Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C5/99(II) (9 March 2000)

 


Decision No: C5/99(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABLEMENT BENEFIT

Appeal to the Social Security Commissioner

on a question of law from the decision of

Belfast Social Security Appeal Tribunal

dated 19 August 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. In this case the claimant appeals against the decision of the Appeal Tribunal whereby it was decided in effect that the claimant had failed to show that the events of 5 December 1997 constituted an industrial accident within the meaning of section 42(6) of the Social Security Administration (Northern Ireland) Act 1992. Leave to appeal was granted by a Commissioner on 24 September 1999.
2. The claimant alleges that he was injured at work on 5 December 1997. On 15 December 1997 he claimed Disablement Benefit in respect of that accident which he alleged occurred on 5 December 1997 during the course of his employment with Mc... Bros. Limited. During investigation of this claim the claimant's former employers stated that an incident occurred on 5 December 1997 but it was not accepted that the claimant was injured in the incident. On 29 April 1998 an Adjudication Officer decided that it had not been established that there was either (i) an event which in itself is identifiable as an accident or (ii) a particular occasion on which personal injury was suffered by the claimant which would constitute an accident. Accordingly it was decided that a declaration of an industrial accident under section 42(2) of the Social Security Administration (Northern Ireland) Act 1992 could not be made and therefore Disablement Benefit was not payable. The claimant then appealed to a Tribunal.
3. On appeal the Tribunal made the following findings of fact material to its decision:-

"It is accepted that appellant was included in an incident of

work on 5 December 1997 when objects attached to a crane fell

on him.

It is not accepted that he received an injury to his back at

that time."

4. The Tribunal gave the following reasons for its decision:-

"There is no issue in this appeal as to the occurrence of an

accident. There is some dispute as to the date, but Tribunal

accepts that it occurred, in fact, on 5 December 1997.

The position is whether appellant sustained injury in that

accident.

There are statements from four witness who say that he claimed

being stuck (sic), or that he said he was alright. Unfortunately

neither a Presenting Officer or these witnesses were present

today to examine in order to test their credibility. We find

it extraordinary that no Presenting Officer was present. In

the absence of the opportunity to examine these witnesses we

have chosen to ignore their statements in reaching our

conclusions.

We find it unsatisfactory that evidence is available, by X rays

taken the day after the accident and from the appellant's

General Practitioner who, he says, examined him within a few

days, but has not been provided to this Tribunal. We are left

to determine the matter on the word of the appellant who gave

evidence.

In this evidence, he claims he did send reply to 2 letters from

his employers (copied in full) for reasons we do not accept.

He claims that he told (sic) the witnesses immediately after the

accident that he had not been hurt and insists he did say he had

received a "glossary letter".

We are also mindful of the fact that no entry has, differently,

been made in the employer's accident register.

In all these circumstances we feel we cannot adopt the evidence

of the appellant, given today, as to the energy (sic) he alleges

he received in the accident on 5.12.98 and, therefore, we feel

that he has not satisfied the doubt we have and the onus of

proof upon him."

5. The unanimous decision of the Tribunal was in the following succinct form:-

"Dismiss appeal."

6. The record of proceedings made by the Chairman was in the following terms:-

"No Presenting Officer present.

Mr M... presented case for appellant as per the facts stated

in the submission.

Appellant had been working for only a few days when accident

occurred. It occurred just before noon on Friday 5 December

1997.

Slinging chains of crane fell and struck him a glancing blow on

his back. If they had struck him a direct blow he thinks it

would have broken his back. There was immediate pain but it

was close to lunchtime and he finished early on a Friday, so he

carried on to end of day. That night the back "sort of seized

up" and became swollen. On following morning went to Ulster

Hospital. Went direct to Accident and Emergency Department

where it was X rayed. These revealed no breaks but some bruising.

Advised to use ice packs on the affected area and to rest. By

Monday, back had "become very sore but I went back to work

nevertheless". However after 2 days attempting to carry on

working, "I had to stop. It was then I went to see my own

General Practitioner. She confirmed the injury and told me to

refrain from work. Gave me a "sick line". By this time, back

was severely bruised and very pain."

Mr M… (sic)

No report available from General Practitioner. No time to do

so between receiving instructions and date of Tribunal.

Chairman pointed out that, according to their letter of 25.6.98

in papers, he was instructed by 5 June at latest and, therefore,

in plenty of time to get a report from the General Practitioner.

Mr M... insists he was not involved with the case at that time.

Did not contact Ulster Hospital for X rays or radiologist re

X rays taken on 6.12.98, but did confirm that they were taken

by telephone.

[Claimant]

Asked why he did not reply to letters of 16 December 1997 and

19 December 1997 from his employers, he said he did not receive

the first of these until Monday 22 December as he was not staying

at home at the time. As it contained a deadline and threat of

termination of his employment, he did not reply to it, as he

assumed the job was lost. He says he did not receive (or cannot

recall receiving) the letters of 19 December. Says it did not

occur to him to ring the company when he did get the first

letter. Thought there was no point.

"I did not say to anyone that I had not been hurt". I did say

I had been "pushed out of the way"."

