INTRA MOOT COURT COMPETITION 2020

TEAM CODE: TC-06

IN THE HON’BLE SUPREME COURT OF RANVICORA

APPEAL NO. ___ Of 2018

IN THE MATTER BETWEEN

Dr. Andrew Holland APPELLANT

V.

Mr. Jacob Smith RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

[This Memorandum has been prepared for Respondent: Mr. Jacob Smith]

Most Respectfully Submitted to the Hon’ble

Supreme Court of Ranvicora

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INDEX

1. Index of Abbreviations___________________________________________3
2. Index of Authorities_____________________________________________5
3. Statement of Jurisdiction_________________________________________7
4. Statement of Facts______________________________________________8
5. Statement of Issues_____________________________________________11
 Whether there is any medical negligence on the part of Dr Holland?
 Whether there is any contributory negligence on the part of Mr. Smith?
 Whether the calculation of the unliquidated damages was in accordance with the
wrong?
6. Summary of Arguments_________________________________________12
7. Argument Advanced___________________________________________13
8. Prayer_______________________________________________________22

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INDEX OF ABBREVIATIONS

& And

AC Appeal Cases

AIR All India Reporter

All. E.R. All England Law Reports

Co. Company

Corpn. Corporation

DLR. Dhaka Law Reports

Dr. Doctor

Etc. Et cetera

Guj. Gujarat

Hon’ble Honourable

HP. Himachal Pradesh

i.e. That is

Ker. Kerala

Mr. Mister

MP. Madhya Pradesh

NOC. No Objection Certificate

P&H Punjab and Haryana

Q.B. Queen’ s Bench

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SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

v. Versus

WWR Western Weekly Reports

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INDEX OF AUTHORITIES

Table of Cases

Judicial decisions Citation Foot

Note
No.
Agya Kaur v. Pepsu Road Transport Corporation AIR 1980 P.&H. 183 18
Bhagwat Sarup v. Himalaya Gas Co. AIR 1985 H.P. 41 16
Bolam v. Friern Hospital Management Committee (1957) 2 All E.R. 118: W.L.R. 582: 2
101 SJ 357
Cavan v. Wilcox (1973) 44 DLR 3d 42 12
Dr. Lakshman Balkrishna Joshi v. Dr. Trimbak Bapu AIR 1989 P.&H. 183, at 185 5,6
Godbole
Dr. Ummar v. K.M. Hameed AIR 2005 SC 3180 4
Donoghue v. Stevenson 1932 AC 562:147 LT 281: 48 8,9
TLR 494(HL).
Eady v. Tenderenda (1975) 2 SCR 599 12
Eckersely v. Binnie (1988) 18 Con. L.R. 1, 79, 3
quoted in Bolam’s case, (1957) 1
WLR 582, 586
Jacob Mathew v. State of Punjab AIR 2005 SC 3180 1
Jones v. Livox Quarries Ltd. (1952) 2 Q.B. 608 17
Municipal Corpn. Of Greater Bombay v. Laxman Iyer AIR 2003 SC 4812 13

Municipal Board, Jaunpur v. Brahm Kishore AIR 1978 All ER. 168 14

M.P.S.R.T. Corpn. v. Abdul Rahman AIR 1980 P.&H. 183 19

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Nance v. British Columbia Electric Rail Co. (1951) AC 601, 611: (1951) 2 15
All. E.R. 448, 450, per viscount
simon

Rietz v. Brussel (No. 2) (1979) 1 WWR 31 12

Spring Meadows Hospital v. Harjot Ahluwalia AIR 1998 SC 1801 10

State of Gujarat v. Laxmiben Jayantilal Sikligan AIR 2000 Guj. 180 7
V. Krishan Rao v. Nikhil Super Speciality Hospital (2010) 5 SCC 513 11

BOOKS REFERRED:

1. Law of Torts, Ratanlal & Dhirajlal, 24th Edition 2002, edited by Justice G.P. Singh
2. Law of Torts, RK Bangia, 8th Edition 2005, Allahabad Law Agency.
3. Law of Torts, BM Gandhi, EBC, Lucknow, 2002.
4. Law of Torts, Avatar Singh, 3rd Edition 2013, Harpreet Kaur.

