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 COMPETITION, 2020

TEAM CODE: TC40

IN THE HONOURABLE SUPREME COURT OF RANVICORA

-- IN THE MATTER OF --
ANDREW HOLLAND
(APPELLANT)

vs.

JACOB SMITH
(RESPONDENT)

MEMORANDUM ON BEHALF OF THE RESPONDENT

-DRAWN AND FILED BY THE COUNSEL FOR THE RESPONDENT –

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 COMPETITION, 2020

TABLE OF CONTENTS

............................................................................................................... TABLE OF CONTENTS

.................................................................................................................................................. 3

......................................................................................................... INDEX OF AUTHORITIES

.................................................................................................................................................. 4

........................................................................................... STATEMENT OF JURISDICTION

.................................................................................................................................................. 6

.................................................................................................................. SYNOPSIS OF FACTS

.................................................................................................................................................. 7

........................................................................................................... STATEMENT OF ISSUES

.................................................................................................................................................. 8

.................................................................................................. SUMMARY OF ARGUMENTS

.................................................................................................................................................. 9

........................................................................................................ ARGUMENTS ADVANCED

................................................................................................................................................ 10

1. Whether Dr. Holland was negligent when he decided not to refer Mr. Smith to a
specialist?..................................................................................................................................10
2. Whether the trial court was justifiable in holding Mr. Smith liable for contributory
negligence?................................................................................................................................13
........................................................................................................................................... PRAYER
................................................................................................................................................ 15

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 RAFFLES SCHOOL OF LAW MOOT COURT SOCIETY
INTRA MOOT COURT COMPETITION, 2020

INDEX OF AUTHORITIES

STATUTES REFERRED

1. CONSTITUTION OF INDIA, 1950.

2. CODE OF CIVIL PROCEDURE, 1908
3. CONSUMER PROTECTION ACT, 1986

LEXICONS

1. A. G. Bryan, Black’s Law Dictionary’, 9th Ed. 2009, West Group.

2. P. Ramanathan., ‘Concise Law Dictionary’, 3rd Ed. Rep. 2006, Wadhwa, Nagpur

ELECTRONIC MEDIUM

1. https://www.scconline.com
2. https://www.indialawlibrary.com
3. https://www.lexisnexis.com
4. http://www.lexis-nexisindia.com

LIST OF BOOKS REFERRED

1. M.P. Jain, INDIA CONSTITUTIONAL LAW, 7th ed. (2018).

2. Dr. R.K. Bangia, LAW OF TORTS, 24th ed. (2017)

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 RAFFLES SCHOOL OF LAW MOOT COURT SOCIETY
INTRA MOOT COURT COMPETITION, 2020

CASES REFERRED

1. Jacob Mathew v. State of Punjab, A.I.R. 2005 S.C. 3180.

2. Eckersley v. Binnie [1998]18 Con. L.R. 1, 79.
3. Dr. N. Kumar v. K.M. Hameed A.I.R. 2014 (NOC) 49 (Ker.)
4. Davis v. Mann 1882) 10 M. and W. 546.
5. British Columbia Electric Co. v. Loach (1916) 1 A.C. 719.

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 RAFFLES SCHOOL OF LAW MOOT COURT SOCIETY
INTRA MOOT COURT COMPETITION, 2020

STATEMENT OF JURISDICTION

The respondent humbly submits before the Hon’ble Supreme Court of Ranvicora, the

memorandum for the respondent in an appeal filed by Appellant under Section 231 of the

Consumer Protection Act, 1986. However, the Respondent seeks permission of this Hon’ble

Court to contend the appeal filed by the appellant.

The present memorandum sets forth the facts, contentions and arguments in the present case on

behalf of the respondents.

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Section 23 in the Consumer Protection Act, 1986
23. Appeal. —Any person, aggrieved by an order made by the National Commission in exercise of its powers
conferred by sub-clause
(i) of clause
(a) of section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from
the date of the order: Provided that the Supreme Court may entertain an appeal after the expiry of the said period of
thirty days if it is satisfied that there was sufficient cause for not filing it within that period: 1[Provided further that
no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be
entertained by the Supreme Court unless that person has deposited in the prescribed manner fifty per cent. of that
amount or rupees fifty thousand, whichever is less.]

