TEAM CODE:16

IN THE HON’BLE HIGH COURT OF RENAC,

RENAC

Civil Procedure Code, 1908 Section 96(2).

In The Matter BETWEEN

Dr. Andrew Holland …Appellant

v.

Mr. Jacob Smith ...Respondent

MEMORANDUM ON BEHLF OF THE RESPONDENT

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 T A B L E O F C O N T E N T S

TABLE OF CONTENTS………………………………………………………………………… 2

INDEX OF AUTHORITES……………………………………………………...………………..3

ABBREVIATIONS……………………………………………………………………...4

STATEMENT OF JURISDICTION……………………………………………………………5

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

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

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

ARGUMENTS ADVANCED………………………………………………………………..10-18

ISSUE ONE: Whether the Appellant is liable for Medical Negligence? …………….. 10

ISSUE TWO: Whether Mr. Smith can be consider as “Consumer” under Section 2(7)
of the Consumer Protection Act 2019?.......................................................13

ISSUE THREE: Whether the respondent is liable for Contributory negligence? .........16

PRAYER……………………………………………………………………………………...….18

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 I N D E X O F A U T H O R I T I E S

TABLE OF CASES

Judicial Pronouncement

2003(3) CPJ 121

Arvind Shah (Dr.) v KamlabenKushwaha
Dayanand Medical College & Hospital,Ludhiana v. Jugal 2000(3)CPR 450
Kishore Syal
Indian Medical Association v V.P. Shantha and ors (1995)6 SCC 651
Jaunpur v. Brahm Kishore, ,A.I.R 1978 All. 168.
Kusum Sharma v Batra Hospital and Medical Research 2010(3)SCC 480
Centre
McDonnel V. Holwerda (2005)Lloyd’s Rep. Med.
423.
Klaus Mittlebachert v. East India Hotels Ltd., 1997 Delhi201

Mrs Sydney Victor v. Janab S. Kadar Sheriff A.I.R1978 Mad.344

Dr N. Umar v. K.M. Hameed A.I.R.2014 (NOC) 49(Ker.)

STATUTES REFERRED

CPA- Consumer Protection Act, 2019

CPC- Civil Procedure Code, 1908

BOOKS REFERRED

Medical Negligence& Compensation, Dr. Jagdish Sing,

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Law of torts Dr. R K Bangia’s, Twenty-Four Edition, 2017

Medical Negligence &Legal Remedies, Anoop K Kaushal, Third Edition

ACADEMIC PORTALS REFERRED

WEBSITE

www.ipleder.com
www.lexisnexis.com
www.indiankanoon.com

L I S T O F A B B R E V I A T I O N

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& And
v. Versus
AIR All India Reporter
Art Article
CPJ Consumer Protection Journal
CPA Consumer Protection Act
CPC Civil Procedure Code
Co. Company
Hon’ble Honorable
SC Supreme court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec. Section
Suppl. Supplementary
Ors Others

S T A T E M E N T O F J U R I S D I C T I O N

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The petitioner has invoked the Civil Suit of this Hon’ble High Court, Renac under Civil
Procedure Code 1908 Section 96(2).1 The respondent, in response to the Civil Suit, is filling
counter suit before this Hon’ble Court.

S T A T E M E N T O F F A C T S

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Section 96 (2) -  Every such application shall, where the High Court consists of three or more Judges, be heard and
determined by a Special Bench of the High Court composed of three Judges and where the High Court consists of
less than three Judges, such Special Bench shall be composed of all the Judges of that High Court.