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STATEMENT OF JURISDICTION

The Respondent has appeared in response to the appeal filed by the Appellant before this
Hon’ble Court under Article 141 r/w Article 142 of the Constitution of India, (as the laws of
Ranvicora is similar to the laws of India).

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STATEMENTS OF FACTS

1. The plaintiff, Jacob Smith, is a 50-year old man. He suffers from a specific type of cancer
known as non-Hodgkin’s lymphoma.
2. Initially his condition was presented as a substantial lump under his right arm of which he
first sought medical attention in July 2016, although the same was manifested by him at
least 18 months prior to taking this matter to his general practitioner. He spoke about this to
his wife, who encouraged him to visit a doctor.
3. In July 2016, he went to see the respondent, Dr. Andrew Holland, who was a medical
practitioner, registered as a general practitioner in Queensland. Dr. Holland was what might
be described as Smith’s “regular doctor”.
4. When Mr Smith first presented to Dr Holland and asked about the lump, Dr Holland
considered that it was a lipoma - that is a benign collection of fatty tissue. Having made that
diagnosis, Dr Holland did not refer him to a specialist for confirmation or otherwise of his
diagnosis.
5. In August 2017, Mr Smith saw his new general practitioner (Dr Anushka Patel) and raised
the matter of the lump with her. Dr Patel concurred that the lump was “probably a lipoma”,
but out of caution referred him on a non-urgent basis to the Princess Alexandria Hospital in
Warlong city (PAH) for further investigation. The referral recorded that there had been some
gradual enlargement since Mr Smith first noticed the lump, accompanied by increasing
discomfort and pain in the preceding year.
6. The consultant who examined Mr Smith on this referral in November 2017 has some
suspicions that the lump was, in fact, not benign, and arranged for a biopsy as soon as
possible.
7. The biopsy, some four days later, confirmed that the lump was, in fact, a lymphoma. The
narrowing of the diagnosis – eventually to non-Hodgkin’s lymphoma – took some time.
8. A CT scan from early December 2017 did not show any signs of the disease having spread
to any other organs.
9. However, on the 26 January 2018, Mr Smith was admitted to PAH with intense chest pains.
On investigation, these were shown to be the result of the lymphoma having spread into the
left thorax. Chemotherapy was administered on six occasions and was then supplemented
by a course of radiotherapy. Although the tumour responded, it did so incompletely.
10. Following further investigation, it was therefore decided in late August 2018 that the
plaintiff should be subjected to high dose chemotherapy, involving the harvesting of stem
cells to preserve them from destruction, the administration of chemotherapy and the
replacement of the stem cells at the conclusion of the treatment. He was discharged in early
September 2018.
11. In November 2018, Mr Smith suffered a relapse when he developed a tumour in the right
axilla, which statistically gave rise to a very poor prognosis. The result was that the
chemotherapy that he was then given was intended merely as palliative. He was told that he
could not be cured. In this context, “cure” meant a period of remission of at least ten years
since the disease was last evident.