7. The claimant sought leave of a Chairman to appeal to a Commissioner on the following grounds:-

(i) the Tribunal's refusal to accept that the onus of proof had been discharged is erroneous in view of the evidence before it;

(ii) the Tribunal's reasons for decision recorded erroneously that evidence from the claimant's General Practitioner had not been supplied to the Tribunal;

(iii) The Tribunal failed to give adequate consideration to Great Britain decision R(SB)33/85 in which it was held that as a general rule a claimant's evidence does not need to be corroborated.

8. Leave to appeal was refused by a Chairman on 3 November 1998. However, leave to appeal was granted by a Commissioner on 24 September 1999.
9. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
10. A further point, (which for simplicity I will refer to as (iv)) has arisen in this case in that there appears to be a conflict between the reasons for decision given by the Tribunal and the record of proceedings produced by the Chairman in so far as, in the reasons for decision, it is stated that "he told the witnesses ... that he had not been hurt" whilst in the record of proceedings it is stated that he "did not say to anyone that (he) had not been hurt". In the circumstances I am prepared to accept, from the context, that the reference in the reasons for decision is the result of a typographical error and properly should have accorded with the record of proceedings. Therefore, in the circumstances, I do not consider that there is a substantive error in point of law in relation to (iv).
11. Miss Griffin, the Adjudication Officer then involved with this case, on 25 June 1999 set out the relevant submissions in relation to the original application for leave to a Commissioner and these dealt with grounds (i) to (iii). No further relevant observations were submitted by the Central Adjudication Services (now the Department). Mr M... of T… S… and Company, Solicitors, made no submissions other than those set out in the original application for leave to appeal.
12. In her submissions dated 25 June 1999 Miss Griffin addressed the three substantive points set out in the claimant's application for leave to appeal in the following way:-

"[(i)] the tribunal's refusal to accept that the onus of proof

had been discharged is erroneous in view of the evidence

before them

[Claimant] claimed disablement benefit because of an accident at

work on 5/12/97 in which he alleges he sustained a back injury.

[Claimant's] employer's (sic) agree that an incident as described

by him did occur and they concede that as they cannot be certain

of the date that [claimant's] assertion that it occurred on 5/12/97

is probably accurate. The employer's (sic) however do not concede

that [claimant] sustained an injury in the accident and that is the

point at issue in this appeal.

Commissioners have held in decisions R(I)32/61 and R2/85(II) that

the standard of proof for a claim to succeed is, whether on the

balance of probability it is more likely than not that an event

occurred or that an assertion is true. The claimant's evidence

does not need to be corroborated, although this aspect will be

covered in detail at point (iii), adjudication officers are simply

required to weigh all the evidence before them critically and decide

if on the balance of probabilities an event is more probable than

not. The claimant's evidence in this instance would generally be

accepted unless it is contradictory or inherently improbable.

[Claimant's] written evidence has consistently stated that he

had an accident at work on 5 December 1997 in which he injured

his back, from his initial claim for benefit, through clarification

of the dates and now at Commissioner appeal stage. This must

however be weighed against the witness statements provided by

the employer.

His evidence has been supported by the factual report supplied

by his GP which confirms a history of having been struck in the

back by a metal press and a finding of massive bruising

consistent with having sustained such an injury.

Evidence was also obtained from the Ulster Hospital to the

effect that [claimant] did attend the Accident and Emergency

department on 6 December 1997 and that X-rays were carried out.

I appreciate that we do not know for certain that the X-rays

were in connection with a back injury, but I doubt if [claimant]

would have mentioned this fact if it was not relevant and

capable of supporting his contentions.

Evidence statements were submitted from four witnesses, via the

employer, all confirmed that an incident as described had

occurred but denied that the claimant had received any injury.

The tribunal did not take these statements into account because

the witnesses were not available for questioning in order to

test their credibility. I would support the tribunal's view

for the reason stated and also because the statements were not

obtained independently of the employer and would, I suspect

strongly reflect the employer's stance on the issue.

The tribunal questioned [claimant] in connection with his failure

to reply to two letters issued by his employer, he contends that

he did reply to the letters although the tribunal did not accept

those reasons. I can appreciate that the tribunal were testing

[claimant's] credibility as a witness but I would question the

relevance of these letters to the point at issue before the

tribunal.

In his letter of appeal to the tribunal [claimant] states that

as he had only started with the company he played down the

accident and continued to work and that the extent of his

injuries only became apparent the next day which is when he

visited the hospital. In my view this could be considered to

be a reasonable explanation in the circumstances.

[(ii)] the tribunal in their reasons for decision recorded

erroneously that evidence from [claimant's] G.P had

not been supplied to the tribunal

The Social Security Agency contacted [claimant's] GP and requested

a factual report. The report was completed by the GP, Dr. K.A.

R... on 2 February 1998. The report recorded a history of

[claimant] being seen after a metal press fell on his back at

work. He told the GP that he had attended the Ulster Hospital

Dundonald for X-rays. An initial examination in December 1997

revealed massive bruising of his lumbar area with all movements

reduced to about 50% of normal. A copy of the factual report

provided by Dr. R... was included in the schedule of evidence

for the tribunal at tabbed document number 4.

