Appellant-Problem 1 - Memorial Old

34th BAR COUNCIL OF INDIA TRUST- ALL INDIA INTER UNIVERSITY MOOT
COURT COMPETITION, 2017
34TH BAR COUNCIL OF INDIA TRUST- ALL INDIA INTER UNIVERSITY MOOT
BEFORE
THE HON’BLE SUPREME COURT OF ZINDIA
IN THE MATTER OF
TEAM CODE: BG-01
MR. OKUR SEN …...APPELLANT
VERSUS
STATE OF TUJARAT & OTHERS …… RESPONDENT
MEMORIAL FILED ON BEHALF OF APPELLANT
Name of the Participants: Nikhil Naren, Vishakha Arya & Ananya Singh.
University: Symbiosis Law School, NOIDA, Symbiosis International University, Pune.
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~MEMORANDUM FOR THE APPELLANT~
TABLE OF CONTENTS
1. INDEX OF AUTHORITIES…………………………………………………VI-XIII.
A. STATUTES………………………………………………………………… VI
B. TABLE OF CASES………………………………………………………… VI-VII
1. FOREIGN CASES…………………………………………………………VI-VII
2. INDIAN CASES……………………………………………………………VII
C. BOOKS, REPORTS & DIGESTS………………………………………………VIII-IX.

D. JOURNALS REFERRED …………………………………………………… IX-XI
E. ARTICLES REFERRED ………………………………………………………XII
F. LAW REPORTS REFERRED ………………………………………………… XII
G. LAW DICTIONARIES ……………………………………………………… XIII
H. DATABASE REFERRED…………………………………………………… XIII.
2. STATEMENT OF JURISDICTION…………………………………………XIV
3. STATEMENT OF FACTS ……………………………………………………XV-XVI.
4. STATEMENT OF ISSUES……………………………………………………XVII.
A. WHETHER THE GOVERNMENT CAN BE HELD LIABLE FOR FAILURE OF STERILIZATION
OPERATION?
B. WHAT IS THE LIABILITY OF HOSPITAL UNDER BREACH OF CONTRACT?

C. WHETHER THE FAILURE OF STERILIZATION LEADING TO UNWANTED PREGNANCY FALLS
UNDER MEDICAL NEGLIGENCE?
5. SUMMARY OF ARGUMENTS……………………………………………XVIII-IX
6. ARGUMENTS ADVANCED…………………………………………….. 1-5

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I. THE GOVERNMENT CAN BE HELD LIABLE FOR FAILURE OF STERILIZATION
OPERATION..................................................................................................................... 1
1.1. THE PRINCIPLE OF QUI FACIT PER ALIUM FACIT PER SE................ 1.
1.2. THE UNION OF ZINDIA WAS OBLIGATED TO CHECK ON THE
IMPLEMENTATION OF FAMILY PLANNING SCHEME…................... 1-2
II. THE LIABILITY OF HOSPITAL UNDER BREACH OF CONTRACT........ 2-3
III. THE FAILURE OF STERILIZATION LEADING TO UNWANTED PREGNANCY FALLS UNDER
MEDICAL NEGLIGENCE..................................................................................................... 3
3.1. THE STANDARD OF CARE ATTAINED BY THE DOCTOR……… 3

3.2. THE NON-DISCLOSURE OF RISK SHOULD BE CONDEMNED AS A BREACH
OF DOCTOR’S DUTY OF CARE…………………………………………… 4
3.3. DAMAGES RECOVERABLE FOR THE BASIC MAINTENANCE OF CHILD &
COSTS OF SPECIAL NEEDS RELATING TO CHILD’S DISABILITIES… 5
3.4. CAUSING A WOMAN TO BECOME PREGNANT & BEAR A CHILD AGAINST
HER WILL IS AN INVASION OF THE FUNDAMENTAL RIGHT TO BODILY
INTEGRITY………………………………………………………………… 5
7. PRAYER……………………………………………………………………… XX
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LIST OF ABBREVIATIONS
& And
A.2d Atlantic Reporter, 2nd Series
AC Appeal Cases
AHA Area Hospital Authority
All ER All England Law Reports
App. Div. Appeal Division
Aus. Australia
BMNR Butterworths Medico- Legal Reports
CA California
Cal App 2d California Appellate Reports (2nd Series)
Cal Rptr. California Reporter
Co. Company
Colo Colorado
CPJ Consumer Protection Judgments
D Dunlop Bell and Murray’s Reports, Session Cases (2nd Series) (Scotland)
D.L.R. Dominion Law Reports (Canada)
Del. Delaware
e.g. Example
Ed Edition
F. Supp Federal Supplement (US)
Fla. Florida
Hon’ble Honourable
i.e. That is
Med LR Medical Law Reports
Mich. Michigan Supreme Court Reports
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Minn. Minnesota
NLJ New Law Journal (UK)
N.M. New Mexico
N.W. 2d North Western Reporter (Second Series) (US)
N.Y.S. 2d New York Supplement (Second Series)
NC National Commission
NE North Eastern Reporter (US)
No. Number
ONT H.C. Ontario High Court
P Pacific Reporter (U.S.)
P.2d Pacific Reporter (Second Series) (US)
Para Paragraph
Q.B. Queens’ Bench Reports
SA South Africa
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
Sec. Section
So. 2d Southern Reporter (Second Series) (US)
Sol. Jo. Solicitors’ Journal
S.L.T. Scots Law Times
UOZ Union of Zindia
U.S. United States of America
v. Versus
Vol. Volume
W.L.R. Weekly Law Reports
Wis. 2d Wisconsin Reports (2nd Series)
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INDEX OF AUTHORITIES
A. STATUTES
1. The Constitution of India (1949).
2. The Indian Contract Act, ICA (1872).
3. The Indian Medical Council Act, IMC Act (1956).
4. The Medical Termination of Pregnancy Act, MTPA (1971).
5. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act (1995).
B. TABLE OF CASES
S.No. Name of the Case and Citation Pg. No.

