Raffles School Of Law Moot Court Society

Intra Moot Court competition – 2020

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RAFFLES SCHOOL OF LAW MOOT COURT SOCIETY

INTRA MOOT COURT COMPETETION – 2020

BEFORE THE HON’BLE COURT OF RANVICORA

APPEAL NO. _____ OF 2020

Dr. HOLLAND ……………………………………………………APPELLANT

Versus.

Mr. SMITH ……………………………………………………. RESPOMDENT

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 Raffles School Of Law Moot Court Society
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TABLE OF CONTENTS
TABLE OF CONTENT _______________________________________________ 2

INDEX OF AUTHORITIES ___________________________________________ 3

THE STATEMENT OF JURISDICTION ________________________________5

THE STATEMENT OF FACTS ________________________________________6

THE STATEMENT OF ISSUE _________________________________________7

THE SUMMARY OF ARGUMENT _____________________________________8

THE ARGUMENT ADVANCED ________________________________________9

1. WHETHERT MR. HOLLAND IS HELD LIABLE FOR HIS

ACT OF MEDICAL NEGLIGENCE OR NOT ___________________________9
2. WHETHER THE MR. SMITH IS HELD LIABLE FOR
CONTRIBUTORY NEGLIGENCE OR NOT____________________________11

PRAYER ____________________________________________________________16

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INDEX OF AUTHORITIES
 CASES REFERRED
 Juggankhan v. The State of Madhya Pradesh, (1965) 1 S.C.R. 14
 Poonam Verma v. Ashwin Patel & ors, (1996) 4 S.C.C 332
 kusum Sharma v. hospital & medical Research centre, (2010) 3 SCC 480
 Rietz v. Brussel, (No. 2) (1979) 1 WWR 31
 Eady v. Tenderenda, (1975) 2 S.C.R. 599
 Dr. L.B. Joshi V. Dr. T.B. Godbole, A.I.R. 1989 P.H. 183
 Denning LJ in Jones v Livox Quarries Ltd [1952] 2 QB 608
 Renuka Devi v Banglore Metropolitan Transport Corporation, AIR 2008 SC 1967

 Karnataka State Road Transport Corporation v K V Sakeena (1996) 3 SCC 446

 Champs v Stone 58 NE 2d 803
 Devendar Singh v. Vivek Pal, 2013 CPJ 442 (NC).
 Rohini Devi v. Dr H S Chandavat, 2002 (1) CPC 194
 Cowan v. Doering, 111 N.J. 451 , 545 A.2d 159 (1988)
 Wheatley v. Heidemann, 251 Iowa 695, 102 N. W. 2d. 343 (1964)
 Smith v. West Lancashire Health Authority [1995] PIQR P514
 Forbes v. Wandsworth Health Authority[1997] QB 402, at 413

 BOOKS REFERRED
 R.K. Bangia
 Dr. N.V. Paranjape
 Ratanal and Dhirajlal’s
 Dr. Jagdish Singh Vishwa Bhusan – Medical Negligence & Compensation
 P S Achuthanpillai, Law of Tort – 8th edition

 STATUTES REFERRED

 The Kerala Torts (Miscellaneous Provisions) Act, 1976

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 WEB SOURCES
 www.scconline.com

 https://indiankanoon.org


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 Raffles School Of Law Moot Court Society
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STATEMENT OF JURISDICTION

The respondent has approached this Hon’ble Court under Article 1411 read with Article 142 of
the constitution of India.