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 RAFFLES SCHOOL OF LAW MOOT COURT SOCIETY
INTRA MOOT COURT COMPETITION, 2020

SYNOPSIS OF FACTS

.......................................................................................................FACTUAL BACKDROP

Mr. Smith, a 50-year-old resident of Sunnyland suffers from a non-Hodgkin’s lymphoma. He

first consulted a general medical practitioner Dr. Holland in July 2016 although the symptom
first manifested itself at least 18 months prior. Smith’s condition was initially considered as a
lipoma (collection of fatty tissues) so Dr. Holland did not refer him to a specialist for diagnosis.
6 months later Dr. Holland moved to Renac city. In August Mr. Smith saw his new practitioner
Dr. Anushka Patel for the lump. She also concurred that lump was probably a lipoma but out of
caution referred him to the Princess Alexandria hospital. The referral recorded that lump was
increasing with increasing pain and was not benign. Also the consultant in Nov 2017 suggested
and arranged for a biopsy, which confirmed that lump was a lymphoma. On 26 Jan 2018 Mr.
smith was admitted to PAH due to chest pains and it was concurred that lymphoma spread into
left thorax. Chemotherapy was administered and the tumor responded but incompletely. In
August 2018 plaintiff was subjected to high dose chemotherapy and was discharged in Sep 2018.
In Nov 2018 after a relapse, another tumor developed in the right axilla which resulted that
chemotherapy was only palliative. He was told that he could not be cured but palliative
chemotherapy continued. He suffered side effects, felt ill and weak and had to give up work.

..............................................................................................PROCEDURAL BACKDROP

Mr Smith claimed against Dr. Holland for medical negligence. Court observed that because of
13-month delay after consulting Dr. Holland, Smith’s condition upstaged which resulted in
poorer prognosis. Also that Mr. Smith had a remission chance of approx. 45% and a chance for
disease free survival for 10 years. But due to delay this overall survival reduced from 45% to
approx. 30 % and Mr. Smith was for sure negatively impacted. So, dr. Holland was held liable in
negligence for his failure to take appropriate steps in Aug 2017. Initially, both the parties agreed
that the amount of $185,000 plus $24,674 was appropriate if liability was to be found. But it was
also established that Mr. Smith himself delayed seeking any form of medical diagnosis for a
period of 18 months and such delay amounted to contributory negligence on the part of the Mr.
Smith. Thus, reducing the amount awarded in damages by 35%.

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INTRA MOOT COURT COMPETITION, 2020

STATEMENT OF ISSUES

..........Whether Dr. Holland was negligent when he decided not to refer Mr. Smith to a
specialist?

 Whether the trial court was justifiable in holding Mr. Smith liable for contributory
negligence?

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INTRA MOOT COURT COMPETITION, 2020

SUMMARY OF ARGUMENTS

..........Whether Dr. Holland was negligent when he decided not to refer Mr. Smith to a
specialist?

The counsel on behalf of the respondent humbly submits that Dr. Holland was solely responsible
for the negligence for his failure to take appropriate diagnostic steps in August 2017 and should
solely be held liable for the gross negligence on his part. Dr. Holland did not exercise with
reasonable competence the skill which he did possess. Ordinary competent person with similar
expertise of that of Dr. Holland, Dr. Anushka Patel applied that skill by referring Mr. Smith to an
expert, but Dr. Holland failed to do so and did not even apply the reasonable care in giving
advice or performing his services. So the counsel on behalf of the respondent humbly submits
that Dr. Holland showed gross and rash negligence in not referring Mr. Smith to an expert in
August 2018 and due to that delay only his chance of avoiding a relapse and his chances of
ultimate survival were all reduced. So Dr. Holland should solely be held negligent and this part
of the decision of the trial judge should solemnly be upheld

 Whether the trial court was justifiable in holding Mr. Smith liable for contributory
negligence?

