TEAM CODE : 27

INTRA MOOT COURT COMPETITION, RAFFLES UNIVERSITY 2020

IN THE HON’BLE COURT OF RENAC, RANVICORA

Civil Appeal No............................of 2018

IN THE MATTER BETWEEN

Dr. Andrew Holland ......Appellant

v.

Mr. Jacob Smith .......Respondent

Written submission on behalf of the Appellant

MEMORANDUM ON THE BEHALF OF APPELLANT [DR.ANDREW

HOLLAND]

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 INTRA MOOT COURT COMPETITION, RAFFLES UNIVERSITY 2020

Table Of Contents

ABBRIVATIONS................................................................................................................... 3

INDEX OF AUTHORITIES...................................................................................................4

CASES.................................................................................................................................. 4

BOOKS................................................................................................................................ 4

IMPORTANT DEFINATIONS..........................................................................................4

STATEMENT OF JURISDICTION......................................................................................5

STATEMENT OF FACTS......................................................................................................6

STATEMENT OF ISSUES.....................................................................................................8

SUMMARY OF ARGUMENTS.............................................................................................9

ARGUMENT ADVANCED..................................................................................................10

ISSUE ONE......................................................................................................................10

ISSUE TWO.....................................................................................................................12

PRAYER.................................................................................................................................14

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 INTRA MOOT COURT COMPETITION, RAFFLES UNIVERSITY 2020

ABBRIVIATION

V. Versus

Thf Therefore

& and

HC High Court

Hon’ble Honourable

Ors. Others

i.e. That Is

SCC Supreme Court Cases

SC Supreme Court

Org Organisation

Oop. Opposite

Cri Criminal

Civ Civil

Acc According

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 INTRA MOOT COURT COMPETITION, RAFFLES UNIVERSITY 2020

INDEX OF AUTHORITIES

CASES:

Kusum Sharma & Ors v. Batra Hospital and Medical Research Centre1

Jacob Mathew v. State Of Punjab

BOOKS:

Dr.R.K.Bangia Law Of Tort Twenty Third Edition,2013

B.M.Gandhi Law Of Tort Fourth Edition 2011

Ratanlal And Dhirajlal Law Of Tort Twenty Sixth Edition 2010

WEBSITES:

www.scconline.com

www.scribd.com

www.researchgate.net

www.wikipedia.org

www.indiankanoon.com

https://blog.pleaders.in

IMPORTANT DEFINATIONS :

Appellant : is the person who applies to higher court for the reversal of the decision of lower
court.

Respondent : a person against whom the petition has been filed, especially one on appeal.
1
Kusum Sharma v. Batra Hospital (2010) 3 SCC 480 : (2010) 2 SCC (Cri) 1127 : (2010) 1 SCC (Civ)
747 : AIR 2010 SC 1050 : (2010) 2 Scale 267 : (2010) 2 CTC 461 : (2010) 2 Cal LT 36 : (2010)
3 MPLJ 290 : 2010 AIR SCW 1315 : (2010) 1 CPR 167 : (2010) 79 ALR 921 : (2010) 2 LW 54 : JT
(2010) 2 SC 7 : (2010) 1 CPJ 29 : (2010) 88 AIC 200 : (2010) 4 Mah LJ 541
Jacob Mathew v. state of Punjab(2005) 6 SCC 1 : 2005 SCC (Cri) 1369 : AIR 2005 SC 3180 : (2005) 3 CPR
70 : (2005) 122 DLT 83 : (2005) 3 CPJ 9 (2 : 2005 Cri LJ 3710
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 INTRA MOOT COURT COMPETITION RAFFLES UNIVERSITY ,2020

STATEMENT OF JURISDICTION

The hon’ble Supreme court of renac has inherent jurisdiction under of Article 141 2 of the
ranvicoran constitution of Ranvicora 1949.

