The Gazette 1978

Kiely v. Ministerfor Social Welfare— The Case of the Tenacious Widow

ROBERT CLARK, Lecturer in Law, University College, Dublin

It is clear that members of the legal profession generally lack knowledge of, and expertise in, social welfare legislation. The reasons for this hiatus are not difficult to locate. Persons with quite acute problems in this field are generally the poorer and less fortunate members of society who, for one reason or another, will not seek legal advice. Until recently, no university within the State provided a course in Social Welfare law. A more profound reason perhaps can be termed "a problem of perception". Lawyers have not readily appreciated that Social Welfare law is an area of legal knowledge at all. The judiciary have perhaps shared this view insofar as the ordinary Courts have not often been called upon to adjudicate upon disputes between claimants and those persons responsible for administering the legislation. Day to day judicial tasks in this area of law have been discharged by persons without any legal training at all. The recent decision of the Supreme Court in Kiely v. Minister for Social Welfare (16th February 1977) suggests that while the substantive provisions set out in the legislation may remain unchartered territory for many lawyers, the structural, evidentiary, procedural and con- stitutional implications of this area of Public Lato will be comfortingly familiar to the profession. The plaintiff was the widow of a blacksmith employed by Coras Iompair Éireann. In June 1968 Kiely was involved in an accident at work in which he sufTered severe bums. Kiely claimed occupational injuries benefit and was at first certified as being incapitated because of the physical injuries received in the accident. Later his dis- ability was stated to be acute depression. Kiely died suddenly in October 1968 as a result of coronary thrombosis. His widow claimed death benefit under the Social Welfare (Occupational Injuries) Act 1966: see Casey (1969) Irish Jurist Vol. IV n.s. 235. The plaintiff could only recover if she could show that her husband's death arose out of and in the course of her husband's insurable (occupational injuries) employment. Her initial application was rejected by the deciding officer in January 1969. This decision was upheld by an appeals officer. Mrs. Kiely brought an application to quash the decision on the gound that the appeals officer had misled her solicitor into believing that the appeal would be allowed and that as a result, the solicitor did not persist in applying for an adjournment to enable him to collate evidence on her behalf. Kenny J. allowed this first application and remitted the appeal to be reheard suggesting that another appeals officer and medical assessor be appointed to hear the appeal: 119711 l.R. 21. Nevertheless, after the rehearing, the decision of the deciding officer was again upheld. Mrs. Kiely again applied to quash the decision. Mrs. Kicly argued that at the new hearing of the appeal there were several breaches of the Regulations as well as of principles of Natural Justice. Mrs. Kicly had produced two medical experts who indicated that, in their view, the

deceased's accident of June 1968 led to Mr. Kiely's depression and that stress resulting from depression had exacerbated Kiely's existing heart condition, therefore resulting in his death. This view was adhered to by those experts even under close cross-examination by the medical assessor appointed under the Acts. Nevertheless the appeals officer, in dismissing the appeal, relied exclusively upon a written report compiled in 1969 by another cardiac specialist who, after perusal of papers provided by the Department, advanced the opinion that there was no correlation between Kiely's accident and his death. This specialist was not called and therefore was not subjected to cross-examination. The admissability and importance of this report was called into question by Mrs. Kiely. Secondly, Mrs. Kiely objected to the way in which the medical assessor had played such a vigorous part in the hearing and argued that in allowing the medical assessor to cross-examine witnesses the appeals officer had delegated his functions to another person. It also became clear that the assessor, shorthly after the hearing, had submitted to the appeals officer a written opinion on the merits of the appeal. In his judgment of 28th May 1973 the High Court judge, Kenny J. refused to set aside the appeals officer's decision. On appeal, however, the Supreme Court took an entirely different view of the nature of the appeals process and the role of the medical assessor. In particular, it is now clear that appeals under the Social Welfare Acts are governed squarely by principles of Constitutional justice. Evidential and procedural idiosyncrasies cannot be attributed to the special nature of this appeal system. The present writer now intends to examine the reasoning behind the judgments in Kiely. Kenny J. refused to rule the written report relied on by the appeals officer as "absolutely inadmissible". Article 11(5) of the 1952 Insurance Appeals Regulations permit the admission of, "any duly authenticated written statement" if an appeals offficer thinks it fit to so do. Any such statement is "prima facie evidence of any fact or facts". Therefore, Kenny J. reasoned, the written statt- ment was admissible and further this statement did not cease to have effect once evidence rebutting the written statement was adduced by Mrs. Kiely. "Prima facie evidence", the expression used in the legislation were in Kenny J's view, "somewhat unfortunate words" and simply meant that, "the written statement is not con- clusive but that it is evidence on which the appeals officer may act." Henchy J. in the Supreme Court vigorously rejected this view of the rules of evidence applicable and further indicated that such a view misconceived the nature of the appeals process. The Regulations envisaged that hearings would be oral hearings and the provisions of article 11(5) allowed only a limited derogation from this requirement. Once article 11(5) came into play the written evidence was only conclusive in the absence of further probative evidence from the other side. The

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