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12. In April 2019, there was thought to have been another relapse, although this was never
demonstrated histologically. Nonetheless a further course of palliative chemotherapy was
prescribed.
13. As might be expected, the effects on him and his life have been devastating. He suffered
severe side effects from the original treatment, in particular the high dose chemotherapy
treatment in August 2018. He had to give up work. He felt very ill all of the time and has
continued to feel weak and lacking in energy ever since. Since his relapse in November
2018, he has quite reasonably believed from what he has been told that he is living on
borrowed time.
14. Mr. Smith submitted his claim to the court for loss and damages he suffered contending it
to be a case of medical negligence. On the bases of this the court observation were concluded
below –
 In the 13months period between Mr Smith’s initial consultation with Dr Holland and
when treatment began, the claimant’s condition “upstaged” significantly so that he was
less likely to achieve complete remission and had a poorer prognosis as a result.
Specifically, his chances of avoiding radical high dose chemotherapy, his chance of
avoiding a relapse and his chances of ultimate survival were all reduced.
 Expert evidence from Professor Stanhope was uncontradicted, and was to the effect that
taking the plaintiff as an example of the whole population of anaplastic large cell
lymphoma patients, but with no adverse prognostic features such as those occasioned
by the delay in referral, he would have had a remission chance of approximately 45%
and a similar chance of disease free survival for ten years. For such a patient, the
addition of the adverse prognostic factors that came to affect him because of the delay
meant his initial chance of remission would have fallen to around 35% and his chances
of overall survival moved from over 45% to approximately 30%.
 What can be said with some certainty is that Mr Smith’s situation has been negatively
impacted by the delay in seeking a specialist opinion about the putative lipoma.

15. Based on what was, on the whole, an uncontested medical narrative of the progression of
Mr Smith’s condition, court make the following findings;
16. The negligent failure on the part of Dr Holland was, at all times, a material contribution to
the deterioration of Mr Smith’s condition. Had Dr Holland made a referral in July 2016, it
is more probable than not that Mr Smith’s condition, while serious, would not have resulted
in the reduction in life expectancy or quality of life which eventuated when Mr. Smith
suffered a relapse in January 2018, and was required to undergo more radical chemotherapy.
17. Nor, would have Mr Smith’s condition have reached the point which it ultimately did in
November 2018, where the disease was considered incurable, and treatment became, in
essence, merely palliative.
18. It fell to this Court to determine whether, on the available evidence and on the balance of
probabilities, what Mr Smith’s condition would have been but for the alleged negligence in
failing to refer Mr Smith for further investigation. Put another way, has the course of
treatment, unfolding as it has, deprived Mr Smith of a chance of a better outcome.
19. Moreover, there are profound policy reasons why the law should impose liability in
negligence on medical practitioners when they fail to take what might be thought of as
natural precautions in the process of diagnosis. Dr Holland’s failure to take such a

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precautionary approach has clearly deprived Mr Smith of the chance he might have had of
remission had he been treated over a year earlier.
20. That a body of evidence suggesting that Dr Holland’s decision not to send Mr Smith for
further investigation was in keeping with the conduct of a number of his peers does not
determine liability: it seems to me that (as a matter of common sense) such an attitude to
diagnosis cannot be said to form the basis of clinical practice which is acceptable, and
sufficient to discharge the obligations imposed on a doctor within the scope of his or her
duty of care.
21. Accordingly, Court find that Dr Holland is liable in negligence for his failure to take
appropriate diagnostic steps in August 2017, the result of which was Mr Smith’s less
favourable outcome.

QUANTUM

22. Both parties accept that the quantum of damages claimed by the plaintiff is an appropriate
amount should liability be found. That amount, as set out and calculated below in these
reasons, is $185,000 plus $24,674 in interest under the appropriate scales. This is not
contested.
23. However, I am disquieted by the fact that Mr Smith delayed seeking any form of medical
diagnosis or treatment for a period, on his own evidence, of 18 months, and in the face of
considerable encouragement from his wife to “have it looked at”.
24. In this day and age, it is not unreasonable to expect that an individual will take adequate
care of their own health, and seek medical opinion when appropriate. Faced with the
symptoms as he described them, Mr Smith’s delay in seeing Dr Holland was, itself, a
material contributor to the development of the disease.
25. While, for obvious reasons, there is a paucity of clinical evidence or opinion as to the precise
effect this delay might have had on the progression of Mr Smith’s condition, I accept (as
was urged by the defendant’s counsel) that such delay amounted to contributory negligence
on the part of the plaintiff as understood.
26. Accordingly, I am reducing the amount awarded in damages by 35%.