The counsel on behalf of the respondents humbly submits that the first court of instance has
failed in delivering justice by holding Mr. Smith liable for contributory negligence. As when two
persons are negligent, that one of them, who had the later opportunity of avoiding the accident by
taking ordinary care should be held liable for the loss. It means if the defendant is negligent and
the plaintiff having a later opportunity to avoid the consequences of the negligence of the
defendant does not observe ordinary care, he cannot make the defendant liable for that. The
plaintiff will be liable for the whole of the loss to the defendant. Dr. Holland) had the last
opportunity of avoiding what has happened to Mr. Smith but he failed miserably because of his
gross and rash negligence behavior, for which Dr. Holland should solely be held negligent and it
is solemnly submitted that this part of the judgment that Mr. Smith is contributorily negligent for
his present condition should be overruled and Dr. Holland should solely be held liable for the
condition of Mr. Smith and remove the liability from Mr. Smith.

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 RAFFLES SCHOOL OF LAW MOOT COURT SOCIETY
INTRA MOOT COURT COMPETITION, 2020

ARGUMENTS ADVANCED

1. Whether Dr. Holland was negligent when he decided not to refer Mr. Smith to a

specialist?

The counsel on behalf of the respondent humbly submits that Dr. Holland was solely responsible
for the negligence for his failure to take appropriate diagnostic steps in August 2017 and should
solely be held liable for the gross negligence on his part. Dr. Holland, was a medical practitioner
registered in Queensland. Mr. Smith went to see him for the lump as he was his regular doctor.
But Dr. Holland negligently considered the lump as ‘Lipoma’ and did not further refer him to
any specialist. This treatment of Dr. Holland went for six more months and after that Mr. Smith
moved to Renac and consulted Dr. Anushka Patel and found that the lump was in fact a
‘Lymphoma’. But this delay of 6 months due to Dr. Holland was the most crucial time as this was
the time when Mr. Smith’s condition “upstaged” significantly and was less likely to achieve
complete remission and had a poorer prognosis as a result. 2 Even ‘expert evidence from
Professor Stanhope stated that taking Mr. Smith 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%’3.

Even the trial judge observed that it 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. Had Dr. Holland made a referral in July 2016, it is more probable that Mr. Smith’s
condition have not reached the point which it ultimately did in November 2018, where the
disease was considered incurable, and treatment became, in essence, merely palliative.

2
According to Moot Preposition, Para 10, point 1.
3
According to Moot Preposition, Para 10, Point 3.

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 RAFFLES SCHOOL OF LAW MOOT COURT SOCIETY
INTRA MOOT COURT COMPETITION, 2020
In the law of negligence, professionals are such as lawyers, doctors, architects. In the category
are persons professing some special skill. Any task which is required to be performed with a
special skill would generally be admitted or undertaken to be performed only if the person
possesses the requisite skill for performing that task.4 In the instant case, the professional is Dr.
Holland because he was a ‘General Practitioner’ registered in Queensland and the term ‘Doctor’
refers to a General Practitioner and doctors are included in the definition of professionals. And in
the Bolam Test that was established in Eckersley v. Binnie5 it is well stated 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 lag behind
other ordinary assiduous and intelligent members of his profession in knowledge of new
advances, discoveries and developments in his field. He should have such an awareness as an
ordinary competent practitioner would have of the deficiencies in his knowledge and the
limitation on his skill. He should be alert to the hazards and 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. “

In the present case the counsel on the behalf of the respondents humbly submits that Dr. Holland
and Dr. Anushka Patel, both initially inferred the lump as ‘Lipoma’, which clearly indicated that
Dr. Anushka Patel was no more of an expert than Dr. Holland. And by not making a further
referral of Mr. Smith to an expert Dr. Holland has committed a gross and rash negligence as both
the doctors had same level of expertise and the referral to an expert is a thing any ordinary
member of the said profession would do, which Dr. Holland failed to do, but Dr. Anushka did.

Also in the landmark case of Jacob Mathew v. State of Punjab6 it was held that professional
negligence to be actionable in the matter of tort, the Supreme Court has laid down that a
professional might be held liable for negligence-

4
The concept is drawn by the Apex Court’s decision in Jacob Mathew v. State of Punjab, A.I.R. 2005 S.C. 3180.
5
[1998]18 Con. L.R. 1, 79.
6
A.I.R. 2005 S.C. 3180

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 RAFFLES SCHOOL OF LAW MOOT COURT SOCIETY
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- when he did not exercise, with reasonable competence in the given case, the skill which
he did possess. Standard to be applied would be that of an ordinary competent person
exercising ordinary skill in that profession.

