The appellant's case states that
as a result of this conviction
his name was struck off the
local medical register by the
Board of Examiners for Nigeria.
The fine was paid but
the appellant petitioned His
Majesty in Council
for special leave to appeal from
the conviction and sentence of the Court
of Appeal and on the 27th
November, 1941, his petition
was granted by His Majesty in
Council. Pursuant Lord Porter.
to this leave their Lordships
heard the appeal on the 28th and
29th of October last.
At that hearing the
Attorney-General on behalf of
the Crown, whilst maintaining
that it was open to him to
support the conviction on the
third charge on the ground that
the sentence alone had been
quashed, admitted that if the
conviction for manslaughter
should not be upheld, the
conviction for negligent
dispensing or administering
medicine could not be supported.
It accordingly becomes
unnecessary for their· Lordships
to consider either the propriety
of recording a conviction on the
two counts or whether the
evidence would support a
conviction on the third count.
The sole question is whether
sufficient grounds were shown to
persuade their Lordships that
the case was one in which it
would be proper for the Board in
accordance with the principles
upon which it acts, to advise
His Majesty to grant the
petition of appeal against the
decision of the West African
Court of Appeal upholding the
conviction for manslaughter
recorded by the learned
Assistant Judge.
The facts giving rise to the
charge may be briefly stated.
The appellant in the course of
his medical practice was touring
the Owerri Province in May, 1940, and the inhabitants of the districts of Asaga and Akanu were
notified that they could be
treated by him on the 6th and
7th of that month ..
According to a list kept by the
appellant seventy-eight persons
were treated at Asaga of whom
fifty-seven were children:
forty-four of these of whom
thirty-six were children were
dealt with on the 6th May and
thirty-four of whom twenty-one
were children on the 7th. On·
th"6latter day the appellant
proceeded to Akanu where
sixty-one persons were treated
of whom thirty-three were
children and the remainder
adults.
With a few exceptions the
patients appear to have been
suffering from an endemic
disease known as yaws which
attacks both adults and children
causing lesions and ulcerations
on an parts of the body and in
particular on the lower limbs
and feet.
Two methods of inoculative
treatment for this disease are
now well recognised, the
injection
(i)
of N.A.B. an arsenical
preparation and
(ii)
of Sobita, which consists of
sodium bismuth tartrate as given
in the British Pharmacoprea, and
is a trade preparation supplied
to the doctor by a drug company
in the form of a powder. It is
now common ground that the
proper dose for an adult is
three grains and for a child
one.
The appellant was accustomed
to use the second specific and
on his visit to Asaga and Akanu
used it in the case of nearly
an his patients though
apparently not in everyone.
pg 7
following his treatment ten
children died and there seem
have been some other eases of
sequent illness, but the history
- the latter was only lightly
developed.
All the ten children who died
came from Asaga and so far as
their Lordships are able to
ascertain from the evidence five
were inoculated on the 6t.h and
five on the 7th :May. No
illness was reported from
Akanu
The charge relates to one of
these Children, viz.: Kalu Ibe.
At the trial, besides the
testimony of his mother and half-brothel',
evidence as to his symptoms was
given by Dr Ibiam, a qualified
medical practitioner, who had
been called in to treat him but
not until ten days after the
inoculation. In corroboration of
this evidence the deposition
was put in of Miss Margaret
U. R. Reid, a District Mission
worker of the Church of Scotland
at. Asaga, who had seen this
boy a day earlier. From this
evidence it was apparent that he
was suffering from stomatitis
induced byhismuth poisoning. There
was no doubt and indeed no
dispute but that this poisoning
resulted from the injection, and
both Dr Ihiam and a Dr Henry,
who was also called for the
Crown, inferred that the
8ubsequent death was caused by
an overdose. The defence on the
other hand maintained that Kalu
Ibe was peculiarly susceptible
to the effect of bismuth and
therefore unexpectedly
succumbed to a dose which
would have been harmless in the
case of a normal child, and that
in any ease the negligence (if
an)") did not amount to
criminal negligence.
In order to show that the
injection given was -too strong
and to negative the suggestion
that the boy's death was due to
au exceptional reaction to
sobita in his ease, the Crown
tendered evidence of the
symptoms, illness and death of
nine other children. In their
Lordships' view this evidence
was rightly received. the
learned .Judge speaks of it as
being "evidence of a course of
conduct resulting in these
various consequences of which
the death of Kalu Ibe was only
one." In their Lordships' view,
no question as to
It course of conduct. arises,
but the summing up goes on: "
The evidence is admissible in
proof that Kalu Ibe's was not
an isolated case which might
conceivable be due, to mere
inadvertence or idiosvncracv in
relation to bismuth in Kalu
Ibe himself." If the words ' in
advertence or ' are omitted
this statement, in their
Lordship'" opinion,
expresses
the true ground for the
admission of the evidence, and
its propriety is perhaps better
explained by the Court of Appeal
when its President says: The evidence of the illness
and death of other persons was
tendered not to prove the bad
character of the appellant, nor
to prove a course of
conduct
or pg 8
system but to establish 'one of
the essential points which the
prosecution had to establish ...
to show that such a large
proportion of the other children
who were similarly injected by
the appellant at the same time
and place had reactions similar
to those of Kalu Ibe as to prove
that his reaction could not be
due to his own idiosyncracy and
therefore must be due to an
overdose."
