available, if requested, so that the medical evidence may be properly understood and assessed, but that he may not supply evidence by becoming a witness. That limitation of function was overlooked by the appeals officer and by the medical assessor. It was a serious lapse which would never have come to light if the appellant had not brought the present proceedings against the Minister. Before these proceedings came on for hearing in the High Court, the Chief State Solicitor (acting for the Minister and in reply to a notice requiring him to do so) furnished to the appellant’s solicitor a copy of a letter dated the 22nd February, 1972, from the medical assessor to the appeals. That letter was written in the interval between the hearing of the appeal on the 12th January, 1972, and the notification of the decision on the 8th March, 1972, that is, while the matter was sub judice. It ran:-

“Dear Mr. Moroney.
re Thomas Kiely (deceased)

There is no point going over all the details here. He was a man at great risk for coronary heart disease having previously suffered from hypertension and gout and also he smoked a lot of cigarettes. The kernel of the problem is-can anxiety and tension precipitate an attack of myocardial infarction in such a man four months after an injury to his hand. Dr. S. Blake argued to this effect but I was not convinced by his argument. It is not my experience from personal contact with many such patients nor from the literature. Indeed in Actuarial assessment of Life mortality there is no extra risk for coronary heart disease for people suffering from any form of anxiety state, or neurosis, and should these two conditions be present in the same person the mortality expectations will be based on the coronary heart disease alone.

At a symposium on Neural and Psychological Mechanisms in Cardio-vascular Diseases in Milan in July, 1971, sponsored by the International Society of Cardiology and the World Health Association, the following statement was made as reported in the Bulletin of that Society:- ‘The meeting was prompted by the recognition that our current knowledge of the neural and psychological mechanisms of cardiovascular disease is very poor and vague and that few conclusions exist on the participation of emotional or nervous factors in the genesis or maintenance of arterial hypertension and coronary disease.’

25. I therefore give it as my opinion after hearing all the evidence available that the late Mr. Kiely died as a result of coronary heart disease as a result of many factors which had been present for many years. I also think that the anxiety and depression which he is said to have suffered from as a result of his accident four months before death did not in any way precipitate, aggravate or have any relevance to his final heart attack.

26. Yours faithfully,

W. D. Linehan .”

27. This letter speaks for itself. Here was new evidence as to the very issue which the appeals officer had required to be decided on an oral hearing, as to the practice in the actuarial assessment of “life mortality” in relation to anxiety state or neurosis, and as to the alleged conclusions of an international symposium. This new evidence was being tendered in writing without notice to the appellant, and it was received and apparently acted on without giving the appellant or her witnesses an opportunity of commenting on it or controverting it and, to make matters worse, the source of this new evidence was the medical assessor, whose function should have been to act as a medical dictionary (and not as a medical report) available for consultation by the appeals officer.

28. On any score this letter could not be held to be admissible. The Act of 1952 and the regulations ruled it out because it was a written statement; it breached the limitations placed by law on the functions of the medical assessor; it stultified the process and aims of an oral hearing; it made available evidence which had been adduced behind the appellant’s back; and it deceived the appellant into thinking that the only evidence against her was Dr. Mulcahy’s letter. An example of the invalidation of a hearing because of a piece of evidence similarly received is to be found in R. v. Deputy lndustrial Injuries Commissioner, ex parte Jones .[1962] 2 QB 677 In short, this letter violated both the statutory requirements for an oral hearing and the requirements of natural justice.

29. In fairness to the appeals officer and the medical assessor, it is right to say that it has not been shown that either acted otherwise than in good faith. Nevertheless, for the reasons I have given, the decision of the appeals officer was fatally flawed and cannot be allowed to stand. I would allow this appeal. The decision of the appeals officer should be declared invalid and there should be a fresh oral hearing before (as is conceded by counsel for the Minister) a different appeals officer with a different medical assessor.

Griffin J.

