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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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