According to the appellant's own
evidence, he himself dissolved
Porter. the powder in sterile
water and carried a 20-oz.
bottle made up for the day's
work: made up as he said fresh
the same day. Strictly speaking,
this evidence would lead one .to
suppose that the mixture
injected at Asaga on the 7th was
made up separately from that
injected on the 6th, and if this
were so some question might
arise as to the admissibility of
the effects of that administered
on the latter date. But the
appellant's counsel before their
Lordships withdrew any objection
to the admissibility of the
evidence as a whole because he
was anxious to make use of the
argument that many of the
patients on both days were
unaffected a result which could
not, as he maintained, have been
reached if the mixture had been
dangerously strong.
Even if only the events of the
6th May are to be considered,
not less than five children out
of thirty-six, so far as their
Lordships are able to ascertain,
died after the first day's
treatment; and from the
description of the symptoms the
Courts in Nigeria were plainly
justified in inferring that the
cause was stomatitis resulting
from bismuth poisoning.
No doubt an overdose might be
given in one of two ways, either
by injecting too much of a
proper mixture or by injecting
the right quantity of too strong
a preparation. In the former
case, the evidence would not be
admissible as showing that
because the appellant had been
careless in one administration
he was likely to be negligent in
another. But it is clear that
the charge was based upon the
latter suggestion and therefore
the evidence was admissible as
tending to show, from the effect
produced, the strength of the
mixture in the bottle.
The question therefore for their
Lordships to determine is
whether it is proved that the
appellant negligently prepared
too strong a mixture on the
morning of the 6th May, and if
so, whether that one act
amounted to criminal negligence.
Various other acts of negligence
were at one time suggested by
the prosecution, viz.: that the
accused failed to instruct his
patients to come back after
injection and took no adequate
steps to treat them after he was
informed of their illness.
These suggestions were
subsequently withdrawn, and were
rightly discarded by the
learned trial Judge in his
summing-up. It is therefore
unnecessary for their Lordships
to pronounce upon his criticism
of the appellant's excuse, when
he returned to Asaga
on the 17th after having been
informed of his patients'
illnesses, that the fault was
his' boy's', and of his failure
to treat them further. Their
Lordships would only observe in
passing that he did come back,
that out of his own pocket he
provided mouthwash and milk,
that he endeavoured without
success to enlist an assistant
to continue the treatment: that
the excuse, admittedly false and
recognised to be false at the
time it was made by those who
heard it, was put forward when
the appellant was in the midst
of a hostile mob, some armed
with knives, who were at least
threatening him and one of whom
tried to kill him, though he
ultimately managed to escape.
The learned trial .Judge found
that the appellant negligently
prepared too strong a mixture
and that his negligence was
criminal. In his summing-up he
points out that the negligence
on which the case rests lies not
in the manner in which the
accused proceeded but in what he
injected, and relies upon the
evidence as to the deaths of
the other nine children and upon
that of a government medical
officer called for the defence
who said that he only knew of
ten to twelve cases of severe
reaction in 1,000 to 2,000
sobita injections given by him
and that he would be shocked at
a proportion of ten to fourteen
out of seventy.
The learned Judge goes on to
ask whether on this evidence it
can be said that the accused was
guilty of negligence in a
Criminal degree in causing the
death of Kalu Ibe
No complaint can be made of what
he says in reference to the
degree which the Courts have
held essential to constitute a
criminal offence of negligence.
He quotes the observations of
Lord Hewart L.C.J. in
R.
v
Bateman
(1925) 94 L.J.
(K.B.)
791:
" A doctor is not criminally
responsible for a patient's
death unless his negligence or
incompetence passed beyond a
mere matter of compensation and
showed such disregard for life
and safety as to amount to a
crime against the State,"
and atlas from Halsbury's Laws
of England (Hailsham Edition), Volume
9, sub-title Criminal Law:
What amount of negligence is to
be regarded as gross is a
question of degree for the depending on the
circumstances
of each particular case."
,
Both statements are true and
perhaps cannot safely be made
more definite, but it must be
remembered that the degree of
negligence required is that it
should be gross, and that
neither a jury nor a Court can
transform negligence of a lesser
degree into gross negligence
merely by giving it that appellation. The further words spoken by the Lord Chief
Justice in the same case are, in
their Lordships' opinion, at
least as important as those
which have been Ret out:
pg
9
" It is desirable that, as
far
as possible, the explanation of
criminal! negligence to a jury
should not ho a mere question
of epithets It is.
in a sense, a question of
degree, and it is for the jury
to draw the line, but there is
a difference in kind between the
negligence which gives It right
to compensation and the
negligence which is a crime.",
How necessary it is to keep this
distinction in mind may be
illustrated by reference to two
cases.
In a note to
R.
v.