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Article 141 stipulates that the decision of the supreme court would be binding upon other
courts in India. Meaning thereby, the case decided by SC will attain finality and would be
treated as binding for future decisions by other courts in India. But there's a catch, the
decision of SC is not binding for itself.
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 STATEMENT OF FACTS

1. Jacob smith is the 50 years old plaintiff who suffers from a particular type of cancer
known as non-Hodgkin lymphoma(cancer that starts in WBC and weakens our
immune system).
2. In the beginning his condition was presented as a substantial lump under his right
arm. First the medical condition came into existence in July 2016 .It must be said that
symptoms were exhibited 18 months earlier before taking up matter to his general
practitioner who lives in Queensland the defendant Dr Holland (“regular
doctor”).Smith often attended Dr Holland surgery seccions infrequently .Dr Holland
considered smith initial condition as lymphoma(collection of fatty tissue).
3. After consulting Dr. Holland 6 months later smith moved to city renac, due to facing
inconvience in treatment provided by defendant .Smith consulted another general
practitioner(Dr. Anushka Patel)who also found that its a lump and said it probably
may be “lipoma” but in August2017 referred him to Princess Alexandria Hospital on
non-urgent basis for his lump.
4. Where the consultant who examined smith arranged biopsy(removal of tissue from
human body)urgently. Then after four days he confirmed that this is an lump that
eventually turned into non-Hodgkin lymphoma.
5. In December 2017 the CT scan did not showed any signs that the disease is spreading
throughout his body. He was then again admitted to PAH on 26 th January 2018 with
intense chest pain. On further examination it was found that this was a result of
spread of lymphoma into his body .
6. Chemotherapy was arranged on six occasions followed by radiotherapy. Which the
body did not responded . Further it was decided that he will be subjected to high dose
of chemotherapy for harvesting of his stem cells .
7. In November 2018 smith condition got worse he developed a tumour in the right
axilla which eventually resulted in poor medical condition ,further he was told that he
would not recover or can be said “cured” as the disease became incurable.

INTRA MOOT COURT COMPETITION RAFFLES UNIVERSITY, 2020

8. The result of all of the original treatment was that , he had major side effect on his
body due to which his life became disastrous. As a consequence he had to gave up his
work in august 2018.
9. Mr. Smith then filed the claim against the defendant under medical negligence and
demanded $185,000 plus $24,674 in interest for quantum of damages.
10. The reasonable defence given on the part of defendant was that of a minor lump a
general practitioner would not refer the patient to a specialist. But the court said that
this defence would not cover his negligence as his acts would have led to different
outcomes.
11. The expert evidence from Professor Stanhope cannot be denied that the delay in the
right treatment have led to poor medical condition on Mr. Smith and the chances of
resubmission just remained 35%. The chances of survival of plaintiff just moved to
30% from 45% just because of delay.
12. The court said that Dr.Holland could have referred to a specialist doctor to smith as it
would not have been resulted into bad medical condition. In January 2018 smith
suffered relapse and then had to undergo radical chemotherapy and in November 2018
the disease became incurable which led to reduction in the life expectancy rate of Mr.
Smith as stated above.
13. Though the court also stated that contributory negligence has happened ,as Smith
delayed medical diagnoses as he got to know the symptoms 18 months prior and it is
not expected by an individual to take aquate care for an individual and he himself is a
contributor.
14. Thf this delay on the side of plaintiff(Smith) side made him negligent too and thf the
compensation was reduced by 35%.

INTRA MOOT COURT COMPETITION RAFFLES UNIVERSITY, 2020

 STATEMENT OF ISSUES

ISSUE 1: Whether the appellant is liable for contributory negligence?

ISSUE 2: Whether the appellant is liable for paying compensation ?

INTRA MOOT COURT COMPETITION RAFFLES UNIVERSITY, 2020

 SUMMARY OF ARGUMENTS

1. Whether the appellant is liable for contributory negligence?

It is humbly submitted before the hon’ble court that the appellant is not liable for the
contributory negligence as the essentials the of contributory negligence are being fulfilled by
the appellant and there is no breach of duty on the part of appellant as “general practitioner”.

2.Whether the appellant is liable for paying compensation?