1
Article 141 in The Constitution Of India 1949

141. Law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be
binding on all courts within the territory of India.

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THE STATEMENT OF FACTS

1. Jacob Smith, plaintiff who suffers from a type of cancer known as non-Hodgkin’s
lymphoma. In July 2016, Mr. Smith firstly went to, Dr. Andrew Holland, Respondent
who considered Mr. Smith condition as it was a lipoma after six month consulting with
Dr. Holland,
2. Then Mr. Smith moved from Sunnyland to another city names as Renac.
3. In August due to inconvenient to continue with Dr. Holland he saw his new general
practitioner Dr. Anushka Patel in August 2017, where she referred to him to the Princess
Alexandria Hospital in Warlong city for further investigation.
4. In November 2017 a biopsy has done where it was confirmed that the lump was, in fact, a
lymphoma.
5. On 26th January 2018, due to intense chest pain Mr. Smith was admitted to PAH while
investigation it came in knowledge that lymphoma had spread into left thorax.
6. Due to this chemotherapy is given to Mr. Smith and then supplemented by a course of
action of radiotherapy and then he was discharged from the hospital in September 2018.
7. In November 2018 Mr. Smith came to known that a tumour has been developed in the
right axilla in this he was told that he couldn’t be cured. And due to high dose
chemotherapy or by his treatment he suffered severe side effect and due to this he feel
very ill all the time and lacking in energy ever since.
8. Then, Mr. Smith has submitted his claim to the court for loss and damages due to medical
negligence. In this court held Dr. Holland liable for his act of negligence and to not take
appropriate steps.

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THE STATEMENT OF ISSUE

I. Whether the Dr. Holland is held liable for the act of medical negligence or not?

II. Whether the Mr. Smith is held liable for contributory negligence or not?

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THE SUMMARY OF ARGUMENTS
I. Whether the Dr. Holland is held liable for the act of medical negligence or not?
It is humbly submitted before this Hon’ble court that Mr. Holland is held liable for his act of
medical negligence.

II. Whether the Mr. Smith is held liable for contributory negligence or not?
It is humbly submitted that the Mr. Smith is not held liable for contributory negligence.

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THE ARGUMENT ADVANCED
I. Whether the Mr. Holland is held liable for his act of medical negligence or not?
1. It is humbly submitted before this hon’ble court that Mr. Holland is held liable .
1.1. In Juggankhan v. The State of Madhya Pradesh2 the court held that a doctor who
administer a medicine known or to used in a particular branch of medical profession
impliedly declares that he has knowledge of that branch of science and if he doesn’t, in
fact, possess that knowledge, he prima facie is acting with rashness or negligence.
1.2. If a doctor trespassed into a prohibited field and prescribed something which he had no
proper knowledge then his conduct held amounted to negligence which was stated under
the case of Poonam Verma v. Ashwin Patel & ors. In this a medical practitioner who
only entitled to practice in homoeopathy, prescribed an allopathic medicine to the patient
as a result patient died in this doctor was held to be negligent and liable to compensate
the wife of deceased for the death of his husband. As it’s a statutory duty not to enter in
the field of any other.
1.3. In a case of Indian medical Assn. v. V.P. Shantha the Supreme Court held that the
services rendered by a medical professional are services within the definition of the
Consumer protection act and therefore medical practitioner are also held liable for
deficiency under the act. Hence, being a medical practitioner it’s a duty of Mr. Holland
to take proper reasonable care and if he don’t have proper knowledge3 of that field he
have to referred to him to any specialist which he don’t and to give his advice for a
period of six month. Whereas Dr. Anushka patel referred to him to PAH 4 where he get
to know about Lymphoma. If Dr. Holland referred Mr. smith to a specialist and didn’t
take that much time his chance of overall survival gets increased . It can also be said that
Mr. Smith’s situation has been negatively impacted by the delay in seeking a specialist
opinion about the putative lipoma.
1.4. The Hon’ble apex court in the case of “kusum Sharma v. hospital & medical Research
centre5 as there are three essential components of negligence which are duty, breach and
resulting damage. As in this case it’s breach of duty by the side of Mr. Holland by not

2
Juggankhan v. The State of Madhya Pradesh, (1965) 1 S.C.R. 14
3
Poonam Verma V. Ashwin Patel & Ors., (1996) 4 S.C.C. 332
4
Princess Alexandria Hospital in Warlong City
5
kusum Sharma v. hospital & medical Research centre, (2010) 3 SCC 480