FOREIGN CASES
1. Administrator, Natal v. Edovard, (1990) 3 SA 581. 5
2. Angela Parkinson v. St James & Seacroft University Hospital 5

NHS Trust, (2001) 3 All ER (D) 97, 125 (Q.B.).
3. Bailey v. Harmon, (1924) 74 Colo 390, 222 P.393. 2
4. Buga v. Wiener, (1973) 277 So.2d 296 (Fla. 4th Dist). 3
5. Coleman v. Garrison, (1975) 349 A.2d 8, 11 (Del. 1975). 5
6. Custodio v. Bauer, (1967) 251 Cal. App. 2d 303, 59 Cal. Rptr. 2

463.
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7. Donald Edward Thake & Patricia Ann Thake v Brian A. 5

Maurice, (1984) 2 All ER 513.
8. Emeh v Kensington & Chelsea & Westminster AHA, (1985) 2 5
W.L.R. 233.
9. Lochgelly Iron & Coal Co. v. M’Mullan, (1934) A.C. 1; 77 Sol 3
Jo 539.
10. Lovelace Medical Center v. Mendez, (1991) 111 N.M. 336, 805 3
P.2d 603.
11. Lybert v. Warrington Health Authority, (1996) 7 Med LR 71 4

(CA).
12. Mc Farlane v. Tayside Health Board, (1999) 4 All ER 961. 5
13. Pearl v. Lesnick, (1964) 247 N.Y.S.2d 561 (App. Div). 2
14. Reibl v. Hughes, (1980) 78 D.L.R. (3d) 41 (ONT. H.C.). 4
15. Safian v. Aetna Life Insurance Co., (1940) 24 N.Y.S.2d 92 (App. 3

Div).
16. Salgo vs. Leland Stanford, (1975) 154 Cal. App. 2d.560. 4
17. Sherlock v. Stillwater Clinic, (1977) 260 N.W. 2d 169 (Minn.) 5
18. Stewart v. Rudner, (1957) 349 Mich 459; 84 N.W.2d 816. 2
INDIAN CASES
19. Malay Kumar Ganguly & Dr. Kunal Saha v. Dr. Sukumar 3
Mukherjee, (2009) 3 CPJ (SC) 17.
20. Ramakant Rai v. UOI, (2009) 16 SCC 565. 2
21. Sharad Kumar Sanghi v. Sangeeta Rane, (2015) 12 SCC 781 1
22. State of Haryana v. Santra, (2000) 5 SCC 182. 1
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C. BOOKS, REPORTS AND DIGESTS
1. A.S. DEOSKAR ET AL., MEDICAL JURISPRUDENCE TOXICOLOGY &

FORENSIC SCIENCE (All India Reporter Pvt. Ltd.1st ed. 2010).
2. AVTAR SINGH, CONTRACT & SPECIFIC RELIEF, 10th ed., (Eastern Book
Company.10th ed. 2008).
3. C.K. PARIKH, PARIKH’S TEXTBOOK OF MEDICAL JURISPRUDENCE,
FORENSIC MEDICINE AND TOXICOLOGY, (CBS Publishers & Distributors
Pvt. Ltd.6th ed. 2007).
4. EMILY JACKSON, MEDICAL LAW TEXT, CASES AND MATERIALS, 742,
(Oxford University Press 3rd ed., 2013).
5. EMILY JACKSON, MEDICAL LAW TEXT, CASES AND MATERIALS, 729
(Oxford University Press 2nd ed., 2010).
6. J K MASON, WRONGFUL PREGNANCY, WRONGFUL BIRTH AND
WRONGFUL TERMINOLOGY46, 486 (Edinburgh Law Rev. 2002).
7. JACK CLAYTON-THOMPSON, YOU SHOULD NEVER LOOK A GIFT
HORSE IN THE MOUTH: ONE-SIZE-FITS-ALL COMPENSATION IN
WRONGFUL CONCEPTION72, 73, (Westminister Law Rev ed. 2012).
8. JONATHAN HERRING, MEDICAL LAW & ETHICS (Oxford University
Press5th ed. 2013).
9. KIRSTY HORSEY & ERIKA RACKLEY, TORT LAW10 (Oxford University
Press, 2nd ed., 2011).
10. LILY SRIVASTAVA, LAW & MEDICINE (Universal Law Publishing Co. Pvt.
Ltd.2nd ed. 2013).
11. LORD STEYN, PERSPECTIVES OF CORRECTIVE AND DISTRIBUTIVE
JUSTICE IN TORT LAW1, 337(Irish Jurist 2002).
12. MALLICK, COMMENTARIES ON INDIAN CONTRACT ACT (Kamal Law
House, 2nd ed., 2012).
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13. MICHAEL A. JONES & MUIRIS LYONS, MEDICAL NEGLIGENCE, (Sweet