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STATEMENT OF ISSUES

1. WHETHER THERE IS ANY MEDICAL NEGLIGENCE ON THE PART OF DR. HOLLAND?

2. WHETHER THERE IS ANY CONTRIBUTORY NEGLIGENCE ON THE PART OF MR. SMITH?

3. WHETHER THE CALCULATION OF THE UNLIQUIDATED DAMAGES WAS IN

ACCORDANCE WITH THE WRONG?

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SUMMARY OF ARGUMENTS

1. WHETHER THERE IS ANY MEDICAL NEGLIGENCE ON THE PART OF DR. HOLLAND

There is a medical negligence on the part of Dr. Holland as he was incompetent in
performing his reasonable duty of care which as a general practitioner, he owed towards Mr.
Smith. And non-performance of that duty i.e. not referring the diagnosis to any specialist
made him liable for the act of medical negligence as his act was not in accordance to what
a reasonable prudent general practitioner does and hence made him liable for the act of
omission in discharging his legal duty towards Mr. Smith. Also, the act of non-referral itself
speaks for his liability as per the doctrine of ‘res ipsa locquitur’.
2. WHETHER THERE IS ANY CONTRIBUTORY NEGLIGENCE ON THE PART OF MR. SMITH
There is no contributory negligence on the part of Mr. Smith as the fact of delay of 18
months by him even after the encouragement from his wife was neither the proximate nor
the immediate cause of the damage suffered by him. Nor, avoid of this delay could have
avoid the damage suffered by him as the consequence suffered was because of the delay in
referral which Dr. Holland made.
3. WHETHER THE CALCULATION OF THE UNLIQUIDATED DAMAGES WAS IN ACCORDANCE

WITH THE WRONG?

As it has been proven before this hon’ble bench that the complete liability was of Dr.
Holland only, therefore, there must be no reduction in the amount calculated as
compensation on the ground of contributory negligence on the part of Mr. Smith and the
complete amount shall be paid by Dr. Holland to Mr. Smith as he was solely liable for the
act of negligence and for the damages suffered by Mr. Smith.

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ARGUMENTS ADVANCED

1. WHETHER THERE IS ANY MEDICAL NEGLIGENCE ON THE PART OF DR. HOLLAND?

It is most humbly submitted before this Hon’ble Bench that Dr. Holland was medically
negligent on his part because[A] he has not taken doctor’s reasonable duty of care. [B]his act
comes within the framework of Res Ipsa Loquitur.

A. NOT PERFORMED DOCTOR ’S REASONABLE DUTY OF CARE -

It is submitted that in the professions like doctors, etc., the persons performing the tasks
requires not the ordinary skills rather, professing some special skills and has a duty to
exercise reasonable degree of care in the conduct of his duties. The Apex court in Jacob
Mathew v. State of Punjab,1 explained:

“Any reasonable man entering into a profession which requires a particular level of learning
to be called a professional of that branch, impliedly assures the person dealing with him that
the skill which he professes to possess shall be exercised and exercised with reasonable
degree of care and caution. He does not assure his client of the result. A physician would
not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee
that the result of surgery would invariably be beneficial, much less to the extent of 100%
for the person operated on. The only assurance with such a professional can give or can be
understood to have given by implication is that he is possessed of the requisite skill in that
branch of profession which he is practicing and while undertaking the performance of the
task entrusted to him, he would be exercising his skill with reasonable competence. Judged
by this standard, a professional may be held liable for negligence on one of the two findings:
Either he was not possessed, or, he did not exercise, with reasonable competence in the
given case, the skill which he did possess. The standard to be applied for judging, whether
the person charged has been negligent or not, would be that of an ordinary competent person
exercising ordinary skill in that profession.”