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referring him to any specialist as a competent general practitioner in all cases, refer
every lump for further examination. And delay in this had diminish the chance of
survival which cause damage to the patient.
1.5. The essential component of negligence are :
A. The existence of a duty to take care, which is owed by the defendant to the complainant.
In order to get a negligence claim the first step is to see whether or not the defendant
owed the plaintiff a legal duty of care which is mentioned in Dr. L.B. Joshi V. Dr. T.B.
Godbole6. As in this Mr. Holland owes Mr. Smith a legal duty to provide him with proper
assistance or medical care. So, he will be held liable.
B. The failure to attain that standard of care, prescribed by the law, thereby committing a
breach of such duty. As it is the duty of Mr. Holland to referred the case to a specialist
as it is already mention that a general practitioner should have referees to every lump for
further examination.
C. Damage, which is both causally connected with such breach and recognized by the law,
has been suffered by the complainant7. The final element is damage which was happen to
Mr. Smith because of delay in referral and due to this he had to give up to his work & felt
very ill of the time and lacking in energy ever since.
2. Res ipso loquitur8
2.1. The Hon’ble Supreme Court in V. Kishan Rao V. Nikhil Super Speciality Hospital gave
certain illustration 9 on medical negligence where the principle of Res Ipso Loquitur is
applied. In Dr. Debasis Biswas V. Sri Biswaji Biswas 10 where the doctor have not been
able to explain the types of gangrene. Therefore, the case of Res ipso loquitur where
medical negligence is clearly seen for which the doctor held liable as the same was
happen in this case where Dr. Holland have not been able to detect the Lymphoma. So,
here the case of medical negligence is clearly established.
3. Duties of care

6
Dr. L.B. Joshi V. Dr. T.B. Godbole, A.I.R. 1989 P.&H. 183, AT 185
7
Jacob Mathew v. State of Punjab & anr. (2005) 6 SCC 1
8
Things speaks for itself
9
Rietz v. Brussel, (No. 2) (1979) 1 WWR 31; Eady v. Tenderenda, (1975) 2 S.C.R. 599.
10
First appeal no. 865 of 2015

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3.1. If a medical practitioner attends his patient he owes him some duty of care which comes
in a case of Dr. L.B. Joshi V. Dr. T.B. Godbole11 these are:
(a) A duty of care in deciding whether to undertake the case.
(b) A duty of care in deciding what treatment to give.
(c) A duty of care in the administration of the treatment.
3.2. In this Court observed that a person who himself out ready to give medical advice and
treatment impliedly undertook that he was possessed of the skill and knowledge. Such a
person owed to his patient certain duties which are mentioned above and if a breach had
happened in any of these duty it gave a rise of right of action for negligence to the
patient.

From this we can conclude that it’s upto the Dr. Holland whether to take a matter in his
own hand or not and if he take then he had to give him the treatment what was needed at that
time by this we can conclude that he does not fulfill his duty of care. So, he will be held liable
for his act.

II. WHETHER THE MR. SMITH IS HELD LIABLE FOR CONTRIBUTORY

NEGLIGENCE OR NOT?
4. With regards to this issue the counsel on behalf of respondent humbly submits that, the
respondent have not contributed for the damages which he suffers. For the act of contributory
negligence the person suffering injuries must have negligently contribute to the injuries. In
the case at hand Mr. Smith as a reasonable prudent person would not in any circumstance
could be able to detect that a Lymph can become a special type of cancer.
5. A person is guilty of contributory negligence if he ought reasonably to have foreseen that if
he did not act as a reasonable prudent man he might be hurt himself and in his reckonings he
must take into account the possibility of others being careless.12
6. The Last Opportunity Rule
6.1. The last opportunity rule talks about when two person are negligent, then the person who
had the later opportunity of avoiding the harm by taking ordinary care should be held

11
Dr. L.B. Joshi V. Dr. T.B. Godbole, A.I.R. 1989 P.&H. 183, AT 185
Per Denning LJ in Jones v Livox Quarries Ltd [1952] 2 QB 608 p 615 quoted in Ratanlal, law of torts, 22 nd edition,
12

1992 p 481.