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 1. The plaintiff, Jacob Smith is 50 year old man. He suffers from a specific type of cancer
known as non-Hodgkin’s Lymphoma.
2. Mr. Smith first sought medical attention, lump under his right arm in July 2016. This
symptom manifested itself 18 months prior, before he take matter up with his general
practitioner in July 2016.
3. The respondent, Dr. Andrew Holland, who was a medical practitioner, in Queensland.
According to Smith, Dr. Holland was his “regular doctor”.
4. Dr. Holland considered his lump as a Lipoma that is a benign collection of fatty tissue.
He did not refer him to a specialist for confirmation or otherwise of his diagnosis. After
six months of consulting to Dr. Holland, he left his city to Renac. In August 2017, he saw
his new general practitioner, Dr. Anushka Patel, concurred that lump was “probably a
Lipoma”, but out of caution referred him on non-urgent basis to the Princess Alexandria
Hospital in Warlong city for further investigation.
5. The consultant who examined Mr. Smith on this referral in November 2017 has some
suspicion about lump and arranged for biopsy, and after four days later, confirmed that it
is a Lymphoma.
6. A CT scan from early December 2017 did not show any sign of disease and on 26
January 2018, he admitted to PAH with intense chest pain. Chemotherapy was
administered and supplemented by course of radiotherapy because of spread of
lymphoma-spread into the left thorax. Further investigation, in August 2018, the high
dose of Chemotherapy was suggested and he was discharge in early September 2018.
7. In November 2018, he suffered relapse and was told he could not cure. In April 2019,
there was thought to have another relapse but it never happened and Chemotherapy was
prescribed.
8. The effects on him and his life have been devastating. He suffered severe side effects. He
had to give up work and felt very week all the time.
9. Mr. Smith submitted his claim to the court for loss and damages he suffered contending it
to be a case of medical negligence. The court observation were –
i. In the 13 months period between Mr. Smith’s initial consultation with Dr. Holland and
treatment started, dr. Holland should advised the claimant to consult with specialist to

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 achieve complete information about the lump so there will be a chance of avoiding high
dose of chemotherapy.
ii. Expert evidence from Professor Stanhope was uncontradicted, he would have had a
remission chance of approximately 45% which reduce to 30% because of delay.
iii. It is not possible to say that without the adverse prognostic factor delay the plaintiff
would become disease free survivor, or avoided the high dose chemotherapy. He may do
but it is not possible to say.
iv. What can be said is that Mr. Smith situation is negatively affected because of the delay in
seeking expert advice about the putative lipoma.
10. Based on what was, on the whole, court made the following findings.
11. The negligent failure on the part of Dr. Holland. If Dr. Holland made the referral in July
2016, it is probable that Smith condition will not became that much serious.
12. Accordingly, I find that Dr. Holland is liable in negligence for his failure to take
appropriate diagnostic step in August 2017, the result of result of which was Mr. Smith’s
less favorable outcome.
13. Both parties accept the quantum of damages claim by the plaintiff Mr. Smith, which is
$185000 plus $24,674 in interest under the appropriate scale.
14. However, the court is anxious by the fact that Mr. Smith delayed seeking any form of
medical diagnosis or treatment for a period, of 18 months. Faced with the symptom as he
described them, M. Smith’s delay in seeing Dr. Holland was itself a material contributor
to the development of disease.
15. While, there is a lack of clinical evidence or opinion as to the precise effect this delay
might have had on the progression of Mr. Smith’s condition, such delay amounted to
contributory negligence on the part of the plaintiff.
16. Accordingly, I am reducing the amount awarded in damages by 35%.

S T A T E M E N T O F I S S U E S

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1: Whether the Appellant is liable under Medical Negligence?

2: Whether Mr. Smith can be consider as “Consumer” under Section 2(7)of the Consumer
Protection Act 2019?

3: Whether the Respondent is liable under the Contributory Negligence?

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 S U M M A R Y O F A R G U M E N T S

I. APPELLANT IS LIABLE FOR MEDICAL NEGLIGENCE

The counsel humbly submits before the Hon’ble Court that appellant is liable for
medical negligence. Dr. Holland wrongly diagnosed lump as lipoma and fail to
referred the respondent to the specialist. Hence wrong diagnosed result can be the
part of medical negligence which results in subsequent delay in treatment. Had
reduced the chance of survival to 30%. The delay in treatment has caused tumor to
spread which was found later. Hence here the wrong diagnosis, failure to perform
standard duty of care clearly established the tort of medical negligence on the part
of Dr. Holland.

II. MR. SMITH CAN BE CONSIDER AS “CONSUMER” UNDER SECTION 2

(7) OF THE CONSUMER PROTECTION ACT 2019
III. The counsel humbly submits before the Hon’ble Court that Respondent is consumer
under the Consumer Protection Act 2019.The case reference it can be said that Mr.
Smith is a consumer and Dr. Holland is service provider. Wrong treatment or
diagnosis done by Mr. Holland toward Mr. Smith comes under the purview of
deficiency in services. Here by, he was not only negligent but was also failed in
performing his duties and taking standard care towards his patient. By referring to
the above case, Mr. Smith is diagnosed wrongly & hence there was deficiency on
the part of Dr. Holland.
IV. RESPONDENT IS NOT LIABLE FOR CONTRIBUTORY NEGLIGENCE
The counsel humbly submits before the Hon’ble Court that Respondent is not liable
for contributory negligence because Dr. Holland owes duty of care towards the
respondent and breach of duty (wrong diagnosis) caused Mr. Smith sereve pain and
had developed serious tumor in left thorax which resulted into low life expectancy.
Hence, Mr. Smith should be compensation.