It is humbly submitted before the hon’ble court that the appellant is not liable for paying any
compensation as respondent has voluntarily agreed for treatment and nothing has happened
without his consent .

INTRA MOOT COURT COMPETITION RAFFLES UNIVERITY,2020

 ARGUMENT ADVANCED

Issue 1: Whether the appellant is liable for contributory negligence ?

It is humbly submitted before this hon’ble court that the appellant is not negligent on his part
as the defendant smith himself is negligent , the symptoms were determined by the defendant
18 months prior that is one and half year which is not at all a short period of gap in the facts .
This shows once careless behavioural approach towards health.

He filed the case in the year 2018 and he took treatment from Dr.Holland in 2016, just for six
months in which to he was very irregular and infrequent to attend the seccions provided by
the doctor. One and a half year is that gap where his condition got worse and suffered relapse.
appellant was providing his services to respondent on his behalf it is the respondent who was
negligent, who was firstly late in holding out a doctor as the symptoms were discovered 18
months prior and secondly he was very infrequent in attending the seccions on his part.

Contributory negligence means that when the immediate cause of the damage is the
negligence of the plaintiff himself, the plaintiff cannot sue the defendant for damages and the
defendant can use it as a defense. This is because the plaintiff in such a case is considered to
be the author of his own wrong.

The plaintiff is not entitled to recover from the defendant if it is proved that-

 The plaintiff by the exercise of ordinary duty of care could have avoided the
consequence of defendant negligence-Mr. Smith could have avoided the
consequences by consulting a doctor at initial stage. Not by delaying as he noticed the
symptoms 18months prior before consulting the appellant.
 There has been as much want of reasonable care on the plaintiffs part as on the
defendants part and the former cannot sue the latter for the same - much of delay in
consulting caused him bad prognosis.

Hence there is no contributory negligence made on the part of appellant as the appellant
fulfils the basic essentials of contributory negligence.

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INTRA MOOT COURT COMPETITION RAFFLES UNIVERSITY, 2020

And also the fact that Dr.Holland was a general practitioner ,the duty of a general practitioner
is to provide routine healthcare i.e. physical examinations ,immunisations and vaccinations
they aren’t specialized in one field and also who provides health education to clients . So Dr.
Holland has not done any breach of his duty as a general practitioner.

Similarly in the case Kusum Sharma &Ors vs. Batra Hospital and Medical Research 3 case
held that the law of negligence has to be applied according to the circumstances of a
individual case. No one can ignore that medicine is an evolving science, and there is no
precise of effect for every person. The operation if .some risk is done, the doctors cannot be
held liable for negligence as the patient himself has consented to the risk involved in the
operation .In the above case the deceased Shri R.K. Sharma (husband of first complaint and
father of other complainants) with aliments for the general oedema got
admitted(18March1990)into Batra Hospital ,Delhi(opp. Party1). He was advised surgery for
removal of an adrenal tumour after thorough examinations. The surgery was carried
out(which had some complications)and further post surgery complications and corrective
surgeries led to his death(11october 1990). The complaint was filed under the section 21 of
the Consumer protection Act claiming compensation of rs.45 lakhs attributing deficiency in
service and medical negligence in the treatment of the deceased. However the edifice of the
whole case ‘negligence’ is based on the foundation of the damage to pancreas caused at the
time of first surgery on 2.4.90 carried out by the opp. Parties .However negligence in the part
of the complainant side for further checkups with opp. Parties leads to dismissal of the case.
And doctors weren’t held liable for any medical negligence.