and Maxwell eds., 2010).
14. MICHAEL FURMSTON, THE LAW OF CONTRACT, (Butterworth Common
Law Series Lexis Nexis, 4thed, 2010).
15. PADUBIDRI VG & DAFTARY SHIRISH, SHAW’S TEXTBOOK ON
GYNAECOLOGY (Reed Elsevier India Pvt. Limited, 16th ed. 2015).
16. P C MARKANDA, THE LAW OF CONTRACT, (Wadhwa & Company, 2nd ed.,
2008).
17. R.F.V. HEUSTON, SALMOND & HEUSTON ON THE LAW OF TORTS
(London: Sweet & Maxwell 18th ed. 1992)
18. R.K. BAG, LAW OF MEDICAL NEGLIGENCE & COMPENSATION (Eastern
Law House2nd ed. 2012).
19. RATANLAL & DHIRAJLAL, THE LAW OF TORTS (Lexis Nexis 26th ed.
2010)
20. SARLA GUPTA AGRAWAL ET AL., MEDICAL JURISPRUDENCE &
TOXICOLOGY PRACTICE & PROCEDURE, (Premier Publishing Co. 2014).
21. SHAUN PATTINSON, MEDICAL LAW AND ETHICS 341 (Sweet & Maxwell,
3rd ed., 2011).
22. VETUKURI VENKATESHWARA RAO, LAW RELATING TO MEDICAL
NEGGLIGENCE (Asia Law House 3rd ed., 2008).
D. JOURNALS REFERRED
1. 1. Antje Pedain, Unconventional Justice In the House of Lords, Cambridge Law

Journal, 19 (2004).
2. 2. Birnbaum & Gary L., Express Contracts to Cure: The Nature of Contractual
Malpractice, Indiana Law Journal, Vol. 50 (1975).
(July 16, 2017, 04:00 PM), http://www.repository.law.indiana.edu/ilj/vol50/iss2/10.
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3. David J. Mark, Liability for Failure of Birth Control Methods, Vol. 76, Columbia
Law Rev., No. 7, 1187-1204 (1976).
(July 16, 2017, 05:57 PM), http://www.jstor.org/stable/1121675.
4. 3. Dillard & Carter J., Rethinking the Procreative Right, Vol. 10, Yale Human
Rights & Development (2007).
(July 15, 2017, 12.35 PM), http://digitalcommons.law.yale.edu/yhrdlj/vol10/iss1/1.
5. 4. Dr. Mukesh Yadav & Dr. Vinita Kushwaha, Issue of Failed Sterilization, Medical
Negligence & Compensation: A global Rev., Vol. 3, Journal of Indian Academy
of Forensic Medicine, 23-27 (2007).
6. 5. Gerald B. Robertson, Civil Liability arising From “Wrongful Birth” Following
an unsuccessful Sterilization Operation, Vol. 19, Jurimetrics, American Bar
Association, No. 2, 140-166 (1978).
(July 19, 2017, 05:19 PM), http://www.jstor.org/29761664.
7. 6. Glenn Cohen Source, The Constitution & the Rights Not to Procreate, Vol. 60,
Stanford Law Rev. , No. 4, 1135-1196 (2008).
8. 7. Jesse Elvin Source, Are Healthy Children Always a Blessing?, Vol. 61, The
Cambridge Law Journal, Cambridge University Press on behalf of Editorial
Committee of the Cambridge Law Journal Stable, No. 3, 516-519 (2002).
9. 8. Kenneth McK. Norrie, Medical Malpractice: The Scope of Informed Consent in
Negligence, Vol. 32, The International & Comparative Law Quarterly, Cambridge
University Press on behalf of the British Institute of International & Comparative
Law, No. 1, 229-236, (1983).
9. (July 19, 2017, 05:02 PM), http://www.jstor.org/stable/759475.
10. Margaret Bickford-Smith, Failed sterilisation resulting in the birth of a disabled
child: the issues, Journal of Personal Injury, 404, 410 (2001).
11. Michele Goodwin & L. Song Richardson, Patient Negligence: Law &
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Contemporary Problems, Vol. 72, Duke University School of Law Stable, No. 4,
223-250 (2009).
12. Muinis Lyons, Personal injury – clinical negligence – failed sterilisations –
unwanted birth – disabled mothers, Vol. 2, Journal of Personal Injury Law, 212,
213, (2002).
13. Neff & Christyne L., Woman, Womb, & Bodily Integrity, Vol. 3, Yale Journal of
Law & Feminism (1990).
(July 20, 2017, 3:00 PM), http://digitalcommons.law.yale.edu/yjlf/vol3/iss2/6.
14. Peter Tierney, Voluntary Sterilization A Necessary Alternative?, Vol. 4, Family
Law Quarterly, American Bar Association Stable, No. 4, 373-386 (1970).
15. Robert Oppenheim, The “mosaic” of tort law: the duty of care question, Journal
of Personal Injury Law, 151, 167 (2003).
16. Sandra Birgitta Elste, Analysis of common law judgments in regards of “wrongful
birth” cases, The New Zealand Postgraduate Law e-Journal (2006).
17. Simi Rose George, Reproductive Rights: A Comparative Study of Constitutional
Jurisprudence, Judicial Attitudes & State Policies in India & the U.S., Vol. 18(1),
Student Bar Rev., 72 (2006).
18. The WMA International Code of Medical Ethics, Adopted by the 3rd General
Assembly of the World Medical Association (2006).
E. ARTICLES REFERRED
1. Ash Samanta & Jo Samanta, Legal standard of care: A shift from the traditional
Bolam test, Clinical Medicine, Vol. 3 (2003).
2. Diana Brahams, Damages for ‘Unwanted’ Healthy Child Awarded to Physically
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Disabled Mother But Not to Mentally Handicapped Mother, Vol. 1, 71 (2003).

