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1942 Supreme(SC) 25
Privy Council At West African
Sir Madhavan Nair, Sir George Rankin , Lord Porter, Justice The Lord Chancellor, JJ.
John Oni Akerele -Appellant
Versus
The King. -Resopndent
Privy Council Appeal No.17 of 1942
Decided On : 07-12-1942
Burchells, Kenelm Preedy, Attorney-General, S.N. Bernstein, H. Douglas
Criminal negligence requires "gross" negligence showing a disregard for life. The criminality of an act is judged by its probable result, not its actual consequences; thus, a single negligent act does not become more criminal because it affects multiple victims.
Headnote:(A) Criminal Code - Section 325 - Manslaughter - Section 343(1)(e) and (f) - Reckless and negligent acts - Distinction between civil and criminal negligence - A medical practitioner is not criminally responsible for a patient's death unless negligence or incompetence passes beyond a mere matter of compensation and shows such disregard for life and safety as to amount to a crime against the State - There is a difference in kind between negligence which gives a right to compensation and negligence which is a crime.
(B) Professional Negligence - High degree of caution is required before imputing criminal negligence to a professional acting in the course of their profession.
(C) Assessment of Criminality - The negligence to be imputed depends upon the probable, not the actual, result - The fact that a single act of negligence resulted in multiple casualties does not increase the criminality of the original act, as the observed consequences occurring at a later date cannot add to the criminality of the act already performed.
Facts of the case:
A medical practitioner treated patients for an endemic disease using a bismuth preparation. The practitioner prepared a bulk solution of the medicine in a bottle for daily use. Following the treatment, several children suffered from bismuth poisoning and died. The practitioner was charged with manslaughter and negligent administration of medicine. The trial court convicted the practitioner of manslaughter, finding that the preparation of a too-strong mixture constituted criminal negligence, a decision subsequently affirmed by the Court of Appeal.
Findings of Court:
The trial court erred in basing the finding of criminal negligence on the actual results, specifically the number of deaths and the severity of symptoms, rather than the act of preparation itself. The court further erred by applying a standard of care requiring the practitioner to make the dose "as certain as is humanly possible," which is an incorrect standard for proving gross negligence.
Issues: Whether the act of preparing a too-strong medical mixture, which led to multiple deaths, amounted to gross negligence sufficient to sustain a conviction for manslaughter.
Ratio Decidendi: Criminal negligence must be "gross" to warrant a criminal conviction. The criminality of an act is determined by the probable result of the act at the time it was committed, not by the actual consequences. A single act of carelessness in preparing a medical solution cannot be transformed into multiple acts of negligence or a higher degree of criminality simply because it resulted in multiple casualties.
Result: Appeal allowed.
Legal Category Hierarchy
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crime and sentencing
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offences against the person
- manslaughter
- criminal negligence
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offences against the person
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practice and procedure
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evidence
- admissibility
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appeals
- prerogative appeals
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evidence
Lord Porter.:-
The appellant in this case is a duly qualified medical practitioner who carried on practice in Nigeria. On 7th March 1941 he was charged before the Assistant Judge at Umudhia Sessions of the High Court of the Enugu-Onitsha Division in the Protectorate of Nigeria on three charges : (i) Manslaughter, contrary to S. 325 of the Criminal Code , in killing one Kalu Ibe in May 1940. (ii) Reckless and negligent acts contrary to S. 343 (1) (e) of the said Code in giving medical treatment to the said Kalu in a manner so rash or negligent as to endanger human life or to be likely to cause harm (iii) Reckless and negligent acts contrary to S. 343 (1) (f) of the said Code in dispensing or administering medicine or poisonous or dangerous matter to the said Kalu.
The learned Assistant Judge who tried the case without a jury found the appellant not guilty on the second count but guilty on the first and third counts, sentenced him on the first charge to three years' imprisonment with hard labour and on the third to a fine of £100 or 12 months imprisonment with hard labour to run concurrently with the punishment awarded on the other charge, and refused bail pending an appeal. On appeal, the West African Court of Appeal quashed the sentence on the third charge, affirmed the conviction on the first charge, but varied the sentence to a fine of £500 and, in default of payment, to imprisonment with hard labour for 12 months. The appellants' case states that as a result of this conviction his name was struck off the local medical register by the Board or 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 27th November 1941, his petition was granted by His Majesty in Council. Pursuant to this leave their Lordships heard the appeal on 28th and 29th 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 6th and 7th of that month. According to a list kept by the appellant 78 persons were treated at Asaga of whom 57 were children: 44 of these of whom 36 were children were dealt with on 6th May and 34 of whom 21 were children on the 7th. On the latter day the appellant proceeded to Akanu where 61 persons were treated of whom 33 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 all 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 Pharmacopoea, and is a t