30. I agree with the judgment delivered by Mr. Justice Henchy. However, I should like to add a few words. On behalf of the appellant a lengthy argument was made alleging that the appeals officer was, from the outset, prejudiced against the appellant and so acted throughout the hearing; that he had all the appellant’s witnesses sworn at the beginning of the proceedings and before any evidence was given; and that the entire proceedings subsequent to the decision of the first deciding officer in January, 1969, showed what was described as “a pattern of prejudice” and merely a rubber stamping of what was alleged to have been originally a faulty decision by the deciding officer. It seems to me to be only fair to these officers to say that this submission made on behalf of the appellant is not borne out by the evidence.

31. In respect of a claim for death benefit under s. 16 of the Social Welfare (Occupational Injuries) Act, 1966, the deciding officer and, on appeal, the appeals officer exercise the functions formerly exercised by the Circuit Court judge in workmen’s compensation claims, i.e., to find the facts and, on the facts found, to decide whether the claim is sustainable or not. Where claims involve questions of difficulty (and undoubtedly the case was such) it appears to have been the practice of the Department of Social Welfare to obtain a medical report from a specialist in the field of medicine appropriate to the particular case. In the present case, Dr. Mulcahy was asked to furnish, and furnished, a report. When this case came before the first appeals officer, the medical assessor was Dr. Shine who is medical adviser to the Department. At that hearing Dr. Shine stated that when doctors are asked to furnish a report such as that supplied by Dr. Mulcahy they are always told that if they have any doubt then, as the Department of Social Welfare happens to be the stronger party, the benefit of any such doubt should not be given to the stronger party, and that Dr. Mulcahy, in giving his report, was in no two minds about the attitude of the Department, i.e., that if there was any doubt it should go to the appellant. The appeals officer also stated that “we recognise that the benefit of the doubt should go to the weaker party” This practice is one which is eminently fair to a claimant.

32. However, it was the practice to refuse to permit the attendance, at an oral hearing, of the specialist who gave such a report-the Department’s policy being “that doctors’ reports should not be subjected to verbal analysis.” As has been pointed out in the judgment of Mr. Justice Henchy this practice was wrong. In the present case, Dr. Mulcahy was not called as a witness on the hearing of the appeal. The decision not to allow Dr. Mulcahy to be called was made in good faith and in accordance with the practice which had previously been followed on the hearing of appeals under the Social Welfare Acts 1952-1966.

33. In my view, the practice of swearing all the witnesses at the outset is an acceptable practice on the hearing of appeals by an appeals officer. There is less formality on the hearing of these appeals than there is in the case of court proceedings and it seems to me that this is not undesirable in the circumstances. Some of the evidence in this case was obtained by way of dialogue between the appeals officer and the medical witnesses while the appellant was giving evidence. Any of the witnesses who had not yet given evidence was at any time allowed to intervene to clear up some matter. This practice is a very sensible one on the hearing of appeals of this nature but it could not be carried on unless the witnesses were sworn at the beginning of the hearing, as in this case.

34. The function of the medical assessor appears to have been misunderstood at the hearing. His function is to assist the appeals officer to understand and appreciate the medical evidence: see per Sullivan C.J. in Delaney v. Valentine [1945] IR 1, 4. It is not his function to assist in obtaining evidence, to cross-examine witnesses, or to give evidence himself. It is the appeals officer alone who must decide the facts: if he does not fully understand any of the evidence, he can consult the medical assessor. If the appeals officer wishes to have assistance as to the weight to be given to the medical evidence, he can consult and be advised by the assessor. However, it would be quite wrong for the person in charge of a quasi-judicial tribunal, such as an appeals officer who is required to decide a case inter partes and to arrive at his decision after an oral hearing, to receive evidence after the oral hearing has ended without, at the very least, giving the party interested notice of the evidence so received by him, and thus giving such party an opportunity of being heard in relation to this evidence, or of commenting on and making submissions in relation to it. It makes no difference to the legal position that in this case such evidence was given by the medical assessor and received by the appeals officer in good faith.

Parke J.

35. I would allow the appeal for the reasons stated in the judgments which have been delivered.

© 1977 Irish Supreme Court

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