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liable for the loss. As in this Dr. Holland has the later opportunity to avoid bigger harm
but due to not taking ordinary care he let the Mr. Smith suffered more by his disease.
6.2. As if the appellant still had time to avoid the respondent cause, but failed to do so, they
could still be held liable for the respondent injury. As here the appellant have the last
clear chance to avoid the injury, and so he can still be held liable.
6.3. And in contributory negligence there is some limitation which says if the defendant is
aware of the gravity of consequences and then also fails to take proper measure, he will
be held liable.
7. In India also the rule as to apportionment of liability in case of contributory negligence is
followed as in the English law although there is no central legislation in similar lines to the
1945 English legislation.13 Supreme Court and the high courts have recognized the principle
of contributory negligence and have apportioned damages in proportion to the fault. 14 When
plaintiff contributes to the incident his role should be duly regarded when liability is
determined and quantum of damages is assessed.15 John Fleming’s definition of negligence is
noteworthy.16Negligence is conduct that fails to conform to the standard required by law for
safeguarding others (actionable negligence) or oneself (contributory Negligence) against
unreasonable risk of injury.

8. In special case of contributory negligence of a patient it is humbly submitted that,

Contributory negligence of a patient is any unreasonable conduct or absence of ordinary care on
the part of the patient or his personal attendant which combined with the doctors’ negligence
contributed to the injury complained of as a direct proximate cause and without which the injury
would not have occurred.17  Contributory negligence include

a. Failure to give the doctor accurate medical history

b. Refusal to take the suggested treatment
c. Leaving the hospital against the doctor’sadvice

13
The Kerala Torts (Miscellaneous Provisions) Act, 1976
14
Renuka Devi v Banglore Metropolitan Transport Corporation, AIR 2008 SC 1967; Karnataka State Road Transport
Corporation v K V Sakeena (1996) 3 SCC 446
15
Renuka Devi Id.
16
Fleming’s Introduction to the Law of Torts, p 27. For definition see also P S Achuthanpillai, Law of Tort, Eastern
Book Company, 8th Edition p 189
17
 Das &Sodhi, Negligence, 292-3 (1997).

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d. Failure to seek further medical assistance if symptoms persist18

It is worthwhile to remember that if the patient fails to follow a doctor’s advice, and this is a
cause of his injuries/ complications, it will be possible to argue that the patient has been
contributory negligent, or in extreme case, that his conduct is the sole cause of damage. 19
Interestingly a patient was not allowed to recover for injury because he, with all knowledge,
let a drunk doctor administer an injection.20

9. It is noteworthy that the cases where the courts have accepted the claim of contributory
negligence. The National Consumer Disputes Redressal Commission (NCDRC) in Devendar
Singh v. Vivek Pal21 held the doctor liable for negligence in eye surgery. However, the
appellant patient was of prolonged use of a medicine on his own volition and against medical
advice. The patient also failed to turn up for follow up. The doctor was held liable only to a
limited compensation of Rs. 50,000/- as the appellant -patient was guilty of contributory
negligence. In Rohini Devi v. Dr H S Chandavat,the patient did not turn up for follow up
after cataract surgery. Doctor was held not liable for the vision loss.22

Thus from the view of abovementioned cases it is clear that when patient knowingly not follow
the instructions of doctor. But in the case at hand Mr. Smith have not divert from the medical
advice. In contrast to this Dr. Holland have failed to take proper care and leads to increasing the
cancer cells and injury to Mr. Smith.