Also, in Bolam’s case,2 MC Nair, J., observed:

1
A.I.R. 2005 S.C. 3180.
2
Bolam v. Friern Hospital Management Committee, (1957) 2 All E.R. 118: W.L.R. 582: 101 SJ 357.

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“The test is the standard of the ordinary skilled man exercising and professing to have that
special skill. A man need not possess the highest expert skill; it is well established law that
it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that
particular art. In the case of a medical man, negligence means failure to act in accordance
with the standards of reasonably competent medical man at that time.”

Also, Bingham L.J. in Eckersely v. Binnie, 3 summarized Bolam test as:

“From these general statements it is followed that a professional man should command the
corpus of knowledge which forms part of the professional equipment of the ordinary
member of his profession. He should not leg behind other ordinary assiduous and intelligent
members of his profession in knowledge. He should have such an awareness as an ordinarily
competent practitioner would have of the deficiencies in his knowledge and the limitations
on his skills. He should be alert to the hazards and the risks in any professional task he
undertakes to the extent that other ordinarily competent members of the profession would
be alert. He must bring to any professional task he undertakes no less expertise, skill and
care than other ordinarily competent members of his profession would bring.”

Dr. Ummar v. K.M. Hameed,4 a pathologist conducted a biopsy on a patient and wrongly
diagnosed the illness as Tuberculosis, instead of cancer. And the result of wrong diagnosis
was the death of the patient. The pathologist was found liable for medical negligence and to
pay the compensation by the Kerala High Court. The Court observed:

“when a person who possesses sufficient qualifications in the field, is ready to give medical
advice and treatment, he impliedly undertakes that he possesses all sufficient skills and
knowledge for such medical advice or treatment. Such a person has a duty to diagnose the
illness and to decide the treatment to be given and the proper medicines to be administered.”

When a patient has been attended by a doctor, the doctor owes the patient the following
duties to be reasonably taken care of by the doctor5, A reasonable duty of care in:

i. deciding either to undertake the case,

ii. deciding what type of treatment is to be followed, and
iii. application of the treatment followed.

3
(1988) 18 Con. L.R. 1, 79, quoted in Bolam’s case (1957) 1 W.L.R. 582, 586.
4
A.I.R. 2014 (NOC) 49 (Ker.).
5
Dr. L.B. Joshi v. Dr. T.B. Godbole, A.I.R. 1989 P. &H. 183, at 185.

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A breach of any of the duties mentioned above gives a right for action to the patient for the
liability of medical negligence by the doctor.

The nature of reasonable duty of care in case of medical profession has been explained by
the P. & H. High Court in Dr. Lakshman Balkrishna Joshi v. Trimbak Bapu Godbole, 6 the
Court observed:

“The petitioner must bring to his task a reasonable degree of skill and knowledge and must
exercise a reasonable degree of care. Neither the very highest nor a very low degree of care
and competence judged in the light of the particular circumstances of each case is what the
law requires. The doctor, no doubt, has a discretion in choosing treatment which he proposes
to give to the patient.”

In the above said case, the respondent’s son of about 20 years, met with an accident on a sea
beach and resulted into the facture of his left leg’s femur. He was taken for treatment to the
hospital of appellant. Here the appellant’s duty was to reduce the facture, and in doing so,
he was supposed to give an anaesthetic to the patient, but he did not do so and instead
contented himself with a morphia injection’s single dose. Excessive force was used by the
appellant in following the treatment, as he used three of his attendants to pull the injured leg
of the respondent’s son. Then he put the patient’s leg in the plaster of paris splints. The
treatment given to the patient provided such a serious shock to him, which resulted into his
death. Here the doctor was held guilty for the act of medical negligence by the Supreme
Court.

In the case of Dr. Holland as well, being a general practitioner, he was accountable to
perform the reasonable duty of care to refer the diagnoses to a specialist, which he failed or
omitted to take care of and therefore, was liable for the act of medical negligence.