3. Jackson, Regulating Reproduction, Oxford: Hart Publishing (2001).
4. L.C. Green, Medico-Legal Aspects of Sterilisation, Vol. 3, 98-112 (1963).
5. Mason, Unwanted Pregnancy: a Case of Retroversion? Vol. 4, 191 (2000).
6. Mukesh Yadav, Medical Negligence & Compensation: A global Rev. (2007).
7. Mukesh Yadav, Pramendra Singh Thakur & Pooja Rastogi, Role of Informed
Consent in India Past, Present & Future Trends , J Indian Academy Forensic
Medical, Vol. 36, (2014).
8. Rajesh Varma & Janesh K Gupta, Failed Sterilisation: Evidence-Based Rev. &
Medico-Legal Ramifications, Vol. 12, 1322-1332 (2004).
F. LAW REPORTS REFERRED
1. Alastair Mullis, Wrongful conception unravelled, Medical Law Rev., 320, 335
(1993).
2. Family Planning A Global Handbook For Providers, Evidence-based guidance

developed through worldwide collaboration, A WHO Family Planning
Cornerstone (2007).
3. Oliver Radley-Gardener, ‘Wrongful birth revisited’, Law Quarterly Rev., 11, 14
(2002).
4. Rights of Persons with Disabilities, National Human Rights Commission (2010).
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G. LAW DICTIONARIES
1. Bryan A. Garner, Black’s Law Dictionary, 9th ed.
2. Justice C.K. Thakker, Judicial Officer’s Law Lexicon, (3rd ed., Ashoka, Law House,
New Delhi, 2014).
3. P. Ramanatha Aiyar, Advanced Law Lexicon, (3rd ed., Lexisnexis, Butterworths
Wadhwa, Nagpur, 2009).
4. R.P. Sethi, Supreme Court on Words and Phrases (Ashoka Law House, New Delhi,
2004).
5. Venkatramaiya, Law Lexicon, (2nd ed., Law Publishers (India) Pvt. Ltd., 2005).
H. DATABASE REFERRED
1. www.judis.nic.in
2. www.lexisnexis.com
3. www.manupatrafast.com
4. www.scconline.com
5. www.westlaw.com
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STATEMENT OF JURISDICTION
The Appellants have approached this Hon’ble Supreme Court in pursuance of Article 136 of the
Constitution of Zindia1 which empowers the Hon’ble Court to grant special leave, to appeal
against any judgment or order or decree in any matter or cause, passed or made by any Court in
the territory of Zindia.
The plaintiffs shall accept the decision of the court as binding and final and shall abide by the
same in sincerity and in good faith.
All of which is humbly submitted.
1
Article 136 Special leave to appeal by the Supreme Court-
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal
from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or
tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court
or tribunal constituted by or under any law relating to the Armed Forces.
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STATEMENT OF FACTS
BACKGROUND
 The Government of Zindia launched a National Population Policy in 2012, with the aim
of reducing the birth rate to control the population explosion so as to keep a control on
the rising issue.
 The main objective of the policy was to designate a government run hospital in each
district to stimulate and aid the citizens to undergo vasectomy and tubectomy or
sterilization.
 To promote the same, Spice Galore Hospital was designated for the said purpose in the
city of Jurat, State of Tujarat.
PARTIES ENTERED INTO A CONTRACT

Mr. Okur Sen, a diamond merchant, and his wife, Mehant decided on having a tubectomy
operation from the Spice Galore Hospital. They had a son and wished on not having any more
children.
The couple entered into a contract with the Spice Galore hospital in which few terms were as
follows-
 That 100 % success was assured in the sterilization operation.
 That the hospital would be liable for damages for any injury caused to the mother during
the operation.
 Thereafter, Mehant underwent sterilization on 08th February 2013 and soon she got
pregnant and gave birth to a disabled girl child on 20th January 2014.
PROCEEDINGS INITIATED BY THE COUNSEL

