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