Similarly, in State of Gujarat v. Laxmiben Jayantilal Sikligar, 7 the plaintiff was suffering
from discomfort and pain in swallowing, etc. and went for treatment to Civil Hospital at
Godhra. The surgery was performed by the Civil Surgeon on her thyroid gland. She suffered
permanent partial paralysis of larynx (voice box) as a consequence of negligence in the
performance of the operation by damage to or cutting of recurrent laryingal nerve.

6
A.I.R. 1989, P. & H. 183, at 185.
7
A.I.R. 2000 Guj. 180.

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Admission was made by the surgeon that while operating there was no attempt made by him
to identify and separate that nerve.

However, the plaintiff had not lost her voice completely as, out of the two nerves present in
our human body, only one nerve was damaged. But she was facing difficulty while speaking
in the normal loud voice, nor could she raise her voice for shouting. Also, she was facing
difficulty while swallowing anything.

The Surgeon was held liable for the act of medical negligence as he has not taken reasonable
care on his part and was held liable to pay a compensation of Rs. 1,20,000 under all heads
plus interest @12% p.a. from the date of the suit till realization to the plaintiff.

Therefore, based upon the above-mentioned duties of care and cases cited, it has been figured
out that Dr. Holland’s act of omission for the referral to be made to a specialist for the diagnoses
of the lump has made him liable for the act of medical negligence as he was not able to fulfil
his reasonable duty of care towards Mr. Smith which resulted into fall in his remission chances
and severe damage to his health.

Further, the general principles of foreseeability and proximity also indicate the liability of Dr.
Holland as the principle of foreseeability describes the reasonable duty of care as ‘avoiding the
act or omission which would cause damages and can be foresee by a reasonable man.’ And the
principle of proximity states that ‘this reasonable duty to foresee is not applicable to everyone
who would likely to be injured, but is applicable to those who are closely related and would be
directly affected by the act or omission. As well as there must exist a relation between the
parties which indicated that the act is just and reasonable cause of the injury suffered.’ The
applicability of these principles has been stated in case of Donoghue v. Stevenson, 8 where Lord
Atkin said:

“You must take reasonable care to avoid acts or omission which you can reasonably foresee
would be likely to injure your neighbour. Who, the, in law is my neighbour? The answer seems
to be, persons who are so closely and directly affected by my act that I have ought reasonably
to have them in contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question.” 9

8
1932 AC 562: 147 LT 281: 48 TLR 494 (HL.)
9
1932 AC 562, (p 580).

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And thus, these principles as well define the liability if Dr. Holland as Mr. Smith is the person
who was closely related to the act and therefore the Dr. hold the duty to foresee the consequence
of his act as there was such of relation present between them which can render that the omission
on the part of Dr. is just and reasonable cause for the damage suffered and hence is liable for
the act of negligence.

B. HIS ACT COMES WITHIN THE FRAMEWORK OF ‘RES IPSA LOQUITUR ’-

It is submitted that the act of Dr. Holland of not referring the diagnoses itself speaks for the
act of omission made by the doctor and hence liable for the act of medical negligence as it
is well established that the principle of ‘res ipsa loquitur’ can be applied in the cases of
gross medical negligence10. The principle was considered by the Hon’ble Apex Court in the
case of V. Kishan Rao v. Nikhil Super Speciality Hospital11 and also provided certain
illustrations12 showing the applicability of ‘res ipsa loquitur’ in medical negligence.

Similarly, in the case as well, Dr. Holland’s delay in referral of the diagnoses of lump itself
speaks for his negligent act as he failed to perform his reasonable duty of care as being a
general practitioner, he did not refer the diagnoses to any specialist.

Hence, it has been proven by the facts and cases that Dr. Holland was medically negligent
on his part by not referring the diagnoses to any specialist.

2. WHETHER THERE IS ANY CONTRIBUTORY NEGLIGENCE ON THE PART OF MR. SMITH?

It is most humbly contented before this Hon’ble Bench that there is no contributory negligence
on the part of Mr. Smith because the arguments stated are- [A]contradictory to the rules of
determining contributory negligence.