Clearly in the present case Dr. Holland did not exercise with reasonable competence the skill
which he did possess. Ordinary competent person with similar expertise of that of Dr. Holland,
Dr. Anushka Patel applied that skill by referring Mr. Smith to an expert, but Dr. Holland failed to
do so and did not even apply the reasonable care in giving advice or performing his services.

Also in the case of Dr. N. Kumar v. K.M. Hameed7 it was held that:

“When a person who possesses sufficient qualification in the field, is ready to give medical
advice and treatment as an expert in that field, he impliedly undertakes that he possesses all
sufficient skill 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 medicine to be
administered.”

Such is the scenario in the present case. So the counsel on behalf of the respondent humbly
submits that Dr. Holland showed gross and rash negligence in not referring Mr. Smith to an
expert in August 2018 and due to that delay only his chance of avoiding a relapse and his
chances of ultimate survival were all reduced. So Dr. Holland should solely be held negligent
and this part of the decision of the trial judge should solemnly be upheld.

7
A.I.R. 2014 (NOC) 49 (Ker.)

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INTRA MOOT COURT COMPETITION, 2020

2. Whether the trial court was justifiable in holding Mr. Smith liable for contributory
negligence?

The counsel on behalf of the respondents humbly submits that the first court of instance has
failed in delivering justice by holding Mr. Smith liable for contributory negligence. As according
to the last opportunity rule in Contributory negligence,

when two persons are negligent, that one of them, who had the later opportunity of avoiding the
accident by taking ordinary care should be held liable for the loss. It means if the defendant is
negligent and the plaintiff having a later opportunity to avoid the consequences of the
negligence of the defendant does not observe ordinary care, he cannot make the defendant liable
for that. The plaintiff will be liable for the whole of the loss to the defendant.8

The case of Davis v. Mann9 explains this rule. Also the application of the rule of ‘Last
Opportunity’ was further defined in the case of British Columbia Electric Co. v. Loach10, and
the party who could have the last opportunity to avert the accident, if he had not been negligent,
was considered to be responsible for the accident.

Applying the following principle in the present case, it can prima facie be seen that Dr. Holland
is the person in the present case who had the later opportunity of avoiding the mishap that
happened with Mr. Smith just by taking ordinary care. Had Dr. Holland made a referral in July
2016, it is more probable that Mr. Smith’s condition would not have reached the point which it
ultimately did in November 2018, where the disease was considered incurable, and treatment
became, in essence, merely palliative.

The counsel on behalf of the respondents humbly submits that it was showed by the respondents
in above arguments that the plaintiff did not act with reasonable competence and he even did not
bring the skill or expertise that any ordinarily competent members of his profession would bring.

8
DR. R.K. BANGIA, LAW OF TORTS 289, 24th ed. (2017)
9
(1882) 10 M. and W. 546.
10
(1916) 1 A.C. 719.

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And had he done that, the condition of Mr. Smith would not have worsen and he would not have
reached the position, where due to that delay his chance of avoiding a relapse and his chances of
ultimate survival were all reduced. He (Dr. Holland) had the last opportunity of avoiding what
has happened to Mr. Smith but he failed miserably because of his gross and rash negligence
behavior, for which Dr. Holland should solely be held negligent and it is solemnly submitted that
this part of the judgment that Mr. Smith is contributorily negligent for his present condition
should be overruled and Dr. Holland should solely be held liable for the condition of Mr. Smith
and remove the liability from Mr. Smith.

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PRAYER

Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Hon’ble Court may be pleased to hold, adjudge and declare that;

 Dr. Holland was negligent in not referring Mr. Smith to an expert

 Dr. Holland behaved in a gross and negligent manner and should solely be held liable for

the present condition of Mr. Smith

 Mr. Smith is not liable for contributory negligence and only and only Dr. Holland should

be held negligent for the condition of Mr. Smith

Any other relief which this Hon’ble Court may be pleased to grant in the interest of Justice,
Equity and Good Conscience.
For this act of kindness, the Petitioner shall be Duty Bound Forever Pray.

All of which is respectfully submitted.

S/d_________________
(Counsel for the Respondent)

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