JUDGMENTBY: BARAKBAH LP, ONG HOCK THYE FJ

BARAKBAH LP This is an appeal from the judgment of Ismail Khan J. who dismissed the claim of the plaintiff/appellant for damages for negligence against the defendants/respondents. The appellant suffered disablement while in the employment as an estate conductor of the second respondents after being treated by the first respondent who was a doctor engaged by the second respondents as visiting medical officer to look after the health of their employees. The first respondent treated the appellant for an itch on his hands and legs by injecting a drug called "acetylarsan" which was alleged to have resulted in paralysis of the hands and legs.

On 31st July, 1956, the first respondent prescribed an injection of 5 c.c. of "acetylarsan" which he considered as an adult dose. According to the appellant, after the injection he had a temperature and his face was swollen but Lopez, who was the estate dresser and who gave the injection, stated that the appellant had a slight temperature, a flushed face but not a swelling. On the first respondents next visit after the first injection Lopez reported to him about the appellants condition and he examined the appellant. The first respondent diagnosed early pneumonia and ordered that the appellant be removed to hospital. After one week the appellant was discharged and about two or three months later he again complained to the first respondent as on the first occasion. On the second occasion the dose prescribed was half of 1 c.c. and on 23rd November, 1956, Lopez gave the appellant the injection at his house. The appellant then had fever. Lopez informed the first respondent by telephone. He did not come but instructed the appellant be sent to hospital. According to the first respondent, on 23rd November, 1956, the appellants condition did not warrant sending him to hospital. He was sent there on 27th November, 1956, because of symptom complex. The first respondent also sent a letter by the patient to the medical officer on duty requesting a "full investigation re general debility, chronic nocturnal cough and dermatitis" and adding a note that the patient was sensitive to arsenical drugs. It is just as well to mention here that counsel for both parties agreed that there were only two injections and not three as stated by the learned judge in his judgment.

Now there are two questions which the court has to decide. (1) Was polyneuritis caused by the injection of acetylarsan? (2) If so, was the first respondent negligent in giving such injection? Let us therefore consider the evidence produced in the court below.

According to Lopez (P.W.3), the first respondent diagnosed as a case of psoriasis. He gave the injection of acetylarsan which was prescribed by the first respondent. There was no dispute about the injection. In the evening one of the appellants children told him that the appellant had a slight temperature. He examined the appellant and found that he had a temperature, a flushed face, not a swelling. He reported to the first respondent about the appellants condition on his next visit after the injection. The first respondent examined the appellant with the stethoscope and he instructed that he be removed to hospital. The appellant was discharged from the hospital after about a week. Two or three months later the appellant saw the first respondent again and made same complaints as on the first occasion. The first respondent examined him and recommended acetylarsan of half of 1 c.c., the minimum dose for children. Lopez told the first respondent that after the first injection the appellant had a slight temperature. He further stated that he did not hear the appellant complain anything to the first respondent about the first injection. He gave the appellant the second injection and in the evening the appellant had fever. He informed the first respondent who instructed that the appellant be sent to hospital.

Dr. Khaira (P.W.1) attended to the appella