The Ulster Hospital were also asked to confirm if [claimant] had

attended on 6 December 1997. A record of the telephone call

dated 2 April 1998 confirming his attendance at the hospital on

6 December 1997 was included in the schedule of evidence, at

tabbed document number 6.

I would agree that the tribunal erred in law in their failure to

take account of the medical evidence from Dr. R... and

confirmation the claimant's hospital attendance on 6 December 1997

which were included in the appeal documents.

[(iii)] the tribunal failed to give adequate consideration to

R(SB)33/85 in which it is held that as a general rule

the claimant's evidence does not need to be corroborated.

The Commissioner in decision R(SB)33/85, paragraph's (sic) 14 and

15, held that corroboration of the claimant's own evidence is not

necessary and that when an adjudicating authority rejects a claimant's

evidence it must identify the grounds for such rejection. The decision

also cited R(I)2/51 which I consider is particularly helpful as it is

an industrial accident decision and useful comparisons can be made.

In paragraph 7 of R(I)2/51 the Commissioner held that the tribunal

ought to have accepted the claimant's explanation of the cause of

injury unless there was some circumstance which rendered it

inherently improbable. It was suggested that the only matters

which may render the claimant's statement improbable were, the

claimant's failure to report the accident, his failure to mention

the accident to any workmate and remaining at work for a week.

The Commissioner in paragraph 8 considered that these facts did

not justify rejection of the claimant's evidence, he held that

the claimant had not appreciated the significance of the accident

at the time and accepted the claimant's reason for not reporting

it earlier.

I would submit that the Tribunal erred in law when it failed to

identify the grounds for rejecting [claimant's] evidence in

accordance with decision R(SB)33/85.

Conclusion

In conclusion I would submit that [claimant's] evidence has been

consistent throughout. The general principles set out in R(SB)33/85

and R(I)2/51 are that a claimant does not require corroboration of

his own evidence although the evidence in this case is in fact

corroborated by the GP's report and the fact that we know that

he did attend for X-rays at the Ulster Hospital on 6/12/97.

Furthermore, [claimant's] reason for playing down the incident

could be considered reasonable in the circumstances given that

he had only started the job and was finishing early on the day

in question. [Claimant's] attendance at hospital and GP, and

his absence from work, occurred so soon after the incident in

work that in my opinion it makes the facts more probable than

not.

I would therefore agree, for the reasons given above, that the

tribunal erred in law in the reasons for their decision."

13. Miss Griffin has supported the claimant in relation to ground (i). However, whilst the Tribunal has come to the conclusion that the claimant has failed to satisfy it that the claimant has proved his case in words that are perhaps far from being elegant it seems to me that it has not applied the wrong onus or standard of proof. The Tribunal, as a matter of fact, has decided that it is not prepared to accept the appellant's evidence for particular reasons. These reasons it has given. It is not for a Commissioner hearing an appeal on a point of law to come to a different decision on the facts. I have no reason to come to the conclusion that the Tribunal has not applied the correct onus of proof (namely on the claimant) and standard of proof (namely that for the claimant to succeed he must show on the balance of probability that it is more likely than not that the event occurred substantially as he stated). Therefore in the circumstances I do not find that the Tribunal has erred in law in this respect, although my determination on this point is subject to my conclusion in relation to ground (iii).
14. In relation to ground (ii) it seems clear, in light of Miss Griffin's submissions succinct and relevant on this point, that the Tribunal has failed to take account of the relevant medical evidence contained in the report from Dr K.A. R.... The Tribunal also has failed to take into account confirmation that the claimant attended hospital on 6 December 1997 and this evidence was available in the appeal documents. In the circumstances I conclude that the Tribunal has erred in law by failing to take this relevant evidence into account.
15. In relation to ground (iii) it is noteworthy that Miss Griffin agreed with the substance of the claimant's submission. This point is linked to some extent with ground (i). As has been made clear in the Great Britain decision R(SB)33/85 at paragraph 14 and 15, corroboration of the claimant's own evidence is not necessary and also a Tribunal is not entitled to reject a claimant's evidence without identifying the grounds for such rejection. It seems to me that there is force in the point made by the claimant and Miss Griffin that the Tribunal in this case was seeking corroboration and, in light of the fact that there was none, concluded that the claimant's claim could never be successful. In so doing, the Tribunal has failed to apply the correct test. In the circumstances the Tribunal ought to have identified the grounds for rejecting the claimant's evidence rather than merely rejecting it because it was not corroborated.
16. In the circumstances I am satisfied that the Tribunal's decision is erroneous in point of law for the reasons set out at paragraphs 14 and 15. I therefore allow the appeal, set aside the decision of the Tribunal and refer the case back to a differently constituted Tribunal for a rehearing. I note that the original Tribunal expressed its concern at the lack of a Presenting Officer at the hearing. I agree that the Tribunal had good reason for being so concerned and I hope that the new Tribunal will not have to suffer from such an obvious disadvantage when rehearing this case.

(Signed): J A H Martin

CHIEF COMMISSIONER

9 March 2000