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Dr. Holland and Mr. Smith were into fiduciary relationship therefore Mr. Smith
believe on the treatment of and Dr. Holland and didn’t question him. Hence he is
not liable for contributory Negligence.

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 A R G U M E N T S A D V A N C E D

I. APPELLANT IS LIABLE FOR MEDICAL NEGLIGENCE

1. The counsel humbly submits before the Hon’ble Court of Renac, that Dr. Holland should be
held liable for medical negligence. A person who holds himself out ready to give medical
advice and treatment impliedly undertakes that he is possessed of skill and knowledge for
the purpose. Such a person when consulted by a patient owes him certain duties viz., “a duty
of care” in deciding what treatment is to given etc. A breach of these duties gives a right of
action to the patient for negligence2.
2. Hence in the instant case, Appellant, Dr. Holland has the duty of care towards the
respondent, Mr. Smith because here - Doctor has some responsibilities, to take the reasonable
care of the patient; to exhibit reasonable skill. Breach of any of the duties gives a right of
action for negligence to the patient.
3. Fiduciary Relation refers to a person having a duty to act for benefit of another, showing
good faith and where each other person reposes trust and special confidence in the person
owning or discharging the duty.3. Therefore, Doctor- patient relationship is fiduciary
relationship.
4. In the case of Dayanand Medical College & Hospital,Ludhiana v. Jugal Kishore Syal 4, the
complainant was suffering from ulcerative colitis, got examined as having pain in the
stomach. Doctors diagnosed the same as cancer. Due to irresponsible and careless act on the
part of doctor the complainant underwent a major surgery, resulting in severe pain, financial
loss and mental agony. It was held that the doctor committed negligence in service by giving
a wrong report.
5. Wrong diagnosis was also examined in a case where the complainant alleged that the doctor
had wrongfully diagnosed his ailment as single vessel disease coronary disease. It was
observed that diagnosis is nothing but forming an opinion examination of patient suffering

2
Medical Negligence &Legal Remedies, Anoop K Kaushal, Third Edition, 21
3
Medical Negligence &Legal Remedies, Anoop K Kaushal, Third Edition 2
4
Dayanand Medical College & Hospital,Ludhiana v. Jugal Kishore Syal, 2000(3)CPR 450

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 from disease. Diagnosis may consist of physical as well as clinical examination. Only on
such examination the opinion is formed as to the disease from which the patient is suffering.5
6. The delay in diagnosis in present case that cause injury because the tumor had spread across
the body as the result in delay in diagnosis and therefore required the elements foe claim in
negligence. – (a) Duty owed , (b) duty breached , (c) loss caused by the bridged , are
enough to satisfied and claim compensation that should include damages reduction in
chances of survival should be a head of damages in its right for which compensation can be
claimed.
7. And part from injury caused, reduction in chances in survival should be a head of damages
and its own right for which compensation can be claimed in the insted case, negligence of Dr.
Holland, to render his services as caused smaller livelihood to Mr. Smith.
8. It can be hold from above arguments that the Holland has wrongly diagnosed the
Respondent, Mr. Smith he considered that it as a lipoma. Therefore he should be held liable
for Medical Negligence and compensation should be granted to him as he suffered from
many bodily damages.
9. In the case of, Mc Donnel V. Holwerda,6 it was held that defendant general practitioner was
held liable for failing to refer a young child with meningitis to hospital, having diagnosed
gastroenteritis. There was also inadequate examination of rash required undressing of the
child.
10. The negligent delay in diagnosis, allow lymphoma having spread into left thorax: the bodily
pain and extra suffering from which was administrated six times and was supplemented by a
course of radiotheraphy.
11. Hence in the case, Dr. Holland also fails to refer Mr. Smith “Dr. Holland did not refer him to
a specialist for confirmation or otherwise of his diagnosis.” He didn’t show proper standard
of care and has not performed his duty in diligent manner.
12. Negligence means: the omission to do something which a reasonable man, guided by those
ordinary consideration regulated human would not do.