 The aggrieved party, Mr. Okur Sen filed a civil suit in the District Court of Jurat seeking
damages for the unwanted pregnancy, mental pain and the cost of upbringing the disabled
child till her puberty and later her marriage.
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 Mr. Sen sued the hospital for the breach of contract as on the violation of the terms of
contract vis-à-vis the 100% assurance.
 Both the lower and High Court rejected his claims and ruled in favour of the hospital.
DISPUTE BEFORE THE APEX COURT

 The claimant approached the Supreme Court under Article 136 of the Constitution of
Zindia.
 A 3 Judge bench of the Supreme Court allowed the petitioner’s appeal and initially heard
the matter, but during the entire course, realized the importance of the issue and decided
that it should be heard by a 5 Judge Bench. The matter deeply reflects on the issue of
public importance. Accordingly, all the matters are now posted for hearing before a 5
Judge Bench on September 07, 2014.
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STATEMENT OF ISSUES
I. WHETHER THE GOVERNMENT CAN BE HELD LIABLE FOR FAILURE OF

STERILIZATION OPERATION?
1.1. THE PRINCIPLE OF QUI FACIT PER ALIUM FACIT PER SE

IMPLEMENTATION OF FAMILY PLANNING SCHEME
II. WHAT IS THE LIABILITY OF HOSPITAL UNDER BREACH OF CONTRACT?
III. WHETHER THE FAILURE OF STERILIZATION LEADING TO UNWANTED

PREGNANCY FALLS UNDER MEDICAL NEGLIGENCE?
3.1. THE STANDARD OF CARE ATTAINED BY THE DOCTOR

OF DOCTOR’S DUTY OF CARE
3.3. DAMAGES RECOVERABLE FOR THE BASIC MAINTENANCE OF CHILD &
COSTS OF SPECIAL NEEDS RELATING TO CHILD’S DISABILITIES
INTEGRITY
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SUMMARY OF ARGUMENTS
I. THE GOVERNMENT CANNOT BE HELD LIABLE FOR THE FAILURE OF STERILIZATION

OPERATION.
The superior will always be responsible for the acts of its subordinates. The hierarchical relation
between the government and the method, nature etc. of the acts, performed by the hospital will
explicitly link to the government. The Supreme Court in State of Haryana v. Smt. Santra,2 held
that “The State must be held responsible in damages if the sterilization operation performed by
him is a failure, which is directly responsible for another birth in family, creating additional
economic burden on the person who had chosen to be operated upon for sterilization.”
II. THE LIABILITY OF HOSPITAL UNDER BREACH OF CONTRACT
An undertaking for an operation does guarantee the hospital’s liability for the performance of the
operation as the Strict Liability is expected from those professionals who give an express
undertaking. It was held by an Apex Court in a sterilization situation that where there is an
express contract, "a physician can be held liable for a promise to effect a cure or a certain
result."3and the physician he cannot avoid the liability of negative results simply because he
followed acceptable medical practice.
III. THE FAILURE OF STERILIZATION LEADING TO UNWANTED PREGNANCY FALLS

UNDER MEDICAL NEGLIGENCE
The acts of the hospital represent a clear case of medical negligence. The promise so made by
the hospital under a legal contract stands breach as the operation was performed with negligence.
The standard of care taken by the doctor was absent and such misconduct thereby resulted to an
injury to the claimant. In Lybert v. Warrington Health Authority4, the plaintiff had undergone
2
State of Haryana v. Santra, (2000) 5 SCC 182 (India).
3
Custodio v. Bauer, (1967) 251 Cal. App. 2d 303.
4
Lybert v. Warrington Health Authority, (1996) 7 Med LR 71 (CA). See also, Reibl v. Hughes, (1980) 78 D.L.R.
(3d) 41 (ONT. H.C.).
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sterilization operation, but she became pregnant after 15 months of the operation. It is alleged
that the defendant health authority failed to warn her of the risk that the sterilization operation
might fail. The Court of appeal in U.K. held the defendant health authority negligent for not
giving proper warning to the plaintiff about the risk of failure of sterilization operation.
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ARGUMENTS ADVANCED
I. THE GOVERNMENT CAN BE HELD VICARIOUSLY LIABLE FOR THE ACT

OF THE HOSPITAL.
1.1. THE PRINCIPLE OF QUI FACIT PER ALIUM FACIT PER SE.
The principle on which vicarious liability is based is that a person who does a thing through
another does it himself (Qui facit per alium facit per se). If in the nature of things, the master is
obliged to perform the duties by employing servants, he is responsible for their act in the same
way that he is responsible for his own acts.5The second principle on which a master’s liability is
fixed is that of Respondent Superior i.e. let the superior be responsible. In this case, the
Government designated hospitals in each district for encouraging & promoting the people to
undergo vasectomy & tubectomy. Thus, if the Government puts someone else in its place to do
class of act in its absence, necessarily leaves it to determine according to the circumstances that
arise, when an act of that class is to be done, & trusts the hospital for the manner in which it is
done. The Supreme Court in State of Haryana v. Smt. Santra,6 held that “In a country where the
population is increasing by the tick of every second on the clock & the Government had taken up
the family planning as an important programme for the implementation of which it had created
mass awakening for the use of various devices including sterilization operation, the doctor as
well as the State must be held responsible in damages if the sterilization operation performed by
him is a failure , which is directly responsible for another birth in family, creating additional
economic burden on the person who had chosen to be operated upon for sterilization.”