CONTRADICTORY TO THE RULES OF DETERMINING CONTRIBUTORY NEGLIGENCE -

It is submitted that there is no contributory negligence on the part of Mr. Smith as

explained by The Supreme Court, the concept of contributory negligence in the case of
Municipal Corpn. Of Greater Bombay v. Laxman Iyer 13, observed:

10
Spring Meadows Hospital v. Harjot Ahluwalia, A.I.R. 1998 S.C. 1801.
11
(2010) 5 S.C.C. 513.
12
Cavan v. Wilcox, (1973) 44 DLR 3d 42; Eady v. Tenderenda, (1975) 2 S.C.R. 599; Rietz v. Brussel, (No. 2)
(1979) 1 WWR 31.
13
A.I.R. 2003 SC 4182.

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“Where an accident is due to negligence of both parties, substantially there would be

contributory negligence and both would be blamed. In a case of contributory negligence,
the crucial question on which liability depends would be whether either party could by
exercise of reasonable care, have avoided the consequence of other’s negligence.
Whichever party could have avoided the consequence of other’s negligence would be
liable for accident. If a person’s negligent act or omission was the proximate and
immediate cause of death, the fact that the person suffering injury was himself negligent
and also contributed to the accident or other circumstances by which the injury was caused
would not afford a defence to other.”

Also, yet the plaintiff is negligent but if his negligence has not contributed to the harm
suffered by him or is not the immediate cause of his harm then the defendant cannot plead
for the defence of contributory negligence as in the case of Municipal Board, Jaunpur v.
Brahm Kishore14, where the plaintiff was riding on his cycle on a road in the darkness
with no headlights, fell into a ditch which was dug by the defendant and did not provide
any light or any danger signal or fence for prevention of accidents in the darkness. It was
held that the plaintiff could not been able to avoid the accident even if he had fixed
kerosene lamp in the front of his cycle, that most of the cyclists use and, therefore, there
was no contributory negligence on his part.

Therefore, it must be noted that in this case as well delay of 18 months by Mr. Smith was
neither the proximate nor the immediate cause of the damage caused, and hence there was
no contributory negligence proven on the part of Mr. Smith.

Also, the Contributory Negligence Act prescribes for the determination of contributory
negligence. These rules are:

I. Plaintiff’s negligence in the context to the defence of contributory negligence does not
comprises same meaning as in the context to the tort of negligence. In this, the plaintiff
must not necessarily owe a duty of care to the defendant. What the defendant has to
prove is that plaintiff was negligent to take due care of his own and hence contributed
to his own damage. Thus, “all that is necessary to establish contributory negligence is
to prove to the satisfaction of the jury that the injured party did not in his own interest

14
A.I.R. 1978 All. 168.

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take reasonable care of himself and contributed, by his own want of care, to his own
injury”15

In Bhagwat Sarup v. Himalaya Gas Co.,16 the company sent its delivery boy to replace
a gas cylinder at the plaintiff’s house. The cylinder’s cap was defective. The plaintiff
provided an axe to the delivery boy for opening the cylinder and the boy hammered the
cylinder’s cap with it. As he hammered the cap there was an instant leakage of gas
which resulted into fire and consequently into the death of the daughter of the plaintiff,
damage to his property and injuries to other family members as well. It was held that
the complete negligence was of only the delivery boy. It was also observed that the only
fact that the axe was given by the plaintiff to the delivery boy on asking did not result
into contributory negligence on his part, because he was a normal person but the
delivery boy was trained in his work and was supposed to foresee the consequences of
his act.

Based on the similar facts it can be concluded that mere the fact of delay by 18 months
cannot prove contributory negligence on the part of Mr. Smith as being a common
layman it is unreasonable for a person to foresee the consequence of the disease which
was neither creating any discomfort to him nor was painful for him.