5
Medical Negligence& Compensation, Dr. Jagdish Sing,19
6
McDonnel V. Holwerda, (2005)EWHC1081: (2005)Lloyd’s Rep. Med. 423.

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13. The idea of negligence and duty are strictly corrective. Negligence means either subjective a
careless state of mind, or objectively careless conduct. Negligence is not an absolute term,
but is a relative one; it is rather a comparative term.
14. An individual licensed to practice medicine is presumed to possess that degree of skill and
learning which is possessed by the average members of the profession in the community in
which he practices, and it is presumed that he has applied that skill and learning with
ordinary and reasonable care to those who come to him for treatment.
15. Medical negligence is define as lack of reasonable care and skill or willful negligence on
the part of a doctor in respect to acceptance of patient, history taking, examination,
diagnosis, investigation, treatment- medical or surgical, etc. resulting in injury or damage to
patient.
16. In the Land Mark case Kusum Sharma v Batra Hospital and Medical Research Centre,7

(i) Negligence is the breach of duty by omission to do something, which a

prudent and reasonable man would do.
(ii) Negligence is essential ingredient of the offence, to be established by the
prosecution must be culpable or gross and not the negligence based upon an
error of judgment.

17. Hence, Dr. Holland should be held liable under the Medical Negligence for the wrong
diagnosis and not performing Standard Care of Duty as a medical profession should perform.
18. He should also be held liable for breach of duty towards patient Mr. Smith as he didn’t refer
him to the senior Dr. in case of doubt.
19. The counsel humbly submits before the Hon’ble Court of Renac, that Dr. Holland should be
held liable under Medical Negligence.

II. MR. SMITH CAN BE CONSIDER AS “CONSUMER” UNDER SECTION 2 (7)

OF THE CONSUMER PROTECTION ACT 2019

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Kusum Sharma v Batra Hospital and Medical Research Centre,2010(3)SCC 480

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20. The counsel humbly submits before the Hon’ble Court of Renac, that Dr. Holland should be
held liable for medical negligence under CPA.

Under section 2(7) of the Consumer Protection Act, it is stated that “consumer” is anyone who:

 (i) buys any goods for a consideration which has been paid or promised or partly paid and partly
promised, or under any system of deferred payment and includes any user of such goods other
than the person who buys such goods for consideration paid or promised or partly paid or partly
promised, or under any system of deferred payment, when such use is made with the approval of
such person, but does not include a person who obtains such goods for resale or for any
commercial purpose; or 

(ii) hires or avails of any service for a consideration which has been paid or promised or partly
paid and partly promised, or under any system of deferred payment and includes any beneficiary
of such service other than the person who hires or avails of the services for consideration paid or
promised, or partly paid and partly promised, or under any system of deferred payment, when
such services are availed of with the approval of the first-mentioned person, but does not include
a person who avails of such service for any commercial purpose8

21. Indian Medical Association v V.P. Shantha and others9 in deciding this case of deficiency of
medical service, the court held that the services rendered by a medical professional fall
within the ambit of ‘services’ under the section 2(1)(o) of the Act. It rejected the contention
that a medical practitioner, being a professional and falling under the scope of Indian
Medical Council Act, stands excluded from the CPA. From the above definition and the case
reference it can be said that Mr. Smith is a consumer and Dr. Holland is service provider.
22. Deficiency is defined in the Consumer Protection Act under section 2(11):
23. Deficiency, within the meaning of the Act, is always of service. So, problems in the goods
purchased are defects and defects in services availed is labeled as a deficiency. “deficiency”
means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner

8
Section (2)7of CPA
9
Indian Medical Association v V.P. Shantha and others,(1995)6 SCC 651

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 of performance which is required to be maintained by or under any law for the time being in
force or has been undertaken to be performed by a person in pursuance of a contract or
otherwise in relation to any service and includes:

(i) Any act of negligence or omission or commission by such person which causes loss or injury
to the consumer; and 

(ii) Deliberate withholding of relevant information by such person to the consumer;