IMPLEMENTATION OF FAMILY PLANNING SCHEME.
Population control and family planning is a national campaign and hence, responsibility of its
success or failure rests on UOZ. It would be wrong for us to say that effective implementation of
sterilisation programme is concern of each state since it is “Public Health” issue covered by
5
Sharad Kumar Sanghi v. Sangeeta Rane, (2015) 12 SCC 781 (India).
6
State of Haryana v. Santra, (2000) 5 SCC 182 (India).
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Schedule VII List II Entry 6 of the state list7, overlooking Entry 20-A of the Concurrent List8
“Population Control and Family Planning” and the fact that sterilization programme is intended
for population control and Family planning. Hence, it is imperative for both Union of Zindia and
State Government of Tujarat to coordinate/cooperate and implement schemes framed by the UoZ
in a manner that respects fundamental rights of beneficiaries of the scheme. Thus, UoZ cannot
confine its obligation to mere enactment of scheme without ensuring its realisation and
implementation.9
II. THE LIABILITY OF HOSPITAL UNDER BREACH OF CONTRACT.
When a party fails or refuses to perform their part of contract, it amounts to breach of a contract.
The General Rule is that where a party has not qualified his obligation under a contract he is
liable to make compensation in damages for non-performance. The Strict Liability is expected
from those professionals who give an express undertaking. Generally surgeons are unlikely to
guarantee the success of an operation, but cosmetic surgery, dental surgery & sterilization are
exceptional areas where the surgeons may agree to give guarantee of success. In an American
decision a cosmetic surgeon was held liable for failure to achieve the success guaranteed by
him.10 Finally there is possible civil liability in this area for breach of warranty. While it is
hornbook law that physicians are warrantors of cures, at least one court has held in a sterilization
situation that where there is an express contract, "a physician can be held liable for a promise to
effect a cure or a certain result."11 Where a contract between physician & patient provides that
the physician will effect a cure or a specific result, or that he will or will not utilize specific
procedures during the course of his services (e.g. that he will perform a Caesarean section 12 or
will not perform a radical mastectomy13) then he cannot avoid the liability of negative results
7
The Constitution of India, Universal Law Publishing, pp. 234.
8
Ibid pp.238
9
Ramakant Rai v. Union of India, (2009) 16 SCC 565
10
Bailey v. Harmon, (1924) 74 Colo 390, 222 P.393.
11
Custodio v. Bauer, (1967) 251 Cal. App. 2d 303, 59 Cal. Rptr. 463.
12
Stewart v. Rudner, (1957) 349 Mich 459; 84 N.W.2d 816.
13
Pearl v. Lesnick, (1964) 247 N.Y.S.2d 561 (App. Div).
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simply because he followed acceptable medical practice.14 As was said by the New York
Supreme Court Appellate Division, “if a doctor makes a contract to effect a cure & fails to do so,
he is liable for a breach of contract even though he uses the highest possible professional skill”15
III. THE FAILURE OF STERILIZATION LEADING TO UNWANTED PREGNANCY

FALLS UNDER MEDICAL NEGLIGENCE.
Lord Wright points out: “Negligence means more than heedless or careless conduct, whether in
omission or commission; it properly connotes the complex concept of duty, breach & damage
thereby suffered by the person to whom he owed the duty”.16 Halsbury’s laws of England, on the
question of failed sterilization states17, “Where the defendant’s negligent performance of a
sterilization operation results in the birth of a healthy child, public policy does not prevent the
parents from recovering damages for the unwanted birth, even though the child may in fact be
wanted by time of its birth. Damages are recoverable for personal economic loss involved in the
expense of using paid occupation & the obligation of having to pay for the up keep & care of an
unwanted child”. In the case of Lovelave Medical Center v. Mendez18, the Supreme Court of
New Mexico allowed damages in the form of reasonable expenses to raise the child till majority
as it was of the opinion that the prime motivation for sterilization was to conserve family
resources and also emphasized that wrongful conception invaded the family's financial security.
3.1. THE STANDARD OF CARE ATTAINED BY THE DOCTOR.
3.1.1. The injury must have been a foreseeable consequence of the defendant's action.
In sterilization cases it is presumed that the patient has consulted a doctor solely because she
wishes to avoid pregnancy. Standard of care in such cases will involve the duty to disclose to
patients about the risks of serious side effects or about alternative treatments.19 In Salgo vs.
14
Buga v. Wiener, (1973) 277 So.2d 296 (Fla. 4th Dist).
15
Safian v. Aetna Life Insurance Co., (1940) 24 N.Y.S.2d 92 (App. Div).
16
Lochgelly Iron & Coal Co. v. M’Mullan, (1934) A.C. 1; 77 Sol Jo 539.
17
Lord Hailsham of Marylebone, Halsbury’s laws of England, para 896, Vol 12(1), Butterworth 4 th ed. (1974).
18
Lovelace Medical Center v. Mendez, (1991) 111 N.M. 336, 805 P.2d 603.
19
Malay Kumar Ganguly & Dr. Kunal Saha v. Dr. Sukumar Mukherjee, (2009) 3 CPJ (SC) 17 (India).
3|Page
Leland Stanford20 it was held that a physician violates his duty to his patient & subjects himself
to liability if he withholds any facts which are necessary to form the basis of an intelligent
consent by the patient to the proposed treatment.
3.1.2 The injury must in fact have resulted from those actions.
As with most medical procedures, it cannot be said in advance that a sterilization operation
necessarily will be successful. There are a number of reasons why a tubal ligation (the most
common method of female sterilization), even if properly performed, will fail to effect sterility.
The precise extent of the risk of re canalization is somewhat uncertain, but probably the risk is
between 0.5 & 2.0 percent. It seems clear that, at the very least, a physician who informs his
patient that the sterilization operation will be effective will be held liable in tort under the
modern Doctrine of informed consent if the operation fails.21
3.1.3. The ‘but for’ test.