In another case Jacob Mathew v. State of Punjab4, the SC gave the landmark judgement &
held that in some cases of medical profession the doctors are equippers in certain situations
where they have to make choices between devil and the deep sea. Sometimes in certain
situations there must be greater risk in the operation nut higher changes of success in another
move there would be lesser risk but higher chances of failure. So the decision, that which

INTRA MOOT COURT COMPETITION RAFFLES UNIVERSITY, 2020

3
Kusum Sharma v. Batra Hospital (2010) 3 SCC 480 : (2010) 2 SCC (Cri) 1127 : (2010) 1 SCC (Civ)
747 : AIR 2010 SC 1050 : (2010) 2 Scale 267 : (2010) 2 CTC 461 : (2010) 2 Cal LT 36 : (2010)
3 MPLJ 290 : 2010 AIR SCW 1315 : (2010) 1 CPR 167 : (2010) 79 ALR 921 : (2010) 2 LW 54 : JT
(2010) 2 SC 7 : (2010) 1 CPJ 29 : (2010) 88 AIC 200 : (2010) 4 Mah LJ 541
4
Jacob Mathew v. state of Punjab(2005) 6 SCC 1 : 2005 SCC (Cri) 1369 : AIR 2005 SC 3180 : (2005) 3 CPR
70 : (2005) 122 DLT 83 : (2005) 3 CPJ 9 (2 : 2005 Cri LJ 3710
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course would be followed will depend on facts and circumstances . thf. The doctors cannot be
held liable in such cases.

Issue 2: Whether the appellant is liable for paying compensation?

It is humbly submitted before the hon’ble court that, the appellant is not liable for paying
compensation as neither contributory negligence nor medical negligence has happened with
the respondent. How can the appellant would be held liable for negligence based on someone
else negligence.

Acc to a Latin maxim volenti non-fit injuria , “when a person consents to the infliction of
some harm upon himself , he himself has no remedy left in tort . In case, the plaintiff
voluntarily agrees to suffer some harm , he is not allowed to complain and the consent given
be him serves as a good defence against him. In such a case there are three conditions to be
fulfilled.

 Consent obtained by fraud- neither of any doctor forced smith to undergo any
surgery nor they obtained any consent by fraud.
 Consent must be free- smith have voluntarily agreed for chemotherapy and other
surgeries no one forced him to do so. Consent obtained by fraud-neither the doctors
obtained fraud or false consent of Mr.Smith .
 Consent obtained under compulsion -now it was compulsory for him to take all the
surgeries he could have refused if he found something fishy.

When called for that when the high dose chemotherapy was given to Smith ,he have known
the consequence before going through the chemotherapy ,he had voluntarily had agreed to
take the consequences that had happened to him therefore there is no one liable for his poor
medical condition. As a matter of law and medical ethics, an Oncologist is required to obtain
a patients informed consent before administrating therapy, even the Oncologist finds that the
chemotherapy is the best and assured way to cure a patient he has to get a written consent on
paper that , the patient agrees to good and bad effects of therapy and no one is liable for his
condition .So therefore Smith has voluntarily agreed to face the good and bad effects of
chemotherapy in such a case doctor cannot be held liable.

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INTRA MOOT COURT COMPETITION RAFFLES UNIVERSITY,2020

Even in December 2017 when the referral doctor asked for a CT scan due to unbearable pain
in Smith chest there was no clue in the reports that the disease he is suffering from is
spreading throughout his body. How can a doctor can be held for a mistake which he hasn’t
made .

Even Professor Stanhope the specialist to whom the Dr. Anushka Patel referred stated that ,
the delay in the treatment has led to this worse condition of Jacob smith it is to be noted
before the hon’ble Supreme Court that the delay made by Jacob smith to consult a doctor as
he found the symptoms 18 prior before reaching out Dr. Andrew Holland . It is the
respondent himself responsible for his condition due to delay . thf it make no where the
appellant liable.

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INTRA MOOT COURT COMPETITION RAFFLES UNIVERSITY,2020

 PRAYER

Wherefore in the light of the facts ,issues raised and argument advanced, may this Hon’ble
court be pleased to adjudge and declare that :

 Smith has no right to claim compensation as everything has happened with his
consent and he has voluntarily agreed it.
 The act of a general practitioner as a doctor is justified and there was no negligence
on his part.
 There has been no contributory negligence has happened on part of Dr. Holland.

And finally declare that Dr.Holland has no liability to give any compensation under any law
to Mr. Smith.

Or pass any other order in the light of justice, equity and good conscience.

All of which is humbly submitted

Through counsel

On behalf of appellant

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