24. Arvind Shah (Dr.) v KamlabenKushwaha10In this case, the complainant alleged that his son
died due to the administration of a wrong treatment by the doctor. The State Commission
upholding negligence provided a compensation of five lakh rupees.
25. In appeal, the National Commission observed that the two prescriptions that were available
on record neither contained any description of the symptoms that the patient was
experiencing nor did it have any preliminary vital information that a doctor is mandated to
check, as per the guidelines and regulation of the Medical Council of India or the concerned
State Medical Council, like body temperature, blood pressure, pulse rate, prior medical
history et cetera. If further tests were required for the diagnosis, such was also mandated to
be mentioned.
26. Dr. N. Umar v. K.M. Hameed, 11 biopsy was conducted on the patient by pathologist and
illness was wrongly diagnosed as Tuberculosis, while the patient actually suffered from
cancer. The Kerala high court said it was a clear case of medical negligence.
27. Wrong treatment or diagnosis done by Mr. Holland toward Mr. Smith comes under the
purview of deficiency in services. Here by, he was not only negligent but was also failed in
performing his duties and taking standard care towards his patient. By referring to the above
case, Mr. Smith is diagnosed wrongly & hence there was deficiency on the part of Dr.
Holland.

10
Arvind Shah (Dr.) v KamlabenKushwaha, 2003(3) CPJ 121
11
Dr. N. Umar v. K.M. Hameed, A.I.R.2014 (NOC)49(Ker.)

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 III. RESPONDENT IS NOT LIABLE FOR CONTRIBUTORY NEGLIGENCE

28. The counsel humbly submits before the Hon’ble Court of Renac, that Mr. Smith should not
be held liable for contributory negligence. Contributory Negligence can be defined as the
case where, the plaintiff by his own want of care contributes to the damage cause by the
negligence or wrongful conduct of the defendant, he is considered to be guilty of
contributory negligence.

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 12
29. In the case of, Mrs. Sydney Victor v. Janab S. Kadar Sheriff Mrs. Victor, who was
travelling in a bus was holding a window cross –bar of the bus while her right thumb was
gripping the window bar on its outer side. The lorry coming from the opposite side direction
was being driven negligently. The side of the two vehicles hit each, as a result of which Mrs.
Victor’s thumb was completely severed injured. The plea of defendant, the gripping of the
bar with the thumb outside was contributory negligence on the part of Mrs. Victor, was
rejected by the Madras High Court.
30. In Klaus Mittlebachert v. East India Hotels Ltd., 13 the plaintiff, a co-pilot in Lufthansa
Airlines checked in Hotel Oberoi. As he dived from a diving board in the swimming pool, he
hit the bottom of the pool due to insufficiency of water in the pool and got serious injuries
resulting in his paralysis, and died thirteen years after his accident. There was held to be no
contributory negligence on the part of the plaintiff so as to affect his claim for compensation
in the case.
31. When the plaintiff is negligent but his negligence has not contributed to the harm suffered by
him, the defence of contributory negligence cannot be pleaded.
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32. Municipal Board, Jaunpur v. Brahm Kishore the plaintiff, who was going on his cycle
without headlight on a road in the darkness, fell into the ditch dug by the defendant who had
not provided any light, it was held the accident could not have been avoided even if the
cyclist had fixed kerosene lamp in front of his cycle.
33. Claim for damages are based on the principle that if a person has committed a civil wrong,
here medical negligence, he must pay compension to the person wronged.
34. The counsel humbly submits before the Hon’ble Court that Respondent is not liable for
contributory negligence because Dr. Holland owes duty of care towards the respondent and
breach of duty (wrong diagnosis) caused Mr. Smith sereve pain and had developed serious
tumor in left thorax which resulted into low life expectancy. Hence, Mr. Smith should be
compensation.
35. Dr. Holland and Mr. Smith were into fiduciary relationship therefore Mr. Smith believe on
the treatment of and Dr. Holland and didn’t question him. Hence he is not liable for
contributory Negligence.

12
Mrs. Sydney Victor v. Janab S. Kadar Sheriff,A.I.R1978 Mad.344
13
Klaus Mittlebachert v. East India Hotels Ltd.,A.I.R. 1997 Delhi201
14
Jaunpur v. Brahm Kishore, ,A.I.R1978 All. 168.

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 P R A Y E R

Wherefore in the light of arguments advanced and authorities cited, the Respondent humbly
submits that the Honorable Court may be pleased to adjudge and declare that

TO HOLD

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1. Appellant is liable under Medical Negligence
2. Mr. Smith can be consider as “Consumer” under Section 2(7)of the Consumer Protection
Act 2019
3. Respondent is liable under the Contributory Negligence

And may pass,

MISCELLANEOUS

Any other order as it deems fit in the interest of justice, equity and good
conscience.

For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

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