The pregnancy of Mehant in the present case is the direct result of the negligent sterilization
which earlier had assured a cent percent success. She conceived & has given birth to a child, it is
clearly a case of something amiss while performing an operation & one can hopefully deduce
that standard of reasonable care expected of the doctor was not taken.

OF DOCTOR’S DUTY OF CARE.
In Lybert v. Warrington Health Authority22, the plaintiff had undergone sterilization operation,
but she became pregnant after 15 months of the operation. It is alleged that the defendant health
authority failed to warn her of the risk that the sterilization operation might fail. Some patients
have sought recovery for failure of sterilization operations on a Misrepresentation Theory. In
Custodio v. Bauer23, defendant assured his patient both before24 & after a sterilization operation
20
Salgo vs. Leland Stanford, (1975) 154 Cal. App. 2d.560.
21
Gerald B. Robertson, Civil Liability arising From “Wrongful Birth” Following an unsuccessful Sterilization
Operation, Vol. 19, Jurimetrics, American Bar Association, No. 2, 140-166 (1978).
22
Lybert v. Warrington Health Authority, (1996) 7 Med LR 71 (CA). See also, Reibl v. Hughes, (1980) 78 D.L.R.
(3d) 41 (ONT. H.C.).
23
supra note. 3.
4|Page
that there was no possibility the operation would fail. The court, in upholding plaintiffs'
misrepresentation claim, noted: Even if defendant's statement was an opinion, plaintiffs
justifiably relied thereon. Defendant held himself out as an expert, plaintiffs hired him to supply
information concerning matters of which they were ignorant, & his unequivocal statement
necessarily implied that he knew facts that justified his statement.
3.3 DAMAGES RECOVERABLE FOR THE BASIC MAINTENANCE OF CHILD &

COSTS OF SPECIAL NEEDS RELATING TO CHILD’S DISABILITIES.
As per Sec. 2(t) "Person with disability"25 means a person suffering from not less than forty per
cent. of any disability as certified by a medical authority. In Parkinson v St James’26, the
claimant sought recovery for the costs of maintaining her fifth but disabled child and held on a
preliminary issue that the claimant should recover for the costs of providing for her son’s special
needs & care relating to his disability. According to Sec.125 of the Code of Criminal Procedure,
every person has to maintain his legitimate or illegitimate minor child.

INTEGRITY.
If such a woman as this patient did not know the risk she would suffer a great shock & anxiety
on realizing that she was pregnant again, & she was not given the opportunity to decide for
herself her future. If a woman becomes pregnant against her wish it is a direct invasion with her
personal autonomy. Everyone has a right to procreate or not to procreate. "27
24
When an assurance of success is given before the operation, plaintiff may be able to claim that the operation was
performed without informed consent. Plaintiff might argue that if proper information had been provided, alternative
birth control methods would have been used. See, e.g., Coleman v. Garrison, (1975) 349 A.2d 8, 11 (Del. 1975).
25
ibid.
26
Angela Parkinson v. St James & Seacroft University Hospital NHS Trust, (2001) 3 All ER (D) 97, 125 (Q.B.). See
also, Administrator, Natal v. Edovard, (1990) 3 SA 581; Sherlock v. Stillwater Clinic, (1977) 260 N.W. 2d 169
(Minn.); Mc Farlane v. Tayside Health Board, (1999) 4 All ER 961; Donald Edward Thake & Patricia Ann Thake v
Brian A. Maurice, (1984) 2 All ER 513; Emeh v Kensington and Chelsea and Westminster AHA, (1985) 2 W.L.R.
233.
27
Simi Rose George, Reproductive Rights: A Comparitive Study of Constitutional Jurisprudence, Judicial Attitudes
& State Policies in India & the U.S., Vol. 18(1), Student Bar Review, 72 (2006).
5|Page
PRAYER
Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsels on behalf of the Appellant humbly pray before this Hon’ble
Court that it may be pleased to adjudge and declare that:
1.This Special Leave Petition is being filed for grant of leave for setting aside and quashing the
order impugned passed by the court below, and
2.This appeal may kindly be admitted
Or pass any other order that the court may deem fit in the light of equity, justice and good
conscience and for this Act of kindness of Your Lordships the Appellant shall duty bound
pray.
Sd/- _________________________
Counsels for the Appellant
XX | P a g e

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34th BAR COUNCIL OF INDIA TRUST- ALL INDIA INTER UNIVERSITY MOOT

COURT COMPETITION, 2017

THE HON’BLE SUPREME COURT OF ZINDIA

TEAM CODE: BG-01

MR. OKUR SEN …...APPELLANT

STATE OF TUJARAT & OTHERS …… RESPONDENT

MEMORIAL FILED ON BEHALF OF APPELLANT

University: Symbiosis Law School, NOIDA, Symbiosis International University, Pune.