II. It is not only required to establish the fact that the plaintiff was negligent in taking due
care of his own. It has also to be establish that it was his negligent act which contributed
to the resulted damage caused. If the same damage would have caused by the
defendant’s act even after the due care taken by the plaintiff and the plaintiff was not
negligent at his part, the defence of contributory negligence is not admissible. For
example, while driving on a road the plaintiff was negligently driving with improper
breaks and the negligent shoot while aiming the bird by the defendant and causing
injuries to the plaintiff, cannot result into plaintiff’s contributory negligence for the
injuries caused to him by the negligent act of the defendant.17

In Agya Kaur v. Pepsu Road Transport Corporation, 18 a bus driving at a high speed and
also at the wrong side hit a rickshaw overloaded with three adults and a child, driving

15
Nance v. British Columbia Electric Rail Co., (1951) A.C. 601, 611: (1951) 2 All E.R. 448, 450, per Viscount
Simon.
16
A.I.R. 1985 H.P. 41.
17
Jones v. Livox Quarries Ltd., (1952) 2 Q.B. 608.
18
A.I.R. 1980 P. & H. 183.

MEMORANDUM ON BEHALF OF RESPONDENT 19

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on the correct side of the road. It was held that only the bus driver was negligent on his
part, and though the rickshaw was overloaded with the passengers, there was no
contributory negligence on its part, as the act or occurrence of the accident was not the
result of the act of overloading of rickshaw.

Similarly, in M.P.S.R.T. Corpn. v. Abdul Rahman, 19 a motor cycle, with a grown-up

person and a 4-year old child on pillion collided with a bus, resulted into the death of all
the persons on the bike.

In this case, it is not evident to say that the grown-up person and a 4-year old boy on the
pillion was an act contributing to the damage cause and thus there is no contributory
negligence on their part.

Similarly, it is to be concluded that Mr. Smith was not liable as the act of omission of
reference on the part of Dr. Holland was the reason for his cause of damage, and the Fact
of delay was not relevant for the damage caused.

Evidently, as per the rules of contributory negligence it has not been determined that with
mere fact of delay by Mr. Smith for 18 months does contributed to the cause of damage as
1. neither this delay was the immediate or proximate cause of the damage, 2. nor Mr.
Smith’s this delay can supress the negligence of Dr. Holland in taking reasonable duty of
care towards Mr. Smith.

3. WHETHER THE CALCULATION OF THE UNLIQUIDATED DAMAGES WAS IN ACCORDANCE

WITH THE WRONG?

It is most humbly submitted before this Hon’ble Bench that as it has been proven above that-

I. There is a medical negligence on the part of Dr. Holland as he failed to perform

reasonable duty of care towards his patient by not referring the diagnoses to a
specialist. Also, his act of not referring itself speaks for his negligent act of not
performing his duty of care which he was supposed to be possess as being a general
practitioner.
II. There is no contributory negligence on the part of Mr. Smith as the delay of 18
months by him was neither the proximate cause nor the immediate cause for the

19
A.I.R. 1997 M.P. 248.

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damage. Also, Dr. Holland was having the later opportunity to avoid the
consequence by referring the diagnoses. As he failed in doing so, he become
completely liable for the act of negligence.

Therefore, it can be concluded that the complete liability was of Dr. Holland and there was no
contribution on the part of Mr. Smith in damage caused, and hence he cannot be held liable for
the same.

Hence, there shall not be any reduction in the amount of damages calculated as the
compensation on the argument that there was a contributory negligence on the part of Mr.
Smith as the same was proven in appropriate by the counsel.

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PRAYER

Wherefore in the light of arguments advanced and authorities citied, the respondent most
humbly submits that the Hon’ble Bench may be pleased to adjust and declare that

1. There was a medical negligence on the part of Dr. Holland.

2. Mr. Smith is not liable for the act of contributory negligence.

3. There will be no reduction in the amount of unliquidated damages calculated and the
same would be paid by Dr. Holland only.

And may pass, any other order as it deems fit in the interest of justice, equity and good
conscience.

MEMORANDUM ON BEHALF OF RESPONDENT 22