10. Similarly for not tracing of disease in a time could not be treated as a case of Medical
Negligence. In foreign case of Cowan v. Doering,23  it was held that a health-care
professional could not assert contributory negligence as a defense to a suicidal patient's claim
of neglect when the professional's duty included exercise of reasonable care to prevent the
patient from committing self-damaging conduct. The central question in this appeal, then, is
whether that principle of law applies to other categories of patients, such as the aged,

18
Id.
19
DR. JAGDISH&VISHWABHUSAN, MEDICAL NEGLIGENCE AND COMPENSATION, BHARAT LAW PUBLICATIONS, 80
(1999).
20
Champs v Stone 58 NE 2d 803, Ohio 1944 : cited in Dr. B.S. Venugopal, Theraupetic Privileges of a doctor with
Special Reference to liability for medical Negligence, Vol XXXIX (3) 2012 Indian Bar Review 55.
21
 2013 CPJ 442 (NC).
22
2002 (1) CPC 194.
23
111 N.J. 451 , 545 A.2d 159 (1988)

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incapacitated, or infirm. We hold that when a health-care professional's duty includes
exercise of reasonable care to prevent such a patient from engaging in self-damaging
conduct, the health-care professional may not assert contributory negligence as a defense to a
claim arising from the patient's self-inflicted injuries. Thus Medical practitioner cannot take a
defense of contributory negligence as it is a profession of high skills and taking proper care
by patients must not be accepted and it is sole duty of the medical practitioner to take care of
the patient.
11. Even in American case Wheatley v. Heidemann. 24 The parents of a two-year-old girl took the
child to an osteopath. The doctor failed to correctly diagnose an infection of the eye, and the
eye was later removed. The parents, suing as next friends for their daughter, were charged
with contributory negligence in knowing the osteopath's limitations and still continuing with
him. The court declared: Of course if the parents' negligence were the sole proximate cause...
it would be a good defense. But if defendant's negligencewas a substantial factor in causing
the injury, negligence of either parent would not be a defense.25
12. Indian jurisprudence has lack of this type of cases due to which English jurisprudence have
to be assessed. In Smith v. West Lancashire Health Authority, it was also said that "one
cannot know of an omission without knowing what it is that is omitted'.26 This approach
reduces the risk of claims concerning negligent omissions being statute-barred, even though
omissions are not necessarily of lesser evil than acts. Nonetheless, in Forbes, it is shown that
if an injury sustained as a result of an omission is significant, the courts would expect a
reasonable patient to seek a second opinion "promptly' and shortly thereafter acquire the
necessary knowledge during the limitation period. 27 The implication of such a judgment is
that omission resulting in less significant injury may have less protection by statutes of
limitation since a reasonable claimant would not be expected to proactively acquire
knowledge of possible negligence under those circumstances. Thus a reasonable patient
would not nevertheless could examine that the person from whom he is taking treatment
would be negligent.

24
251 Iowa 695, 102 N. W. 2d. 343 (1964).
25
Id.
26
Smith v. West Lancashire Health Authority [1995] PIQR P514
27
Forbes v. Wandsworth Health Authority[1997] QB 402, at 413.

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13. In the case at hand Mr. Smith have not negligently contributed for his injury as he have not in
any circumstance could reasonably foresee that it was cancer.
Thus, in the light of the above statement Mr. Smith is not held liable for contributory
negligence

2.

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THE PRAYER
Wherefore in the light of facts raised, argument advanced and authorities cited, the council for
the respondent humbly prays before this Appellate Court of Ranvicora that it may be pleased to
hold, adjudge and declare that:

1. That Mr. Holland is held liable for his act of medical negligence.
2. That Mr. Smith is not held liable for his act of contributory negligence.

Pass any other order, which the court may deem fit in light of justice, equity and good
conscience.

For this act of kindness, the shall forever pray.

Sd/-
Council for the Respondent

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