B. TABLE OF CASES………………………………………………………… VI-VII

C. BOOKS, REPORTS & DIGESTS………………………………………………VIII-IX.

E. ARTICLES REFERRED ………………………………………………………XII

F. LAW REPORTS REFERRED ………………………………………………… XII

G. LAW DICTIONARIES ……………………………………………………… XIII

H. DATABASE REFERRED…………………………………………………… XIII.

3. STATEMENT OF FACTS ……………………………………………………XV-XVI.

A. WHETHER THE GOVERNMENT CAN BE HELD LIABLE FOR FAILURE OF STERILIZATION

B. WHAT IS THE LIABILITY OF HOSPITAL UNDER BREACH OF CONTRACT?

6. ARGUMENTS ADVANCED…………………………………………….. 1-5

I. THE GOVERNMENT CAN BE HELD LIABLE FOR FAILURE OF STERILIZATION

II. THE LIABILITY OF HOSPITAL UNDER BREACH OF CONTRACT........ 2-3

III. THE FAILURE OF STERILIZATION LEADING TO UNWANTED PREGNANCY FALLS UNDER

3.1. THE STANDARD OF CARE ATTAINED BY THE DOCTOR……… 3

1. The Constitution of India (1949).

2. The Indian Contract Act, ICA (1872).

3. The Indian Medical Council Act, IMC Act (1956).

4. The Medical Termination of Pregnancy Act, MTPA (1971).

S.No. Name of the Case and Citation Pg. No.

1. Administrator, Natal v. Edovard, (1990) 3 SA 581. 5

2. Angela Parkinson v. St James & Seacroft University Hospital 5

4. Buga v. Wiener, (1973) 277 So.2d 296 (Fla. 4th Dist). 3

5. Coleman v. Garrison, (1975) 349 A.2d 8, 11 (Del. 1975). 5

6. Custodio v. Bauer, (1967) 251 Cal. App. 2d 303, 59 Cal. Rptr. 2

7. Donald Edward Thake & Patricia Ann Thake v Brian A. 5

11. Lybert v. Warrington Health Authority, (1996) 7 Med LR 71 4

15. Safian v. Aetna Life Insurance Co., (1940) 24 N.Y.S.2d 92 (App. 3

C. BOOKS, REPORTS AND DIGESTS

1. A.S. DEOSKAR ET AL., MEDICAL JURISPRUDENCE TOXICOLOGY &

13. MICHAEL A. JONES & MUIRIS LYONS, MEDICAL NEGLIGENCE, (Sweet

1. 1. Antje Pedain, Unconventional Justice In the House of Lords, Cambridge Law

Disabled Mother But Not to Mentally Handicapped Mother, Vol. 1, 71 (2003).

6. Mukesh Yadav, Medical Negligence & Compensation: A global Rev. (2007).

F. LAW REPORTS REFERRED

2. Family Planning A Global Handbook For Providers, Evidence-based guidance

1. Bryan A. Garner, Black’s Law Dictionary, 9th ed.

PARTIES ENTERED INTO A CONTRACT

PROCEEDINGS INITIATED BY THE COUNSEL

DISPUTE BEFORE THE APEX COURT

I. WHETHER THE GOVERNMENT CAN BE HELD LIABLE FOR FAILURE OF

1.1. THE PRINCIPLE OF QUI FACIT PER ALIUM FACIT PER SE

II. WHAT IS THE LIABILITY OF HOSPITAL UNDER BREACH OF CONTRACT?

III. WHETHER THE FAILURE OF STERILIZATION LEADING TO UNWANTED

3.1. THE STANDARD OF CARE ATTAINED BY THE DOCTOR

I. THE GOVERNMENT CANNOT BE HELD LIABLE FOR THE FAILURE OF STERILIZATION

II. THE LIABILITY OF HOSPITAL UNDER BREACH OF CONTRACT

III. THE FAILURE OF STERILIZATION LEADING TO UNWANTED PREGNANCY FALLS

I. THE GOVERNMENT CAN BE HELD VICARIOUSLY LIABLE FOR THE ACT

1.2. THE UNION OF ZINDIA WAS OBLIGATED TO CHECK ON THE

II. THE LIABILITY OF HOSPITAL UNDER BREACH OF CONTRACT.

III. THE FAILURE OF STERILIZATION LEADING TO UNWANTED PREGNANCY

3.1. THE STANDARD OF CARE ATTAINED BY THE DOCTOR.

3.1.3. The ‘but for’ test.

3.2. THE NON-DISCLOSURE OF RISK SHOULD BE CONDEMNED AS A BREACH