Noakes
(1866) 4
F. and F.92O it is
said:
" It is impossible to define it
(i.e., culpable or criminal
negligence) and it is not
possible to make the distinction
between actionable negligence
and criminal negligence
intelligible, except by mea us
of illustrations drawn from
actual judicial opinions."
That was a case in which a
customer sent two bottles to a
chemist, one for aconite and the
other for henbane. the chemist
by mistake put the aconite into
the henbane bottle with the
result that the customer took
thirty drops of the former and
died of it. Erle C.J. left the
case to the ,jury, but" put it
strongly to them that they ought
not to call upon the prisoner
for his defence: the case was
not sufficiently strong to
warrant them in finding the
prisoner guilt.~· on a change of
felony."
So in
R. v. Crick
(1859) 1 F. and F. 519.
Pollock C. B. summing up in a
case in which the prisoner, who
was not a regular practitioner,
had administered lobelia, a
dangerous medicine, which
produced death, said in his
summingup:
"If the prisoner had been a
medical man, I should have
recommended you to take the
most favourable view of his
conduct, for it would be most
fatal to the efficiency of the
medical profession if no one
could administer medicine
without a halter round his
neck."
The two cases quoted are of
course only examples, but in
their Lordships' view they do
rightly stress the care which
should be taken before imputing
criminal negligence to a
professional man acting in the
course of his profession.
It is unfortunate that in the
present case the two doctors
called for the Crown were
accustomed to use N.A.B. and
had little if any practical
experience of sobita, with the
result that no information was
forthcoming as to what excess of
strength in the mixture would be
required to produce the observed
consequences in a normal patient
and how widespread among the
medical profession is or ought
to be the knowledge of the
danger of an overdose. It may be
conceded that both N .A.B. and
sobita are dangerous drug;;; if
not properly used, as Dr Ibiam
said, but the known' margin of
error is nowhere referred to.
The trial Judge ends his
summing-up by saying:
"The question now is, on this
evidence, can it be said that
the accused was guilty of
negligence of criminal degree in
causing the death of Kalu Ibe
? We have heard that Sobita is
supplied in powder form
which has to be dissolved in
water in a certain strength.
Evidently this invQlves no
matter of any particular
technical finesse. But accused
in giving these injections
managed to make at least eleven
persons gravely ill with
symptoms of the most revolting
order. In the single visit to
Asaga when he gave the injection
to Kalu Ibe out of a total of
78, there were eight other cases
besides this have proportion of
over 11 per cent. serious
casualties all like Kalu Ibe,
through overdose of sobita.
One would think that in
traveling the countryside, as
is the accused's practice,
giving these injections on what
may be termed a wholesale scale,
to these somewhat primitive
people who have little knowledge
of what to do if anything goes
wrong and little acce88 to
medical assistance, he would at
least make as certain as is
humanly possible that he injects
the correct doses. In my view
the conclusion is inescapable
that accused acted with a degree
of negligence that can only be
described as criminal."
pg
10
If, as their LordshiIp have ,indicated,
the only negligence on which
reliance could be placed is the single act of dissolving the
powder in water before giving
the inoculations, it is
immaterial that the symptoms
were revolting or that the
result was to make many persons
ill: the act had already taken
place and its observed
consequences which I only showed
themselves at a later date could
not add to its criminality. The
negligence to be imputed depends
upon the probable, not the
actual, result. It is
unfortunate that the learned
Judge nowhere states in what he
finds the negligence to consist
unless it be in its fatal
consequences in so large a
number 'of instances. If one may
judge from his reference to the
fatal consequences in the case
of the other children, he seems
to have thought that one death
might have been due to
inadvertence, whereas ten could
not, and to have forgotten that
one act only could be complained
of, viz.-:-the mixing of too
strong a solution in making up
the preparation. To hold this
opinion is to impute to the
accused repeated acts of
negligence as if he were to be
blamed for want of care in the
case of each injection instead
of the one act of carelessness
in preparing the mixture to be
injected. Moreover, the learned
Judge in the penultimate
paragraph of his summing up,
quoted above, so far from
considering- whether gross
negligence has to be proved,
appears to think it enough if
the appellant did not make as
certain as is humanly possible
that he injected the correct
doses.
Their Lordships cannot accept
the view that criminal
negligence has - been proved
merely because a number of
persons have been made gravely
ill after receiving an injection
of sobita from the appellant
coupled with a finding that a
high degree of care has not been
exercised. They do not think
that merely because too strong a
mixture was once dispensed and a
number of persons were made
gravely ill, a criminal degree
of negligence was proved.
In coming to this conclusion
their Lordships do not find
themselves in substantial
disagreement with the judgment
of the Court of" Appeal in
Nigeria save in one respect,
viz.: in - their
pg11
understanding of the grounds
upon which the learned Judge
based his decision. That Court
as they apprehend did not itself
pronounce upon the facts but
inquired only whether the
finding of the Court below had
sufficient evidence to support
it. It did 1I0t consider whether
the learned' Judge had
sufficiently directed his mind
to an analysis of the acts ~aid
to constitute a felon~' and to
the degree of care required
of a professional man against
whom a criminal charge is
preferred.
